Harney et al v. Maersk A/S, in personam et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
Gene Harney et al.,
Plaintiffs,
v.
Maersk A/S, in personam, et al.,
Defendants.
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Civil Action No. 4:25-cv-00392
MEMORANDUM AND ORDER
This opinion concerns several motions that the parties have filed in this
maritime personal injury suit: (1) Defendants Maersk A/S’s and A.P. Møller’s
motion to transfer this case to the Galveston Division of this Court (Dkt. 17);
(2) Defendants’ motion to designate the United States Coast Guard (the “Coast
Guard”) as a responsible third party (Dkt. 21); (3) Plaintiffs Gene Harney’s and
Brittany Harney’s motion to strike the Coast Guard’s third-party designation
(Dkt. 33); and (4) Defendants’ motion to dismiss for lack of subject matter
jurisdiction (Dkt. 29).
As explained below, it is ordered that Defendants’ motion to transfer
(Dkt. 17) is denied. 	But the parties failed to adequately address a critical
choice-of-law issue that affects their motions relating to Defendants’ invocation
of Texas law to designate the Coast Guard as a responsible third party. 	See
United States District Court
Southern District of Texas
ENTERED
May 13, 2026
Nathan Ochsner, Clerk
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Dkt. 21 (Defendants’ motion to designate Coast Guard as responsible third
party under Texas law); Dkt. 29 (Defendants’ motion to dismiss or strike jury
demand based on the Coast Guard’s designation); Dkt. 33 (Plaintiffs’ motion to
strike the Coast Guard’s designation). 	The Court thus orders expedited
briefing on that issue.
Background
Plaintiff Petty Officer Gene Harney is an active-duty member of the
Coast Guard. 	Dkt. 1 at 1. 	On October 17, 2024, Harney and the crew of the
Coast Guard Cutter Hatchet (the “Hatchet”) were working on the Hatchet to
construct a Navigation Aid in the Houston Ship Channel. Id. at 4. While the
crew 	was working, 	the 	Monte 	Rosa, a large 	ship 	container 	operated 	by
Defendant Maersk A/S and owned by Defendant A.P. Møller, passed the
Hatchet. 	Id. at 2, 6. 	According to Plaintiffs, the Monte Rosa passed at an
excessive speed, causing a wake and surge that threw the Hatchet into the
Navigation Aid. 	Id. at 7. 	Harney was pinned between the Hatchet and the
Navigation Aid, crushing his arm. Id.
On January 30, 2025, Plaintiffs filed this suit, claiming that Defendants
were negligent and negligent per se and seeking damages. Id. at 9-13. Almost
nine months later, Defendants filed a motion to transfer venue from the
Houston to the Galveston division of this Court. Dkt. 17. Plaintiffs responded,
Dkt. 18, and Defendants replied, Dkt. 19.
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While discovery was ongoing, Defendants filed a motion to designate the
Coast Guard as a responsible third party under Texas Civil Practice and
Remedies Code § 33.004, Dkt. 21, to which Plaintiffs responded, Dkt. 24, and
Defendants replied, Dkt. 25. 	Later, Defendants moved to dismiss Plaintiffs’
complaint for lack of subject matter jurisdiction, or alternatively, to strike their
jury demand. 	Dkt. 29. 	Plaintiffs filed a brief that responded to Defendants’
motion to dismiss and moved to strike Defendants’ responsible-third-party
designation of the Coast Guard. 	Dkt. 33. 	Defendants replied in support of
their motion to dismiss, Dkt. 35, and filed a response to Plaintiffs’ motion to
strike, Dkt. 38, to which Plaintiffs replied, Dkt. 39.1
Analysis
I. 	Defendants 	have 	not 	shown 	that 	the 	Galveston 	Division 	is
clearly more convenient to warrant transfer.
The first dispute concerns the proper venue. 	Defendants move to
transfer this case to this Court’s Galveston Division, claiming that the relevant
factors either favor that result or are neutral. Dkt. 17. Plaintiffs respond that
Defendants have not met their burden to show that the Galveston Division is
clearly more convenient. Dkt. 18. The Court agrees with Plaintiffs.
1 This opinion does not address other pending motions, including the parties’ cross-
motions for summary judgment.
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A. 	Legal standard for transfers under 28 U.S.C. § 1404(a)
Federal law authorizes courts to transfer a suit to a different venue for
“the convenience of parties and witnesses” and in the “interests of justice.”
28 U.S.C. § 1404(a). 	“Thus, while a plaintiff has the privilege of filing his
claims in any judicial provision appropriate under the general venue statute,
§ 1404(a) tempers the effects of the exercise of this privilege.” In re Volkswagen
of Am., Inc., 545 F.3d 304, 313 (5th Cir. 2008) (en banc) (Volkswagen II).
“[W]hen the transferee venue is not clearly more convenient than the venue
chosen by the plaintiff, the plaintiff’s choice should be respected. 	When the
movant demonstrates that the transferee venue is clearly more convenient,
however, it has shown good cause and the district court should therefore grant
the transfer.” Id. at 315.
When, as here, the suit could have been filed in a proposed transferee
district, the inquiry under § 1404(a) addresses several private and public
interest factors, “none of which are given dispositive weight.” In re Volkswagen
AG, 371 F.3d 201, 203 (5th Cir. 2004) (per curiam) (“Volkswagen I”). 	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 costs of attendance for willing witnesses; and (4) all other
practical 	problems 	that 	make 	trial 	of 	a 	case 	easy, 	expeditious, 	and
inexpensive.” Id. The public interest factors consider: “(1) the administrative
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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.
B. 	On balance, the private factors weigh against transfer.
1. 	Ease of accessing sources of proof supports transfer.
“The first [private-interest] factor focuses on the location of the relevant
‘documents and physical evidence’ relative to the transferee and transferor
venues.” 	In re Orion Marine Constr., Inc., 2020 WL 8083679, at *3 (S.D. Tex.
Dec. 21, 2020) (citation omitted), adopted by 2021 WL 76793 (S.D. Tex. Jan. 8,
2021). 	“That access to some sources of proof presents a lesser inconvenience
now than it might have absent recent developments does not render this factor
superfluous.” Volkswagen II, 545 F.3d at 316. “The location of evidence bears
much more strongly on the transfer analysis when … the evidence is physical
in nature.” 	In re Planned Parenthood Fed’n of Am., Inc., 52 F.4th 625, 630
(2022).
Defendants argue that this factor favors transfer to the Galveston
Division because the incident occurred within that Division, the Hatchet’s
operational base, crew, and key documents are there, the Plaintiffs reside
there, and many of Harney’s medical providers are based there too. Dkt. 17 at
5; Dkt. 19 at 3. Plaintiffs disagree, contending that most of this case’s evidence
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is electronic, that both sides’ counsel’s offices are in Houston, that the vessel
Monte Rosa is transient in nature and not present in Galveston, and the Monte
Rosa’s pilot during the incident was employed by Houston Pilots, a business
whose office lies within the Houston Division. Dkt. 18 at 4.
Defendants are correct that, even if most of the evidence is stored
electronically, “this does not negate the significance of having trial closer” to
where the physical evidence is located because “the critical inquiry is relative
ease of access, not absolute ease of access.” 	See Sandbox Logs. LLC v. Grit
Energy 	Sols. 	LLC, 	2016 	WL 	4400312, 	at 	*3 	(S.D. 	Tex. 	Aug. 	17, 	2016)
(quotations omitted). 	Where the parties’ counsel is located is immaterial.
See Volkswagen I, 371 F.3d at 206 (“The word ‘counsel’ does not appear
anywhere in § 1404(a).”). 	Here, the accident occurred in the Galveston
Division, the Hatchet’s vessel logs, checklists, and other records are in the
Galveston Division, and the vessel itself is in the Galveston Division. See Dkt.
19 at 2. Plaintiffs do not identify any specific physical or documentary evidence
located in the Houston Division. Therefore, this factor favors transfer.
2. 	Witness convenience is neutral.
“Convenience 	for 	the 	witnesses 	has 	been 	recognized 	as 	the 	most
important factor under § 1404(a).” Md. Marine Inc. v. United States, 2008 WL
2944877, at *3 (S.D. Tex. July 23, 2008) (internal quotation marks omitted).
“When the distance between an existing venue for trial of matter and a
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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 I, 371 F.3d at 204-05.
Defendants assert that several anticipated nonparty witnesses “likely
work and probably live in the Galveston Division.” Dkt. 17 at 6. That vague,
speculative assertion is not convincing. 	See Sandbox Logs. LLC 2015 WL
4400312, at *5 (“[V]ague statements about the convenience of unknown or
unnamed witnesses are insufficient to convince this Court that the convenience
of the witnesses and the parties would best be served by an intra-district
transfer of venue.”). 	Moreover, the difference in travel time is minimal. 	See
Dkt. 17 at 1 (Plaintiffs live only 14 miles closer to the Galveston Division’s
courthouse than the Houston Division’s). At best, this factor is neutral.
3. 	Other practicalities weigh heavily against transfer.
“[G]arden-variety delay associated with transfer is not to be taken into
consideration when ruling on a § 1404(a) motion to transfer.” 	In re Radmax,
Ltd., 720 F.3d 285, 289 (5th Cir. 2013). 	But “[p]arties seeking a change of
venue should act with reasonable promptness.” 	Peteet v. Dow Chem. Co.,
868 F.2d 1428, 1436 (5th Cir. 1989) (quotations omitted). 	“[C]ourts have
considered a party’s delay in denying a motion to transfer.” 	In re Planned
Parenthood Fed’n of Am., Inc., 52 F.4th at 630 (quotation omitted).
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Plaintiffs 	argue 	that 	Defendants’ 	delay 	in 	seeking 	transfer 	weighs
against transfer. 	Dkt. 18 at 6-8. 	They are correct. 	Defendants waited until
September 23, 2025 to file their motion—almost five months after filing an
answer and many months after this Court issued a scheduling order setting
trial for June 29, 2026. 	See Dkt. 15 (Scheduling Order filed May 16, 2025);
Dkt. 17 (motion to transfer filed September 23, 2025). 	Transferring the case
to the Galveston Division, even at that juncture, would have delayed the trial
date. This factor weighs strongly against Defendants’ request.
C. 	Public interest factors minimally favor transfer.
1. 	Administrative concerns are neutral.
Defendants assert that any potential administrative difficulties arising
from this litigation should be shouldered by the Galveston Division, which has
a “vested interest” in the controversy. 	Dkt. 17 at 6-7. 	This argument goes to
the following factor—whether the Galveston Division has a localized interest
in the matter. And as Plaintiffs note, Defendants’ suggestion that the Houston
Division is more congested or less able to resolve this matter is purely
speculative. See Dkt. 18 at 6. This factor is neutral.
2. 	Local interests support transfer, but only slightly.
The local interest factor considers whether the dispute at issue has a
closer 	“factual 	connection” 	with 	the 	transferee 	or 	transferor 	venue.
Volkswagen I, 371 F.3d at 206. 	It “generally favors the venue where the acts
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giving rise to the lawsuit occurred.” 	Spirit Airlines, Inc. v. Ass’n of Flight
Attendants-CWA, AFL-CIO, 2014 WL 585344, at *6 (N.D. Tex. Feb. 14, 2014)
(quotations omitted). 	This factor recognizes that “jury duty is a burden that
ought not to be imposed upon the people of a community which has no relation
to the litigation.” Volkswagen I, 371 F.3d at 206 (quotations omitted).
Defendants argue that Galveston has a localized interest in this dispute
because the accident occurred within that division, the Hatchet is homeported
in Galveston, and the Plaintiffs reside there. 	Dkt. 17 at 6. 	The Court agrees
that, to the extent there is a localized interest in this case, that interest is
stronger in Galveston than in Houston. This factor slightly favors transfer.
Ultimately, though, neither this factor nor the relative ease of accessing
documents (addressed above) is enough to outweigh the practical concerns that
Defendants’ tardiness in requesting transfer would delay the resolution of this
case. 	Put another way, Defendants have not shown that the factors clearly
favor transferring this case to Galveston. The motion to transfer is denied.
II. 	The parties must show cause why Texas law has any bearing on
Plaintiffs’ maritime tort claims.
In a series of other motions, the parties debate whether Defendants
should be allowed to designate the Coast Guard as a responsible third party
under Texas Civil Practice & Remedies Code § 33.004, Dkt. 21, whether such
a designation would merit dismissing Plaintiffs’ claims or striking their jury
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demand, Dkt. 29, and whether any such designation should be stricken as
unsupported by adequate evidence, Dkt. 33. 	But nowhere have the parties
addressed the threshold issue of why Texas’s proportionate responsibility
statute would apply to Plaintiffs’ maritime claims that instead are governed
by federal maritime law.
Defendants merely assume that Texas’s proportionate responsibility
statute governs because Plaintiffs invoked diversity jurisdiction. Dkt. 21 at 2.
And Plaintiffs, in a single, unadorned sentence, insinuate that the statute does
not apply because it is “procedural.” 	See Dkt. 24 at 1. 	Neither position is
persuasive.
Plaintiffs’ characterization of the Texas statute as “procedural” cannot
be squared with the Fifth Circuit’s treatment of Texas’s entire proportionate
responsibility scheme in chapter 33 of the Texas Civil Practice & Remedies
Code—including Section 33.004—as “Texas substantive law ....” 	See Le v.
United States, 138 F.4th 264, 273-74 & nn.21, 33-35 (5th Cir. 2025) (analyzing
liability findings under Texas law, including evidence against designated
responsible third party). 	Even more explicitly, this Court has repeatedly
recognized Section 33.004 as “state substantive law that does not conflict with
Rule 14 of the Federal Rules of Civil Procedure, the closest federal procedural
counterpart.” 	Gutierrez v. Tractor Supply Co., 2018 WL 3055752, at *1 (S.D.
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Tex. June 20, 2018) (quotations omitted); see also, e.g., Benchellal v. Okonite
Co., Inc., 2023 WL 9105695, at *1 (S.D. Tex. Nov. 28, 2023) (collecting cases).
But both sides seem to assume that Texas’s proportionate responsibility
scheme, if substantive state law, would apply here simply because Plaintiffs
invoked diversity jurisdiction, 28 U.S.C. § 1332, as the basis for bringing this
case in federal court. 	Yet they cite no authority explaining why Texas
substantive law should govern Plaintiffs’ federal maritime claims.2
Maritime tort claims can be filed in federal court based on either
diversity jurisdiction or admiralty jurisdiction. 	See Luera v. M/V Alberta,
635 F.3d 181, 188 (5th Cir. 2011) (explaining the procedural consequences for
each option). Nevertheless, the U.S. Supreme Court made clear, decades ago,
that even if jurisdiction over maritime claims is premised on diversity, the
claims themselves are governed by general maritime law—and not state law.
See Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 410-11 (1953) (rejecting
assertion that a state’s contributory negligence rule should apply to a maritime
tort claim brought via diversity jurisdiction); Branch v. Schumann, 445 F.2d
2 Defendants’ invocation of Texas’s proportionate responsibility statute is especially
confounding given their recognition that general maritime law governs Plaintiffs’ in
rem claims. 	See Dkt. 30 at 2 (Defendants’ motion for partial summary judgment,
asserting that general maritime law governs Plaintiffs’ in rem claims); cf. Nunez v.
City of Corpus Christi, 2013 WL 164045, at *1 (S.D. Tex. Jan. 14, 2013) (“Chapter 33,
the Texas Proportionate Liability Act, applies to all torts governed by Texas law.”)
(emphasis added).
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175, 177-78 (5th Cir. 1971) (explaining that if admiralty jurisdiction applies,
“then all of the substantive rules and precepts peculiar to the law of the sea
become applicable”). 	To hold otherwise would allow a plaintiff to “elect
whether the liability of the defendant shall be determined by the maritime law
or by the common law standards of the state” which would “defeat the
uniformity which the Constitution requires in such cases.” 	J.B. Effenson Co.
v. Three Bays Corp., 238 F.2d 611, 615 (5th Cir. 1956) (citing Chelentis v.
Luckenbach S.S. Co., 247 U.S. 372 (1918)).
The parties failed to address the threshold choice-of-law issue. And this
Court will not risk applying the wrong legal framework simply because it was
not adequately briefed. Accordingly, the parties must file short supplemental
briefs—on an expedited schedule—explaining what, if any authority, supports
or negates applying Texas’s proportionate responsibility scheme—which is
substantive state law—to Plaintiffs’ maritime claims that are instead governed
by federal maritime law.
Conclusion
For the foregoing reasons, it is ORDERED that Defendants’ motion to
transfer (Dkt. 17) is DENIED.
It is further ORDERED that the parties must file a supplemental brief
(maximum 5 pages), that explains, together with supporting legal authority,
whether Texas’s proportionate responsibility scheme—which is deemed to be
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substantive state law—should apply to Plaintiffs’ maritime claims that are
governed by federal maritime law. The briefing deadlines are as follows:
 	Defendants’ brief is due May 20, 2026.
 	Plaintiffs’ brief is due May 27, 2026.
No reply brief will be entertained.
Signed on May 13, 2026, at Houston, Texas.
______________________________
Yvonne Y. Ho
United States Magistrate Judge
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