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The Kalencom Corp. v. Shulman

United States District Court, E.D. Louisiana

January 4, 2018

THE KALENCOM CORPORATION
v.
ANNE MARIE MONTAGNE SHULMAN

         SECTION: “H” (1)

         Before the Court is Defendant's Motion to Transfer Venue (Doc. 7). For the following reasons, the Motion is DENIED.

          ORDER AND REASONS

          JANE TRICHE MILAZZO, UNITED STATES DISTRICT JUDGE.

         BACKGROUND

         This case arises out of a dispute between a former employer, The Kalencom Corporation (“Plaintiff”), and a former employee and independent contractor, Anne Marie Montagne Shulman (“Defendant”). Plaintiff worked for Defendant, a manufacturer of handbags, diaper bags, jewelry boxes, and packaging, for twenty-one years until February 2016. During the first two years of their business relationship, Defendant worked as an employee of Plaintiff at its offices in New Orleans. Thereafter, Defendant worked as an independent contractor for Plaintiff from her home in Atlanta, Georgia. Defendant provided Plaintiff with consulting services through various corporate entities that she owned or operated.

         Plaintiff alleges that after their business relationship ended, Defendant misappropriated its proprietary information and used that information to take business away from Plaintiff. Specifically, Plaintiff accuses Defendant of taking its former client, Neiman Marcus. Plaintiff brings suit against Defendant for violation of trade secrets law, trade practice law, tortious interference with a business relationship, and breach of fiduciary duty.

         Defendant filed the instant motion requesting that the case be transferred to the Northern District of Georgia, Atlanta Division, where she resides and works. Plaintiff, a New Orleans-based manufacturer, opposes this Motion.

         LEGAL STANDARD

         Defendant argues that this Court should transfer this action pursuant to 28 U.S.C. § 1404, which provides that “[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented.” As a threshold matter, it must be established that the transferee venue is one where the suit could have been brought.[1] Once that is established, the Fifth Circuit has held that courts should apply the public and private interest forum non conveniens factors enunciated by the Supreme Court in Gulf Oil Corp. v. Gilbert in determining whether good cause for venue transfer exists pursuant to § 1404(a).[2]

         The private interest factors include: “(1) the relative ease of access to sources of proof; (2) the availability of compulsory process to secure the attendance of witnesses; (3) the cost of attendance for willing witnesses; and (4) all other practical problems that make trial of a case easy, expeditious and inexpensive.”[3] The public interest factors include: “(1) the administrative difficulties flowing from court congestion; (2) the local interest in having localized interests decided at home; (3) the familiarity of the forum with the law that will govern the case; and (4) the avoidance of unnecessary problems of conflict of laws [or in] the application of foreign law.”[4] To overcome the plaintiff's choice of venue, the movant must show “good cause” or that the “transferee venue is clearly more convenient than the plaintiff's chosen venue.”[5]

         LAW AND ANALYSIS

         The parties do not dispute that the case could have been brought in the Northern District of Georgia, Atlanta Division. Accordingly, the Court may proceed directly to an analysis of the relevant factors. As outlined below, the factors indicate that transfer is not appropriate.

         1. Relative ease of access to sources of proof

         Defendant asserts that access to sources of proof is easier in the Northern District of Georgia, Atlanta Division because it is where the purported misappropriation of Plaintiff's information took place and where all of Defendant's documents pertaining to her past and present business activities are located. Defendant argues that any potential evidence that Plaintiff would need to prove its case would have to be located in Atlanta.

         Plaintiff disagrees, claiming that it has the greater volume of documents relevant to litigation and that all of the confidential information at issue in this matter is located in New Orleans. Plaintiff also points out that because the Defendant states that she no longer has any of the Plaintiff's proprietary information, the majority of relevant litigation documents must be located in New Orleans.

         In In re Volkswagen, the Fifth Circuit found that this factor weighed in favor of transfer because all of the documents and physical evidence relating to the accident at issue in that trial were in the proposed transferee venue.[6]“This analysis turns on which party will most probably have the greater volume of documents relevant to the litigation and their presumed location in relation to the transferee and transferor venues.”[7] Here, it appears that relevant documentation is located in both venues. Defendant has not shown that a majority of the documents are located in Atlanta or that the documents in Atlanta are of a greater significance to the case. Accordingly, this factor is neutral.

         2. Availability of compulsory process over witnesses

         The next factor considers the subpoena power of both venues. Under the Federal Rules of Civil Procedure, courts have subpoena power to command the appearance of non-party witnesses for depositions or trial within “(A) 100 miles of where the person resides, is employed, or regularly transacts business in person; or (B) the state where the person resides, is employed, or regularly transacts business in person, if the person (i) is a party or a party's officer; or (ii) is commanded to attend a trial and would not incur substantial expense.”[8]Accordingly, a trial subpoena to travel more than 100 miles is subject to a motion to quash that subpoena.[9] The Eastern District of Louisiana courthouse and the Northern District of Georgia, Atlanta Division courthouse are approximately 470 miles apart. Accordingly, witnesses from one district are not subject to compulsory service in the other.

         Here, Plaintiff states that it will rely on the testimony of its current and former employees in New Orleans, as well as Neiman Marcus employees located in Dallas. Defendant states that she will rely on the testimony of her current customers and co-workers located in the Atlanta area, in addition to Neiman Marcus employees in Dallas. As a result, neither venue will have ...


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