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BCS Fluids, LLC v. Alpine Exploration Companies, Inc.

United States District Court, E.D. Louisiana

March 18, 2019

BCS FLUIDS, L.L.C., Plaintiff
v.
ALPINE EXPLORATION COMPANIES, INC., Defendant

         SECTION: “E” (2)

          ORDER AND REASONS

          SUSIE MORGAN UNITED STATES DISTRICT JUDGE.

         Before the Court is a Motion to Transfer Venue to the United States District Court for the Northern District of Texas, Dallas Division, filed by Defendant Alpine Exploration Companies, Inc. (“Alpine”).[1] Plaintiff BCS Fluids, L.L.C. (formerly known as Borehole Control, LLC) (“BCS”) opposes.[2] For the reasons that follow, the motion is DENIED.

         BACKGROUND

         Plaintiff BCS, a limited liability company, is a Louisiana citizen for purposes of diversity jurisdiction because its sole member is Kenneth Waters, a Louisiana domiciliary.[3] Defendant Alpine is a Texas citizen because it is a Texas corporation with its principal place of business in Texas.[4]

         BCS alleges it provided goods and services in connection with Alpine's drilling operations in Louisiana[5] in the amount of $629, 279.16.[6] BCS alleges Alpine made payments on the account in the amount of $166, 934.68, leaving an unpaid balance of $462, 344.48 as of October 6, 2015.[7] BCS alleges, on December 7, 2015, the parties executed a promissory note obligating Alpine to pay BCS monthly installments of $39, 157.66 until the principal amount of $462, 344.48 was paid in full.[8] The promissory note was notarized in Dallas, Texas, and includes a provision that the note be governed by Texas law.[9] BCS alleges it has not received payments on the note since May 31, 2017, Alpine has defaulted on its loan obligations, and the unpaid balance on the loan is $195, 786.02.[10]

         On November 20, 2018, BCS filed the instant suit.[11] On December 19, 2018, Alpine filed its Answer.[12] Because the Answer does not mention venue, Alpine has waived its right to raise improper venue in the Eastern District of Louisiana, as opposed to the Western District of Louisiana, as an affirmative defense.[13] On December 20, 2018, Alpine filed the instant motion to transfer venue to the Northern District of Texas pursuant to 28 U.S.C. § 1404(a).[14] BCS opposes.[15]

         LEGAL STANDARD

         28 U.S.C. § 1404(a) provides, “For the convenience of the 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.”[16] “[T]he purpose of the section is to prevent the waste ‘of time, energy and money' and ‘to protect litigants, witnesses and the public against unnecessary inconvenience and expense.'”[17] The party seeking transfer “must show good cause. . . . [T]o show good cause means that a moving party, in order to support its claim for a transfer, must satisfy the statutory requirements and clearly demonstrate that a transfer is for the convenience of parties and witnesses, in the interest of justice.”[18]

         Courts applying § 1404(a) first determine “whether the judicial district to which transfer is sought would have been a district in which the claim could have been filed.”[19]The Supreme Court has held this refers to federal laws concerning venue and jurisdiction, not to “laws of the transferee State concerning the capacity of [the plaintiffs] to bring suit.”[20] The court then considers a “number of private and public interest factors, ” none of which is given dispositive weight, to determine whether transfer serves the convenience of the parties and witnesses.[21]

         ANALYSIS

         This suit could have been brought under the court's diversity jurisdiction in the Northern District of Texas. The United States District Court for the Northern District of Texas has personal jurisdiction over Defendant Alpine because Alpine is a Texas corporation with its principal place of business in Dallas, Texas.[22] Venue is proper in “a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located, ”[23] and Alpine, the only defendant in this case, is domiciled in Dallas, Texas, within the Northern District of Texas.

         I. The private concerns weigh against transfer.

         The Court turns to the factors used to determine whether transfer serves the convenience of the parties and witnesses. The Fifth Circuit considers the following private factors in determining motions to change venue:

(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.[24]

         A. Ease of Access to Sources of Proof

         Alpine argues the first factor weighs in favor of transfer because “most sources of proof will be located in the Northern District of Texas, Dallas Division. The Note was signed and notarized in Dallas, Texas. Evidence of payments on the Note will be primarily located in Dallas, Texas.”[25] BCS responds that evidence of payments will be proven by BCS representatives living in Covington, Louisiana, not in Dallas.[26]

         With respect to the first private factor, “the question is relative ease of access, not absolute ease of access.”[27] The Court finds, while there may be some evidence of payments at Alpine's office in Dallas, there also is evidence of payment at BCS's office in the Eastern District of Louisiana. As a result, the first factor is neutral.

         B. Availability of Compulsory Process

         Alpine argues the second factor weighs in favor of transfer, because “most, if not all, of the potential witnesses in this case are located in the Northern District of Texas, Dallas Division, ” outside of the subpoena power of the Court.[28] The witnesses Alpine lists are the notary, the Defendant's principal, and the witnesses to the signing of the note.[29]Because it appears Alpine does not contest the authenticity of the note, the notary and witnesses are not likely to be witnesses.

         BCS argues that its witnesses are located in the Eastern District of Louisiana.[30] Rule 45(c) of the Federal Rules of Civil Procedure provides:

         A subpoena may command a person to attend a trial, hearing, or deposition only as follows:

(A) within 100 miles of where the person resides, is employed, or regularly transacts business in person; or
(B) within 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.[31]

         The Court finds that, if the case were tried in the Northern District of Texas, compulsory process would be available for Alpine employees, but not BCS employees. If the case were tried in this district, compulsory process would be available for BCS employees, but not for Alpine employees. As a result, this factor is neutral.

         BCS also argues that, because Alpine regularly transacts business in Jefferson Parish, Louisiana, its president Tim Washington is within this Court's subpoena power.[32] In support, BCS attaches an affidavit attesting that the Jefferson Parish Clerk of Court's online land records database reflects extensive transactions by Alpine in Jefferson Parish.[33] To the extent Alpine officers or employees who regularly transact business in person in Jefferson Parish may be witnesses in this case, they are subject to this Court's subpoena power, and this factor weighs against venue transfer.

         C. Cost ...


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