Empty Barge Lines II v. Dredge Leonard Fisher

• Decision Date: 03 July 2006
• Docket Number: No. CIV. 1:06-CV-075.,CIV. 1:06-CV-075.
• Citation: 441 F.Supp.2d 786
• Parties: EMPTY BARGE LINES II, INC. and Higman Barge Lines, Inc., Plaintiffs/Counter Defendants, v. DREDGE LEONARD FISHER, in rem, and King Fisher Marine Service, Inc., in personam, Defendants, King Fisher Marine Service, Inc., in personam, Third-Party Plaintiff/Counter Claimant, v. M/V TEXIAN, in rem, Tank Barge HTCO 3009, in rem, and Tank Barge HTCO 3010, in rem, Third-Party Defendants.
• Court: U.S. District Court — Eastern District of Texas

Page 786

441 F.Supp.2d 786

EMPTY BARGE LINES II, INC. and Higman Barge Lines, Inc., Plaintiffs/Counter Defendants, v. DREDGE LEONARD FISHER, in rem, and King Fisher Marine Service, Inc., in personam, Defendants, King Fisher Marine Service, Inc., in personam, Third-Party Plaintiff/Counter Claimant, v. M/V TEXIAN, in rem, Tank Barge HTCO 3009, in rem, and Tank Barge HTCO 3010, in rem, Third-Party Defendants.

No. CIV. 1:06-CV-075.

United States District Court, E.D. Texas, Beaumont Division.

July 3, 2006.

Mark A. Freeman and David Earl James of Stevens, Baldo and Freeman, Beaumont, TX, for Plaintiffs.

Kevin Troy Dossett of Chamberlain, Hrdlicka White Williams & Martin, Houston, TX, for Defendants.

MEMORANDUM AND ORDER

CRONE, District Judge.

Pending before the court are Defendant King Fisher Marine Service, L.P.'s (incorrectly named as "King Fisher Marine Service, Inc.") ("KFMS") Motion to Transfer Venue (# 5) and Supplemental Motion to Transfer Venue (# 15). Defendant seeks a transfer of venue under 28 U.S.C. § 1404(a) from the United States District Court for the Eastern District of Texas, Beaumont Division, to the United States District Court for the Southern District of Texas, Victoria Division, or, alternatively, a transfer to the Corpus Christi Division of the Southern District of Texas. Having reviewed the motions, the submissions of the parties, the pleadings and the applicable law, this court is of the opinion that a transfer of venue is warranted.

I. Background

Plaintiff Empty Barge Lines II, Inc. ("Empty Barge"), owner of the towing vessel M/V TEXIAN, is a corporation with its principal place of business located in Houston, Texas. Plaintiff Higman Barge Lines, Inc. ("Higman Barge"), owner of the HTCO 3009 and HTCO 3010, is a corporation with its principal place of business in Houston, Texas. On February 10, 2006, Empty Barge and Higman Barge (collectively referred to as "Plaintiffs") filed suit in this court against Dredge LEONARD FISHER ("LEONARD FISHER"), a vessel with its home port located in Port Lavaca, Texas, and KFMS, a Texas limited partnership with a principal place of business in Port Lavaca, Texas. In their verified original complaint, Plaintiffs assert a variety of negligence claims against KFMS and LEONARD FISHER based on an allision which took place in the Corpus Christi Ship Channel on January 13, 2005. At the time Empty Barge and Higman Barge filed their verified original complaint, the LEOARD FISHER was engaged in navigation within the Beaumont Division of the Eastern District of Texas.

On January 13, 2005, the WV TEXIAN was traveling outbound in the Corpus Christi Ship Channel with empty tank barges HTCO 3009 and HTCO 3010 in tow. At approximately 10:50 p.m., "the M/V TEXIAN [allegedly] struck the submerged dredge pipeline belonging to the dredge LEONARD FISHER." The allision resulted in damage to the outer hull of the M/V TEXIAN. Following the allision, United States Coast Guard Marine Safety Office ("USCG") personnel from Corpus Christi, Texas, arrived to investigate the incident. A diver from Coastal Diving, a business located in Aransas Pass, Texas, patched the damaged starboard fuel tank before the vessel was transported to the John Bludworth Shipyard, L.L.C. ("the Shipyard") in Corpus Christi, Texas, to be drydocked for repairs. Plaintiffs contend the allision was caused by the negligence and/or fault of Defendants, specifically arguing that LEONARD FISHER'S "pipeline was unlit, improperly marked and improperly positioned in a navigable waterway." Plaintiffs also allege that Defendants breached several rules governing maritime activity and that the Pennsylvania Rule applies. Empty Barge and Higman Barge seek relief in excess of $100,000.00 for physical damage to the vessel, loss of use, demurrage, and loss of profits.

In KFMS's original answer, filed March 29, 2006, it admits that the M/V TEXIAN and tow came to rest on the submerged discharge pipeline when the vessel lost power. KFMS, however, denies acting negligently and asserts a counterclaim for salvage and rescue fees. On the same day KFMS filed its answer, it also filed a verified third-party complaint against the M/V TEXIAN, HTCO 3009, and HTCO 3010, requesting a Rule C maritime lien for purposes of recovering a reasonable salvage fee and award for services performed in salvaging the vessels and rescuing the crew and tow. At the time KFMS filed its verified third-party complaint, the M/V TEXIAN, HTCO 3009, and HTCO 3010 were found within the Eastern District.

On March 29, 2006, KFMS also filed its motion seeking transfer of the case to the Southern District of Texas, Victoria Division. In its Memorandum in Support of Motion to Transfer Venue, filed on April 24, 2006, KFMS requested a transfer to either the Victoria Division or the Corpus Christi Division of the Southern District of Texas. While Plaintiffs oppose Defendant's motion to transfer, they nonetheless request this court, should it find Defendant's motion meritorious, transfer the case to the Corpus Christi Division.

II. Analysis

A. General Considerations

When the selected venue is proper, a motion to transfer venue from one district or division to another is governed by 28 U.S.C. § 1404(a), which 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." 28 U.S.C. § 1404(a); see In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir.2004); Action Indus., Inc. v. United States Fid. & Guar. Co., 358 F.3d 337, 340 (5th Cir.2004); In re Horseshoe Entm't, 337 F.3d 429, 433 (5th Cir.), cert. denied, 540 U.S. 1049, 124 S.Ct. 826, 157 L.Ed.2d 698 (2003); Gleisner v. Presbyterian Hosp. of Plano, Inc., No. Civ. A. 2:05-CV-369, 2005 WL 2455819, at *1 (E.D.Tex. Oct. 5, 2005); Lajaunie v. L & M Bo-Truc Rental, Inc., 261 F.Supp.2d 751, 753 (S.D.Tex.2003); Seabulk Offshore, Ltd. v. Dyn Marine Servs., Inc., 201 F.Supp.2d 751, 754 (S.D.Tex.2002).

Section 1404(a) applies to the transfer of admiralty cases. See In re McDonnell-Douglas Corp., 647 F.2d 515, 516-17 (5th Cir.1981); Boutte v. Cenac Towing, Inc., 346 F.Supp.2d 922, 925 (S.D.Tex.2004); 15 CHARLES A. WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3817 (2d ed.1986). The purpose of this statute "is to prevent the waste `of time, energy, and money' and `to protect litigants, witnesses, and the public against unnecessary inconvenience and expense ... " Van Dusen v. Barrack, 376 U.S. 612, 616, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964) (quoting Continental Grain Co. v. The Barge FBL-585, 364 U.S. 19, 26-27, 80 S.Ct. 1470, 4 L.Ed.2d 1540 (1960)); accord DataTreasury Corp. v. First Data Corp., 243 F.Supp.2d 591, 593 (N.D.Tex. 2003); Shoemake v. Union Pac. R.R. Co., 233 F.Supp.2d 828, 829 (E.D.Tex.2002). A transfer of venue may be made upon the motion of any party or by the court sua sponte. See Caldwell v. Palmetto State Say. Bank, 811 F.2d 916, 919 (5th Cir. 1987) (citing 28 U.S.C. §§ 1404, 1406); accord Mills v. Beech Aircraft Corp., 886 F.2d 758, 761 (5th Cir.1989); Jarvis Christian Coll. v. Exxon Corp., 845 F.2d 523, 528 (5th Cir.1988); Republic of Bol. v. Philip Morris Cos., 39 F.Supp.2d 1008, 1008-09 (S.D.Tex.1999); 15 CHARLES A. WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3844 (2d ed.1986).

Under § 1404(a), the movant has the burden of demonstrating that a change of venue is warranted. See Peteet v. Dow Chem. Co., 868 F.2d 1428, 1436 (5th Cir.), cert. denied, 493 U.S. 935, 110 S.Ct. 328, 107 L.Ed.2d 318 (1989); Time, Inc. v. Manning, 366 F.2d 690, 698 (5th Cir.1966); Brown v. Petroleum Helicopters, Inc., 347 F.Supp.2d 370, 372 (S.D.Tex.2004); Lajaunie, 261 F.Supp.2d at 753; Shoemake, 233 F.Supp.2d at 829; Seabulk Offshore, Ltd., 201 F.Supp.2d at 754. To prevail, the moving party must show that the balance of convenience and justice weighs heavily in favor of a transfer of venue. See Salinas v. O'Reilly Auto., Inc., 358 F.Supp.2d 569, 570 (N.D.Tex.2005); Von Graffenreid v. Craig, 246 F.Supp.2d 553, 563 (N.D.Tex. 2003); DataTreasury Corp., 243 F.Supp.2d at 593; Shoemake, 233 F.Supp.2d at 829; Mohamed v. Mazda Motor Corp., 90 F.Supp.2d 757, 768 (E.D.Tex.2000). "Therefore, when assessing the merits of a § 1404(a) motion, [the] court must determine if a transfer would make it substantially more convenient for the parties to litigate the case." Gardipee v. Petroleum Helicopters, Inc., 49 F.Supp.2d 925, 928 (E.D.Tex.1999) (citing Gundle Lining Constr. Corp. v. Fireman's Fund Ins. Co., 844 F.Supp. 1163, 1165 (S.D.Tex.1994)).

The decision to transfer a pending case is committed to the sound discretion of the district court. See Van Dusen, 376 U.S. at 616, 84 S.Ct. 805; In re Volkswagen AG, 371 F.3d at 203; Casarez v. Burlington N./Santa Fe Co., 193 F.3d 334, 339 (5th Cir.1999); Balawajder v. Scott, 160 F.3d 1066, 1067 (5th Cir.1998), cert. denied, 526 U.S. 1157, 119 S.Ct. 2044, 144 L.Ed.2d 212 (1999); Shoemake, 233 F.Supp.2d at 829; LeDoux v. Isle of Capri Casinos, Inc., 218 F.Supp.2d 835, 836 (E.D.Tex.2002). "[T]he trial court must exercise its discretion 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, Inc. v. Sena, 687 F.Supp. 284, 287 (E .D.Tex.1988)); accord Shoemake, 233 F.Supp.2d at 829 (citing Robertson v. Kiamichi R.R. Co., 42 F.Supp.2d 651, 655 (E.D.Tex.1999)). "The first issue that a district court must address in ruling on a motion to transfer under § 1404(a) is the question of whether the judicial district to which transfer is sought qualifies under the applicable venue statutes as a judicial district where the civil action `might have been brought.'" In re Horseshoe Entm't, 337 F.3d at 433; accord In re Volkswagen AG, 371 F.3d at 203; Ramos v. Wal-Mart Stores E., Inc., Civ. No. 2:05-CV-478, 2006 WL 20780, at...