Case: 16-20735      Document: 00514028009         Page: 1    Date Filed: 06/09/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                      No. 16-20735                                FILED
                                                                               June 9, 2017

JOSHUA MCCOY,                                                                Lyle W. Cayce
                                                                                  Clerk
              Plaintiff - Appellant

v.

ENERGY XXI GOM, L.L.C.; WOOD GROUP USA, INCORPORATED; FLOW
PETROLEUM SERVICES, INCORPORATED,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:15-CV-2286


Before DAVIS, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Joshua McCoy (“McCoy”) appeals the district court’s
final judgment granting judgment as a matter of law in favor of Defendants-
Appellees Energy XXI GOM, L.L.C. (“Energy”) and Wood Group USA,
Incorporated (“Wood Group”), and dismissing his claims against Defendant-
Appellee Flow Petroleum Services, Incorporated (“Flow”) for lack of personal



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 16-20735
jurisdiction. For the reasons set forth below, we affirm the dismissal of Flow
but otherwise reverse and remand.

                                I. Background
      This lawsuit arises out of an incident that occurred on or about May 27,
2015 on a fixed offshore platform, SMI 239D, located on the Outer Continental
Shelf off the coast of Louisiana and owned by Energy. Wood Group was an
operator on the platform and acted as an independent contractor for Energy.
McCoy had been employed by Precision Crane & Hydraulics, a nonparty to this
action, as a mechanic’s helper for approximately eight months prior to the
incident. One of his routine duties was to purge crane tanks, which involves
opening a valve, draining fluid into a container (being careful not to spill into
the ocean), and closing the valve.
      McCoy had worked on a number of platforms, but he had only worked on
SMI 239D a few times and had never worked on the crane tank at issue in the
incident. He claims that on other platforms, Energy equipped crane tanks with
ball valves and plumbing extending away from the tanks, which allowed him
to drain the tanks easily through a hose using only his hand to open and close
the ball valve. On the day of the incident, he was ordered to drain a crane tank
on SMI 239D which had neither a ball valve nor plumbing. Instead, the tank
had a hexagonal plug located at ground level, plus a workspace below the tank
accessible by moving the grating panel adjacent to the plug. The movable
grating panel sat flush against the tank, with a small cutout to give the plug
clearance.
      McCoy claims that to properly drain the crane tank on SMI 239D, he had
to move the grating panel to the side, climb down into the area below the tank,
place spill containment pads and a bucket below the tank, and use a heavy
wrench to loosen the plug. He claims the plug was so tight it required him to

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                                 No. 16-20735
use a hammer and large pipe wrench to loosen it, then carefully monitor the
flow of hydraulic fluid, all while standing below the tank. When he finished
draining the tank, the grating panel, which he had placed above him on the
adjacent grating, fell onto his shoulder and then his foot, injuring him. To get
off the platform, McCoy claims that Energy and/or its agent required him to
transfer to a crewboat via a simple rope swing over the ocean, rather than a
safer basket transfer. He claims that in the course of that transfer, he
exacerbated his foot injuries.
      McCoy first sued Energy and Wood Group in Texas state court, asserting
a number of negligence-based theories, including not only premises liability for
failure to maintain and fix the unreasonably dangerous condition on the
platform but also failing to take proper safety precautions, failing to warn of
the dangerous condition, and forcing McCoy to use a rope swing when a safer
transfer option was available. McCoy served his initial discovery with his state
court petition.
      Energy and Wood Group timely removed the case to the United States
District Court for the Southern District of Texas under federal question
jurisdiction, specifically the Outer Continental Shelf Lands Act, 43 U.S.C. §
1331 et seq. (“OSCLA”). The day after removal, the district court entered an
order effectively prohibiting discovery without court approval, allowing only
the disclosure of the principal facts and documents supporting each party’s
case until such time as the court could fashion a management plan.
Defendants-Appellees never had to answer McCoy’s initial discovery.
      Thereafter the district court denied most requests for discovery. It
permitted only the deposition of McCoy; the disclosure by the defendants of
certain documents pertaining to the specific crane tank at issue on SMI 239D;
photographs by Energy showing “the grating moved onto adjacent grating, the
wrench in different positions on the plug, and the removed plug, with
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measurements”; and “[v]ideo [taken by Energy after the accident] of the steps
necessary to drain the tank.” At no point did the district court permit McCoy
to take the deposition of any party, nor does it appear the court permitted
discovery of the conditions on any other platform, or even discovery pertaining
to other tanks on SMI 239D. The result is that the district court permitted
narrow discovery on the specific work location at issue, as well as discovery on
the identity of companies working on SMI 239D.
      As a result of this limited discovery, the court allowed McCoy to amend
his complaint to add a claim against Flow on the ground that Flow, as Energy’s
contractor, directly employed the “Person In Charge” who was present on the
date of the accident and thus allegedly bore some responsibility for the safety
conditions on the platform. Unlike Energy and Wood Group, which are both
based out of Houston, Texas, Flow is based out of Lafayette, Louisiana, and
allegedly has no contacts with Texas. Flow filed a motion to dismiss for lack of
personal jurisdiction and improper venue, and McCoy filed a motion to transfer
venue to the Western District of Louisiana, where venue would be proper as to
all parties.
      Soon thereafter, the district court specified in a management order that
Energy “may move for judgment,” and McCoy would have one week to respond.
Both Energy and Wood Group filed motions for summary judgment, which
McCoy opposed. All parties agreed that under OCSLA, Louisiana substantive
law applies as the law of the state adjacent to the platform. McCoy objected to
summary judgment because he was not allowed to conduct sufficient discovery.
      As discussed in more detail below, the district court granted Defendants-
Appellees’ motion for summary judgment because it found that McCoy’s
“carelessness caused his injury. He will take nothing.” The district court found
that McCoy was entirely at fault with respect to his negligence and premises
liability claims relating to the primary incident involving the grating panel and
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                                     No. 16-20735
his negligence claim relating to the rope swing transfer to the crewboat. The
court also denied McCoy’s requests for additional discovery; denied his motion
to strike certain summary judgment evidence submitted by Energy and Wood
Group; and dismissed Flow, implicitly denying McCoy’s motion to transfer
venue. The court entered a final judgment in favor of Energy and Wood Group
and against McCoy, dismissing McCoy’s claims against Flow. McCoy timely
appealed, challenging essentially every part of the district court’s opinion. We
reverse and remand except with respect to the dismissal of Flow.

                                 II. Applicable Law
      Because the district court failed to apply the summary judgment
standard and cited almost no relevant substantive law in its opinion, it is
helpful to briefly review those principles. Under Fed. R. Civ. P. 56, summary
judgment may only be granted “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” We review the grant of summary judgment de novo. 1 “We must
view the evidence and draw reasonable inferences in the light most favorable
to the nonmoving party.” 2 “On summary judgment, . . . courts are precluded
from weighing credibility.” 3
      As noted above, all parties agree that Louisiana substantive law applies
via OCSLA, most relevantly La. Civ. Code arts. 2315 (general negligence) and
2317.1 and 2322 (an owner or caretaker’s liability for a defective thing or
building, respectively). Article 2315, the cornerstone of Louisiana tort law,
provides: “Every act whatever of man that causes damage to another obliges
him by whose fault it happened to repair it.” 4 Article 2317.1 provides:


      1 Cox v. Wal-Mart Stores E., L.P., 

, 233 (5th Cir. 2014).
      2 

v. LHC Grp., Inc., 

, 701 (5th Cir. 2014).
      

. Code Ann. art. 2315(A).

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      The owner or custodian of a thing is answerable for damage
      occasioned by its ruin, vice, or defect, only upon a showing that he
      knew or, in the exercise of reasonable care, should have known of
      the ruin, vice, or defect which caused the damage, that the damage
      could have been prevented by the exercise of reasonable care, and
      that he failed to exercise such reasonable care. Nothing in this
      Article shall preclude the court from the application of the doctrine
      of res ipsa loquitur in an appropriate case. 5
Similarly, Article 2322 provides:
      The owner of a building is answerable for the damage occasioned
      by its ruin, when this is caused by neglect to repair it, or when it
      is the result of a vice or defect in its original construction. However,
      he is answerable for damages only upon a showing that he knew
      or, in the exercise of reasonable care, should have known of the
      vice or defect which caused the damage, that the damage could
      have been prevented by the exercise of reasonable care, and that
      he failed to exercise such reasonable care. Nothing in this Article
      shall preclude the court from the application of the doctrine of res
      ipsa loquitur in an appropriate case. 6
      Louisiana courts employ duty-risk analysis to determine liability for
general negligence, and that analysis also informs cases under Articles 2317.1
and 2322:
      Under this analysis, plaintiff must prove that the conduct in
      question was a cause-in-fact of the resulting harm, the defendant
      owed a duty of care to the plaintiff, the requisite duty was breached
      by the defendant and the risk of harm was within the scope of
      protection afforded by the duty breached. Under the duty-risk
      analysis, all four inquiries must be affirmatively answered for
      plaintiff to recover. 7
      These factors are split between questions of fact and questions of law. In
this case, McCoy alleges the crane tank posed an unreasonable risk of harm,
especially compared to tanks on other platforms. In a case concerning whether



      

. Code Ann. art. 2317.1.
      

. Code Ann. art. 2322.
      7 Syrie v. Schilhab, 

, 1176–77 (La. 1997) (citations omitted).

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an elevator posed an unreasonable risk of harm, the Louisiana Supreme Court
focused on the duty and breach elements, explaining the fact-finder’s role in
the inquiry:
      In order to avoid further overlap between the jury’s role as fact-
      finder and the judge’s role as lawgiver, we find the analytic
      framework for evaluating an unreasonable risk of harm is properly
      classified as a determination of whether a defendant breached a
      duty owed, rather than a determination of whether a duty is owed
      ab initio. It is axiomatic that the issue of whether a duty is owed
      is a question of law, and the issue of whether a defendant has
      breached a duty owed is a question of fact. The judge decides the
      former, and the fact-finder—judge or jury—decides the latter. . . .
      Because the determination of whether a defect is unreasonably
      dangerous necessarily involves a myriad of factual considerations,
      varying from case to case, the cost-benefit analysis employed by
      the fact-finder in making this determination is more properly
      associated with the breach, rather than the duty, element of our
      duty-risk analysis. Thus, while a defendant only has a duty to
      protect against unreasonable risks that are not obvious or
      apparent, the fact-finder, employing a risk-utility balancing test,
      determines which risks are unreasonable and whether
      those risks pose an open and obvious hazard. In other words,
      the fact-finder determines whether defendant has breached a duty
      to keep its property in a reasonably safe condition by failing to
      discover, obviate, or warn of a defect that presents an
      unreasonable risk of harm. 8
      Under Louisiana law, “[a]s a general rule, ‘the owner or operator of a
facility has the duty of exercising reasonable care for the safety of persons on
his premises and the duty of not exposing such persons to unreasonable risks
of injury or harm.’” 9 As we have explained:
      This duty extends to employees of independent contractors, for
      whose benefit the owner must take reasonable steps to ensure a
      safe working environment. [The platform owner] owed a duty to

      8  Broussard v. State ex rel. Office of State Bldgs., 

, 185 (La. 2013)
(footnote and citations omitted; emphasis added).
       9 Dupre v. Chevron U.S.A., Inc., 

, 157 (5th Cir. 1994) (quoting Mundy v.

Dep’t of Health & Human Res., 

, 813 (La. 1993)).
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                                     No. 16-20735
      [the plaintiff] and other workers aboard its platform to ensure that
      the platform was reasonably safe. As demonstrated by the plethora
      of regulations, work aboard an offshore platform is precarious at
      best. Slipping and losing one’s balance, a not unusual occurrence
      on oil-producing rigs, may become life threatening when the proper
      safety mechanisms are not in place. A broken ramp or a missing
      rail may become the cause of severe injury or death. Such safety
      features are required for the precise purpose of preventing undue
      consequences of falls which may end abruptly in the sea hundreds
      of feet below. 10
      Thus, the focus tends to be not on whether there was a duty in the first
place but on whether a defendant breached the duty—a question of fact
typically not suitable for summary judgment. As the Louisiana Supreme Court
explained in Broussard, “the fact-finder . . . determines which risks are
unreasonable and whether those risks pose an open and obvious hazard,” i.e.,
“whether defendant has breached a duty to keep its property in a reasonably
safe condition by failing to discover, obviate, or warn of a defect that presents
an unreasonable risk of harm.” 11 Thus, unless the summary judgment evidence
shows truly undisputed material facts, summary judgment is not appropriate.
      Finally, it is significant that Louisiana employs a pure comparative fault
system under La. Civ. Code art. 2323:
      In any action for damages where a person suffers injury, death, or
      loss, the degree or percentage of fault of all persons causing or
      contributing to the injury, death, or loss shall be determined,
      regardless of whether the person is a party to the action or a
      nonparty, . . . . If a person suffers injury, death, or loss as the result
      partly of his own negligence and partly as a result of the fault of
      another person or persons, the amount of damages recoverable
      shall be reduced in proportion to the degree or percentage of
      negligence attributable to the person suffering the injury, death,
      or loss. 12


      10 

      11 

.
      

. Code Ann. art. 2323(A).

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The Louisiana Supreme Court has explained that “[w]hen it adopted the
comparative fault system, Louisiana abolished the contributory negligence
feature, which completely barred the recovery of injury victims because of their
fault, our tort law formerly embraced prior to 1980.” 13 Because Louisiana law
requires a full apportionment of fault among all potentially responsible parties,
summary judgment is not appropriate if reasonable minds could disagree
about the apportionment of fault. 14

                                      III. Analysis
A.     Negligence and Premises Liability
       Regarding McCoy’s negligence claims, the district court failed to apply
the summary judgment standard or the applicable substantive law, as set out
above. The district court did note that McCoy claims, as set out above, that the
work area was unreasonably dangerous, that other crane tanks on other
platforms are not unreasonably dangerous, and that he was made to swing on
a rope to a crewboat instead of using a safer method. Nevertheless, the district
court found that “McCoy’s account and a review of the job site make plain: his
carelessness was the cause of his accident.” The district court reached its
primary conclusion that McCoy was fully at fault by rejecting McCoy’s
deposition testimony:
       McCoy chose to move the grating. Rather than working below the
       tank, he could have stood on the grating adjacent to the tank. From
       there, he could have loosened the plug without moving the grating.


       13Landry v. Bellanger, 

, 952–53 (La. 2003).
       14See, e.g., Allen v. Integrated Health Servs., Inc., 

, 807 (La. Ct. App.
1999) (“Because we conclude that reasonable minds might differ as to the apportionment of
fault under these circumstances, we hereby reverse the trial court’s grant of partial summary
judgment which assessed the defendants with all the fault for the accident.”); Grabowski v.
Smith & Nephew, Inc., 

, 908 (La. Ct. App. 2014), writ denied, 

(La. 2015) (reversing the grant of summary judgment in favor of a medical sales
representative defendant because the summary judgment record revealed a genuine dispute
as to a material fact as to whether he was potentially at fault).
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                                  No. 16-20735
      He says the plug was tight and required a “thick wrench.” The
      wrench he used would have fit in the rectangular hole that cut into
      the grating. Further, he did not need a thick wrench to get leverage
      on a tight plug; he needed a long-handled wrench.
The court then posited a number of other ways McCoy might have purged the
crane tank in a safe manner before concluding: “As a matter of law, his
placement of the grating and working from below, not actions by Energy or
Wood Group, caused his injuries. He will take nothing on his negligence
claims.” The court did not discuss the allegations McCoy made against Energy
or Wood Group; it simply rejected them and found that McCoy was entirely
liable for his injuries.
      The district court’s error is plain. The court’s characterization of McCoy’s
testimony directly contradicts what McCoy said in his deposition, which is that
Defendants-Appellees’ own negligence and the platform’s unreasonably
dangerous conditions caused his injuries, at least in part. The only way to reach
the conclusion the district court reached is to draw inferences against McCoy,
the nonmovant, and/or to make a credibility determination—both strictly
prohibited at the summary judgment stage. The district court allowed very
limited discovery in this case, and the summary judgment still discloses major
genuine disputes as to material facts. The rest of the court’s opinion is infected
with similar flaws, with the district court acting as a fact-finder rather than as
a dispassionate arbiter of purely legal questions.
      Next, the district court concluded that McCoy could not prevail on his
premises liability claims because it found that there was nothing “about this
tank and this plug that made them unreasonably dangerous.” Specifically, the
court found that “[b]ecause McCoy was experienced in his line of work and
knew how to collect the fluid safely, it is not reasonable to expect that Energy
and Wood Group would have foreseen this injury. Energy and Wood Group are
not liable for McCoy’s lack of caution and ordinary care.” The district court
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dismissed McCoy’s arguments regarding the use of safer ball valves and
plumbing on other tanks because it found that “[t]he existence of a different
plug design—safer or easier—does not make the existing plug unreasonably
dangerous.” It also dismissed, without further discussion, McCoy’s other
arguments pertaining to the condition of the valve, as follows:
       McCoy says that there was a cover-up, that someone from Energy
       or Wood Group said the tank was dangerous and that someone said
       they would change this plug to a safer one. A decision to change
       this plug does not show that it was unsafe at the time McCoy used
       it and is not an admission of negligence. [footnote omitted]
       With respect to this premises liability analysis, the district court did not
cite to the applicable Louisiana Civil Code articles, and it cited to only a few
inapposite cases in footnotes, 15 including a Texas Supreme Court case that
does not apply to this action under Louisiana substantive law.
       The court again erred by drawing inferences against McCoy, weighing
his deposition testimony against countervailing evidence (or the court’s own
beliefs, as the case may be), and failing to acknowledge the existence of genuine
disputes as to material facts on the premises liability issues.
       Finally, and again without citing any law or even McCoy’s allegations
against Energy and Wood Group relating to the rope swing transfer, the


       15 The court cited to Walker v. Union Oil Mill, Inc., 

(La. 1979), which
held that the owner of a soybean storage facility was not liable for the death of a 15-year-old
boy who died after becoming trapped in a storage tank because the boy was not an employee,
and even if he had been, his duties would not have placed him in that danger. That is not
applicable to the instant case, where McCoy was performing the task in the course of his job,
and he contends the job site was unreasonably dangerous. The court also cited to Henry v.
Safeco Ins. Co., 

(La. Ct. App. 1986), writ denied, 

(La. 1987),
in which the appellate court overturned a jury verdict because it was undisputed that the
plaintiff knew of the potential dangers posed by a “clearly visible” flooring condition and had
been specifically warned by the homeowner about the slippery condition in the past. Here,
whether the condition was open and obvious is very much a disputed question of fact. Indeed,
the district court itself said that “it is not reasonable to expect that Energy and Wood Group
would have foreseen this injury,” cutting against any finding that the condition was open and
obvious. Thus, neither of those cases supports the district court’s conclusion.
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district court found that McCoy was entirely at fault for the transfer to the
crewboat because “McCoy knew his foot was injured. He was the best judge of
his ability to use the rope. He did not tell the rig’s crew that he needed a basket
or helicopter. As a matter of law, his decision to swing, not actions by Energy
or Wood Group, caused his additional injuries.” The district court erred by
completely discounting McCoy’s own testimony, in violation of the summary
judgment standard.
       Had the district court simply applied the summary judgment standard
and the applicable substantive law, it could not have granted summary
judgment. Even on the limited record available under the court’s restrictive
discovery plan, it is plain that most of the material facts are genuinely
disputed. Accordingly, we reverse the district court’s grant of summary
judgment in favor of Defendants-Appellees Energy and Wood Group and
remand so this case may proceed.
B.     Discovery Issues
       In its opinion, the district court dismissed McCoy’s objections to the
district court’s refusal to allow more discovery by explaining that it had limited
“discovery to information that is relevant to McCoy’s claims and proportional
to the needs of the case due to the cost and burden on Energy and Wood Group,”
and it found that “McCoy has claimed facts that are contradicted by physical
facts and has elevated every trivial paperwork problem into danger or
controversy.” The district court did not specify an instance where McCoy’s
testimony was contradicted by other evidence or, more meaningfully, explain
how conflicting evidence could be subject to summary judgment. The district
court also rejected McCoy’s motion to strike certain evidence submitted by
Energy and Wood Group. On appeal, McCoy objects to both of these.




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       “We review a district court’s decision to cut off discovery in order to rule
on summary judgment for an abuse of discretion.” 16 However, summary
judgment is only appropriate “‘as long as the plaintiff has had a full
opportunity to conduct discovery.’” 17
       Although the district court may cut off discovery when the record
       shows that further discovery is not likely to produce the facts
       needed to withstand the motion for summary judgment, [w]hen a
       party is not given a full and fair opportunity to discover
       information essential to its opposition to summary judgment, the
       limitation on discovery is reversible error. 18
       The district court abused its discretion in refusing to allow McCoy to
conduct sufficient discovery in this case to support the allegations he has fairly
raised, including the condition of crane tanks on other platforms, the full
conditions on SMI 239D, the legal relationships among Defendants-Appellees,
and so on. This error would be reversible on its own, but it is essentially moot
because we are reversing and remanding for the reasons set out above. Even
the limited summary judgment evidence the district court allowed already
reveals genuine disputes as to the material facts. On remand, both McCoy and
Defendants-Appellees deserve the opportunity to conduct discovery over the
full scope of the claims and defenses at issue.
       Because the district court’s decision to admit certain evidence submitted
by Defendants-Appellees does not affect the outcome of this appeal, and the
district court will have an opportunity to address all parties’ evidence at a later
date, we deny McCoy’s remaining discovery arguments as moot.




       16  Brown v. Mississippi Valley State Univ., 

, 332–33 (5th Cir. 2002) (citing
Moore v. Willis Indep. Sch. Dist., 

, 876 (5th Cir. 2000); Krim v. BancTexas Group,
Inc., 

, 1441 (5th Cir. 1993)).
        17 

(quoting Anderson v. Liberty Lobby, Inc., 

, 257, 

, 

(1986) (emphasis in Brown)).
        18 

internal quotation marks removed).

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C.     Dismissal of Flow and McCoy’s Motion to Transfer Venue
       Finally, the court dismissed Flow for lack of personal jurisdiction,
implicitly denying McCoy’s motion to transfer venue. On appeal, McCoy argues
the district court abused its discretion under 28 U.S.C. §§ 1406(a) and 1631,
which permit transfer to another district in the interests of justice to cure
venue and jurisdictional defects, by failing to transfer the case to the Western
District of Louisiana. We might be inclined to agree with McCoy that transfer
to the Western District of Louisiana might be a wise choice because Louisiana
law controls this case, the witnesses are in Louisiana, and all Defendants-
Appellees, including Flow, would be subject to personal jurisdiction in
Louisiana. Nevertheless, we cannot say that the district court abused its
discretion by dismissing Flow without prejudice rather than transferring to a
better venue. Accordingly, we affirm the dismissal of Flow.

                                  IV. Conclusion
       For the reasons set out above, the district court’s judgment dismissing
Defendant-Appellee Flow without prejudice and implicitly denying McCoy’s
motion to transfer venue is AFFIRMED. Otherwise, the district court’s
judgment is REVERSED and REMANDED for further proceedings not
inconsistent with this opinion.




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