IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

CHARLES J. TROIS,

Plaintiff,

v.

APPLE TREE AUCTION CENTER, INC.

and SAMUEL SCHNAIDT,

Defendants.

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 Civil Action No. SA-16-CV-746-XR

ORDER

On this date, the Court considered Defendant’s motion to transfer venue pursuant to 28 

U.S.C. § 1404(a), as re-urged and supplemented after remand.

On June 23, 2016, Plaintiff Charles J. Trois filed this action against Defendants Apple 

Tree Auction Center, Inc. and Samuel Schnaidt. Trois alleges that he was contacted by 

Defendants to sell by auction several of his collectibles. After certain discussions and 

negotiations, Plaintiff prepared an inventory of his items, packed them into a trailer and truck, 

and drove them to Newark, Ohio in May 2016. He met with Schnaidt at Apple Tree’s auction 

center to show him the items, and met with “the lady who researches art and bronzes and the 

gentleman who evaluates firearms for Apple Tree.” Docket no. 4-1 at 3. They inspected the 

items, discussed pricing, and then Plaintiff signed an agreement. Apple Tree paid Trois a cash 

advance of $300,000. Apple Tree then conducted the auction in Newark, Ohio over three days 

in June 2016. The eventual net proceeds totaled only approximately $100,000, and thus Apple 

Tree sought repayment of $200,000 of the advance.
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Trois sued Apple Tree and Schnaidt for fraud and breach of contract, arguing that 

Defendants failed to perform the auction as agreed. The contract claim is based on the contract 

executed and performed in Ohio, and the fraud claim is based on alleged misrepresentations 

made during a conference call from Ohio to Texas. Plaintiff resides in Texas; Apple Tree is an 

Ohio corporation; and Schnaidt resides in Ohio. 

Defendants removed the case to this Court on July 22, 2016. On the same day, hoping 

that this case would be dismissed for lack of personal jurisdiction, Apple Tree filed suit 

against Trois in state court in Ohio, alleging breach of contract, fraud, unjust enrichment, and 

action on an account, arising out of the same facts as this lawsuit and seeking to recover the 

$200,000 cash advance balance. Thus, the Ohio case was filed approximately 29 days after 

this case.

Defendants moved to dismiss the Texas lawsuit on the basis of lack of personal 

jurisdiction and improper venue, and alternatively moved to transfer venue to Ohio under 28 

U.S.C. § 1404(a). On November 27, 2016, this Court granted the motion to dismiss, finding no 

personal jurisdiction on the contract claim and improper venue on the fraud claim. The Court 

entered a judgment of dismissal without prejudice. Plaintiff appealed. 

Meanwhile, the Ohio litigation proceeded. Trois removed the Ohio state-court case to 

the Southern District of Ohio on September 16, 2016. Trois moved to dismiss the case under 

the first-to-file rule. The motion was denied as moot on June 5, 2017 because this case had 

been dismissed. Trois then filed his answer and counterclaims on July 3, 2017. Trois asserted 

several counterclaims, including fraud/negligent misrepresentation and violations of the Ohio 

Consumer Sales Practice Act. The fraud/negligent misrepresentation claim is essentially the 
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same as Trois’s fraud claim here. The parties have engaged in depositions and written 

discovery, and discovery is set to conclude on July 30, 2018.

On February 5, 2018, the Fifth Circuit affirmed the dismissal of the contract claim for 

lack of personal jurisdiction, but reversed this Court’s dismissal of the fraud claim, finding 

that venue was proper here, and remanded that claim to this Court. This Court then issued an 

Order finding that Defendants’ motion to transfer venue under 28 U.S.C. § 1404(a) was ripe, 

and ordered Defendants to advise the Court whether they intended to re-urge the motion and, 

if so, whether it should be supplemented to account for developments since its filing. 

Defendants have re-urged and supplemented the motion, and Plaintiff remains opposed.

Defendants move the Court to transfer the remaining fraud claim to the Southern 

District of Ohio, where the parallel litigation of the same claim (and additional claims) is 

pending. Trois opposes the transfer, arguing that Ohio is not clearly more convenient and that 

he will re-urge his motion to dismiss under the first-to-file rule. Trois argues that Ohio law is 

clear that the first-filed action is to take priority, so there is a likelihood that the Ohio judge 

will dismiss Apple Tree’s action in Ohio, leaving Apple Tree to assert its claims as 

counterclaims in this action (which, Trois argues, would waive any personal jurisdiction bar to 

his contract claim), and there would only be one lawsuit here.

Analysis

I. First-to-File Rule

The Court first considers Trois’s arguments under the first-to-file rule. The Fifth 

Circuit follows the first-to-file rule when separate actions are filed in different district courts 

asserting the same claims. In such instances, the principle of comity requires federal district 
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courts to exercise care to avoid interferences with each other’s affairs. W. Guld Maritime 

Ass’n v. ILA Deep Sea Local, 751 F.2d 721, 728 (5th Cir. 1985). As between federal district 

courts, the general principle is to avoid duplicative litigation; the underlying concerns are to 

avoid the waste of duplication, to avoid rulings that may trench upon the authority of sister 

courts, and to avoid piecemeal resolution of issues that call for a uniform result. Id. Normally, 

sound judicial administration would indicate that when two identical actions are filed in courts 

of concurrent jurisdiction, the court that first acquired jurisdiction should try the lawsuit. Id. at 

730. In addition, the Fifth Circuit adheres to the rule that the court in which an action is first 

filed is the appropriate court to determine whether subsequently filed cases involving 

substantially similar issues should proceed. In re Amerijet Int’l, Inc., 785 F.3d 967, 976 (5th 

Cir. 2015). 

However, the first-to-file rule does not trump application of § 1404(a); they are 

independent inquiries and the existence of the Ohio lawsuit does not preclude this Court from 

considering whether transfer under § 1404(a) is appropriate. See Zimmer Enters., Inc. v. 

Atlandia Imports, Inc., 478 F. Supp. 2d 983, 989 (S.D. Ohio 2007) (“The first-filed rule does 

not supersede the inquiry into the balance of convenience under § 1404(a) and a transfer 

justified under § 1404(a) [may be] proper even if the action to be transferred was filed before a

related action was filed in the transferee district.”) (quoting Societe Generale v. Fla. Health 

Sciences. Ctr., Inc., 2003 WL 22852656, *8, 2003 U.S. Dist. LEXIS 21502, *24 (S.D.N.Y. 

Dec. 2, 2003)); Abercrombie & Fitch Co. v. Ace European Group, No. 2:11-CV-1114, 2012 

WL 2995171, at *4 (S.D. Ohio July 23, 2012) (“a determination that it was the first to file is 

not outcome determinative with respect to Ace’s § 1404(a) Motion. Instead, this Court must 
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proceed to consider the merits of Ace’s Motion regardless of whether this action was the first-, 

second-, or only-filed action.”); see also Terra Int’l, Inc. v. Miss. Chem. Corp., 922 F. Supp. 

1334, 1349 (N.D. Iowa 1996) (“[I]n circumstances where a § 1404(a) analysis dictates 

transfer, the first-filed rule should be abrogated.”).

The Seventh Circuit surveyed the circuit courts and concluded that the first-to-file rule 

does not constrain the Court’s discretion in ruling on a § 1404(a) transfer motion, and the 

order of filing should simply be part of the § 1404(a) transfer analysis. Research Automation, 

Inc. v. Schrader-Bridgeport Int’l, Inc., 626 F.3d 973 (7th Cir. 2010). Although the Fifth 

Circuit has not squarely addressed the interplay of the first-to-file rule and § 1404(a), it has 

clearly recognized that the first-filed court may transfer the first-filed case to the second-filed 

court. W. Gulf Maritime Ass’n v. ILA Deep Sea Local 24, 751 F.2d 721, 729 n.1 (5th Cir 1985) 

(noting that first-filed court may transfer the first-filed action and the actions consolidated in 

the second-filed court).1 “Therefore, a determination that [this] action was the first-filed . . . 

does not preclude the Court from determining that transfer of venue is proper under 28 U.S.C. 

§ 1404(a).” Zimmer, 478 F. Supp. 2d at 989. If transfer is appropriate, there will be no parallel 

litigation in separate district courts. 

B. Motion to Transfer under § 1404(a)

“For 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.” 28 U.S.C. § 1404(a). The threshold issue under § 1404(a) is whether the civil 

action “might have been brought” in the district to which transfer is sought. 28 U.S.C. § 

 1 The Fifth Circuit has held that transfer of the second-filed case to the first-filed case forum is consistent with the 

first-to-file rule, but it has not held that transfer of the first-filed case to the second-filed case forum would be 

improper. See In re Spillman Dev. Group, 710 F.3d 299, 307 (5th Cir. 2013).
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1404(a); In re Volkswagen of Am., Inc., 545 F.3d 304, 312 (5th Cir. 2008). In this case, it is 

undisputed that this action could have been brought in the Southern District of Ohio. This 

claim is already proceeding there, and Plaintiff has conceded venue and jurisdiction over the 

claim.

Once it is established that a civil action could have been brought in the destination 

venue, § 1404(a) gives the district court discretion to decide whether transfer is appropriate by 

balancing case-specific factors concerning the parties’ private interests in convenience and the 

public interest of fair administration of justice. Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 

29 (1988); Robinson v. Hillcrest Baptist Med. Ctr., No. A-09-CA-640-SS, 2009 WL 4639901, 

at *2 (W.D. Tex. Nov. 30, 2009) (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947)). 

The private concerns 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. In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004) 

(citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 n.6 (1981)). 

“The public concerns 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 of the application of foreign law.” Id. These private 

and public interest factors are neither exhaustive nor exclusive, and no one factor holds 

dispositive weight. Volkswagen, 545 F.3d at 315. The burden to show good cause for transfer 

rests on the moving party. Humble Oil & Ref. Co. v. Bell Marine Serv., Inc., 321 F.2d 53, 56 
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(5th Cir. 1963). To succeed on a motion to transfer venue, the moving party must show that, 

based on the public and private interest factors, the transferee venue is “clearly more 

convenient than the venue chosen by the plaintiff.” Volkswagen, 545 F.3d at 315. 

Defendants assert that “the relative ease to access of sources of proof in Ohio is 

significantly greater than that in Texas.” Docket no. 2 at 16. It appears that the relevant 

physical evidence is located in Ohio. Defendant notes that all of the remaining auction items 

are in Ohio, and presumably documents related to the auction are also in Ohio. Defendants 

contend that, after the auction, it was determined that some items were forgeries, and the 

remaining unsold merchandise is evidence supporting Defendants’ defenses and may 

eventually be used in front of a jury. Plaintiff points to no physical evidence or documents that 

are located in Texas. This factor weighs in favor of transfer. 

Defendants further contend that availability of compulsory process to secure the 

attendance of witnesses and the cost of attendance for willing witnesses weigh in favor of 

transfer. Although Plaintiff resides in this district, Apple Tree is an Ohio corporation with its 

sole place of business in Newark, Ohio, which is in the Southern District of Ohio. Defendant 

Schnaidt resides in Granville, Ohio, also in the Southern District of Ohio.

Defendants argue that the auction is central to Plaintiff’s claim, that it was conducted 

in Newark, Ohio, and that witnesses would be the bidders in attendance as well as those who 

work for Apple Tree. Defendants assert that of the 371 bidders in attendance at the auctions, 

over 91% are Ohio residents, and all of Apple Tree’s employees are residents of the Southern 

District of Ohio, making compulsory process to secure the attendance of witnesses at trial 

significantly cost prohibitive or impossible if trial were in Texas. Defendants further assert 
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that any expert testimony relevant to the issue of whether Apple Tree conducted the auctions 

in a manner that comports with the standards applicable to Ohio auctioneers would come from 

an expert or experts residing in Ohio and familiar with Ohio auctioneer standards.

Plaintiff contends that Defendants’ assertions are conclusory and that they fail to 

explain how or why the testimony of the bidders or employees would be relevant or necessary 

to the claims in this case. However, Defendant Apple Tree cites to its disclosures, in which it 

identifies by name as potential witnesses nine Ohio residents who attended the auction or bid 

on items and would testify about the conduct of the auction, the market, and reasons for their 

respective bids (such as lack of authentication). Such testimony is highly relevant to Plaintiff’s 

claim and the Defendants’ defense. 

Plaintiff identifies thirteen individuals that he anticipates calling as witnesses, all of 

whom reside in Texas. These include (1) Jeffrey Collins, who attended one of the auctions and 

resides in San Antonio, (2) plaintiff’s son Ryder Trois and his friend, Matt Pennich, both of 

whom live in Texas and were with Plaintiff when one of the auctions took place and could 

“confirm that we were not able to access Apple Tree’s website to view the auction”; (3) 

Robert Haunstein, who lives in San Antonio and “will also testify about the difficulties he 

encountered in attempting to log on to Apple Tree’s website during the auction”; (4) Rebecca 

Trois and Vanessa Syring, who live in Texas and “attempted to view the auction on-line from 

Gillespie County and will testify that they were not able to do so”; (5) Plaintiff’s wife, who 

lives in Austin and was present when Michael Barrick came to visit Plaintiff in Texas and 

“will testify about the representations Barrick made to me about Apple Tree’s services”; (6) 

Carlos Pennick and Michelle Scripps, who live in Texas, “were also present during some of 
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the conversations between Plaintiff and Barrick and “will be able to testify as to the 

representations Barrick made to me”; (7) expert witnesses Scott Franks and Jan Harrison of 

A&S Actions in Waco, Texas to testify as to the value of the items Plaintiff sold and how the 

auction was conducted; (8) Don Young of Young’s Gun in Kerrville, Texas to serve as an 

expert on the value of the many of the firearms sold at the auction because Young is 

personally familiar with many of the firearms; and (9) Teddy Trotta Bono of “Antiques 

Roadshow” fame, as expert on the value of the Native American and western apparel Plaintiff 

sold at the auction. Docket no. 401 at 4. 

Neither Texas nor Ohio has subpoena power over all possible witnesses. Any trial 

subpoenas for witnesses to travel more than 100 miles would be subject to motions to quash 

under Rule 45. In re Volkswagen, 545 F.3d at 316. All parties have identified witnesses who 

could provide relevant testimony that would be outside subpoena range for trial. Defendants

have identified several non-party witnesses who could not be compelled to testify at trial in 

Texas or for whom doing so would be costly. Plaintiff offers testimony from some family 

members and acquaintances that they could not access the on-line auction. This testimony is 

relatively straightforward, and these witnesses could be deposed in Texas and their deposition 

testimony utilized in the Ohio case. Further, Plaintiff’s proposed testimony concerning 

Barrick’s representations, while relevant, would not be key evidence for Trois’s fraud claims 

given that the Fifth Circuit has held that Barrick was not acting as Apple Tree’s agent.

Nevertheless, Plaintiff identifies some witnesses who could not be compelled to testify in Ohio 

or for whom doing so would be costly. The Court finds that this factor is neutral.
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With regard to cost of attendance for willing witnesses, Defendants note that its 

employees and bidders who might come to Texas to testify would incur significant expense.

However, Texas witnesses would also incur expense to testify at trial in Ohio. This factor is 

neutral.

Defendants rely heavily on the general factor -- “all other practical problems that make 

trial of a case easy, expeditious and inexpensive” – citing the fact that Plaintiff has already 

been litigating his fraud claim in the Ohio case. Plaintiff engaged in discovery, and has 

identified twenty witnesses and designated five expert witnesses. Defendants contend that not 

transferring this case would result in extraordinary expense because the case has already 

progressed in the Ohio court. The only claim remaining here – Plaintiff’s fraud claim – has 

been substantially litigated in Ohio. The Court agrees that this weighs strongly in favor of 

transfer.

In addition, the Court finds that the fact that Plaintiff could not litigate all of his claims 

in this forum given the lack of personal jurisdiction over the contract claims weighs heavily in 

favor of transfer. The only claim pending here is Plaintiff’s fraud claim, while in Ohio Trois 

asserted that fraud claim, plus additional claims for breach of contract, unjust enrichment, 

negligence, bailment, replevin, conversion/trespass to chattel, and the Ohio CSPA. Certainly 

Ohio is the better forum for resolving all of the claims and issues among the parties in a single 

proceeding, given that it has jurisdiction over all claims and parties. Plaintiff asserts that he 

will dismiss his fraud claim from the Ohio suit and pursue it here if the Court does not transfer 

the case, but having two separate suits involving the same underlying events does not promote 

judicial efficiency. And findings in either case could undermine or potentially conflict with 
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findings in the other, given the conduct of the auction would be relevant to both the fraud and 

contract claims. 

To avoid this, Plaintiff further contends that the first-to-file rule dictates that 

Defendants’ Ohio action should now be dismissed, in which case Defendants would then have 

to assert their claims as counterclaims here, thus consenting to personal jurisdiction and 

allowing Trois to pursue his claims for which this Court would otherwise lack personal 

jurisdiction. But that ignores § 1404(a) and the current realities. If no second suit had been 

filed, this case would have been appropriate for transfer to Ohio, which was the only court that 

could resolve all claims. But the fact that the second suit was filed does not mean that all 

claims must now proceed in this Court. On the contrary, at this point in time, the fact that the 

Ohio litigation has been proceeding during the appeal in this case weighs very strongly in 

favor of transfer. See, e.g., Nader v. McAuliffe, 549 F.Supp.2d 760, 763 (E.D.Va. 2008) 

(although action was filed before the “essentially identical” action pending in the transferee 

court, the balance of the 1404(a) factors warranted transfer “in order to prevent an 

extravagantly wasteful and useless duplication of the time and effort of the federal courts”); 

Koresko v. Nationwide life Ins. Co., 403 F. Supp. 2d 394, 399 (E.D. Pa. 2005) (courts have 

discretion to depart from the first-to-file rule under certain circumstances, including when the 

second-filed action is further along than the first-filed action).

The Court further finds that the public interest factors favor transfer. Defendants argue 

that the public interest factors support transfer because Ohio has “a much greater ‘local 

interest’ than Texas in the events which form the basis of Plaintiff’s claim” because Apple 

Tree is regulated by the Ohio Department of Agriculture through the Ohio Auction 
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Commission, its auctioneers are licensed by the Ohio Department of Agriculture, and Ohio has 

a comprehensive set of statutes and administrative regulations governing the industry. Docket 

no. 2 at 16-17. Defendants assert that Ohio has a comprehensive consumer protection 

framework established to protect consumers from injury from auctioneers who fail to comply 

with Ohio law, and has established an Auction Recovery Fund the funds from which 

consumers injured by illegal acts of auctioneers can be made whole. Defendants argue that this 

local interest of Ohio is greater than any interest of Texas, which has no interest in regulating 

an out-of-district business transaction with an out-of-state corporation, for the sale of goods 

and exchange of money outside of Texas. Defendants also argue that representations made by 

an auctioneer are regulated by Ohio regulations and the case will require the court to engage in 

an analysis of Ohio law. Plaintiff responds that Texas “clearly has an interest in redressing 

wrongs to its residents” and that this Court can consider and interpret Ohio law and can 

enforce those laws under the choice-of-law doctrine.

The Court finds that these factors weigh in favor of transfer. Although Texas has some 

interest in harm done to a Texas resident, the relevant conduct of Defendants occurred in Ohio, 

and Ohio has a strong interest in the allegedly tortious conduct of its residents and in 

regulating auctions in Ohio. In addition, the Ohio case has already progressed substantially, 

and thus can proceed to resolution of all claims and parties much more expeditiously than this 

case. The public interest factors favor transfer.

Conclusion

In this case, the interests of justice are clearly served by transfer. Dismissing the Ohio 

case and beginning anew in Texas is not convenient and does not serve the interests of justice.
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Although Plaintiff filed the first suit, he chose a forum that could not adjudicate both of his 

claims. Defendants filed suit only twenty-nine days later in a forum that could adjudicate all 

claims. During the pending appeal in this case, the Ohio case has progressed substantially. 

Ohio is clearly the more appropriate and convenient forum for this litigation. Defendants’

motion to transfer venue pursuant to 28 U.S.C. § 1404(a) (docket no. 15) is GRANTED and 

this case is transferred to the Southern District of Ohio, Eastern Division.

It is so ORDERED.

SIGNED this 12th day of July, 2018.

XAVIER RODRIGUEZ

UNITED STATES DISTRICT JUDGE