United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER DENYING DEFENDANTS'
MOTION TO CHANGE VENUE PURSUANT 28 U.S.C. §
N. Parrish, United States District Court Judge.
the Court is a Motion to Change Venue filed by Defendants
National Tech Services, Eziquiel Garcia, and Michael Prather.
(Docket No. 6). As explained below, the Court DENIES the
lawsuit arises from a contractual dispute between two
companies who deal in satellite television subscriptions. The
first, Plaintiff Fuse Satellite (“Fuse”), is a
sales and marketing company based in Utah, with door-to-door
sales forces in numerous states. The second, Defendant
National Tech Services (“NTS”), is a partnership
that also specializes in sales and marketing and is based in
Texas. Defendants Eziquiel Garcia and Michael Prather are
allegedly the sole partners of NTS. Both Fuse and NTS
apparently act as intermediaries between customers and
DirecTV, selling DirecTV subscriptions door-to-door and
installing satellite systems in exchange for commissions from
point in 2015, Defendants Garcia and Prather allegedly began
working with Fuse as independent contractors. After
Defendants Garcia and Prather formed NTS in 2016, they
allegedly entered into an oral agreement with Fuse regarding
certain Spanish-speaking customers in Texas. The agreement
was allegedly shaped over several discussions-conducted via
telephone, text messages, and in-person meetings-between Fuse
representatives in Utah and Defendants Garcia and Prather in
Texas. Pursuant to the agreement, Fuse representatives
working in Texas were to refer interested Spanish-speaking
customers to NTS, who would then connect the customers with
DirecTV and pay Fuse a commission from the resulting profit.
A dispute soon arose regarding the amount owed to Fuse in
commissions and Fuse's access to a DirecTV
“portal”-an interface that allowed dealers to
track customer data and payments from DirecTV. Communication
between Fuse and NTS broke down, the business relationship
soured, and the instant lawsuit resulted.
filed the instant lawsuit in Utah state court on October 24,
2016 and NTS was served with the complaint three days
later. NTS removed the lawsuit to this Court on November 28,
2016 on the basis of diversity jurisdiction. (Docket No. 2).
On December 9, 2016, NTS filed the instant Motion to Change
Venue, requesting a transfer to the United States District
Court for the Western District of Texas. (Docket No. 6). Fuse
filed a memorandum in opposition on January 5, 2017. (Docket
No. 17). NTS did not file a reply in the time allotted by the
local rules and did not otherwise submit the Motion for
decision. The Court concludes that oral argument would not
materially advance resolution of this Motion and therefore
resolves the Motion on the briefs. See DUCivR
explained above, Defendants request transfer of this case to
the Western District of Texas pursuant to 28 U.S.C §
1404(a). Under that section, this Court “may transfer
any civil action to any other district or division where it
might have been brought or to any district or division to
which all parties have consented.” 28 U.S.C §
1404(a). However, the Court may make such an order only upon
a showing that “the convenience of parties and
witnesses” and “the interest of justice”
justify transfer. See id.; Atl. Marine Const.
Co. v. U.S. Dist. Court, 134 S.Ct. 568, 580 (2013)
(explaining that § 1404(a) codified “the doctrine
of forum non conveiens for the subset of cases in
which the transferee forum is within the federal court
system”). Thus, any party moving for a transfer under
§ 1404(a) must clearly demonstrate “that: (1) the
transferee court is a proper forum in which the action could
have been brought originally; and (2) the transfer will
enhance the convenience of the parties and witnesses, and is
in the interest of justice.” Cmty. Television of
Utah, LLC v. Aereo, Inc., 997 F.Supp.2d 1191, 1205 (D.
Utah 2014) (citing Van Dusen v. Barrack, 376 U.S.
612, 616, 634 (1964)).
neither party disputes that the Western District of Texas is
an appropriate transferee forum under § 1404(a).
Accordingly, the Court need only evaluate whether the
requested transfer will materially “enhance the
convenience of the parties and witnesses, and is in the
interest of justice.” See Id. Again,
“[t]he ‘party moving to transfer a case pursuant
to § 1404(a) bears the burden of establishing that the
existing forum is inconvenient.'” Emp'rs
Mut. Cas. Co. v. Bartile Roofs, Inc., 618 F.3d
1153, 1167 (10th Cir. 2010) (quoting Scheidt v.
Klein, 956 F.2d 963, 965 (10th Cir. 1992)); see also
Tex. Gulf Sulphur Co. v. Ritter, 371 F.2d 145, 147 (10th
Cir. 1967). In evaluating the relative inconvenience of this
forum and the interest of justice, courts must consider
the plaintiff's choice of forum; the accessibility of
witnesses and other sources of proof, including the
availability of compulsory process to insure attendance of
witnesses; the cost of making the necessary proof; questions
as to the enforceability of a judgment if one is obtained;
relative advantages and obstacles to a fair trial;
difficulties that may arise from congested dockets; the
possibility of the existence of questions arising in the area
of conflict of laws; the advantage of having a local court
determine questions of local law; and all other
considerations of a practical nature that make a trial easy,
expeditious and economical.
Emp'rs Mut. Cas. Co., 618 F.3d at 1167 (brackets
omitted) (quoting Chrysler Credit Corp. v. Country
Chrysler, Inc., 928 F.2d 1509, 1516 (10th Cir. 1991)).
NTS focuses its arguments entirely on a single
factor-“the accessibility of witnesses and other
sources of proof.” See id.; (Docket No. 6, at
6-7). NTS asserts that the “only reason Fuse filed this
lawsuit in Utah was to make litigation costly for NTS as all
witnesses, customers, [and] sales force [are located in
Texas] and [all] customer service calls and [other]
service[s] were performed in Texas.” (Id. at
7). Fuse responds that its choice of forum weighs heavily
against transfer, see Emp'rs Mut. Cas. Co., 618
F.3d at 1168 (explaining that a plaintiff's choice of
forum “should rarely be disturbed”), and that NTS
has failed to demonstrate that Utah is inconvenient
vis-à-vis the accessibility of witnesses and other
sources of proof, (Docket No. 17, at 5). As explained below,
the Court agrees with Fuse and concludes that NTS has failed
to carry its burden to demonstrate any inconvenience
necessitating transfer. See Emp'rs Mut. Cas.
Co., 618 F.3d at 1167 (placing the burden on movant to
demonstrate inconvenience of a given forum).
FUSE'S CHOICE OF FORUM
Court finds that the first factor-the plaintiff's choice
of forum-weighs heavily against transfer. “Unless the
balance is strongly in favor of the movant, the
plaintiff's choice of forum should rarely be
disturbed.” Emp'rs Mut. Cas. Co., 618 F.3d
at 1168 (brackets and quotations omitted) (quoting
Scheidt v. Klein, 956 F.2d 963, 965 (10th Cir.
1992)). Thus, district courts must normally accord
“great weight” to the plaintiff's choice of
forum. KCJ Corp. v. Kinetic Concepts, Inc., 18
F.Supp.2d 1212, 1214 (D. Kan. 1998). But, “where the
facts giving rise to the lawsuit have no material relation or
significant connection to the plaintiff's chosen forum,
” courts treat plaintiff's choice of forum with
significantly less deference-assigning it ...