1

On October 4, 2005, Defendant Burlington Northern and Santa Fe Railway Company joined in

Defendant Monte Zillinger’s motion to transfer.

2

Plaintiff Drenetta Green did not file a response to the motion.

Memorandum Opinion and Order - Page 1

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

DRENETTA GREEN, §

§

Plaintiff, §

§

v. § Civil Action No. 3:05-CV-1596-L

§

BURLINGTON NORTHERN AND §

SANTA FE RAILWAY COMPANY and §

MONTE ZILLINGER, §

§

Defendants. §

MEMORANDUM OPINION AND ORDER

Before the court is Defendant Monte Zillinger’s Motion for to Transfer Venue to the Fort

Worth Division, filed September 19, 2005.1 After careful consideration of the motion, record,

appendix of Defendant Monte Zillinger,2 the court grants Defendant Monte Zillinger’s Motion for

to Transfer Venue to the Fort Worth Division.

I. Factual Background

Plaintiff Drenetta Green (“Plaintiff” or “Green”) filed this action on August 11, 2005 against

Defendants Burlington Northern and Santa Fe Railway Company (“BNSF”) and Monte Zillinger

(“Zillinger”), collectively referred to as “Defendants.” Green contends that Defendants discriminated

against her because of her race and retaliated against her in violation of Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. § 2000e, et seq; 42 U.S.C. § 1981; and the Texas Labor Code,

 

 Case 4:06-cv-00067-Y Document 16 Filed 01/19/06 Page 1 of 6 PageID 82
3

According to Maps.com, this location is 9.5 miles from the federal courthouse in Fort Worth at 500

West Tenth Street, with an approximate travel time of 15 minutes; and it is 35 miles from the federal

courthouse in Dallas at 1100 Commerce Street, with a travel time of approximately 41 minutes. Pursuant to

Fed. R. Evid. 201, the court takes judicial notice of this information, as it easily satisfies the standard for

taking judicial notice as set forth in the rule.

Memorandum Opinion and Order - Page 2

§ 21.055. She also contends that Defendants committed the state law torts of negligent supervision

and retention, slander and defamation, and intentional infliction of emotional distress.

Defendants seek to have this action transferred to the Fort Worth Division of the Northern

District of Texas pursuant to 28 U.S.C. § 1404(a) for the convenience of the parties and witnesses

in this case, and in the interest of justice. Specifically, Defendants request that this action be

transferred to the Fort Worth Division because:

All of the parties and likely witnesses are residents of Tarrant

County, Texas; none is [a] resident of any of the counties that

comprise the Dallas Division. All of the relevant documents are

located in Tarrant County, Texas; none is located in any of the

counties that comprise the Dallas Division. And all of the actions

about which Green complains allegedly took place in Tarrant County,

Texas where Green works; none allegedly happened in any of the

counties that comprise the Dallas Division. In short, this case bears

no relationship to the Dallas Division and should be transferred to the

Fort Worth Division.

Defendant’s Motion to Transfer at 1-2.

Green is a current employee of BNSF. She works at BNSF’s headquarters in Tarrant County

at 2500 Lou Menk Drive, Fort Worth, Texas.3

 She alleges that BNSF and Zillinger discriminated

against her, retaliated against her, and committed certain state torts against her, all in connection

with her employment. See Plaintiff’s Original Complaint at 2-16. All of the alleged conduct took

place in Tarrant County. Likewise, all of the records concerning employment decisions about which

Green complains are maintained in Tarrant County, and Green lives in Fort Worth. Zillinger also

 

 Case 4:06-cv-00067-Y Document 16 Filed 01/19/06 Page 2 of 6 PageID 83
Memorandum Opinion and Order - Page 3

lives and works in Fort Worth. All of the witnesses who are expected to testify in this case live in

Tarrant County.

II. Applicable Standard for a Section 1404(a) Transfer

With respect to section 1404(a), “[f]or 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 may have been brought.” 28 U.S.C. § 1404(a). In applying section 1404(a), a district court is to

first determine “whether the judicial district to which transfer is sought would have been a district

in which the claim could have been filed.” In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004)

(citing In re Horseshoe Entm’t, 337 F.3d 429, 432 (5th Cir.), cert. denied, 540 U.S. 1049 (2003)).

Once this initial determination is made, a district court 

turn[s] to the language of § 1404(a), which speaks to the issue of “the

convenience of parties and witnesses” and to the issue of “in the

interest of justice.” The determination of “convenience” turns on a

number of private and public interest factors, none of which [is]

given dispositive weight. 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.

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.

In re Volkswagen AG, 371 F.3d at 203 (citations omitted).

There is no question that the events giving rise to this lawsuit occurred in the Northern

District of Texas, which encompasses the Forth Worth and Dallas Divisions, as well as five other

divisions. See 28 U.S.C. § 124(a)(1)-(7). It is without cavil that venue is appropriate in this judicial

 

 Case 4:06-cv-00067-Y Document 16 Filed 01/19/06 Page 3 of 6 PageID 84
4

The Dallas Division consists of the counties of Dallas, Ellis, Hunt, Johnson, Kaufman, Navarro, and

Rockwall. The Fort Worth Division consists of the counties of Comanche, Erath, Hood, Jack, Palo Pinto,

Parker, Tarrant, and Wise. 28 U.S.C. § 124(a)(1), (2).

5

In the final analysis, this factor had no impact on the court’s determination whether to transfer the

action to the Fort Worth Division.

Memorandum Opinion and Order - Page 4

district, the Northern District of Texas. Moreover, the parties do not dispute that the Fort Worth

Division is a division in which Plaintiff’s action or claims could have been brought originally;

indeed, it would be fatuous to contend otherwise. The question that must be resolved is whether an

intradistrict transfer should occur from the Dallas Division to the Fort Worth Division.4

Transfer of venue pursuant to 28 U.S.C. § 1404(a) is at the discretion of the court,

considering “‘[a]ll relevant factors to determine whether or not on balance the litigation would more

conveniently proceed and the interests of justice be better served by transfer to a different forum.’”

Peteet v. Dow Chem. Co., 868 F.2d 1428, 1436 (5th Cir. 1989) (quoting 15 C. Wright, A. Miller &

E. Cooper, Federal Practice and Procedure § 3847 at 370 (1986)). The moving party bears the

burden of demonstrating that a change of venue is warranted. Time, Inc. v. Manning, 366 F.2d 690,

698 (5th Cir. 1966); Carlile v. Continental Airlines, Inc., 953 F.Supp. 169, 170 (S.D. Tex. 1997). 

A plaintiff’s choice of forum is entitled to some deference and generally should not be

disturbed unless the balance of factors strongly favors the moving party, see Houston Trial Reports,

Inc., v. LRP Publ’ns, Inc., 85 F.Supp.2d 663, 667 (S.D. Tex. 1999); however, a court may not

attribute “decisive weight” to a plaintiff’s choice of forum. A “[p]laintiff’s choice of forum is

clearly a factor to be considered but in and of itself is neither conclusive nor determinative.”5

 In re

Horseshoe Entm’t, 337 F.3d at 434. Having determined that this action could have been originally

filed in the Fort Worth Division, the court now considers the eight factors to determine whether it

should be transferred to that division.

 

 Case 4:06-cv-00067-Y Document 16 Filed 01/19/06 Page 4 of 6 PageID 85
6

Although all witnesses reside within the Dallas and Fort Worth Divisions of the Northern District

of Texas and are within 100 miles of either federal courthouse and therefore equally subject to the subpoena

process under Fed. R. Civ. P. 45(b)(2), more costs would be incurred, and time spent, to subpoena the

witnesses to appear in trial at Dallas.

Memorandum Opinion and Order - Page 5

III. Consideration of the Eight Factors

The court has considered all eight factors, and it is clear to this court that five of the factors

 – relative ease of access to sources of proof; availability of compulsory process to service the

attendance of witnesses;6

 costs of attendance for willing witnesses; practical problems that make the

trial of the case easy, expeditious and inexpensive; and local interest in having localized interests

decided at home – favor transfer to the Fort Worth Division. The parties, witnesses and documents

necessary for the trial of this action are all located in Fort Worth or Tarrant County. Both parties

have the same business and work location, 2500 Lou Menk Drive. As a trial would take place

during normal business hours while the parties and probable witnesses are at work, all would incur

less travel time and expense if the trial were held in Fort Worth instead of Dallas.

Finally, with respect to the factors favoring a transfer to the Fort Worth Division, the court

notes that all parties reside in Tarrant County and that the alleged conduct made the basis of the

lawsuit occurred in Tarrant County. Ordinarily, there is a preference to try an action where the

alleged wrong or injury occurred, especially when all the parties and witnesses reside at or in that

locality. The citizens of Dallas County or the Dallas Division really have little, if any, interest in

or relationship to the alleged acts made the basis of his lawsuit. Local interest would thus favor a

trial in the Fort Worth Division.

With respect to the other three factors – administrative difficulties flowing from court

congestion, familiarity of the forum with the law that will govern the case, and avoidance of

unnecessary problems of conflict of laws of the application of foreign law – are inapplicable, were

 

 Case 4:06-cv-00067-Y Document 16 Filed 01/19/06 Page 5 of 6 PageID 86
Memorandum Opinion and Order - Page 6

not addressed by the parties, or are neutral and do not weigh in favor of or against a transfer to the

Fort Worth Division.

IV. Conclusion

Five factors definitely weigh in favor of a transfer. The other three factors were irrelevant,

not addressed by the parties, or either neutral and simply do not affect transfer one way or the other.

In any event, the information before the court on these factors was such that it neither weighed in

favor of or against a transfer to the Fort Worth Division. Based on these findings, the court

determines that Defendant has met his burden by making a showing sufficient to justify a transfer

of this action “for the convenience of the parties, in the interest of justice” to the Fort Worth

Division. Accordingly, the court grants Defendant Monte Zillinger’s Motion to Transfer Venue to

the Fort Worth Division, and hereby transfers this action to the Fort Worth Division of the Northern

District of Texas. The clerk of the court shall effect the transfer of this action in accordance with

the usual procedure.

It is so ordered this 19th day of January, 2006.

_________________________________

Sam A. Lindsay

United States District Judge

 

 Case 4:06-cv-00067-Y Document 16 Filed 01/19/06 Page 6 of 6 PageID 87