Case 4:14-cv-00780-ALM-DDB Document 54 Filed 02/26/16 Page 1 of 7 PageID #: 582
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`SHERMAN DIVISION
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`CIVIL ACTION NO. 4:14cv780
`(Judge Mazzant/Judge Bush)
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`§
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`§§
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`§
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`§
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`ESTATE OF JOYCE
`ROSAMOND PETERSEN
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`v.
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`WILLIAM E. BITTERS, et al.,
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`REPORT AND RECOMMENDATION OF
`UNITED STATES MAGISTRATE JUDGE
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`Pending before the Court is Plaintiff Petersen’s Motion to Transfer Venue (Dkt. 50).
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`Pursuant to 28 U.S.C. § 1404(a) or, alternatively, 28 U.S.C. § 1406(a), Plaintiff asks the Court to
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`transfer venue to the United States District Court for the District of Nebraska in the interest of justice
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`and for the convenience of the parties. Although no opposition has been filed by Defendants Bitters
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`or Henry, Defendant Boland has filed a response in opposition. As set forth below, the Court finds
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`that the motion to transfer venue should be GRANTED.
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`Boland does not argue that the Eastern District of Texas is a more convenient venue to
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`resolve Plaintiff’s disputes. Nor does Boland’s opposition contest any of the private or public
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`interest factors supporting transfer of this case to Nebraska. Instead, he argues that the Court cannot
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`transfer the case because “Plaintiff has not, and indeed cannot, plead any facts which would allow
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`the District of Nebraska to exercise personal jurisdiction over” him. Dkt. 51 at 2. Boland’s
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`argument is not consistent with the record herein.
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`1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`SHERMAN DIVISION
`
`CIVIL ACTION NO. 4:14cv780
`(Judge Mazzant/Judge Bush)
`
`§
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`§§
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`§
`§
`§
`
`ESTATE OF JOYCE
`ROSAMOND PETERSEN
`
`v.
`
`WILLIAM E. BITTERS, et al.,
`
`REPORT AND RECOMMENDATION OF
`UNITED STATES MAGISTRATE JUDGE
`
`Pending before the Court is Plaintiff Petersen’s Motion to Transfer Venue (Dkt. 50).
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`Pursuant to 28 U.S.C. § 1404(a) or, alternatively, 28 U.S.C. § 1406(a), Plaintiff asks the Court to
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`transfer venue to the United States District Court for the District of Nebraska in the interest of justice
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`and for the convenience of the parties. Although no opposition has been filed by Defendants Bitters
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`or Henry, Defendant Boland has filed a response in opposition. As set forth below, the Court finds
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`that the motion to transfer venue should be GRANTED.
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`Boland does not argue that the Eastern District of Texas is a more convenient venue to
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`resolve Plaintiff’s disputes. Nor does Boland’s opposition contest any of the private or public
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`interest factors supporting transfer of this case to Nebraska. Instead, he argues that the Court cannot
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`transfer the case because “Plaintiff has not, and indeed cannot, plead any facts which would allow
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`the District of Nebraska to exercise personal jurisdiction over” him. Dkt. 51 at 2. Boland’s
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`argument is not consistent with the record herein.
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`1
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`Case 4:14-cv-00780-ALM-DDB Document 54 Filed 02/26/16 Page 2 of 7 PageID #: 583
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`Plaintiff’s complaint names Boland as one of the officers of United Financial Information
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`Services (“UFIS”) who “works with Bitters” as his partner. Dkt. 1 at ¶8. UFIS is described as a
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`company doing business in Nebraska. Dkt. 1 at ¶7. Further, in his motion to dismiss, Defendant
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`Bitters indicates that UFIS is in Nebraska. See Dkt. 5 at 7-8. Boland has not refuted any of the facts
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`asserted by his alleged partner Bitters regarding the systematic and continuous business activities in
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`Nebraska under the name of UFIS. Without more from Boland indicating otherwise, the Court finds
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`that the allegations before the Court are sufficient to state Plaintiff’s grounds for jurisdiction over
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`Boland in Nebraska.
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`Although Boland previously filed a motion arguing that there is no personal jurisdiction over
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`him in this Court because he had no contact with Texas whatsoever (see Dkt. 23), he has not filed
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`any such motion arguing he had no contact with Nebraska or challenging the Nebraska court’s
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`exercise of jurisdiction over him. The only challenge to Nebraska’s jurisdiction is made in Boland’s
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`opposition to the motion to transfer venue which is less than three pages in length and cites to no
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`evidence or authority to show why the Court should not transfer this case as Plaintiff has requested.
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`In that response, Boland merely makes the assertion that “Plaintiff has not, and indeed cannot, plead
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`any facts which would allow the District of Nebraska to exercise personal jurisdiction over Mr.
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`Boland.” Dkt. 51. Boland’s pleadings do not, through affidavit or otherwise, set forth why Nebraska
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`cannot exercise jurisdiction over him. His conclusory allegation that it cannot, in the face of
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`Plaintiff’s allegations in her complaint and arguments in her briefing regarding transfer, is not
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`enough to support his position at this time.
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`2
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`Case 4:14-cv-00780-ALM-DDB Document 54 Filed 02/26/16 Page 3 of 7 PageID #: 584
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`Further, Boland’s current position is inconsistent with his prior characterization of the venue
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`facts in this case which at the very least imply the propriety of venue in Nebraska. In arguing that
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`venue is not proper in Texas, Boland claimed that “the Court should dismiss the case because
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`substantial parts of the events or omissions giving rise to the claim occurred in Nebraska and Iowa.”
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`Dkt. 23 at 4. Boland further alleged:
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`All of the meetings, negotiations, and discussions regarding the $150,000.00
`happened in Nebraska. Moreover, funds were drawn from Plaintiff’s Nebraska
`bank account and transferred to Mr. Henry’s bank account in Nebraska, the
`promissory note became due while Ms. Peterson was a resident of Nebraska.
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`Id.
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`Boland’s grounds for opposing the transfer of venue to Nebraska are simply not consistent
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`with his prior pleadings. He has argued that this District is improper, now argues that Nebraska is
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`improper, and critically does not allege any facts or cite to any authority to argue what venue would
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`be proper for the parties’ dispute. The Court is not convinced. The Court will not deny Plaintiff’s
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`motion based on the grounds set forth in Boland’s motion.
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`The Court now turns to whether, assuming venue was ever proper in Texas, a transfer is
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`warranted under Section 1401(a). Plaintiff argues that it is.
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`Section 1404(a) provides that “[f]or the convenience of parties and witnesses, in the interest
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`of justice, a district court may transfer any civil action to any other district or division where it might
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`have been brought or division to which parties have consented.” 28 U.S.C. § 1404(a). The purpose
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`of Section 1404(a) “is to prevent the waste ‘of time, energy, and money’ and ‘to protect litigants,
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`witnesses and the public against unnecessary inconvenience and expense....’” Van Dusen v. Barrack,
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`3
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`Case 4:14-cv-00780-ALM-DDB Document 54 Filed 02/26/16 Page 4 of 7 PageID #: 585
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`376 U.S. 612, 616, 84 S. Ct. 805, 11 L. Ed.2d 945 (1964) (quoting Continental Grain Company v.
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`Barge FBL-585, 364 U.S. 19, 26-27, 80 S. Ct. 1470, 4 L. Ed.2d 1540 (1960)). The decision to
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`transfer a pending case is committed to the sound discretion of the district court. Jarvis Christian
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`College v. Exxon Corp., 845 F.2d 523, 528 (5th Cir.1988).
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`“The preliminary question under § 1404(a) is whether a civil action might have been brought
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`in the destination venue.” In re Volkswagen of Am., Inc., 545 F. 3d 304, 312 (5th Cir. 2008) (internal
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`quotations omitted). Once this is established, in determining whether Section 1404(a) venue transfer
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`is for the convenience of parties and witnesses and in the interest of justice, the Court must weigh
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`the private and public interest factors. Id. at 315. The private interest factors are: “(1) the relative
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`ease of access to sources of proof; (2) the availability of compulsory process to secure the attendance
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`of witnesses; (3) the cost of attendance for willing witnesses; and (4) all other practical problems that
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`make trial of a case easy, expeditious and inexpensive.” Id. The public interest factors are: “(1) the
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`administrative difficulties flowing from court congestion; (2) the local interest in having localized
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`interests decided at home; (3) the familiarity of the forum with the law that will govern the case; and
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`the avoidance of unnecessary problems of conflict of laws [or in] the application of foreign law.”
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`Id. This list of factors is neither exhaustive nor exclusive, and no single factor is given dispositive
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`weight. Id.
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`There is no question that this case could have been brought in Nebraska. This is a case
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`regarding alleged breaches of duties under a promissory note entered into by Joyce Petersen when
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`she resided in Nebraska. Petersen entered into the promissory note with Defendant John Henry who
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`4
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`Case 4:14-cv-00780-ALM-DDB Document 54 Filed 02/26/16 Page 5 of 7 PageID #: 586
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`then resided – and still resides – in Nebraska. Plaintiff (Petersen’s estate) served the complaint in
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`this action on Defendant Henry in Nebraska. The promissory note was drafted in Nebraska by
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`Defendant Bitters whose business UFIS, in which Defendant Boland is an alleged partner, allegedly
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`operates out of Nebraska.
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`As to the private interest factors, there is no question that a great majority of the evidence and
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`witnesses would either be located in or more easily accessible in Nebraska. As argued by Defendant
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`Bitters, Nebraska is where Defendant Henry resides, where Defendant Bitters works, and where any
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`possible remedy against Henry or Mr. Bitters would be enforced. Dkt. 5. And, as argued by Boland,
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`all of the meetings, negotiations, and discussions regarding the $150,000.00 loan happened in
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`Nebraska, funds were drawn from Petersen’s Nebraska bank account and transferred to Defendant
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`Henry’s bank account in Nebraska, and the promissory note became due while Ms. Petersen was a
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`resident of Nebraska. Dkt. 23 at 4. The Court finds that the practicality of preparing for and trying
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`this case weighs heavily in favor of transfer to Nebraska.
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`As to the public interest factors, Nebraska has a greater interest in adjudicating the dispute
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`than does the Eastern District than Texas, especially considering the fact that the promissory note
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`at issue was executed in the state by Nebraska residents. Indeed, although filed in Texas, Plaintiff’s
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`complaint alleges that Nebraska is “is the State with the most significant relationship to the
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`transaction resulting in the Promissory Note” and argues that Nebraska law applies. Dkt. 1 at ¶39.
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`Nebraska courts certainly have a greater familiarity with (and interest in) the application of Nebraska
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`law to the facts here. Moreover, although not discussed by the parties, the Eastern District has
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`5
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`Case 4:14-cv-00780-ALM-DDB Document 54 Filed 02/26/16 Page 6 of 7 PageID #: 587
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`numerous judicial vacancies and a heavy criminal trial docket and civil case load. This Court’s
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`current congestion also weighs in favor of transfer.
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`The Court also finds that the fact that Plaintiff is the party now seeking transfer of venue
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`(with no opposition from all but one of the Defendants)1 weighs in favor of transfer. Plaintiff is
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`ultimately the party with the burden of proof; assuming it is appropriate, her choice of forum should
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`be honored to the extent it can be.
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`As noted briefly above, both Boland and Bitters have challenged whether venue was ever
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`proper in Texas. And, as the Court noted at the August 11, 2015 hearing in this case, the facts giving
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`rise to venue in the Eastern District of Texas are dubious. See Dkts. 42 & 43. Nonetheless, Plaintiff
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`vehemently asserts that “[v]enue is proper in this district pursuant to 28 U.S.C. §§ 1391(d) and 28
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`U.S.C. §§ 1391(b)(2) since the omission – i.e., failure to pay Ms. Petersen –occurred in this district
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`while Ms. Petersen resided in her home in Plano, Texas.” Dkt. 1 at ¶5. The Court need not reach
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`this analysis in order to recommend transfer to Nebraska.
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`Even if venue is not proper in Texas such that transfer could not be made under Section 1404,
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`under 28 U.S.C. §1406 this Court can transfer venue in the interests of justice to Nebraska. 28
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`U.S.C. §1406(a) (“The district court of a district in which is filed a case laying venue in the wrong
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`division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district
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`or division in which it could have been brought.”). The Court finds that this case could have been
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`1Although Boland now opposes transfer to Nebraska, the Court questions whether his
`prior position as to the Nebraska venue could be deemed as consent to the transfer. At the very
`least, Boland’s prior position weighs against him in his opposition.
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`6
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`Case 4:14-cv-00780-ALM-DDB Document 54 Filed 02/26/16 Page 7 of 7 PageID #: 588
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`brought in Nebraska and that, in the interests of justice, and to conserve party and court resources
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`and avoid piecemeal litigation, it should be transferred there.
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`Plaintiff Petersen’s Motion to Transfer Venue (Dkt. 50) should be GRANTED and this case
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`should be transferred to the United States District Court for the District of Nebraska, Omaha
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`Division.
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`Within fourteen (14) days after service of the magistrate judge’s report, any party may serve
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`and file written objections to the findings and recommendations of the magistrate judge. 28
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`U.S.C.A. § 636(b)(1)(C).
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`A party is entitled to a de novo review by the district court of the findings and conclusions
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`contained in this report only if specific objections are made, and failure to timely file written
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`objections to any proposed findings, conclusions, and recommendations contained in this report shall
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`bar an aggrieved party from appellate review of those factual findings and legal conclusions accepted
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`by the district court, except on grounds of plain error, provided that the party has been served with
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`notice that such consequences will result from a failure to object. Id.; Thomas v. Arn, 474 U.S. 140,
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`148 (1985); Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc),
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`superseded by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending the time to file objections
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`from ten to fourteen days).
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`7
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