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Nelson v. Tidal Basin Holding, Inc.

United States District Court, W.D. Virginia, Harrisonburg Division

November 15, 2019

ADAM NELSON, on Behalf of Himself and on Behalf of All Others Similarly Situated, Plaintiff,
v.
TIDAL BASIN HOLDING, INC. and VANGUARD EMERGENCY MANAGEMENT, Defendant.

          MEMORANDUM OPINION

          Michael F. Urbanski Chief United States District Judge

         This matter comes before the court on plaintiff Adam Nelson's motion to transfer venue. ECF No. 27. The defendants Tidal Basin Holdings, Inc. and Vanguard Emergency Management have responded in opposition, ECF No. 29, and plaintiff Adam Nelson then replied. ECF No. 30. The court heard argument on November 5, 2019. ECF No. 31. For the reasons stated below, the court DENIES the motion.

         I.

         This case centers on current and former workers classified as independent contractors by defendants Tidal Basin Holdings, Inc. and Vanguard Emergency Management ("defendants"). ECF No. 1, at 1. Plaintiff Adam Nelson ("Nelson") seeks to represent these independent contractors in a nationwide collective action. Id. Nelson contends that defendants "knowingly and deliberately failed to compensate [him] and the Class Members at the rate of time and one half their regular rate of pay for all hours worked over 40 in a workweek as required under die Fair Labor Standards Act ('FLSA')." Id Nelson seeks to recover, for himself and for the putative collective action members, all unpaid wages and other damages owed under the FLSA as a collective action pursuant to 29 U.S.C. § 216(b). Id. at 2.

         Nelson currently lives in Cypress, Texas. The putative collective action members are all current and former "Housing Inspectors" who were classified as independent contractors during the three-year period prior to the filing of this Complaint to present. ECF No. 1, at 1. Defendant Tidal Basin Holdings, Inc. is a Virginia for-profit corporation. Id. Vanguard Emergency Management is a company with its headquarters in Virginia, wholly owned, controlled, and operated by Tidal Basin Holdings, Inc. Id. at 3. Vanguard provides housing inspection services for individuals whose homes have been damaged by a natural disaster. Id. Defendants are paid by the federal government as part of FEMA's disaster relief program and provide house inspection services across the country, including in California, Texas, Florida, and Puerto Rico. Id. Defendants employ housing inspectors like Nelson and the putative class members to do this. Id. For their work, housing inspectors were paid a pre-established rate per home inspected and were reimbursed for travel. Id. at 4.

         Nelson contends that he and the putative class members were subject to defendants' control, had to follow very strict rules and regulations, and had all their work reviewed and corrected by defendants, and yet were classified as independent contractors. ECF No. 1, at 6. Nelson further alleges that he and the putative collective action members worked in excess of 40 hours each week, but received no overtime. Id. at 6. Nelson now requests the transfer of venue to the Southern District of Texas, Galveston Division.

         II.

         Under 28 U.S.C. § 1391(b)(2), venue is proper in "a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred." However, a district court may, "[f]or the convenience of parties and witnesses, in the interest of justice[, ] [...] transfer any civil action to any other district or division where it might have been brought . . . ." 28 U.S.C. § 1404(a). Courts typically consider "(1) the weight accorded to plaintiffs choice of venue; (2) witness convenience and access; (3) the convenience of the parties; and (4) the interest of justice." Trs. of the Plumbers & Pipefitters Nat'l Pension Fund v. Plumbing Servs. Inc., 791 F.3d 436, 444 (4th Cir. 2015). The party moving for transfer bears the burden of demonstrating that the balance of interests weighs in favor of transfer. See, e.g., Uretek. ICR Mid-Atlantic. Inc. v. Adams Robinson Enters.. Inc.. No. 3:16CV00004, 2017 WL 4171392, at *5 (W.D. Va. Sept. 20, 2017) (citations omitted).

         In ruling on motions to transfer venue, courts must first determine the threshold issue of whether the lawsuit could have initially been filed in the court to which transfer is sought. 28 U.S.C. § 1404(a). See also Dickson Props.. LLC v. Wells Fargo Bank. N.A.. No. 7:16-cv-527, 2017 WL 3273380, at *2 (W.D. Va. Aug. 1, 2017) ("Whether to transfer venue therefore turns on two questions: (1) whether venue is proper in the proposed transferee district, and (2) whether considerations of justice and convenience justify the transfer." (emphasis added) (citing Koh v. Microtek Int'l Inc.: 250 F.Supp.2d 627, 630 (E.D. Va. 2003))).

         Courts must next determine "whether considerations of justice and convenience justify the transfer" sought. Dickson Props.. 2017 WL 3273380, at *2. "The convenience of the witnesses is of considerable importance in determining whether a transfer of venue is appropriate under Section 1404(a)." Mullins v. Equifax Info. Servs.. LLC, No. Civ. A. 3:05CV888, 2006 WL1214024, at *7 (E.D. Va. Apr. 28, 2006). However, district courts accord greater consideration to the convenience of non-party witnesses, who, unlike party witnesses, are not presumed to be willing to testify in a forum which is a great distance from where they reside. Id

         III.

         Nelson argues that venue ought to be transferred to die United States District Court for the Southern District of Texas, specifically, the Galveston Division. Nelson points out that the case could have originally filed this action there, as this is where Nelson resides and where he completed a substantial amount of the work underlying his claim.[1] Nelson points out that he and other putative collective action members worked for defendants in the Southern District of Texas, and that die district court for the Southern District of Texas may exercise personal jurisdiction over defendants due to their contacts with Texas and their business dealings in Texas. See, e.g.. Gonzalez v. D & P Prof 1 Servs.. Inc.. No. I:13cv902, 2014 WL 1285895, at *2 (E.D. Va. Mar. 31, 2014) (in case brought under the Fair Labor Standards Act, district court held personal jurisdiction over a defendant case who employed plaintiff in the state in which the district court sat).

         Nelson asserts that, though the Galveston Division was not Nelson's initial choice of forum, deference to an initial choice is not mandatory when die plaintiff does not object to a transfer, citing Perkins v. Town of Princeville. 340 F.Supp.2d 624, 628 (M.D. N.C. 2004). Nelson also asserts that numerous courts have expressly rejected a requirement that plaintiffs must establish a change in circumstances when they try to transfer venue from their initial forum selection. See Central Hudson Gas and Elec. Corp. v. Empresa Naviera Santa S.A.. 769 F.Supp. 208, 209 (E.D. La. 1991) (granting plaintiffs transfer motion and noting court was "unwilling to force parties to proceed in a forum that is inconvenient for all and that does not best serve the interests of justice simply because the plaintiff filed suit in that forum first"). Finally, Nelson argues that, due to the meaningful presence of witnesses in the Galveston Division and because the transfer will not significantly inconvenience the defendants, considerations of justice and convenience justify the transfer. Multiple witnesses who saw the work performed by Nelson and putative collective action members reside in the Southern District. Nelson resides in the Southern District of Texas, and while defendants do not, Nelson argues that, as large corporations, they possess adequate financial resources to defend this action in any forum. Finally, Nelson asserts that the Galveston Division is the "nexus of the controversy" of this case, Rockingham, 2011 WL 5526092, at *6, because a substantial part of the events giving rise to the claims occurred in the Galveston Division, including the actual work performed by Nelson and the class members, and the Galveston Division was the hardest hit by the natural disasters in the Southern District of Texas with which the class members work was concerned.

         Defendants respond that Nelson chose this forum and has thus waved his right to object to it. See Hostetler v. Dillard. No. 3:13CV351-WHB-RHW, 2013 WL 4459070, at *2 (S.D.Miss. Aug. 20, 2013) ("Given that Defendant filed a responsive pleading prior to Plaintiffs motion to transfer venue and given Defendant's objection to a transfer of venue, the Court finds that Plaintiffs request for a transfer of venue is now untimely. In the absence of controlling Fifth Circuit precedent to the contrary, the Court finds that pursuant to Qlberding. Plaintiff has waived his right to object to venue."). Defendants disagree that no change of circumstances need be shown for Nelson to secure a transfer of venue and argue that no new facts or changed circumstances warrant a transfer now. See, e.g., Moto Photo. Inc. v. K.J. Broadhurst Enterprises. Inc.. No. 301CV2282-L, 2003 WL 298799, at *3 (N.D. Tex. Feb. 10, 2003) ("[T]n order to prevail, a plaintiff must show that circumstances have changed since the filing of suit"). Defendants point out that the classification of ...


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