Louisiana Forestry Ass'n, Inc. v. Solis

• Decision Date: 13 December 2011
• Docket Number: Civil Action No. 11–1623.
• Citation: 814 F.Supp.2d 655
• Parties: The LOUISIANA FORESTRY ASSOCIATION, INC., et al. v. Hilda L. SOLIS, et al.COMITÉ DE APOYO LOS TRABAJADORES AGRÍCOLAS, et al. Defendant–Intervenors.
• Court: U.S. District Court — Western District of Louisiana

814 F.Supp.2d 655

The LOUISIANA FORESTRY ASSOCIATION, INC., et al.

v.Hilda L. SOLIS, et al.COMITÉ DE APOYO LOS TRABAJADORES AGRÍCOLAS, et al. Defendant–Intervenors.

Civil Action No. 11–1623.

United States District Court, W.D. Louisiana,Alexandria Division.

Dec. 13, 2011.

Edward F. Harold, Keith M. Pyburn, Jr., Michelle I. Anderson, Timothy H. Scott, Fisher & Phillips, Dean M. Arruebarrena, Edward T. Hayes, Leake & Andersson, New Orleans, LA, Andria Lure Ryan, Ann Margaret Pointer, Fisher & Phillips, Atlanta, GA, Leon R. Sequeira, Seyfarth Shaw, Washington, DC, Philip Eugene Roberts, Leake & Andersson, Lafayette, LA, for The Louisiana Forestry Association, Inc., et al.

Geoffrey Forney, Harry L. Sheinfeld, U.S. Dept. of Labor, Washington, DC, Janice E. Hebert, U.S. Attorneys Office, Lafayette, LA, for Hilda L. Solis, et al.

Arthur N. Read, Friends of Farmworkers Inc., Philadelphia, PA, D. Michael Dale, Northwest Workers Justice Project, Portland, OR, Edward Tuddenham, Law Office of Edward Tuddenham, New York, NY, Katharine Murphy Schwartzmann, New Orleans, LA, Mary C. Bauer, Montgomery, AL, for Defendant–Intervenors.

RULING

DEE D. DRELL, District Judge.

Before us are two motions in the above captioned matter. The first is a “Motion for a Preliminary Injunction Before Friday, September 30, 2011” filed by Plaintiffs (Doc. 1). The second is a “Motion to Dismiss or Alternatively to Transfer Venue” (Doc. 14) filed by the Intervenors and joined by the Department of Labor (“DOL”) (Doc. 65). For the following reasons, Intervenors' Motion to Transfer Venue will be GRANTED. Therefore Plaintiffs' Motion for Preliminary Injunction will be DENIED, but without prejudice to their right to reurge same in the proper court.

I. Procedural Background

This motion comes to us as the progeny of litigation in the Eastern District of Pennsylvania before U.S. District Judge Louis Pollak. Intervenors in the current matter are organizations representing workers (“workers”) who were plaintiffs in the suit in Pennsylvania against the DOL, among others, challenging wage rates under the H–2B visa program. In short, the H–2B program is an entirely federal program which provides visas for temporary, non-agricultural laborers from foreign countries to U.S. employers when domestic workers are unavailable. In an opinion dated August 30, 2010, Judge Pollak addressed several facets of the then existing H–2B regulations. Comité de Apoyo Los Trabajadores Agrícolas, et al. v. Solis, E.D.Pa. Doc. No. 80, 2010 WL 3431761 (E.D.Pa.2010) (“ CATA I”).

In CATA I, plaintiffs had challenged the existing DOL regulations on the basis that they were both substantively and procedurally inadequate. As applied to the case pending before us, Judge Pollak initially remanded to the DOL (without vacating) the regulations concerning the methodology used for calculating the prevailing wage rate required to be paid to H–2B workers. CATA I, 2010 WL 3431761, at *25 (Original ruling at p. 50). Specifically, Judge Pollak granted the DOL “120 days in which to promulgate new, valid regulations for determining the prevailing wage rate in the H–2B program.” Id. Plaintiffs in the current matter (“employers”) were not parties to the Pennsylvania suit.

In response to that opinion, the DOL promulgated the new rules and set January 1, 2012 as the effective date for the new prevailing wage rate. Wage Methodology for the Temporary Non-agricultural Employment H–2B Program, 76 Fed. Reg. 3,452 (Dep't of Labor Jan. 19, 2011). In a memorandum ruling and order on June 15, 2011, Judge Pollak invalidated the January 1, 2012 effective date because “1) it was not subject to notice and comment, and 2) it was premised on a desire to alleviate employer hardship, in contravention of the INA” (Immigration and Naturalization Act, codified at Title 8 of the United States Code). Comité de Apoyo Los Trabajadores Agrícolas, et al. v. Solis, E.D.Pa. Doc. No. 119, 2011 WL 2414555, *5 (E.D.Pa.2011) (Original ruling at p. 10) (“ CATA II”). The DOL then established a new effective date of September 30, 2011 for the updated prevailing wage rate. Wage Methodology for the Temporary Non–Agricultural Employment H–2B Program; Amendment of Effective Date, 76 Fed. Reg. 45,667 (Dep't of Labor Aug. 1, 2011).

As a result, the employers filed a complaint in this Court on September 7, 2011 against, inter alia, the DOL seeking a temporary restraining order and preliminary injunction to prevent the new wage rate from taking effect September 30, 2011.¹ (Doc. 1). We denied the temporary restraining order on September 13, 2011. (Doc. 6). The workers permissibly intervened and filed the instant Motion to Dismiss or Alternatively to Transfer Venue. (Doc. 14). The DOL joined in this motion (Doc. 65) and the employers opposed. (Doc. 48). We allowed the filing of an amicus curiae brief for the United States Chamber of Commerce in support of the preliminary injunction. (Doc. 63). This Court heard oral arguments on both the present motion and the preliminary injunction on November 2, 2011. After careful consideration of the arguments, pleadings, and exhibits in this matter, we analyze the situation as follows.

II. Law and AnalysisA. Legal Standards1. Motion to Transfer

28 U.S.C. § 1404(a) provides the statutory authority for transferring the case before us to the Eastern District of Pennsylvania. This statute provides:

For 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 might have been brought.

28 U.S.C. § 1404(a). Jurisdiction for the present suit is founded on the existence of a federal question under 28 U.S.C. § 1331. Accordingly, venue is proper in any district listed in 28 U.S.C. § 1391(b), including “a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred.” 28 U.S.C. § 1391(b)(2). The DOL revised the H–2B wage rate as a direct result of the rulings and orders that took place in the litigation in the Eastern District of Pennsylvania; therefore venue of the present suit would be proper there.

The Fifth Circuit has announced that “he who seeks the transfer must show good cause.” In re Volkswagen of America, Inc., 545 F.3d 304, 315 (5th Cir.2008) (citing Humble Oil & Ref. Co. v. Bell Marine Serv., Inc., 321 F.2d 53, 56 (5th Cir.1963)). Good cause is shown “when the movant demonstrates that the transferee venue is clearly more convenient.” In re Volkswagen, 545 F.3d at 315. The Fifth Circuit has adopted the private and public “ Gilbert ” factors “for the determination of whether a § 1404(a) venue transfer is for the convenience of parties and witnesses and in the interest of justice.” Id. (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947)). Based on the jurisprudence, both convenience and the interest of justice must be satisfied. 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 for willing witnesses; and

(4) all other practical problems that make trial of a case easy, expeditious and inexpensive.

In re Volkswagen, 545 F.3d at 315 (internal quotations and citations omitted).

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 or in the application of foreign law.

Id. (internal quotations and citations omitted).

Finally, “although the Gilbert [sic] factors are appropriate for most transfer cases, they are not necessarily exhaustive or exclusive,” and “ ‘none ... can be said to be of dispositive weight.’ ” Id. (citing Action Indus., Inc. v. U.S. Fid. & Guar. Co., 358 F.3d 337, 340 (5th Cir.2004)). Although no single Gilbert factor controls the decision to transfer, we see that the overwhelming public interest in comity may require a case to be transferred regardless of the circumstances surrounding the other factors.

2. Principles of Comity

Although not specifically listed as a factor under Gilbert, the Fifth Circuit has recognized comity as a sole basis for requiringcourts to transfer a case to a court of concurrent jurisdiction due to the “likelihood of substantial overlap” between pending matters between the two courts. West Gulf Maritime Ass'n v. ILA Deep Sea Local 24, 751 F.2d 721, 730 (5th Cir.1985) (citing Mann Manufacturing, Inc. v. Hortex Inc., 439 F.2d 403, 408 (5th Cir.1971)). In West Gulf, the Fifth Circuit vacated a preliminary injunction issued by a district court in the Southern District of Texas based upon the following. West Gulf, 751 F.2d at 732.

ILA Deep Sea (“ILA”) was a labor union which filed suit in the Southern District of New York on June 28, 1984 to enforce an arbitration agreement reached by the Emergency Hearing Panel (“Panel”) on June 12, 1984. West Gulf, 751 F.2d at 724. The Panel's June 12th decision concerned the number of labor union members required to be employed when utilizing a “containerization” procedure for loading and unloading cargo. Id. at 723–24. ILA named West Gulf as a defendant in the New York action and West Gulf filed a motion to dismiss and motion to transfer, both of which were denied by New York's Judge Sand on August 9, 1984. Id. at 724.

While West Gulf's motions were pending in New York, it filed suit against ILA Local 24 in the Southern District of Texas on August 3, 1984 seeking a preliminary injunction and declaratory relief. Id. at 72425. West Gulf filed suit in Texas alleging ILA Local 24 members had refused to complete certain work assignments and that the assignments were in violation of the Panel's June 12th decision. Id. Thus, West Gulf sought to enjoin the...