United States District Court

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

PAULETTE LEVIN et al. §

§

v. § CIVIL ACTION NO. 3:20-CV-1528-S

§

C.R. BARD INCORPORATED et al. §

MEMORANDUM OPINION AND ORDER

This Order addresses Plaintiffs’ Unopposed Amended Motion to Sever and Transfer Venue 

of Out-of-State Plaintiffs’ Cases [ECF No. 22]. Defendants filed a Response to the Motion, stating 

that they do not oppose severance and transfer of the cases identified in the Motion. See ECF 

No. 25. For the following reasons, the Court GRANTS the Motion. 

I. PROCEDURAL BACKGROUND

Plaintiffs filed this action in the state district court. See Notice of Removal Ex. D-2. 

Defendants timely removed the case to this Court based on diversity of citizenship. See Notice of 

Removal. Plaintiffs filed the pending Motion on August 13, 2020, which is now ripe and pending 

before the Court. 

II. SEVERANCE

A court has broad discretion to sever issues under Rule 21, see Brunet v. United Gas 

Pipeline Co., 15 F.3d 500, 505 (5th Cir. 1994), and that discretion similarly allows for the 

severance and transfer of parties in the interest of justice, see Spencer, White & Prentis, Inc. v. 

Pfizer, Inc., 498 F.2d 358, 361-62 (5th Cir. 1974). “In the situation where venue is proper for one 

defendant but not for another and dismissal is inappropriate, the district court . . . may sever the 

claims, retaining jurisdiction over one defendant and transferring the case as to the other defendant 

to an appropriate district.” Carnival Corp. v. Tug W.O. Watson, No. Civ. A. 02-2375, 2003 WL 

943633, at *1 (E.D. La. Mar. 5, 2003) (citation omitted); see also Stewart v. Livingston, Civ. A. 

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No. H-14-1483, 2014 WL 4975434, at *5 (S.D. Tex. Oct. 3, 2014) (citation omitted) (“The Court 

. . . has broad discretion to sever and transfer issues that should be tried in another district.”). 

Defendants agree with Plaintiffs’ request to sever the cases. Accordingly, the Court exercises its 

discretion and finds that severance of the out-of-state plaintiffs is in the interest of justice. 

III. TRANSFER

A district court may transfer any civil action to any other district or division in which it 

might have been brought for the convenience of the parties and witnesses, if such transfer is in the 

interest of justice. See 28 U.S.C. § 1404(a). The moving party bears the burden of demonstrating 

that a transfer of venue is warranted for convenience purposes. See Time, Inc. v. Manning, 366 

F.2d 690, 698 (5th Cir. 1966). The movant’s burden is to show “good cause” for transfer. In re 

Volkswagen of Am., Inc., 545 F.3d 304, 315 (5th Cir. 2008) (hereinafter, “Volkswagen II”). The 

Fifth Circuit explained:

Th[e] good cause burden reflects the appropriate deference to which the plaintiff’s 

choice of venue is entitled. When viewed in the context of § 1404(a), to 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.

Id. (internal quotation marks omitted). The determination of venue transfer pursuant to § 1404(a) 

is within the district court’s sound discretion, exercised “in light of the particular circumstances of 

the case.” Hanby v. Shell Oil Co., 144 F. Supp. 2d 673, 676 (E.D. Tex. 2001) (citing Radio 

Santa Fe v. Sena, 687 F. Supp. 284, 287 (E.D. Tex. 1988))). In doing so, the court must balance 

the two categories of interest—private and public—to resolve whether the movant has carried his 

burden. Volkswagen II, 545 F.3d at 315 (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947)). 

The private interest factors are: “(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 

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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, 204 (5th Cir. 2004) (hereinafter, 

“Volkswagen I”) (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 n.6 (1981)). The public 

interest factors are: “(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. 

Plaintiffs request this Court to transfer the out-of-state plaintiffs to the jurisdictions in 

which they had surgery for the implantation of their Bard inferior vena cava filter. See Br. in Supp. 

of Mot. (“Br.”) 7. The identified cases might have been brought in those jurisdictions because that 

is where “a substantial part of the events or omissions giving rise to the claim occurred.” 28 U.S.C. 

§ 1391(b)(2). With respect to the private and public interest factors, Plaintiffs assert that the outof-state plaintiffs have essentially no connection to the state of Texas. See Br. 8-9; Pls.’ App. 

They reside outside of Texas, they were not implanted with a Bard inferior vena cava filter in 

Texas, and essentially all of their medical treatment took place outside of Texas. See generally

Br. In summary, none of the out-of-state plaintiffs have any connection whatsoever to the Dallas 

Division of the Northern District of Texas, based on the evidence presented to the Court. 

Plaintiffs also assert (and Defendants do not dispute) that the proposed transfer 

jurisdictions correspond with many of the out-of-state plaintiffs’ residences. See Mot. 1. 

Moreover, the out-of-state plaintiffs received at least some medical care in that jurisdiction. See

id. Thus, the private and public interest factors weigh in favor of transfer, as (1) transfer will allow 

for ease of access to sources of proof; (2) medical provider witnesses should be accessible through 

service of process; (3) travel costs should be minimized; and (4) there is a local interest due to 

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those plaintiffs’ residences. See Volkswagen I, 371 F.3d at 204. Defendants agree that Plaintiff 

has identified the proper transferee districts for the out-of-state plaintiffs.

As a result, the Court finds that Plaintiffs have met their burden to clearly demonstrate 

that the proposed jurisdictions are more convenient forums for the parties and witnesses than the 

Dallas Division of the Northern District of Texas. See 28 U.S.C. § 1404(a); Volkswagen II, 545 

F.3d at 315. Accordingly, based on the agreement of counsel and the undisputed representations 

by Plaintiffs’ counsel, the Court GRANTS the Motion and directs the Clerk of the Court to sever 

and transfer this action as follows:

a. Plaintiff Peter Hertzberg’s case be severed and transferred to the Milwaukee 

Division of the Eastern District of Wisconsin;

b. Plaintiff Almary Johnson’s case be severed and transferred to the Orlando 

Division of the Middle District of Florida;

c. Plaintiff Olive Jones’s case be severed and transferred to the Orlando Division 

of the Middle District of Florida;

d. Plaintiff Tiffany Shelton’s case be severed and transferred to the Huntington 

Division of the Southern District of West Virginia;

e. Plaintiff Phillip Smith’s case be severed and transferred to the Chicago Division 

of the Northern District of Illinois;

f. Plaintiff Ruby Tafoya’s case be severed and transferred to the Denver Division 

of the District of Colorado; 

g. Plaintiff James Wayt’s case be severed and transferred to the Wheeling Division 

of the Northern District of West Virginia; and

h. Plaintiff Peter Williams’s case be severed and transferred to the Los Angeles 

Division of the Central District of California.

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Plaintiff Paulette Levin is the sole plaintiff with any connection to this forum. Accordingly, she 

shall remain in the Dallas Division of the Northern District of Texas.

SO ORDERED.

SIGNED August 20, 2020. 

 

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