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Doe v. United States

United States District Court, M.D. Tennessee, Nashville Division

October 26, 2017

JOHN DOE and JANE ROE, Plaintiffs



         Pending before the Court is a Motion to Transfer and to Dismiss (Doc. No. 16), [1] filed by the United States of America (“the Government”). Plaintiffs have filed a Response in opposition to the Government's Motion (Doc. No. 21), the Government has filed a Supplemental Brief (Doc. No. 24), Plaintiff has filed a Response to the Government's Supplemental Brief (Doc. No. 27), Plaintiff has filed Supplemental Authority (Doc. No. 28), and the Government has filed a Second Supplemental Memorandum (Doc. No. 32). For the reasons stated herein, the Government's Motion to Transfer and Dismiss will be DENIED.


         Plaintiffs are Honduran asylum-seekers who fled to the United States in July of 2013. Plaintiffs entered the United States near Hildago, Texas, with their two-year-old son. Plaintiff Roe was, at that time, six to seven months pregnant. Plaintiffs found the nearest U.S. Customs and Border Protection (“CBP”) station to turn themselves in and seek asylum. CBP officers with the Weslaco Station in the Rio Grande Valley Sector took Plaintiffs into custody and transported them to a detention center known as the “hielera.”[2] This action arises from the alleged mistreatment of Plaintiffs by CBP officials during Plaintiffs' stay in the hielera. Plaintiffs allege that the CBP officers stripped Plaintiffs of their extra clothing, diapers, and baby supplies; required them to stay in a frigid concrete cell with dozens of other detainees; and failed to provide them with beds, warm clothes, blankets, private toilet space, toilet paper, soap, toothbrushes, toothpaste, edible food or water, all in violation of U.S. Border Patrol Policy and CBP policies.

         Plaintiffs assert that, as a result of the conditions in the hielera, Plaintiff Roe became very ill and begged for medical treatment until the officers took her to a nearby hospital, where medical personnel determined that she was in the process of dilation. Despite being informed that Plaintiff Roe should be released from detention immediately so as to prevent pre-term labor and minimize the health risks to her and to her unborn child, CBP officials returned Plaintiff Roe to the hielera. Plaintiffs contend that their son also became visibly ill and dehydrated, but the officers did not provide any medical treatment for him at all. CBP officers eventually drove Plaintiffs and their son to a Greyhound bus station and left them there alone at approximately 12:45 a.m. on July 29, 2013.

         The First Amended Complaint asserts causes of action for negligence, negligent supervision, and intentional infliction of emotional distress under the Federal Torts Claims Act (“FTCA”). The Government asks the Court to transfer this action to the U.S. District Court for the Southern District of Texas, where all of the alleged misconduct occurred, where the majority of witnesses live, where most of the sources of proof are, and where the court could allegedly better apply Texas state law.

         The Government alternatively asks the Court to dismiss the First Amended Complaint for failure to state a claim upon which relief may be granted.


         Defendants seek transfer of this action pursuant to 28 U.S.C. § 1404(a), which provides: “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.” The burden of proving that transfer is warranted is on the moving party, and the burden is a substantial one. Smith v. Kyphon, Inc., 578 F.Supp.2d 954, 958 (M.D. Tenn. 2008). As the permissible language of the transfer statute suggests, district courts have broad discretion to determine when convenience or the interests of justice make a transfer appropriate. Reese v. CNH America LLC, 574 F.3d 315, 320 (6th Cir. 2009). The burden requires a clear and convincing showing that the balance of convenience strongly favors the alternate forum. Flores v. United States, 142 F.Supp.3d 279, 287 (E.D.N.Y. 2015).

         In reviewing a motion to transfer, the court is to balance all relevant factors, including the private interests[3] of the parties and public-interest concerns, [4] such as systemic integrity and fairness, which come under the rubric of “interests of justice.” Encore Medical, L.P. v. Kennedy, 861 F.Supp.2d 886, 895 (E.D.Tenn. 2012). And, the court should keep in mind that unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed. Smith, 578 F.Supp.2d at 962. Convenience of non-party witnesses, as opposed to parties or employee witnesses, is one of the most important factors in the transfer analysis. Id. at 963. Transfer of venue is inappropriate where it would serve only to transfer the inconvenience from one party to the other. Heldman v. King Pharmaceuticals, Inc., 2010 WL 5300875 at * 2 (M.D. Tenn. Dec. 20, 2010); Diebold, Inc. v. Firstcard Fin. Servs., Inc., 104 F.Supp.2d 758, 764 (N.D.Ohio 2000). In determining convenience, a court should consider: (1) the location of willing and unwilling witnesses; (2) the residence of the parties; (3) the location of sources of proof; (4) the location of the events that gave rise to the dispute; (5) systemic integrity and fairness; and (6) the plaintiff's choice of forum. Stewart v. American Eagle Airlines, Inc., 2010 WL 4537039 at * 2 (M.D. Tenn. Nov. 3, 2010).


         The parties do not dispute that this action “could have been brought” in Texas. A plaintiff's choice of forum is a significant factor in considering whether to transfer an action, especially where the plaintiff also resides in the chosen forum. Smith, 578 F.Supp.2d at 962. Plaintiffs' choice of this forum weighs in favor of not transferring this action.

         Similarly, the convenience of the parties weighs in favor of not transferring this action because Plaintiffs are here and have fewer resources to travel and litigate in Texas than the Government has to travel and litigate in Middle Tennessee. Plaintiffs and their two small children live in Middle Tennessee, and a transfer to Texas, more than a thousand miles away, would impose a significant financial hardship upon them. A transfer is disfavored where it merely shifts the burden of litigating in an inconvenient forum to the plaintiff. Alvarado v. United States, 2017 WL 2303758 at * 6 (D.N.J. May 25, 2017). Where disparity exists between the parties, the relative means of the parties may be considered. Flores, 142 F.Supp.3d at 289. Here, as in Flores, there can be no dispute that there is a significant disparity in the relative means of the parties, and this factor weighs against the requested transfer.

         The convenience of witnesses, especially non-party witnesses, is another important factor in the transfer analysis. Stewart at * 2 (citing Smith, 578 F.Supp.2d at 963). The Government argues that every key witness, other than Plaintiffs, is located in Texas. Those witnesses include the CBP officers (party witnesses) and the physician who saw Plaintiff Roe at the hospital (a third-party witness). The Government has not provided any evidence that CBP employees would be unwilling to testify in this district if asked to ...

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