Judge: Rodney Gilstrap
Holding: Motion to Transfer Denied
Last month I posted on Judge Gilstrap's opinion in this case denying a pending a petition for Covered Business Method review. On Friday, Judge Gilstrap ruled on the defendants' motion to transfer venue, which asked the court to transfer this action against 13 defendants to the Northern District of California.
Just to help keep score here, the plaintiff was from Massachusetts, one defendant was located in the Eastern District of Texas, three were located elsewhere in Texas (with one of the three also operating a facility in the Eastern District of Texas), and eight other defendants were based in cities east of Texas. One defendant is based in the Northern District of California. After reviewing the relevant factors, Judge Gilstrap denied the motion.
What is significant about this venue opinion is its use of the 2013 revisions to Federal Rule of Civil Procedure 45, which substantially changed the rules for subpoena practice.
As readers of O'Connor's * Federal Rules (2014) (specifically ch. 1-H, p. 47) already know, there were significant amendments to Rule 45 which took effect on December 1, 2013. Among other things, they did the following:
- specify that the court where the action is pending is the court to issue subpoenas for that action
- permit nationwide service of subpoenas
- collect in a new subdivision (c) the previously scattered provisions on the place of compliance
- resolve a conflict about the court's authority to compel a party or parties officer to travel long distances to testify at trial; and
- allow, in limited circumstances, a court where compliance is required to transfer subpoena – related motion to the court where the action is pending.
The effect of the amended rule became clear when the court reached the second private interest factor "availability of compulsory process." Judge Gilstrap noted that in In re Volkswagen II under the then – effective Rule 45, the Fifth Circuit expressed concerns over situation where a nonparty witness, located outside the presiding court's subpoena power for attending deposition, had to travel more than 100 miles to attend trial thereby subjecting any trial subpoenas issued for the witness to motions to quash. Under the amended rule, however, the presiding court is empowered to issue nationwide deposition subpoenas, so long as the deposition is to take place within 100 miles of the witness' residence or regular place of business. Thus under the current Rule 45, regardless of the venue in which a case is originally filed, parties may now secure the attendance of any nonparty witnesses for deposition - something the Fifth Circuit said wasn't available under the former version of the rule.
"This recent amendment to Rule 45 has direct application to the Fifth Circuit's earlier concern expressed in In re Volkswagen II about a non-party witness being inconvenienced by having to travel more than 100 miles to attend trial," Judge Gilstrap wrote. "The proffering party now has the option to depose the non– party witness near that witness' residence or regular place of business, and later present the witness' deposition testimony at trial."
The only difference between the two venues, the Court reasoned, was that defendants could present live testimony of its three identified nonparty witnesses which were in the Northern District of California, while they must rely on the witnesses deposition testimony if the case remained in Texas. However in its briefing, the court noted that the defendants had failed to explain how they would be inconvenienced by presenting the nonparty witnesses by deposition testimony at trial - in fact the court indicated that the defendants failed to even recognize the possibility of presenting these witnesses testimony by deposition. The court therefore turned to the Fifth Circuit case law regarding videotape depositions in which that court held that a videotape deposition would serve as an acceptable substitute for live testimony, and concluded that it was not convinced that using the nonparty witnesses deposition as opposed to live testimony at trial would seriously inconvenience the defendants.
After reviewing the applicable factors, Judge Gilstrap concluded that one factor weighed slightly in favor of transfer, one slightly against, and all the remaining six factors were neutral. Thus the balance of the private and public factors did not show that the defendants had established that the Northern District of California was a "clearly more convenient forum."
The court concluded by noting that in a footnote one of the defendants had also asked for the plaintiff's litigation against its customers to be severed and stayed. Judge Gilstrap concluded that the four-line footnote did state a request for severance that the court must address, but gave it little reason to do so, and accordingly denied it