IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

EL PASO DIVISION

TRACIE SMITH,

individually and as legal

representative of the

estate of DANIEL 

SMITH,

Plaintiff,

v.

FCA U.S., LLC, ROBERT

BOSCH, LLC, COMMERCE

AUTO GROUP, LP, and

RANDALL NOE

CHRYSLER DODGE, LLP,

Defendants.

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EP-20-CV-56-PRM

MEMORANDUM OPINION AND ORDER 

GRANTING MOTION TO TRANSFER VENUE

On this day, the Court considered Defendant Robert Bosch, LLC

[hereinafter “Defendant Bosch”] and Defendant FCA U.S., LLC’s

[hereinafter “Defendant FCA”] “Joint Motion to Transfer Venue” (ECF 

No. 15) [hereinafter “Motion to Transfer”], filed on March 11, 2020,

Plaintiff Tracie Smith’s [hereinafter “Plaintiff”] “Opposition to

Defendants’ Joint Motion to Transfer Venue” (ECF No. 19) [hereinafter 

“Response”], filed on April 2, 2020, and Defendants Bosch and FCA’s

“Reply in Support of their Motion to Transfer Venue” (ECF No. 22) 

Case 3:20-cv-00056-PRM Document 26 Filed 07/29/20 Page 1 of 20
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[hereinafter “Reply”], filed on April 8, 2020, in the above-captioned 

cause. After due consideration, the Court is of the opinion that 

Defendant Bosch and FCA’s Motion to Transfer should be granted, and 

the cause should be transferred to the Northern District of Texas,

Abilene Division, for the reasons stated herein.

I. FACTUAL AND PROCEDURAL BACKGROUND

This case arises out of a fatal car accident. On October 17, 2018, 

Decedent Daniel Smith [hereinafter “Decedent”] was traveling 

eastbound through Nolan County, Texas on Interstate Highway Twenty

in a 2015 Dodge Ram 1500 pickup truck. Pl.’s Original Pet., Jury 

Demand and Req. for Disclosure [hereinafter “Petition”] ¶¶ 6.16, 6.17,

Jan. 17, 2020, ECF No. 1-1; Notice of Removal Ex. M, at 25, Mar. 2, 

2020, ECF No. 1-13. Decedent lost control of the vehicle, crashed, and 

rolled over. Pet. ¶ 6.17. The vehicle’s side airbags and air curtains 

failed to deploy. Id. at ¶ 6.19. 

In the aftermath of the accident, Decedent was transported to the 

Hendrick Medical Center in Abilene, Texas, where he succumbed to his 

injuries. Id. at ¶ 6.20. Officer Gabriel Llanas, a member of the Texas 

Highway Patrol stationed in Sweetwater, Texas, compiled a “Major 

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Crash Investigation” of the incident. Notice of Removal Ex. M, at 24–

41. The investigation included interviews with witnesses, a detailed 

examination of the accident scene, and an opinion on the cause of the 

crash. Id. 

Defendant FCA, a Delaware corporation with its principle place of 

business in Auburn Hills, Michigan, manufactured Decedent’s 2015 

Dodge Ram 1500 pickup truck. Pet. ¶ 3.02. The vehicle includes an 

Occupant Restraint Control [hereinafter “ORC”] safety system. Id. at 

¶ 6.06. According to Plaintiff, the ORC is a network of software and 

sensors that controls a vehicle’s side airbags, roll-activated air curtains, 

and seat belt pretensioners. Id. at ¶¶ 6.06, 6.09. The ORC “utilizes 

software and data transmitted from sensors on the vehicle in order to 

determine . . . the circumstances that deployment of the front or side 

airbags, air-curtains, and/or seat belts is appropriate.” Id. at ¶ 6.09.

Defendant Bosch, a Delaware corporation with its principal place 

of business in Farmington Hills, Michigan, designs and manufactures 

the ORC for Dodge Ram pickup trucks. Id. at ¶¶ 3.03, 6.07. Plaintiff 

alleges that Defendant Bosch manufactured the ORC used in 

Decedent’s vehicle in Juarez, Mexico. Id. at ¶ 4.07. Plaintiff also claims 

Case 3:20-cv-00056-PRM Document 26 Filed 07/29/20 Page 3 of 20
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that Defendant Bosch develops ORCs by shipping component parts 

through its Foreign Trade Zone [hereinafter “FTZ”] facility in El Paso, 

Texas to its manufacturing facility in Juarez, and then shipping 

completed ORCs back to the United States through the same FTZ 

facility. Id. Furthermore, Plaintiff asserts that “the manufacturing 

operations in Juarez for the ORC module and its software were directed

by the Bosch executives who work from the Bosch offices in El Paso.” 

Id.

In addition to Defendants Bosch and FCA, Plaintiff joins two instate defendants in the above-captioned cause. Defendant Commerce 

Auto Group, LP [hereinafter “Defendant Commerce”] is a Texas limited 

liability partnership with its principle place of business in Terrell, 

Kaufman County, Texas, which operates as an authorized Chrysler 

Dodge Dealer. Id. at ¶ 3.04. Defendant Randall Chrysler Dodge, LLP

[hereinafter “Defendant Randall”] is a limited partnership with its 

principle place of business in Terrell, Kaufman County, Texas, which 

also operates as an authorized Chrysler Dodge dealer. Id. at ¶ 3.05. 

Plaintiff, the widow and appointed legal representative of 

Decedent’s estate, filed suit against Defendants in the 171st Judicial 

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District Court of El Paso County, Texas on January 17, 2020. Id. at 1. 

In her Petition, she alleges causes of action against Defendants for

strict liability and negligence, primarily related to the ORC in 

Decedent’s vehicle. Id. at ¶¶ 7.01–7.03. Plaintiff also lays venue in El 

Paso County by stating that “a substantial part of the events, acts, or 

omissions . . . giving rise to the claim, namely the introduction of the 

defective ORC into the stream of commerce[,] occurred in El Paso 

County, Texas.” Id. at ¶ 5.01.

During proceedings in state court, Defendants FCA and Bosch 

separately filed motions to transfer venue to Nolan County, Texas, the 

place of Decedent’s accident. Notice of Removal Exs. B, M. Defendant 

Bosch attached the Affidavit of Matthew Coon to its motion. Id. at 

Ex. M. Therein, Mr. Coon, an Engineering Director at Bosch, attests

that “Bosch does not manufacture, design, or assemble ORCs in El Paso 

County, Texas,” “[n]o Bosch personnel involved in establishing design or 

manufacturing specifications for the ORC or its component parts work 

in Texas,” and “[n]o Bosch personnel involved in ensuring compliance 

with specifications for the ORC work in Texas.” Id. at ¶¶ 6–10.

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Defendant FCA removed the cause to the Western District of 

Texas, El Paso Division, on March 2, 2020, alleging that the Court has 

diversity jurisdiction because Plaintiff improperly joined Defendants 

Commerce and Randall. Notice of Removal 4–6. On April 1, 2020, 

Plaintiff filed a “Motion to Remand” (ECF No. 18), arguing that Plaintiff

did not improperly join these parties. 

In the instant Motion to Transfer, Defendants FCA and Bosch

reurge their earlier state-court motions to transfer the cause to Nolan 

County, Texas. Mot. Transfer 1. Now in federal court, they request a

transfer to the Northern District of Texas, Abilene Division, the federal 

jurisdiction which embraces Nolan County, Texas. Id. Defendants FCA 

and Bosch move for a transfer due to Plaintiff laying improper venue

pursuant to 28 U.S.C. § 1406(a), and, in the alternative, for the 

convenience of the parties and in the interest of justice pursuant to 28 

U.S.C. § 1404(a). Id. at 1–2.

II. LEGAL STANDARD

A. Transfer for Improper Venue 

28 U.S.C. § 1406(a) provides that, “[t]he district court of a district 

in which is filed a case laying venue in the wrong division or district 

Case 3:20-cv-00056-PRM Document 26 Filed 07/29/20 Page 6 of 20
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shall dismiss, or if it be in the interest of justice, transfer such case to 

any district or division in which it could have been brought.”1 “This 

question—whether venue is ‘wrong’ or ‘improper’—is generally governed 

by 28 U.S.C. § 1391.” Atl. Marine Const. Co. v. U.S. Dist. Court for W. 

Dist. of Texas, 571 U.S. 49, 55 (2013). The Court must determine 

“whether the case falls within one of the three [venue] categories set out 

in § 1391(b).” Id. at 56. “If it does, venue is proper; if it does not, venue 

is improper, and the case must be dismissed or transferred under 

§ 1406(a).” Id.

“The decision whether to dismiss or transfer the case under 

§ 1406(a) lies within the discretion of the Court.” AllChem Perf. Prods., 

Inc. v. Aqualine Warehouse, LLC, 878 F. Supp. 2d 779, 788 (S.D. Tex. 

2012) (citing Dubin v. United States, 380 F.2d 813, 815 (5th Cir. 1967)). 

The weight of judicial authority also suggests that “[o]nce challenged, 

1 Defendants Bosch and FCA cite federal and state law in their Motion 

to Transfer, whereas Plaintiff relies on federal law in her Response. 

Mot. Transfer 4; Resp. 3. The Court sees no conflicts between federal 

and state law in the cause. Nevertheless, the Court applies federal law 

in this Order because transfer is a matter of procedure, and federal 

procedural law governs in a diversity case. See Weatherly v. Pershing, 

L.L.C., 945 F.3d 915, 925 (5th Cir. 2019) (“In a diversity case, we apply 

federal procedural rules and state substantive law.”). 

 

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the burden of sustaining venue lies with the plaintiff.” Am. Income Life 

Ins. Co. v. Hartin, No. 619CV00266ADAJCM, 2019 WL 4061686, at *1

(W.D. Tex. June 19, 2019) (citations omitted); see also Seariver Mar. 

Fin. Holdings, Inc. v. Pena, 952 F. Supp. 455, 458 (S.D. Tex. 1996); 

Smith v. Fortenberry, 903 F. Supp. 1018, 1020 (E.D. La. 1995) (holding 

the same).

B. Transfer for the Convenience of the Parties and 

Witnesses, and in the Interest of Justice

28 U.S.C. § 1404(a) 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.” District courts have “broad discretion in deciding 

whether to order a transfer” pursuant to § 1404(a). Balawajder v. Scott, 

160 F.3d 1066, 1067 (5th Cir. 1998) (quoting Caldwell v. Palmetto State 

Sav. Bank, 811 F.2d 916, 919 (5th Cir. 1987)). When a movant 

“demonstrates that the transferee venue is clearly more convenient” 

than the venue originally chosen by the plaintiff, the movant “has 

shown good cause and the district court should grant the transfer.” 

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In re Volkswagen of Am., Inc. (Volkswagen II), 545 F.3d 304, 315 (5th 

Cir. 2008).2

The threshold question in a § 1404(a) transfer analysis is whether 

the suit “could have been filed” in the proposed transferee district. In re 

Volkswagen AG (Volkswagen I), 371 F.3d 201, 203 (5th Cir. 2004). If 

the answer to that question is yes, then a court must consider a variety 

of public and private interest factors to determine whether the movant’s 

choice of forum is “clearly more convenient.” Volkswagen II, 545 F.3d at 

315.

The private interest factors that courts may consider 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. 

2 The Fifth Circuit has held that the “‘good cause’ burden reflects the 

appropriate deference to which the plaintiff's choice of venue is 

entitled.” Volkswagen II, 545 F.3d at 315 (quoting Humble Oil & Ref. 

Co. v. Bell Marine Serv., Inc., 321 F.2d 53, 56 (5th Cir. 1963)). Thus, 

while the Court notes that “the plaintiff is generally entitled to choose 

the forum,” the Court addresses Plaintiff’s choice of forum solely by 

applying the good cause legal standard. Peteet v. Dow Chem. Co., 868 

F.2d 1428, 1436 (5th Cir. 1989).

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Volkswagen II, 545 F.3d at 315 (internal quotations omitted) (quoting 

Volkswagen I, 371 F.3d at 203). The public interest factors that courts 

may consider 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.

Id.

III. ANALYSIS 

Defendants FCA and Bosch move for a transfer to the Northern 

District of Texas, Abilene Division, on two independent grounds: 

(1) Plaintiff laying improper venue, and (2) the convenience of the 

parties and witnesses, and in the interest of justice. The Court is of the 

opinion that Plaintiff has laid proper venue in the Western District of 

Texas, El Paso Division. However, the Court will transfer the cause to 

the Northern District of Texas, Abilene Division, for the convenience of 

the parties and witnesses, and in the interest of justice. 

A. Order of Motions

As an initial matter, the Court determines that it is appropriate to 

consider Defendant Bosch and FCA’s instant Motion to Transfer before 

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Plaintiff’s Motion to Remand. “Although courts generally determine 

subject matter jurisdiction first, ‘federal courts need not decide a motion 

to remand a removed case before ruling on a motion to transfer to 

another district.’” McPeters v. LexisNexis, a Div. of Reed Elsevier, Inc., 

No. SA-11-CA-154-FB, 2011 WL 13253948, at *2 (W.D. Tex. May 27, 

2011) (citing Huntsman Corp. v. Int’l Risk Ins. Co., No. 1:08-CV-029, 

2008 WL 1836384, at *3 (E.D. Tex. Apr. 22, 2008)). Here, the Court is 

of the opinion that ordering a transfer will not prejudice Plaintiff’s

Motion to Remand. In addition, a court sitting in the appropriate forum

for this case should have the benefit of deciding Plaintiff’s Motion to 

Remand. Accordingly, the Court will rule on Defendant’s Motion to 

Transfer before Plaintiff’s Motion to Remand. 

B. Improper Venue 

Defendant moves for the Court to transfer the cause pursuant to 

§ 1406(a), arguing that Plaintiff’s choice of venue in the Western 

District of Texas, El Paso Division, is improper. However, the Court is 

of the opinion that a transfer on these grounds should be denied, 

because proper venue lies in the Western District of Texas, El Paso 

pursuant 28 U.S.C. § 1391(b)(1). 

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Section 1391(b)(1) provides that a civil action may be brought in “a 

judicial district in which any defendant resides, if all defendants are 

residents of the State in which the district is located.” An entity that 

can sue and be sued, such as a corporation, resides “in any judicial 

district in which such defendant is subject to the court’s personal 

jurisdiction with respect to the civil action in question.” § 1391(c)(2). 

To determine the residency of a corporation in a state with multiple 

districts, such as Texas, the corporation “shall be deemed to reside in 

any district in that State within which its contacts would be sufficient 

to subject it to personal jurisdiction if that district were a separate 

State, and, if there is no such district, the corporation shall be deemed 

to reside in the district within which it has the most significant 

contacts.” § 1391(d). 

Here, the Court is of the opinion that venue in the Western 

District of Texas, El Paso Division is appropriate pursuant to 

§ 1391(b)(1). Plaintiff sues four separate corporate entities, each of 

which is subject to a court’s personal jurisdiction in Texas. Thus, for 

the purposes of the venue statute, § 1391(c)(2), Defendants are 

residents of Texas. In addition, the Court notes that in the aboveCase 3:20-cv-00056-PRM Document 26 Filed 07/29/20 Page 12 of 20
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captioned cause, it could likely exercise personal jurisdiction over 

Defendant Bosch in the Western District of Texas, El Paso Division,

because Defendant Bosch conducted ORC import and export activities 

through El Paso’s FTZ. See J. McIntyre Mach., Ltd. v. Nicastro, 564 

U.S. 873, 887 (2011) (requiring a defendant to “invoke or benefit from 

the protection of [the forum’s] laws” to establish personal jurisdiction). 

Therefore, for the purposes of the venue statute, § 1391(c)(2), Defendant 

Bosch is a resident of the Western District of Texas. Accordingly, 

because Defendant Bosch is a resident of the Western District of Texas,

El Paso Division, and all of the Defendants are residents of Texas, 

venue is proper in the Western District of Texas, El Paso Division

pursuant to § 1391(b)(1). 

The Court does not reach Defendants’ argument that the cause 

should be transferred for Plaintiff laying improper venue pursuant to 

§ 1391(b)(2). The Court is mindful that in her Petition, Plaintiff lays 

venue pursuant to § 1391(b)(2), where “a substantial part of the events 

or omissions giving rise to the claim occurred.” However, the Supreme 

Court has held that when considering a § 1406(a) motion to transfer, a 

court should assess whether a case “falls within one of the three 

Case 3:20-cv-00056-PRM Document 26 Filed 07/29/20 Page 13 of 20
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categories set out in § 1391(b).” Atl. Marine Const. Co., 571 U.S. at 56. 

This case falls within the § 1391(b)(1) category, based on the residency 

of Defendants. Accordingly, the Court does not address Defendant

Bosch and FCA’s argument that Plaintiff lays improper venue pursuant 

to § 1391(b)(2).

C. The Convenience of the Parties and Witnesses, and 

the Interest of Justice

Because Defendants FCA and Bosch’s Motion to Transfer fails on 

the grounds of improper venue, the Court assesses whether the case 

should be transferred for the convenience of the parties and witnesses,

and in the interest of justice, pursuant to § 1404(a). The Court is of the 

opinion that the cause should be transferred because it would be clearly 

more convenient for the parties to litigate in Defendant Bosch and 

FCA’s proposed transferee forum, the Northern District of Texas, 

Abilene Division. 

1. Whether the Suit Could Have Been Brought in the 

Proposed Transferee Forum

In order to transfer a cause pursuant to § 1404(a), the Court must 

first determine whether the suit “could have been filed” in the Northern 

District of Texas, Abilene Division. Volkswagen I, 371 F.3d at 203. 

Case 3:20-cv-00056-PRM Document 26 Filed 07/29/20 Page 14 of 20
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Because whether a court can exercise personal jurisdiction over 

Defendants in Texas is not in issue, the Court examines only venue 

here. See In re Rolls Royce Corp., 775 F.3d 671, 680 n.42 (5th Cir. 2014) 

(requiring the Court to assess whether the proposed forum can

“properly exercise[] personal jurisdiction and venue over the 

defendant”). 

The Court is of the opinion that there is proper venue in the 

proposed transferee forum, the Northern District of Texas, Abilene 

Division, pursuant to 28 U.S.C. § 1391(b)(2). Section 1391(b)(2)

provides that venue is proper in a judicial district where a “substantial 

part of the events or omissions giving rise to the claim occurred.” Like 

in similar cases, Decedent’s accident, which occurred in the proposed 

transferee forum, qualifies as a substantial part of the events giving 

rise to Plaintiff’s claim. See Ortiz v. Robert Holman Trucking, Inc., No.

B-06-020, 2006 WL 1098904, at *2 (S.D. Tex. Apr. 11, 2006) (“Courts 

have held that the place where an accident occurred is a proper 

venue.”). Accordingly, venue is proper in the Northern District of 

Texas, Abilene Division. 

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2. Whether Defendants’ Choice of Forum is Clearly More 

Convenient

After assessing whether the cause could have been filed in the 

proposed transferee forum, the Court next considers whether the 

proposed transferee forum is “clearly more convenient” than the 

transferor forum. Volkswagen II, 545 F.3d at 315. Weighing all of the 

relevant private and public interest factors, the Court is of the opinion 

that the Northern District of Texas, Abilene Division is clearly more 

convenient than the Western District of Texas, El Paso Division. 

Accordingly, the Court will transfer the cause pursuant to § 1404(a). 

The first private interest factor, access to sources of proof, weighs 

strongly in favor of transfer. Decedent obtained medical treatment for 

his injuries in Abilene, Texas, and his vehicle accident occurred in 

Nolan County, Texas. Both of these locations are within the Northern

District of Texas, Abilene Division. Thus, it would be clearly more 

convenient to access documents, records, and other evidence related to 

these key events in the Northern District of Texas, Abilene Division, 

rather than the Western District of Texas, El Paso Division. See 

Optimum Power Solutions LLC v. Apple, Inc., 794 F. Supp. 2d 696, 701 

(E.D. Tex. 2011) (“Courts analyze this factor in light of the distance that 

Case 3:20-cv-00056-PRM Document 26 Filed 07/29/20 Page 16 of 20
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documents, or other evidence, must be transported from their existing 

location to the trial venue.”).

The second private interest factor, the availability of compulsory 

process, also weighs in favor of transfer. Courts emphasize that the 

availability of compulsory process applies “only [to] non-party 

witnesses.” Vargas v. Seamar Divers Intern., LLC, No. 2:10-CV-178-

TJW, 2011 WL 1980001, at *5 (E.D. Tex. May 20, 2011). Here, likely 

non-party witnesses include Officer Gabriel Llanas, who works in 

Sweetwater, Texas, and medical personnel, who work in Abilene, Texas. 

These witnesses work within the Northern District of Texas, Abilene 

Division, and do not appear to reside, work, or do business within 100 

miles of the Western District of Texas, El Paso Division. Accordingly,

the availability of compulsory process favors transfer, because it would 

be easier to secure compulsory process against these witnesses in and 

around the Northern District of Texas, Abilene Division. See Fed. R. 

Civ. P. 45(c)(1)(A) (holding that a subpoena may command a person to 

attend a trial, hearing, or deposition “within 100 miles of where the 

person resides, is employed, or regularly transacts business in person”).

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The third private interest favor, the cost of attendance for willing

party witnesses, is neutral as to transfer. Plaintiff asserts that “a

significant number of witnesses in this case will be connected to 

Defendant Bosch’s El Paso operations.” Resp. 5–6. However, 

Defendant Bosch’s Engineering Director attests that Bosch employees 

involved in the design, manufacture, and testing of ORCs do not work in 

Texas. Thus, because the ORC is Defendant Bosch’s only connection to 

this case, the Court is of the opinion that there are no relevant 

witnesses in this case who work for Defendant Bosch in El Paso. The 

Court also notes that the parties do not mention any other willing party 

witnesses in their filings, and the cost of traveling to El Paso versus the 

cost of traveling to Abilene from outside Texas is roughly the same. 

Therefore, the Court concludes that this factor is neutral. 

Moving to the next stage of the analysis, the Court is of the 

opinion that public interest factors also favor a transfer to the Northern

District of Texas, Abilene Division. The Court notes that there are 

significantly more case filings per judge in the Western District of Texas 

Case 3:20-cv-00056-PRM Document 26 Filed 07/29/20 Page 18 of 20
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than in the North District of Texas.3 Accordingly, administrative 

difficulties and court congestion in the Western District of Texas favor 

transfer to the of the Northern District of Texas, Abilene Division. As 

for localized interests, the Court is of the opinion that the Northern 

District of Texas, Abilene Division, has an interest in adjudicating the 

cause because the accident which gave rise to the action occurred within 

the Division. Finally, the Court concludes that a transfer would not 

raise issues related to familiarity with law or conflicts of law, because

only Texas law applies in this case and the proposed transferee forum is 

familiar with Texas law. 

IV. CONCLUSION

Although venue in the above-captioned cause is appropriate in the 

Western District of Texas, El Paso Division, the Court concludes that

the cause should be transferred pursuant to § 1404(a). Based on all of 

the relevant private and public interest factors analyzed by the Court, it 

3 See Federal Court Management Statistics, Administrative Office of the 

U.S. Courts, https://www.uscourts.gov/statistics-reports/analysisreports/federal-court-management-statistics (last accessed July 27, 

2020) (indicating 628 filings per judge in the Northern District of Texas 

and 1,238 filings per judge in the Western District of Texas for the 12-

month period ending December 31, 2019).

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is clearly more convenient for the case to proceed in the Northern 

District of Texas, Abilene Division.

Accordingly, IT IS ORDERED that Defendant Robert Bosch, 

LLC and Defendant FCA U.S., LLC’s “Joint Motion to Transfer Venue” 

(ECF No. 15) is GRANTED.

IT IS FURTHER ORDERED that the above-captioned cause is 

TRANSFERRED to the UNITED STATES DISTRICT COURT FOR 

THE NORTHERN DISTRICT OF TEXAS, ABILENE DIVISION.

4

SIGNED this 29th day of July, 2020.

PHILIP R. MARTINEZ

UNITED STATES DISTRICT JUDGE

4 Plaintiff Tracie Smith’s “Motion to Remand” (ECF No. 18) will remain 

pending and be subject to a determination in the transferee forum.

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