Thurmond v. Compaq Computer Corporation, 1:99-CV-0711 (TH), JURY (E.D. Tex. 3/1/2000)
| Decision Date | 01 March 2000 |
| Docket Number | 1:99-CV-0711 (TH), JURY. |
| Parties | CHARLES THURMOND, and HAL LAPRAY, On Behalf of Themselves and All Others Similarly Situated, Plaintiffs, v. COMPAQ COMPUTER CORPORATION, Defendant. |
| Court | U.S. District Court — Eastern District of Texas |
Before this Court is Compaq's Motion to Transfer Venue [13]. Having considered the motion, the response, the reply to the response, and the arguments of counsel at a February 28, 2000 hearing, this Court DENIES Compaq's Motion to Transfer Venue [13].
On November 30, 1999 Plaintiffs Charles Thurmond and Hal Lapray ("Plaintiffs") sued Defendant Compaq Computer Corporation ("Compaq") alleging Compaq "designed, manufactured, created, distributed, sold, marketed, or transmitted ... FDC microcode that can cause the unreported corruption or loss of data." Plaintiffs' First Amended Original Class Complaint [8] at p.3. "Plaintiffs purchased computers, or similar devices, sold or manufactured by Defendant, or that contain floppy diskette drives (`FDDs'), floppy diskette controllers (`FDCs'), or FDC instructions or commands in the form of microcode that were designed, sold, manufactured, transmitted or created by Defendant." Id. at p.1. Plaintiffs seek injunctive relief and statutory damages under Title 18 U.S.C. § 1030 (the "Computer Fraud and Abuse Act"), revocation of acceptance under the Uniform Commercial Code ("UCC"), breach of contract and express and implied warranties, and declaratory relief under Title 18 U.S.C. § 1030. Id. at pp. 10-15.
On January 28, 2000 Compaq delivered a plethora of motions to this Court including Compaq's Motion to Transfer Venue [13] to the Southern District of Texas, Houston Division under Title 28 U.S.C. § 1404(a).1 Here's Compaq's basis for transfer:
Compaq's principal place of business is in Houston, Texas. Compaq employees that will likely be witnesses reside in Houston and most, if not all, of Compaq's documents relevant to this case are in Houston. Not only is Houston the most convenient forum for the witnesses, but the Beaumont Division of the Eastern District of Texas has no subpoena power over third party witnesses residing outside the Eastern District. Further, Plaintiffs alleged causes of action did not accrue in the Eastern District of Texas.... The manufacture, sale and distribution of Plaintiffs' computers did not take place in the Eastern District of Texas. Finally, the interests of justice favor transfer to the Southern District of Texas. Plaintiffs' lead counsel has an interest in The Beaumont Examiner, a weekly newspaper and he has used the paper to promote his case.
Compaq's Motion to Transfer Venue [13] at pp. 1-2.
Rule 12(h) of the Federal Rules of Civil Procedure reads in relevant part:
(1) A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process is waived (A) if omitted from a motion in the circumstances described in subdivision (g), or (B) if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course.
FED.R.CIV.P. 12(h)(1) (emphasis added). First, this Court notes that this rule speaks to improper venue-not transfer of venue for convenience of the parties and the witnesses under Title 28 U.S.C. § 1404(a).2 Professors Wright and Miller: CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3844, at 334-35 (2d ed.1986) (). In fact, a Section 1404(a) transfer motion can technically be made at any time. In American Standard the district court held that a delay of four years in bringing a transfer motion did not, in itself, bar the motion. 487 F.Supp. at 261. The district court found the motion "timely" since the four-year delay had not been shown to be "a dilatory tactic, or that the defendant would be prejudiced solely because of the delay." Id.
Of course, crafty litigants can't ambush their opponents with a tactical Section 1404(a) transfer motion on the eve of trial. "A motion to transfer should be made with `reasonable promptness.'" Henderson v. AT&T Corp., 918 F.Supp. 1059 (S.D.Tex.1996) (citing Peteet v. Dow Chemical Co., 868 F.2d 1428, 1436 (5th Cir.), cert. denied, 493 U.S. 935 (1989)). Reasonable promptness? What's that? If a party resisting transfer successfully shows the Section 1404(a) transfer motion is a dilatory tactic, or that it would be prejudiced solely because of the delay in bringing the motion, then the party moving for transfer has failed to exhibit "reasonable promptness" in bringing its transfer motion. See American Standard, supra.; Peteet, supra. Unlike a motion to dismiss for improper venue, there is absolutely no reason a defendant seeking a Section 1404(a) transfer must so move before his original answer.
In 1948 Congress adopted Title 28 U.S.C. § 1404(a) as part of the Judicial Code of 1948. CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3841, at 319 (2d ed.1986). Here's what Title 28 U.S.C. Section 1404 says in its entirety:
(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.
(b) Upon motion, consent or stipulation of all parties, any action, suit or proceeding of a civil nature or any motion or hearing thereof, may be transferred, in the discretion of the court, from the division in which pending to any other division in the same district. Transfer of proceedings in rem brought by or on behalf of the United States may be transferred under this section without the consent of the United States where all other parties request transfer.
(c) A district court may order any civil action to be tried at any place within the division in which it is pending.
(d) As used in this section, "district court" includes the District of Guam, the District Court for the Norther Mariana Islands, and the District Court of the Virgin Islands, and the term "district" includes the territorial jurisdiction of the court.
Title 28 U.S.C. § 1404(a) (emphasis added).
The Reviser's Note explaining the new subsection (a) "was not particularly illuminating." CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3841, at 320 (2d ed.1986). Here's what the Reviser's Note said about subsection (a):
Subsection (a) was drafted in accordance with the doctrine of forum non conveniens, permitting transfer to a more convenient forum, even though the venue is proper. As an example of the need of such a provision, see Baltimore & Ohio R. co. v. Kepner, 1941, 62 S.Ct. 6, 314 U.S. 44, 86 L.Ed. 28, which was prosecuted under the Federal Employers' Liability Act in New York, although the accident occurred and the employee resided in Ohio. The new subsection requires the court to determine that the transfer is necessary for convenience of the parties and witnesses, and further, that is in the interest of justice to do so.
"Congress cited a FELA case as an example of the need for such a provision, and courts have consistently held that Section 1404(a) applies to all actions, not just those listed in the general venue provisions." Robertson v. Kiamichi Railroad, 42 F.Supp.2d 651, 654 (E.D.Tex. 1999) (). So, Section 1404(a) grew out of the doctrine of forum non conveniens. But what's the doctrine of forum non conveniens?
Transfer for convenience under Title 28 U.S.C. § 1404(a) should not be confused with dismissal under the doctrine of forum non conveniens.3 The Restatement (Second) of Conflict of Laws Section 84 defines forum non conveniens as the doctrine whereby "[a] state will not exercise jurisdiction if it is a seriously inconvenient forum for the trial of the action [,] provided that a more appropriate forum is available to the plaintiff." RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 84 (1971). Professor, and later Judge, Robert Braucher traced the origins of forum non conveniens to Nineteenth-Century Scotland. Robert Baucher, The Inconvenient Federal Forum, 60 HARV.L.REV. 908, 909 (1947). However, Johnson v. G.D. Searle & Co., 314 Md. 521, 525, 552 A.2d 29, 30-31 (1989). "Local actions can be tried only where they arise; transitory actions, in whatever court has jurisdiction over the defendant or his property." Foster, Place of Trial of Civil Actions, 43 HARV.L.REV. 1217, 1217 (1930). Finally, another commentator argued American courts had been applying the doctrine of forum non conveniens without using its Latin label. Paxton Blair, The Doctrine of Forum Non Conveniens in Anglo-American Law...
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