United States District Court, M.D. Tennessee, Nashville Division
WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE
before the Court is a Motion to Transfer and to Dismiss (Doc.
No. 16),  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.
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.” 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.
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,
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.
Government alternatively asks the Court to dismiss the First
Amended Complaint for failure to state a claim upon which
relief may be granted.
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).
reviewing a motion to transfer, the court is to balance all
relevant factors, including the private
interests of the parties and public-interest
concerns,  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).
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.
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.
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 ...