The opinion
United States District Court
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
CARLOS MARTINEZ et al. §
§
v. § CIVIL ACTION NO. 3:20-CV-1499-S
§
C.R. BARD INCORPORATED et al. §
MEMORANDUM OPINION AND ORDER
This Order addresses Plaintiffs’ Unopposed Motion to Sever and Transfer Venue of Out-
of-State Plaintiffs’ Cases [ECF No. 17]. 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. 22. 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 July 30, 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.
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
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 out-
of-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
those plaintiffs’ residences. See Volkswagen I, 371 F.3d at 204. Defendants agree that Plaintiff
has identified the proper transferee district 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 Edna Barnes’s case be severed and transferred to the Jackson Division
of the Western District of Tennessee;
b. Plaintiff Joland Brown’s case be severed and transferred to the New Orleans
Division of the Eastern District of Louisiana;
c. Plaintiff Kenwann Foster’s case be severed and transferred to the Atlanta
Division of the Northern District of Georgia;
d. Plaintiff Duron Hebron’s case be severed and transferred to the Chicago
Division of the Northern District of Illinois;
e. Plaintiff Tameka McClamy’s case be severed and transferred to the
Philadelphia Division of the Eastern District of Pennsylvania;
f. Plaintiff Elizabeth Olson’s case be severed and transferred to the Madison
Division of the Western District of Wisconsin;
g. Plaintiff Jimmy Sullivan’s case be severed and transferred to the Chattanooga
Division of the Eastern District of Tennessee;
h. Plaintiff Krista Umholtz’s case be severed and transferred to the Tampa
Division of the Middle District of Florida;
i. Plaintiff Lunell Will’s case be severed and transferred to the Benton Division
of the Southern District of Illinois.
Plaintiff Carlos Martinez is the sole plaintiff with any connection to this forum. Accordingly, he
shall remain in the Dallas Division of the Northern District of Texas.
SO ORDERED.
SIGNED August 19, 2020.
KAREN GREN SCHOLER ~
UNITED STATES DISTRICT JUDGE