                       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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