United States District Court, D. New Mexico
ORDER DENYING PLAINTIFF'S MOTION FOR CHANGE OF
M. CARSON III, UNITED STATES CIRCUIT JUDGE
February 19, 2019, Plaintiff Isaha Casias filed a Motion for
Change of Venue (titled Motion to Conduct Trial Proceedings
in Albuquerque as Originally Anticipated by the Parties)
(Doc. No. 205). Plaintiff requests that the trial be held in
Albuquerque, New Mexico rather than Roswell, New Mexico,
because of alleged hardship to Plaintiff's witnesses.
Defendants oppose Plaintiff's Motion. Having reviewed the
arguments and the relevant law, the Court denies
Plaintiff's Motion. Trial shall proceed as scheduled in
2015, Plaintiff filed this case in the First Judicial
District Court of the State of New Mexico in Santa Fe, New
Mexico. Defendants removed the case to federal court in
January 2016. Initially assigned to a resident judge in
Albuquerque, New Mexico, the Court reassigned this civil
action to the undersigned judge in January 2019. After
reassignment, the Court set a trial for April 1-5, 2019 in
seeks to conduct the trial in Albuquerque. Plaintiff's
motion alleges that a trial in Roswell will cause hardship
for witnesses to attend and would prevent Plaintiff from
calling certain witnesses altogether. Plaintiff further
asserts that the Court's subpoena power is inadequate to
ensure witnesses attend a trial in Roswell.
Albuquerque and Roswell are in the District of New Mexico.
Therefore, the transfer Plaintiff seeks is intra-district.
“When considering requests for intra-district transfer,
the court looks to the factors relevant to change of venue
motions pursuant to 28 U.S.C. § 1404(a).”
Chavez v. Las Cruces Pub. Sch., No. CV 03-1043
JP/LAM, 2004 WL 7338106, at *1 (D.N.M. Feb. 4, 2004) (quoting
Busey v. Bd. of Cty. Comm'rs of Cty. of Shawnee,
Kan., 210 F.R.D. 736, 737 (D. Kan. 2002)).
“Generally, cases are not transferred between cities
unless there are very compelling reasons to do so.”
Id. Accordingly, the court considers “the
plaintiff's choice of forum, the convenience for
witnesses, the accessibility of witnesses and other sources
of proof, the possibility of obtaining a fair trial, and
‘all other considerations of a practical nature that
make a trial easy, expeditious and economical.'”
Id. (quoting Busey, 210 F.R.D. at 737). The
moving party has the burden of proving that the existing
forum is inconvenient. Id. (citing Scheidt v.
Klein, 956 F.2d 963, 965 (10th Cir. 1992)). Plaintiff
does not meet that burden here.
primary argument for conducting the trial in Albuquerque is
that the Court's subpoena power is limited, and,
therefore, will not reach certain witnesses. Under Federal
Rule of Civil Procedure (“Rule”) 45, “[a]
subpoena may command a person to attend a trial, hearing, or
deposition . . . within 100 miles of where the person
resides, is employed, or regularly transacts business in
person.” Fed.R.Civ.P. 45. Alternatively, the subpoena
power may compel a non-party to attend a trial “within
the state where the person resides, is employed, or regularly
transacts business in person . . . if the person is commanded
to attend a trial and would not incur substantial
asserts that a trial in Roswell will prevent him from calling
two witnesses altogether. Plaintiff's counsel
specifically identifies Francisco Herrera and Derek Douglas,
both of whom live in Albuquerque. Mr. Herrera currently lives
at a homeless shelter and works nights at a fast-food
restaurant. Plaintiff claims that Mr. Herrera said it is
impossible for him to attend trial in Roswell. Meanwhile, Mr.
Douglas is on parole in Albuquerque. Plaintiff claims the
chances of Mr. Douglas appearing for trial in Roswell are
“remote.” Plaintiff's position, however,
assumes that these two individuals, when served by a valid
subpoena, will choose to flout the law and not comply.
Because the assertion that Mr. Herrera and Mr. Douglas will
not appear before the Court is purely speculative, it does
not support a transfer of the trial location. Wolf v.
Gerhard Interiors, Ltd., 399 F.Supp.2d 1164, 1168 (D.
also alleges that a trial in Roswell will be costly in both
time and expense for witnesses, many of whom live in the
Albuquerque-Santa Fe region in northern New
Mexico.Albuquerque is approximately 200 miles from
Roswell. Because witnesses in northern New Mexico are more
than 100 miles from Roswell, but live in the same state, the
court may issue subpoenas to ensure the witnesses appear at
trial in Roswell if they will not incur substantial expense.
See Fed.R.Civ.P. 45.
support of Plaintiff's contention that witnesses will
incur substantial expense if the trial proceeds in Roswell,
Plaintiff points to the travel and hotel expenses of his
witnesses. Specifically, Plaintiff argues that his expert
psychologist must be present for his own testimony and the
testimony of Defendants' psychologist to provide rebuttal
testimony. As a result, Plaintiff claims “it is
prohibitively expensive to pay an expert to travel and stay
in a hotel room for a week-long trial.” Plaintiff also
asserts that his expert witnesses, Department of Corrections
(“DOC”) witnesses, and Derek Williams, formerly
of the DOC, will have to miss more work if the trial proceeds
in Roswell than in Albuquerque. But the possibility that a
trial may be held outside of Albuquerque always exists in the
District of New Mexico. Counsel should anticipate that
possibility. If Plaintiff's expert witnesses refuse to
testify in Roswell, then Plaintiff should seek leave to
conduct trial depositions. Further, Counsel for Defendants
agreed that she would accept trial subpoenas for DOC
witnesses and Derek Williams. Again, Plaintiff does not provide
any support beyond his own assertions, that bringing his
witness to Roswell will be prohibitively expensive or that
missing work is a substantial cost to the witnesses.
Equal Emp't Opportunity Comm'n v. Bok Fin.
Corp., 2014 WL 11829320, at *2 (D.N.M. Feb. 4, 2014)
(concluding no substantial expense exists where a party
submitted no authority for a finding that loss of
productivity would be grounds to quash a trial subpoena).
Therefore, Plaintiff's unsupported allegations regarding
travel expenses and missed work do not support a transfer.
to the extent that attending a trial in Roswell will expend
the resources of any witness, the Court draws Plaintiff's
attention to 28 U.S.C. § 1821 which provides for witness
fees and travel expenses for witnesses subpoenaed by the
Court. “While the allowance of witness and subsistence
expenses does not operate as an open invitation to fill the
courtroom with unnecessary witnesses throughout the trial,
the general rule is that witness fees and subsistence fees
are not limited to the day the witness actually testifies but
include those days in which the witness reasonably and
necessarily attends trial.” Mastrapas v. New York
Life Ins. Co., 93 F.R.D. 401, 405-06 (E.D. Mich. 1982).
Additionally, if Plaintiff prevails at trial, he may recover
costs. Id. at 403; Fed.R.Civ.P. 54.
also implies that employers may be unwilling to allow their
employees to comply with subpoenas to appear at trial,
leading the Court to infer that witnesses face potential
workplace retaliation for their compliance. Plaintiff's
insinuations are unsupported and are, therefore, insufficient
justification to support a transfer. Wolf, 399
F.Supp.2d at 1168. Moreover, if a witness fails to comply
with a subpoena, the Court may hold that witness in contempt.
Fed.R.Civ.P. 45. And, if an employer interferers with an
employee's compliance with a subpoena, that interference
is likely actionable. Haddle v. Garrison, 525 U.S.
121, 126 (1998).
Plaintiff claims he intends to call his mother and
step-father to testify in support of his claim for
damages. Plaintiff's parents reside in Durango,
Colorado. Durango is outside the State of New Mexico and over
100 miles from both the courthouse in Roswell and in
Albuquerque. Therefore, Plaintiff's parents reside
outside the range of the Court's subpoena power.
See Fed.R.Civ.P. 45. Plaintiff has not, however,
alleged that his parents will refuse to attend a trial in New
Mexico. See Scheidt, 956 F.2d at 966 (“nothing
has been submitted . . . to indicate . . . that . . .
witnesses [were] unwilling to come to trial in Oklahoma City
. . . or ...