United States District Court, W.D. Virginia, Harrisonburg Division
ADAM NELSON, on Behalf of Himself and on Behalf of All Others Similarly Situated, Plaintiff,
TIDAL BASIN HOLDING, INC. and VANGUARD EMERGENCY MANAGEMENT, Defendant.
Michael F. Urbanski Chief United States District Judge
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.
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.
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.
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
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).
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))).
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
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. 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
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.
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 ...