2019 WL 6339911

UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING.
If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports.
UNPUBLISHED
Court of Appeals of Michigan.
DEPARTMENT OF TRANSPORTATION, Plaintiff-Appellee,
v.
NATIONAL INTERSTATE INSURANCE COMPANY, Defendant-Appellant,
and
FRANKENMUTH MUTUAL INSURANCE COMPANY, Defendant-Appellee.
No. 343009
|
November 26, 2019
Ingham Circuit Court LC No. 17-000357-ND
Before: O’BRIEN, P.J., and GADOLA and REDFORD, JJ.
Opinion

PER CURIAM.

*1 Defendant National Interstate Insurance Company (National) appeals by leave granted the trial court’s order denying it summary disposition and granting summary disposition and dismissal of defendant Frankenmuth Mutual Insurance Company (Frankenmuth). We reverse.

I. FACTS
National insured Pahoa Express, a trucking company that contracted to transport an oversize load from Toledo, Ohio, to Sanilac, Michigan. Plaintiff, Michigan Department of Transportation (MDOT), issued Pahoa a single trip permit for the movement of the oversize load and specified the route in Michigan. The permit required among other things that the route be checked for vertical clearance and overhead obstructions before movement of the load, that the Pahoa semi be accompanied by two escort vehicles, one in the front1 and one to follow in the rear, and if the load’s height exceeded 14’6” the lead escort vehicle had to have a fixed measuring device set at a height to assure clearance of the load. The MDOT permit required the escort vehicles and the Pahoa semi to maintain a distance of not less than 2,000 feet apart. The permit specified that the permittee “shall be responsible for damages to the highway, to persons, and to property caused by or arising from operations covered by this permit” and “shall indemnify” MDOT.

Frankenmuth insured the lead pilot vehicle.2 The lead pilot vehicle had affixed to it a fiberglass pole the height of the semi’s load to alert the driver to any potential clearance difficulties and if the pole hit anything overhead, the driver could alert the driver of the Pahoa semi.

The MDOT permit specified the directions the permittee could use for the transport of the oversize load and did not allow the Pahoa vehicle to use US-23. The Ohio permit, however, routed the vehicles to the Michigan border via US-23. According to Pahoa’s semi driver, the drivers of the escort vehicles suggested that they use US-23 in Michigan to make their way back to the route permitted by MDOT. He agreed and the three vehicles traveled under two low overpasses while proceeding on US-23 before the subject accident. At those overpasses, the driver of the lead pilot vehicle alerted the Pahoa semi’s driver via CB radio that his “stick hit,” meaning that the fiberglass pole struck the overpass. Pahoa’s driver understood that this message indicated that the load could pass under the overpass if he moved to the center lane for the highest clearance under an arched bridge and lowered the air suspension of the vehicle to reduce the load’s vertical height. By doing this the Pahoa semi’s load cleared the two low overpasses.

When the group reached the Milwaukee bridge spanning northbound US-23 in Monroe County, the driver of the lead pilot vehicle initially alerted Pahoa’s semi driver via CB radio that his “stick hit,” so the Pahoa driver moved into the center lane. A few moments later, however, the lead pilot driver communicated that his “stick broke,” indicating that the overpass lacked sufficient height for the load to clear. The Pahoa semi driver did not have enough time to stop and the vehicle collided with the bridge causing significant damage.

*2 MDOT sued National and Frankenmuth for property protection insurance benefits pursuant to Michigan’s no-fault act, MCL 500.3101 et seq., alleging that they both bore liability for the damage to the bridge in excess of $528,617.10. MDOT alleged that the lead pilot car driver and Pahoa’s semi driver knew or should have known that they were not permitted to travel on northbound US-23 and they violated the MDOT permit.

National moved for summary disposition under MCR 2.116(C)(10), and asked the trial court to rule that Frankenmuth had partial liability for the damage to the bridge pursuant to Turner v Auto Club Ins Ass’n, 448 Mich 22, 35; 528 NW2d 681 (1995), a case involving a multivehicle accident in which our Supreme Court explained that insurers of owners of vehicles having some physical connection more than a random association to an accident are potentially primarily liable for property protection benefits under MCL 500.3125.3 National sought a determination by the trial court that Frankenmuth’s insured was “involved in the accident” pursuant to MCL 500.3125. Frankenmuth sought summary disposition under MCR 2.116(I)(2)4 and argued that the accident did not arise out of the operation of the lead pilot vehicle, as required under MCL 500.3121, but resulted from the communications between the drivers, which the no-fault act did not cover.

The trial court denied National’s motion and granted Frankenmuth summary disposition. The trial court considered that facts in relation to our Supreme Court’s explanation in Turner regarding what it means to be “involved in the accident,” and concluded that the lead pilot driver’s involvement was “too attenuated to be considered to be involved in the accident.” The trial court reasoned that in Turner, the vehicles in the multivehicle accident had acted almost as a “unit” to cause the property damage. The trial court found “no real connection between the actual damage to the bridge and the use of the pilot vehicle.”

Preliminarily, Frankenmuth asserts that this Court lacks jurisdiction over the instant case because National is not an aggrieved party as against Frankenmuth respecting the underlying litigation. We disagree.

In Federated Ins Co v Oakland Co Rd Comm, 475 Mich 286, 291; 715 NW2d 846 (2006), our Supreme Court explained that an “aggrieved” party “must have some interest of a pecuniary nature in the outcome of the case,” and “must have suffered a concrete and particularized injury[.]” Frankenmuth’s jurisdiction argument lacks merit because National’s liability could be reduced by half if Frankenmuth is found liable for personal property insurance benefits. Moreover, the trial court’s decision to dismiss Frankenmuth adversely affected National because liability for the damage to the bridge following the decision rests solely on National. We conclude that National is an “aggrieved party” that has suffered a pecuniary injury by the court’s decision, and therefore, this Court has jurisdiction over this appeal.

II. STANDARD OF REVIEW
*3 We review de novo a trial court’s summary disposition decision. Lowrey v LMPS & LMPJ, Inc, 500 Mich 1, 5; 890 NW2d 344 (2016). A motion brought under MCR 2.116(C)(10) tests the factual support of a plaintiff’s claim, and is reviewed by considering the pleadings, admissions, and other evidence submitted by the parties in a light most favorable to the nonmoving party. Latham v Barton Malow Co, 480 Mich 105, 111; 746 NW2d 868 (2008). Summary disposition is proper if there is “no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law.” Id. A genuine issue of material fact exists when “reasonable minds could differ on an issue after viewing the record in the light most favorable to the nonmoving party.” Allison v AEW Capital Mgt, LLP, 481 Mich 419, 425; 751 NW2d 8 (2008). Summary disposition is properly granted to the opposing party if it appears to the trial court that that party, rather than the moving party, is entitled to judgment. MCR 2.116(I)(2); Sharper Image Corp v Dep’t of Treasury, 216 Mich App 698, 701; 550 NW2d 596 (1996).

III. ANALYSIS
National argues that the trial court erred by denying its motion for summary disposition and granting Frankenmuth’s motion because, under Turner, the pilot vehicle that Frankenmuth insured constituted a vehicle “involved in the accident.” We agree.

In Turner, our Supreme Court considered what vehicles in a multivehicle accident were “involved in the accident” to permit recovery from insurers of owners, registrants, or operators of the vehicles under MCL 500.3125 for property damage. In that case, a police officer driving a patrol car chased a stolen vehicle until it ran a red light at an intersection and collided first with a pickup truck in the intersection, then a second truck that split in half because of the impact, the rear portion of which crashed into a nearby building causing extensive damage. The police car did not collide with any vehicle or hit the building. Turner, 448 Mich at 25-26.

The building owners sought personal property insurance benefits from the insurers of the pickup truck and the truck that split and collided with the building (Auto Club Insurance Association (ACIA)), and the stolen vehicle (Royal Insurance Company (Royal)). Turner, 448 Mich at 26. ACIA filed a third-party complaint against the city of Ferndale, the self-insurer of the police car, claiming it shared liability for a portion of property protection benefits. ACIA moved for summary disposition against Royal and Ferndale regarding the liability issue. Id. at 26-27. The trial court granted summary disposition against Royal but denied ACIA’s motion against Ferndale. Id. at 27. This Court affirmed. Our Supreme Court granted leave and explained that:
Generally, a no-fault insurer will be liable to pay property protection benefits if the three following requirements are met:
1. There has been “accidental damage to tangible property arising out of the ownership, operation, maintenance, or use of a motor vehicle as a motor vehicle ….” Section 3121(1).
2. The facts do not implicate any of the statutorily enumerated exceptions for property protection liability. Section 3123.
3. The insurer insures the owner of a vehicle “involved in the accident,” in which case the insurer will be primarily liable; or, the insurer insures the operator of a vehicle “involved in the accident,” in which case the insurer will be secondarily liable. Section 3125. [Id. at 28-29.]

Additionally, “in a multivehicle accident, the liability of each insurer of an owner of a vehicle having some physical connection with the accident will not turn on whether the claimant can establish that the damage arose out of the ownership, operation, maintenance, or use of each insured’s vehicle as a motor vehicle.” Id. at 34-35 (emphasis in original). Under MCL 500.3121(1), a claimant must show only “that the damage arose out of ‘the ownership, operation, maintenance, or use of a motor vehicle as a motor vehicle.’ ” Id. at 35 (emphasis in quotation added by the Court). Therefore, “[a] vehicle may be ‘involved in the accident’ even though the damage cannot be said to have arisen out of the ownership, operation, maintenance, or use of that vehicle.” Id. at 35 (emphasis in original).

*4 For “a vehicle to be considered ‘involved in the accident’ under § 3125, the motor vehicle, being operated or used as a motor vehicle, must actively, as opposed to passively, contribute to the accident.” Id. at 39. Further, “a mere ‘but for’ connection between the operation or use of the motor vehicle and the damage” is insufficient to establish that the vehicle was “involved in the accident” under the statute. Id. Additionally, “physical contact is not required to establish that the vehicle was ‘involved in the accident,’ nor is fault a relevant consideration in the determination.” Id. Rather, “the concept of being ‘involved in the accident’ under § 3125 encompasses a broader causal nexus between the use of the vehicle and the damage than what is required under § 3121(1) to show that the damage arose out of the ownership, operation, maintenance, or use of the motor vehicle as a motor vehicle.” Id. The “involved in the accident” standard requires the determination that the vehicle made “an active contribution to the happening of the accident” and liability will not be imposed “simply because of a remote association between the insureds’ vehicles and the accident.” Id. at 41-42.

In Turner, our Supreme Court determined that the police officer’s use of the police car while pursuing the stolen vehicle constituted active use that “perpetuated the stolen vehicle’s flight, which, in turn, resulted in the collision with the other cars and the damage to the nearby property” despite the fact that the police car backed off its chase to deter the stolen vehicle from running the red light. Id. at 42. The Court concluded that “the use of the police vehicle as a motor vehicle had an active link with the damage, making it ‘involved in the accident’ for purposes of § 3125, and notwithstanding the fact that the same use could not be said to have given rise to the damage for purposes of § 3121(1).” Id. at 43. Thus, Ferndale, the insurer of the police car, had primary liability to pay a share of the property protection benefits. Id.

The case at bar presents the issue whether the lead pilot vehicle was “involved in the accident” under MCL 500.3125 for purposes of determining insurer liability for the property damage caused by the accident. Frankenmuth contends that its insured was not “involved in the accident” because, unlike the police car in Turner, the lead pilot vehicle did not “perpetuate” or “prompt” the movement of the Pahoa semi into the bridge. National argues that the lead pilot vehicle, as part of a “caravan” having the role of guiding the Pahoa semi along the route, led the Pahoa semi, and therefore, constituted a vehicle “involved in the accident” under MCL 500.3125. We find National’s argument persuasive.

The record indicates that the lead pilot vehicle actively, as opposed to passively, contributed to the accident in this case. The MDOT permit required the lead pilot vehicle to guide the Pahoa semi carrying the oversized load on a safe course in Michigan to avoid collisions with bridges and other obstacles under which the load could not pass. The lead pilot vehicle was equipped with the height measuring device and the driver needed to communicate with the Pahoa semi driver regarding whether adequate clearance existed for all overpasses to ensure that the Pahoa semi could safely pass under them or stop with sufficient time to avoid colliding with them.

The driver of the Pahoa semi testified that the lead pilot vehicle alerted him twice previously when the measuring device “hit” other overpasses. The record reflects that, up to and including the time of the accident, the lead pilot vehicle prompted and perpetuated the forward movement of the Pahoa vehicle by providing guidance and assurance regarding the chosen route. As explained in Turner, the lead pilot vehicle did not need to have physical contact with any vehicle or the bridge to be “involved in the accident.” Rather, the active use of the vehicle as a motor vehicle that perpetuated the motion of another vehicle that caused property damage suffices to meet the “involved in the accident” requirement of MCL 500.3125.

Frankenmuth’s argument, that the lead pilot vehicle was not “involved in the accident” because the accident arose out of a failure of communication between the drivers rather than as the result of the lead pilot vehicle’s use of his vehicle as a motor vehicle, lacks merit. The lead pilot driver’s ability to communicate information about the clearance of the overpasses, including its accuracy and usefulness, depended upon his operation of the vehicle in his role as the lead pilot vehicle escorting the oversized load transport vehicle. The lead pilot vehicle cannot be said to have a mere remote or random connection to the accident. The record establishes that the use of the lead pilot vehicle had a causal nexus with the Pahoa semi that collided with the overpass. The accident and ensuing damage arose because the lead pilot vehicle led the Pahoa semi under the low overpass. The lead pilot vehicle driver’s failure to adequately warn the Pahoa semi driver of the low clearance does not mean that the lead pilot vehicle was not “involved in the accident” under MCL 500.3125. On the contrary, the vehicles and their drivers had inextricably intertwined roles in the caravan. The lead pilot vehicle led the Pahoa vehicle and its cargo into the bridge.

*5 In Turner, our Supreme Court clarified that a causal nexus exists when “the relationship between the use of the vehicle as a motor vehicle and the injury … [is] more than incidental, fortuitous, or ‘but for,’ and [where] the vehicle’s connection with the injury … [is] directly related to its character as a motor vehicle.” Turner, 448 Mich at 32. In this case, the lead pilot vehicle’s presence on the roadway cannot be said to have been incidental or fortuitous. It traversed the highway in advance of the Pahoa semi with the purpose of identifying clearance problems and assuring the safe passage of the Pahoa semi. The operation of the two vehicles was linked.

Frankenmuth’s argument that its insured was not “involved in the accident” because it was too far away from the scene of the accident when it occurred also lacks merit. Although the MDOT permit required the lead pilot vehicle to be 2,000 feet away from the oversize load, and thus it passed under the bridge well before the collision occurred, we do not agree that the lead pilot vehicle thereby had no association with the accident. The determination of the issue whether a vehicle was “involved in the accident” does not turn on measuring the temporal or physical proximity of the vehicle to the accident. Turner makes clear that a causal nexus must exist that establishes more than a random, incidental, fortuitous connection between a vehicle and a property damage accident. Regardless of the fact that the lead pilot vehicle may have been 2,000 feet or more ahead of the Pahoa semi, a causal nexus existed sufficient to establish that the lead pilot vehicle was “involved in the accident” under MCL 500.3125. The evidence establishes that the lead pilot vehicle’s action and inaction contributed to the happening of the accident. Accordingly, the trial court erred by ruling that the lead pilot vehicle was “essentially too attenuated to be considered to be involved in the accident.” Therefore, the trial court erred by denying National’s motion for summary disposition seeking a determination that Frankenmuth’s insured was “involved in the accident” and by concomitantly granting Frankenmuth summary disposition and dismissal from this case.

Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.

Colleen A. O’Brien

Michael F. Gadola

James Robert Redford

All Citations
Not Reported in N.W. Rptr., 2019 WL 6339911

Footnotes

1
The parties called the front escort vehicle either the “lead pilot vehicle” or “lead pole vehicle.”

2
The insurer for the rear escort vehicle is not a party to this action.

3
MCL 500.3125 provides: “A person suffering accidental property damage shall claim property protection insurance benefits from insurers in the following order of priority: insurers of owners or registrants of vehicles involved in the accident; and insurers of operators of vehicles involved in the accident.” (Emphasis added).

4
MCR 2.116(I)(2) provides: “If it appears to the court that the opposing party, rather than the moving party, is entitled to judgment, the court may render judgment in favor of the opposing party.”

2019 WL 6606532

United States District Court, W.D. Texas, Austin Division.
ERIC FRISCHHERTZ, Plaintiff
v.
PHILLIP KING, MICHAEL LOONEY TRUCKING, LLC, SOKOL BELI, AND WORLD CLASS EXPRESS, INC., Defendants
Case No. A-19-CV-1017-LY
|
Filed 12/05/2019

REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
SUSAN HIGHTOWER UNITED STATES MAGISTRATE JUDGE
*1 TO: THE HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE

Before this Court are Defendants’ Phillip King and Michael Looney Trucking, LLC’s Opposed Motion to Transfer Venue, filed on October 25, 2019 (Dkt. No. 3), and Plaintiff’s Response to Defendants’ Motion to Transfer Venue, filed on November 4, 2019 (Dkt. No 9). The Defendants did not file a Reply. On November 5, 2019, the District Court referred the above motion and related filings to the undersigned Magistrate Judge for Report and Recommendation pursuant to 28 U.S.C. § 636(b), Federal Rule of Civil Procedure 72, and Rule 1 of Appendix C of the Local Rules of the United States District Court for the Western District of Texas.

I. BACKGROUND
At 12:45 p.m. on May 11, 2019, Eric Frischhertz, M.D. (“Plaintiff”), a cardiologist practicing and residing in Austin, Texas, was driving northbound in the 900 block of Interstate Highway 35 (“IH-35”) in Belton, Texas. At the same time, Phillip King (“King”), an Arkansas citizen and employee of Michael Looney Trucking, LLC (“Looney”), an Arkansas corporation, was driving a tractor trailer northbound on IH-35 a few vehicles ahead of Plaintiff. Plaintiff alleges that King failed to slow down properly when traffic ahead of him slowed, and negligently crashed into two vehicles in front of him. After this initial collision, Plaintiff alleges that Sokol Beli (“Beli”), a Michigan citizen and employee of World Class Express, Inc. (“Express”), a Michigan corporation, who was driving a tractor trailer a few vehicles behind Plaintiff, also failed to stop safely and struck Plaintiff’s vehicle, propelling it into the center median and causing Plaintiff to suffer serious personal injuries. Plaintiff alleges that he was taken by ambulance to an emergency room and suffered “serious injuries with ongoing symptoms and medical treatment.” Dkt. No. 1-2 at p. 7.

On August 30, 2019, Plaintiff filed this negligence lawsuit against King, Beli, Looney, and Express in Travis County District Court, alleging that the collision was proximately caused by the negligence of the Defendants and was the proximate cause of Plaintiff’s injuries and damages. See Frischhertz v. King, D-1-GN-19-005721 (98th Dist. Ct., Travis County, Tex. Aug. 30, 2019). On October 17, 2019, Defendants King and Looney (hereinafter “Defendants”) removed this case to federal court on the basis of diversity jurisdiction pursuant to 28 U.S.C. § 1332 as there is complete diversity between the parties.

Defendants have filed the instant Motion to Transfer Venue pursuant to 28 U.S.C. § 1404(a), arguing that the lawsuit should be transferred to the Waco Division of the Western District of Texas because the accident occurred in Belton, Texas, which is located in the Waco Division. Although Belton is almost equidistant between Waco and Austin, Defendants argue that it would be more convenient for the witnesses and parties to litigate this case in the Waco Division rather than the Austin Division. Plaintiff disagrees and argues that Defendants have not met their burden to show that this case should be transferred to the Waco Division. The Court agrees.

II. STANDARD OF REVIEW
*2 Section 1404(a) provides that, “[f]or 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.” 28 U.S.C. § 1404(a). The decision whether to transfer a case under § 1404(a) is a matter within the district court’s sound discretion. In re Volkswagen of America, Inc., 545 F.3d 304, 311 (5th Cir. 2008).

Because a plaintiff has the privilege of choosing the venue in which to file, the defendant bears the burden of proving that a transfer of venue would be “clearly” more convenient for the parties and witnesses and in the interest of justice. See In re Volkswagen of Am. Inc., 545 F.3d 305, 315 (5th Cir. 2008) (“Volkswagen II”); Schexnider v. McDermott Int’l, Inc., 817 F.2d 1159, 1163 (5th Cir. 1987) (stating that “there is ordinarily a strong presumption in favor of the plaintiff’s choice of forum that may be overcome only when the private and public interest factors clearly point towards trial in the alternative forum”). The defendant must show “good cause” for the transfer. Volkswagen II, 545 F.3d at 315.
When viewed in the context of § 1404(a), to show good cause means that a moving party, in order to support its claim for a transfer, must satisfy the statutory requirements and clearly demonstrate that a transfer is “[f]or the convenience of parties and witnesses, in the interest of justice.” Thus, when the transferee venue is not clearly more convenient than the venue chosen by the plaintiff, the plaintiff’s choice should be respected. When the movant demonstrates that the transferee venue is clearly more convenient, however, it has shown good cause and the district court should therefore grant the transfer.
Id.

The preliminary question under § 1404(a) is whether the action “might have been brought” in the destination venue. Volkswagen II, 545 F.3d at 312. After determining the suit could have been filed in the destination venue, the Court weighs the parties’ private interests in convenience and the public interest in the fair administration of justice. Id. at 315. The private interest factors include:
1. the relative ease of access to sources of proof;
2. the availability of compulsory process to secure the attendance of witnesses;
3. the cost of attendance for willing witnesses; and
4. all other practical problems that make trial of a case easy, expeditious, and inexpensive.
Id. The public interest factors include:
1. the administrative difficulties flowing from court congestion;
2. the local interest in having localized interests decided at home;
3. the familiarity of the forum with the law that will govern the case; and
4. the avoidance of unnecessary problems of conflict of laws in the application of foreign law.
Id. The Fifth Circuit has clarified that these factors are not exhaustive or exclusive, and that none is dispositive. Id.

III. ANALYSIS

A. Preliminary Inquiry
The preliminary inquiry in the § 1404(a) analysis is whether the lawsuit could have been brought in the division to which the movant seeks a transfer. Id. at 312. The venue statute provides that venue is proper in a “judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated.” 28 U.S.C. § 1391(b)(2). There is no dispute that the accident giving rise to Plaintiff’s lawsuit occurred within the Western District of Texas. Thus, this case could have properly been brought in any division, including the Waco Division, within the Western District of Texas.

B. Private Interest Factors

1. Relative Ease of Access to Sources of Proof
*3 The private interest factor concerning the relative ease of access to proof is focused on the location of documentary and physical evidence. See Volkswagen II, 545 F.3d at 316. Although some documents and other evidence can easily be transmitted electronically, the law is clear that ease of access to proof remains a factor that must be considered when evaluating a case for transfer under § 1404(a). Id.

Defendants argue that because the accident occurred in Belton, and “important, non-party witnesses” such as the police officers and emergency medical treatment providers reside in Belton, the case should be transferred to Waco. Defendants, however, fail to acknowledge that Belton is not located in the city of Waco, where the United States Courthouse for the Waco Division is located. As noted, Belton is nearly equidistant between the United States Courthouses in Waco and Austin. Specifically, Belton is located approximately 42 miles from the United States Courthouse in Waco and 61 miles from the United States Courthouse in Austin. Thus, Defendants are arguing that a difference of 19 miles from the sources of proof shows that transferring the case to Waco would be clearly more convenient for the parties and in the interests of justice. The Court finds that such a negligible difference between the two venues does not support transferring the case to Waco.

Defendants also point to witnesses to the accident who reside in Temple and Salado, Texas. The Salado witnesses are nearly the same distance from the Austin and Waco courthouses, while Temple is only a few miles closer to Waco. In addition, Plaintiff has identified two non-party witnesses to the accident who live much closer to Austin than to Waco. See Dkt. No. 9 at p. 2.

Plaintiff argues, moreover, that the major issue at trial will be the amount of damages Plaintiff sustained as a result of his injuries. All of Plaintiff’s treating physicians are located in the Austin Division, not the Waco Division. Id. at p. 3. Thus, most of the sources of proof regarding damages in this case are located in the Austin Division, not the Waco Division. Accordingly, this factor does not weigh in favor of transfer.

2. Availability of Process to Secure the Attendance of Witnesses
The second private interest factor instructs the Court to consider the availability of compulsory process to secure the attendance of witnesses, particularly non-party witnesses whose attendance may need to be secured by a court order. Volkswagen II, 545 F.3d at 315. Rule 45 provides that a Court has subpoena power over a witness to compel the witness’s attendance at a trial or hearing within 100 miles of the witness’s residence, place of employment, or regular place of business. Fed. R. Civ. P. 45(c)(1)(A). A Court, furthermore, may compel a person to attend a trial or hearing within the state in which the person resides, is employed, or regularly transacts business if the person is a party or party’s officer or is commanded to attend a trial and would not incur substantial expense. Fed. R. Civ. P. 45(c)(1)(B). However, Rule 45 also states that a court may quash a subpoena that requires a party or non-party to travel more than 100 miles to attend trial if the person would incur substantial expense. Fed. R. Civ. P. 45(d).

Defendants have not identified any non-party witnesses who reside outside the 100-mile range of the federal subpoena if the case was tried in Austin. Plaintiff, however, has identified four witnesses – Plaintiff’s treating medical providers – who are all outside of the 100-mile range of the Waco courthouse. Accordingly, litigating this case in Waco would not be clearly more convenient for these witnesses.

*4 In addition, all of the witnesses identified by the Defendants fall within both the Austin and Waco Divisions’ subpoena power under Rule 45(c)(1)(B)(i). Litigating this case in Waco thus would not be any more or less convenient for these witnesses. See Zamora v. Stroman, 2017 WL 2634190, at *4 (W.D. Tex. June 16, 2017) (finding that transferring case to Waco would not be more convenient for nonparty witnesses where Waco and Austin both had subpoena power over those witnesses). This factor does not weigh in favor of transfer.

3. Costs of Attendance for Willing Witnesses
The third private interest factor is the cost of attendance for willing witness. As noted above, Defendants argue that it would be more convenient for the witnesses located in Belton and Temple to travel to Waco instead of Austin. As already noted, traveling a few extra miles does not demonstrate a significant inconvenience for these witnesses.

In contrast, Plaintiff has identified several of his treating physicians and medical providers who reside within the Austin Division who will testify at the trial and would be inconvenienced if they have to travel to Waco instead of Austin. In addition, Plaintiff has identified several other witnesses who reside in the Austin Division, including his wife and co-workers, who also will testify at trial regarding Plaintiff’s injuries and pain and suffering. These witnesses would be inconvenienced if they had to travel to Waco instead of Austin. “In general, a transfer should not be made where the only practical effect is to shift inconvenience from the moving party to the non-moving party.” Zurich Am. Ins. Co. v. Tejas Concrete & Materials Inc., 982 F. Supp. 2d 714, 726 (W.D. Tex. 2013) (internal citation omitted).

All of the Defendants in this case reside are non-Texas residents. As noted, King resides in Arkansas and Beli resides in Michigan. Looney is an Arkansas corporation and Express is a Michigan corporation. Accordingly, all of these party witnesses would be equally inconvenienced by traveling to either Waco or Austin. See Zamora, 2017 WL 2634190, at *4 (finding that out-of-state witnesses would be similarly inconvenienced if the case was tried in either Waco or Austin). Moreover, as Plaintiff points out, the Austin airport is a major international airport served by numerous airlines and daily flights. In contrast, the Waco airport is a small regional airport which is served by only one airline. Accordingly, these witnesses also would be more inconvenienced by traveling to Waco rather than to Austin. Accordingly, this factor weighs against transfer.

4. All other Practical Problems
The fourth private interest factor is “all other practical problems that make trial of a case easy, expeditious, and inexpensive.” Volkswagen II, 545 F.3d at 315. Defendants have failed to identify any other practical problems that would arise that favor transferring this case to Waco. This factor therefore weighs against transfer.

In sum, Defendants have failed to show that any of the private factors weigh in favor of transferring the case to the Waco Division.

C. Public Factors
Defendants have failed to address any of the public factors and thus has failed to sustain their burden of proof on these factors.

D. Conclusion
Defendants have not shown “good cause” for transfer of the instant case to the Waco Division. Defendants had the burden to “clearly demonstrate that a transfer is ‘[f]or the convenience of parties and witnesses, in the interest of justice.’ ” Volkswagen II, 545 F.3d at 314 (quoting 28 U.S.C. § 1404(a)) (emphasis added). The Court finds Defendants have not met their burden of showing venue is clearly more convenient in the Waco Division for the parties and witnesses in this case. “[W]hen the transferee venue is not clearly more convenient than the venue chosen by the plaintiff, the plaintiff’s choice should be respected.” Id. at 315. Accordingly, Defendants’ Motion to Transfer Venue should be denied.

IV. RECOMMENDATION
*5 Based on the foregoing, the undersigned RECOMMENDS that the District Court DENY Defendants Phillip King and Michael Looney Trucking, LLC’s Opposed Motion to Transfer Venue (Dkt. No. 3).

IT IS FURTHER ORDERED that this case be removed from the Magistrate Court’s docket and returned to the docket of the Honorable Lee Yeakel.

V. WARNINGS
The parties may file objections to this Report and Recommendation. A party filing objections must specifically identify those findings or recommendations to which objections are being made. The District Court need not consider frivolous, conclusive, or general objections. See Battle v. United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987). A party’s failure to file written objections to the proposed findings and recommendations contained in this Report within fourteen (14) days after the party is served with a copy of the Report shall bar that party from de novo review by the District Court of the proposed findings and recommendations in the Report and, except upon grounds of plain error, shall bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).

SIGNED on December 5, 2019.

All Citations
Slip Copy, 2019 WL 6606532