IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
SCOTT K. GINSBURG, §
Plaintiff, §
§
v. § Civil Action No. 3:13-CV-0952-L-BK
§
GEORGETOWN UNIVERSITY, §
Georgetown. §
FINDINGS, CONCLUSION AND RECOMMENDATION
Pursuant to the District Court’s order of referral (Doc. 14), Defendant Georgetown
University’s Motion to Transfer Case Out of District/Division (Doc. 9) is now before the Court.
After considering the relevant pleadings and applicable law, it is recommended that the motion
to transfer be GRANTED.
BACKGROUND
This action stems from a contractual dispute between Scott K. Ginsburg (“Plaintiff”) and
Georgetown University (“Georgetown”). (Doc. 1, 7). Plaintiff is an alumnus of the Georgetown
University Law Center. (Doc. 1 at 2). Between late 1999 and early 2000, Plaintiff met in Dallas
with several Georgetown personnel, including Kevin Conry, Vice President of Strategic
Development and External Affairs and Associate Dean of External Affairs of the Law Center, to
discuss Plaintiff’s potential involvement in Georgetown’s development plans for the Law Center.
(Doc. 1 at 2-3, 4). As a result of the meetings, on March 30, 2000, Plaintiff and Georgetown
signed a gift agreement (“the Agreement”), in which Plaintiff pledged to donate $5,000,000 to
Georgetown University Law Center to build a sports and fitness center. (Doc. 1 at 3). Plaintiff
alleges that the Agreement provided that Georgetown was to name the sports and fitness center
after him. (Doc. 1 at 6, 13). However Georgetown contends that Plaintiff agreed to relinquish
the naming rights of the sports and fitness center if he was found to have engaged in insider
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trading in a lawsuit he was involved in at the time. (Doc. 7 at 14, 16).
On June 27, 2003, Plaintiff and Georgetown entered into a second gift agreement, in
which Plaintiff pledged to donate an additional $11,000,000 to Georgetown. (Doc. 1 at 7).
Ultimately, however, Georgetown did not name the sports and fitness center after Plaintiff.
(Doc. 1 at 9). While Plaintiff avers that he expressed his discontent over the naming issue in an
email message to Conry, Georgetown maintains that Plaintiff did not indicate any issue with the
sports and fitness center not being named after him when he attended the Grand Opening
Celebration of the sports and fitness center in 2004, at which he was specially recognized and
honored for his contribution. (Doc. 7 at 19, 20; Doc. 7-1 at 15-21). On March 4, 2013, Plaintiff
brought this action against Georgetown for breach of contract, fraud and restitution. (Doc. 1).
On April 4, 2013, in addition to its answer and counterclaims for breach of contract and
promissory estoppel, Georgetown filed the motion sub judice, seeking a discretionary transfer of
venue under 28 U.S.C. § 1404(a) to the United States District Court of the District of Columbia.
(Doc. 9). Georgetown argues that most of the events giving rise to Plaintiff’s claims occurred in
the District of Columbia, and that the bulk of the witnesses and documentary evidence are
located there. (Doc. 10 at 11; Doc. 19 at 2). Plaintiff counters that the motion to transfer should
be denied because Georgetown has not met its burden to show that transfer would be convenient
for the parties and witnesses and in furtherance of justice. (Doc. 16 at 5, 8). Plaintiff also avers
that (1) the fraudulent misrepresentations occurred in Dallas, Texas; (2) the contract between the
two parties arose in Dallas, Texas; and (3) Georgetown’s conduct was harmful to him, a resident
of Dallas, Texas. Id. at 5.
APPLICABLE LAW
Section 1404(a) of Title 28 provides that “[f]or the convenience of parties and witnesses,
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in the interest of justice, a district court may transfer any civil action to another district or
division where it might have been brought.” 28 U.S.C. § 1404(a). The decision to transfer is left
to the broad discretion of the District Court. In re Volkswagen of Am., Inc., 545 F.3d 304, 311
(5th Cir. 2008). Transfer should be granted where necessary to prevent waste of time, energy,
and money, and to protect litigants, witnesses, and the public from unnecessary inconvenience
and expense. Bank One, N.A. v. Euro-Alamo Invs., Inc., 211 F. Supp. 2d 808, 811 (N.D. Tex.
2002) (Fitzwater, J.). In determining whether transfer is appropriate, the Court must first
determine if the suit could have been filed in the alternate venue, and then weigh the parties’
private interests in convenience and the public interest in the fair administration of justice. Gulf
Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947).
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.” Volkswagen, 545 F.3d at 315 (citing In re Volkswagen AG,
371 F.3d 201, 203 (5th Cir. 2004)). 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 [or in] the application of foreign law.”
Id. However, the “court cannot transfer a case where the result is merely to shift the
inconvenience of the venue from one party to the other.” Sivertson v. Clinton, No. 3:11–CV–
0836–D, 2011 WL 4100958, at *3 (N.D. Tex. Sept 14, 2011) (Fitzwater, C.J.) (internal citations
omitted). The movant has the burden to demonstrate why venue should be changed.
Volkswagen, 545 F.3d at 314 n.10 (citing Time, Inc. v. Manning, 366 F.2d 690, 698 (5th Cir.
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1966)).
Plaintiff does not contest that this action could have been brought in the District of
Columbia. (Doc. 16). See 28 U.S.C. § 1391(b) (venue in a diversity case is appropriate in a
judicial district where any defendant resides or 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). Thus, the Court’s focus is on the convenience of the parties and
witnesses, and whether the interests of justice would be served if this action is tried in the
District of Columbia rather than the Northern District of Texas.
ANALYSIS
Private Interest Factors
As to relative ease of access to the sources of proof, Georgetown contends that transfer
would facilitate access to the bulk of the relevant documentary evidence and records of the
relationship between Plaintiff and Georgetown, which is located in the District of Columbia,
where Georgetown and the subject sports and fitness center are also located. (Doc. 10 at 12).
Georgetown additionally avers that all of Plaintiff’s relevant communications were with
individuals/potential witnesses who are located in or near Washington, D.C. Id. at 14 -15.
Plaintiff counters that this factor is neutral, contending that all of Georgetown’s “sources of
proof are easily accessible electronically,” thus, access to sources of proof, “assumes much less
importance in the era of electronic documents.” (Doc. 16 at 14) (citing JP Morgan Chase Bank,
N.A. v. Dixon, 3:11-CV-00157, 2011 WL 2534601, at *3 (N.D. Tex. June 24, 2011)).
Contrary to Plaintiff’s argument, the “Fifth Circuit [has] held that despite technological
advances that [have] made the physical location of documents less significant, the location of
sources of proof remains a meaningful factor in the transfer analysis.” AT&T Intellectual Prop.
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I, L.P. v. Airbiquity, Inc., No. 3:08-CV-1637-M, 2009 WL 774350, at *2; see also Volkswagen,
545 F.3d at 316 (“the sources of proof requirement is a meaningful factor in the analysis”)
(internal citations omitted). Here, Plaintiff’s claims stem from contractual agreements with
Georgetown and, based on the facts posited in the complaint, it is logical that Georgetown
maintains in the District of Columbia greater access to the source of the evidence relating to the
parties’ agreements and of their relationship. Moreover, Plaintiff does not suggest that the
source of the evidence they anticipate offering regarding the alleged agreements is located in
Texas. Consequently, this factor favors transferring this case to the District of Columbia. See
AT&T Intellectual Prop., 2009 WL 774350, at *4 (holding that this factor slightly favored
transfer where the defendant showed that relevant documents resided in transferee district).
As to the witnesses, as is germane to the Court’s decision, Georgetown avers that,
excluding Plaintiff, there are four potential facts witnesses: (1) Kevin Conry; (2) Georgetown
University President John DeGioia; (3) former Dean of the Law Center, Judith Areen; and (4)
former Dean of the Law Center Alexander Aleinikoff, who presently is on a leave of absence.
(Doc. 10 at 14). According to Georgetown, these four individuals reside in or near Washington,
D.C. Id. at 15. Plaintiff does not suggest that there are any additional witnesses. Because this
Court’s subpoena power does not extend to the District of Columbia, the availability of
compulsory process to secure the attendance of witnesses weighs in favor of transfer. See FED.
R. CIV. P. 45 (specifying the geographical limits on a district court’s subpoena power).
Moreover, the Court of Appeals for the Fifth Circuit has determined that “when the distance
between an existing venue for trial of a matter and a proposed venue under § 1404(a) is more
than 100 miles, the factor of inconvenience to witnesses increases in direct relationship to the
additional distance to be traveled.” Volkswagen, 545 F.3d at 317. While the Plaintiff would
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undoubtedly incur expenses in traveling to Washington, D.C., they would be significantly less
than those Georgetown’s representatives and the potential witnesses who reside in or near the
District of Columbia would incur to travel to Dallas, Texas. This is not a matter of mere
inconvenience; the only potential fact witness identified who resides in this district, and who is
within the subpoena reach of this Court is Plaintiff. It is apropos to assume that by engaging in
transactions with persons and entities located and/or residing in the District of Columbia,
Plaintiff should have anticipated the possibility of having to travel to there to vindicate his rights
in the event of a contract breach.
Thus, the Court finds that the private interest factors support the discretionary transfer of
venue to the District of Columbia.
Public Interest Factors
In discussing the first of the public interest factors, Georgetown avers that the Northern
District of Texas has “approximately 29% more filings, 215% more cases pending, 3 fewer
judgeships and approximately 374% more civil filings and 269% more pending cases per
judgeship than the District of Columbia,” according to its comparison of the districts’ Judicial
Caseload Profile. (Doc. 10 at 17; Doc. 19 at 9). Plaintiff countered in presenting evidence that
the Northern District of Texas’s “median time from filing to disposition and/or trial is
significantly shorter” and thus, more efficient than the District of Columbia. (Doc. 16 at 9-10).
To the extent that court congestion is relevant, the speed with which a case can come to trial and
be resolved may be a factor. In re Genentech, Inc., 566 F.3d 1338, 1347 (Fed. Cir. 2009).
However, the speed of one court compared to another should not alone outweigh all of the other
factors when deciding whether a case should be transferred to another venue. Id. Genentech,
Inc. also informs us that the factor of administrative difficulties “appears to be the most
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speculative,” as “case-disposition statistics may not always tell the whole story.” 566 F.3d at
1347. Upon consideration, the Court concludes that this factor weighs in favor of the case
remaining in this district.
As to the localized interest factor, there is certainly public interest in litigating this case in
Texas since it involves claims of damage to a Texas resident. However, there is an even greater
local interest in having the case heard in the District of Columbia, the site of Georgetown and the
real property the subject of this lawsuit. The obvious personal import to Plaintiff aside, because
of its location, the name of the sports and fitness center is naturally of much greater public
interest to the individuals who see and/or use it each day. Moreover, according to the complaint,
the alleged breach of contract was the failure of the sports and fitness center to bear Plaintiff’s
name; thus, said breach occurred in the District of Columbia. See Frederick v. Advanced Fin.
Solutions, Inc., 558 F. Supp. 2d 699, 705 (E.D. Tex. 2007) (concluding that the factor concerning
having localized interests decided at home weighed in favor of a transfer when a “substantial
portion” of any alleged breach of contract would have occurred in the requested transfer forum).
Finally, Georgetown correctly asserts that the District Court for Northern District of
Texas and the District Court for the District of Columbia are equally capable of applying the
applicable state/local law. Thus, the public factor concerning the familiarity of the forum with
the law that will govern favors neither party’s position.
Considering the public factors as a whole, they also favor a discretionary transfer to the
District of Columbia as the most convenient forum.
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CONCLUSION
The Court’s analysis of the relevant private and public factors favors the discretionary
transfer of this case to the District Court for the District of Columbia for the convenience of the
parties and witnesses and in the interest of justice. Accordingly, it is recommended that
Defendant Georgetown University’s Motion to Transfer Case Out of District/Division (Doc. 9)
be GRANTED.
SIGNED August 8, 2013.
INSTRUCTIONS FOR SERVICE AND
NOTICE OF RIGHT TO APPEAL/OBJECT
A copy of these findings, conclusions and recommendation shall be served on all parties
in the manner provided by law. Any party who objects to any part of these findings, conclusions
and recommendation must file specific written objections within 14 days after being served with
a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). In order to be specific, an objection
must identify the specific finding or recommendation to which objection is made, state the basis
for the objection, and specify the place in the magistrate judge’s findings, conclusions and
recommendation where the disputed determination is found. An objection that merely
incorporates by reference or refers to the briefing before the magistrate judge is not specific.
Failure to file specific written objections will bar the aggrieved party from appealing the factual
findings and legal conclusions of the magistrate judge that are accepted or adopted by the district
court, except upon grounds of plain error. See Douglass v. United Servs. Automobile Ass’n, 79
F.3d 1415, 1417 (5th Cir. 1996).
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