Opinion
Case No. 3:03CV7011
June 25, 2003
ORDER
This is an action by a railway worker who claims he was injured in a collision between a train being operated by the plaintiff's employer, Norfolk Southern Railway (NS), and a truck operated by the defendant Thomas R. Flood and owned by the defendant Morrice Transportation (Morrice). Pending is a motion by Morrice to dismiss on the basis of improper venue.
Venue in this court is not improper. Under 45 U.S.C. § 56, an FELA action can be brought "in a district court of the United States, in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing such action." NS was doing business in Ohio at the time of the incident, and thus plaintiff's FELA claim is properly venued in this district.
Venue would not, however, be proper in a diversity action solely against the Morrice, which is a Canadian corporation. Jurisdiction over Morrice is based on diversity of citizenship. Venue in a diversity action is prescribed by 28 U.S.C. § 1392(a). Because the all the defendants do not reside in the same state, and there is a district in which this action could be brought (i.e., the Eastern District of Michigan), diversity venue arises only under § 1392(a)(2) in that district.
Though not noted by the parties' memoranda, venue can, however, arise in this case, in which plaintiff has plead an FELA claim against NS and a state law negligence claim against the other defendants, under the doctrine of "pendent venue." As described in Hsin Ten Enterprise USA, Inc. v. Clark Enterprises, 138 F. Supp.2d 449, 462 (S.D.N.Y. 2000)
courts have increasingly recognized the doctrine of "pendent venue", derived from the concept of pendent jurisdiction. See, e.g., Beattie v. United States, 756 F.2d 91, 101 (D.C. Cir. 1984) ("The doctrine of `pendent venue' is now well established, particularly in cases where the court has previously exercised its discretion to hear a certain claim under pendent jurisdiction."). Under the doctrine of pendent venue, "a federal court may in its discretion hear pendent claims which arise out of the same nucleus of operative fact as a properly venued federal claim, even if venue of the pendent claim otherwise would not lie." Banfield v. UHS Home Attendants, Inc., No. 96 Civ. 4850, 1997 WL 342422, at *2 (S.D.N.Y. June 23, 1997). In making its decision, a court must consider factors such as "judicial economy, convenience to the parties and the court system, avoidance of piecemeal litigation and fairness to the litigants." Id. (citing Rodriguez v. Chandler, 641 F. Supp. 1292, 1302 (S.D.N.Y. 1986)).
Accord, Byrton Dairy Products, Inc. v. Harborside Refrigerated Services, 1997 WL 177874, *3 (N.D.Ill., Apr 10, 1997) ("Courts may exercise discretion to hear a claim lacking venue if it arises out of the same common nucleus of operative facts as the claims for which there is proper venue. In determining whether to exercise the discretion to hear such claims, judicial economy, conveniences, avoidance of piecemeal litigation, and fairness to the litigants is to be considered.").
Morrice's principal contention is that it would be unreasonably inconvenient to require it to participate in this case in this court. It notes, inter alia, that the majority of witnesses reside in the vicinity of the accident.
In response, plaintiff contends that his treating physicians are located in this district, as is he and at least one of his witnesses. He also asserts that he anticipates retaining expert witnesses located in this district.
I take judicial notice that the situs of the accident, Milan, Michigan, is located about thirty miles from Toledo, and is about equidistant between Toledo and Detroit. The other places of holding court in the Eastern District of Michigan — Ann Arbor and Flint — are, respectively, somewhat closer and somewhat further from Milan.
Determination of the place of court in which this case would be heard, were it to be transferred to the Eastern District of Michigan would depend on which Judge drew the case by random assignment. E.D. Mich. Local Rule 83.11(a)(1).
Distance is not, accordingly, a significant factor for the parties or their representative and witnesses. Though the distance Morrice's witnesses and representatives will be required to travel to attend depositions and trial is somewhat greater than it would be if this case were to be heard in Detroit, the extra hour or so required to get to Toledo is not particularly burdensome or expensive. Getting to Ann Arbor or Flint would take it about as long as getting to Toledo.
I conclude, accordingly, that this District is not an inconvenient forum for the movant, and that the arguments offered in support of its motion do not overcome the substantial weight given to plaintiff's choice of forum. See, e.g., Hayes v. Cesapeake Ohio Rwy., 374 F. Supp. 1068 (S.D.Ohio 1973).
It is, therefore,
ORDERED THAT defendant's motion to dismiss be, and the same hereby is denied.
So ordered.