Opinion
Civil Action No. 05-265, Section "J" (5).
June 16, 2005
ORDER AND REASONS
Before the Court is Defendant's Motion to Transfer Venue Pursuant to 28 U.S.C. § 1404(a). The motion is opposed. After considering the motion, opposition and applicable law, the Court finds that defendant has not met its burden of proving that a 28 U.S.C. § 1404(a) transfer is appropriate, therefore Defendant's motion should be DENIED.
Rec. Doc. 8.
Rec. Doc. 9.
BACKGROUND
On January 31, 2005, Plaintiff filed a complaint alleging four causes of action resulting from three separate accidents in which Plaintiff claims to have sustained injuries. The accidents allegedly occurred between November of 2002 and March of 2004 while plaintiff was on the job working aboard RIG 57, which was located in a waterway in St. Mary Parish, Louisiana, with its base of operations at the Port of Iberia. Plaintiff's causes of action arise under the Jones Act and General Maritime Law.
Rec. Doc. 1.
Rec. Doc. 1.
LAW
Change of venue in admiralty cases, like ordinary civil cases, is governed by § 1404(a). Under 1404(a), "[f]or the convenience of parties, witnesses and in the interest of justice," courts may transfer an action "to any other district or division where it might have been brought." In determining whether the transfer is proper under 28 U.S.C. § 1404(a), most courts have used the factors laid out in Gulf Oil Corp. v. Gilbert, 330 U.S. 505, 508, 67 S.Ct. 839, 843 (1947). These factors include both "private interest" and "public interest". The private interest factors are: (1) "the relative ease of access to sources of proof;" (2) "availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses;" (3) "possibility of view of premises, if view would be appropriate to the action;" and (4) "all other practical problems that make trial of a case easy, expeditious and inexpensive." The public interest factors to be considered are: (1) the administrative difficulties created by court congestion; (2) the "local interest in having localized controversies decided at home;" (3) the interest in "having the trial of a diversity case in a forum that is at home with the state law that must govern the case;" (4) the unfairness of burdening citizens in an unrelated forum with jury duty; and (5) the interest in avoiding unnecessary problems in conflict of laws, or in the application of foreign law. As an additional public interest factor, courts consider judicial economy — that is, whether a transfer would avoid duplicative litigation and prevent waste of time and money. Finally, "while neither conclusive nor determinative," in this circuit "the plaintiff's choice of forum is clearly a factor to be considered."
See Continental Grain Co. v. The FBL-585, 364 U.S. 19, 26-27, 80 S.Ct. 1470, 1475, 4 L.Ed.2d 1540 (1960).
A district where a lawsuit "might have been brought" is one in which the court would have had subject matter jurisdiction, the defendants would have been subject to personal jurisdiction, and venue would have been proper. Hoffman v. Blaski, 363 U.S. 335, 80 S.Ct. 1084, 1089-190, 4 L.Ed.2d 1254 (1960).
Gulf Oil Corp. v. Gilbert, 330 U.S. 505, 508, 67 S.Ct. 839, 843 (1947).
Id. at 509, 67 S.Ct. at 843.
Van Dusen v. Barrack, 376 U.S. 612, 616, 84 S.Ct. 805, 809, 11 L.Ed.2d 945 (1964).
In re Horseshoe Entertainment, 337 F.3d 429, 434-35 (5th Cir. 2003).
When ruling on a § 1404(a) motion to transfer, the Court is not limited to the above factors but must instead engage in a case-by-case consideration of convenience and fairness. At the very least, the plaintiff's privilege of choosing venue places the burden on the defendant to demonstrate why the forum should be changed. The plaintiff's privilege to choose, or not to be ousted from, his chosen forum is highly esteemed. The burden of proof in a motion to transfer is on the moving party. Unless the balance of factors strongly favors the moving party, the plaintiff's choice of forum generally should not be disturbed.
See Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988).
Rodriquez v. Pan American Life Ins. Co., 311 F.2d 429, 434 (5th Cir. 1962), vacated on other grounds by, Pan-American Life Ins. Co. v. Rodriguez, 376 U.S. 779, 84 S.Ct. 1130, 12 L.Ed.2d 82 (1962).
See Karim v. Finch Shopping Co., Ltd., 94 F.Supp.2d 727 (E.D.La. 2000) (citing In re Air Crash Disaster Near New Orleans, 821 F.2d 1147 (5th Cir. 1987) (vacated and remanded on other grounds)); see also Time, Inc. v. Manning, 366 F.2d 690, 698 (5th Cir. 1966).
Peteet v. Dow Chem. Co., 868 F.2d 1428, 1436 (5th Cir.), cert. denied, 493 U.S. 935 (1989).
DISCUSSION
Applying the factors listed in Gilbert to the instant case, the Court finds that Defendant has failed to carry its burden of showing that the convenience of witnesses and public interest require that the case be transferred to the Western District of Louisiana. Defendant asserts that all "sources of proof" would come from either the records kept on RIG 57 or in Defendant's operations office, located in New Iberia, Louisiana. While this may be true, this case does not appear to involve extensive discovery or document production, therefore, the Court affords little weight to this factor.Considering the convenience of witnesses, the Court finds that Defendant has not sufficiently demonstrated that this factor favors a transfer. Defendant currently employs and has control over the five fact witnesses that have information pertaining to the accidents in question. Control over witnesses by an employer essentially diminishes or even negates the protest of inconvenience because the defendant will be able to compel their testimony at trial. Further, Defendant is a worldwide drilling company with offices and operations scattered throughout the United States and several foreign countries. Its routine business operations require frequent transportation of its employees between states and between the United States and foreign countries. Thus, the Court affords this factor very little weight, if any, when considering the present motion.
Plaintiff's Memorandum in Opposition, p. 6 (Rec. Doc. 9).
Carona v. Falcon Services Co., Inc., 68 F. Supp. 2d 783, 786 (S.D.Tex. Sept. 21, 1999).
Plaintiff's Memorandum in Opposition, Exh. "A" (Rec. Doc. 9).
With respect to the medical witnesses, to use their residence as a guide to venue determinations would result in creating a forum-shopping opportunity for defendants who could send injured employees to physicians in a venue they desire. Further, the Court notes that this is a Rule 9(h) case and a bench trial. As such, it seems unlikely that live medical testimony will be presented at trial.
Two factors that weigh in Defendant's favor are that the alleged injuries occurred in the Western District and the Plaintiff resides in the Western District. Some courts afford less deference to the presumption favoring the plaintiff's choice of forum if the plaintiff is not a resident of the district where he filed suit and has no particular connection with that district. Nevertheless, this factor may still be considered, along with Plaintiff's desire to have this matter adjudicated without delay.
Roulston v. Yazoo River Towing, Inc., 2004 WL 1687232, *2 (E.D.La. July 26, 2004).
Plaintiff's key motivation of filing his lawsuit in the Eastern District was to have the matter resolved in a timely manner. Plaintiff's counsel asserts that maritime cases filed under 9(h) in the Eastern District tend to have trial dates scheduled six to seven months from the scheduling conference. By contrast, it has been the experience of Plaintiff's counsel that trial settings are much later in the Western District — nine to eighteen months. Plaintiff contends that he is justified in his motivation to promptly prosecute this case because he has been denied maintenance and cure by his employer and has been forced to rely on alternative financial sources to pay for the surgery. The fact that Plaintiff is not receiving maintenance and cure bolster's Plaintiff's reason for wanting a trial setting as soon as possible.
Plaintiff's Memorandum in Opposition, pp. 2-3 (Rec. Doc. 9).
Attached to plaintiff's opposition brief are recent Scheduling Orders from the three Lafayette sections labeled Exhibit "B", which demonstrate the delay Plaintiff would face if the case were transferred to the Western District. (Rec. Doc. 9).
The Court is not persuaded that, as Defendant contends, the Eastern District does not have an interest in the present controversy. Proceeding with the matter in the Eastern District addresses the public interest by relieving the docket of the Western District from congestion. Thus, the interest of the parties and the ends of justice are best served by moving forward with this matter in the Eastern District.
In defendant's reply memorandum, defendant relies heavily on In Re: Horseshoe Entertainment, 337 F.3d 429 (5th Cir. 2003). In Horseshoe, the district court denied a motion to transfer venue, and stated that
since the plaintiff, the defendant and presumably the witnesses, all reside in Caddo Parish, the factors of availability and convenience of witnesses, availability and convenience of the parties, and place of alleged wrong militate in favor of the requested transfer. On the other hand, the factors of possibility of delay or prejudice if transfer is granted, the location of counsel, and plaintiff's choice of forum seem to dictate that the requested transfer be denied. Since the relevant factors appear to be evenly divided between the two alternatives, the Court finds that defendant has failed to carry its burden of establishing that justice weighs substantially in favor of the requested transfer of venue.
The Fifth Circuit reversed the district court's ruling on several grounds, one of which is relevant to the instant case. The Fifth Circuit explained that the district court should not have given weight to "possibility of delay or prejudice if transfer is granted." There was absolutely nothing in the pleadings, briefs, or records of that case from which the appellate court could determine what specifically the district court had in mind in using the vague generalities of "possibility of delay or prejudice" if transfer is granted. The Fifth Circuit recognized that in special circumstances a factor of "delay" or of "prejudice" might be relevant in deciding the propriety of transfer, but only if such circumstances are established by clear and convincing evidence. As discussed above, Plaintiff's desire to have the matter decided in the Eastern District so that he may receive a speedier trial is a legitimate concern, especially when considering the fact that Defendant has not paid maintenance and cure. Further, Plaintiff has provided evidence that delay will almost certainly occur if the Court transferred this case to the Western District. The trial of this case has already been scheduled to commence on December 19, 2005, only six months from now. It is very likely that plaintiff would suffer a delay in having his claims resolved if the case were moved to the Western District. Such delay is significant and may be prejudicial in light of the fact that Defendant has not paid maintenance and cure. Considering the foregoing, the Court finds that Defendant has not carried its burden of demonstrating that the case should be transferred. Accordingly,
This is particularly true when the plaintiff's choice of forum relates to the plaintiff's legitimate and rational concerns. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255-256 (1981).
Rec. Doc. 13.
IT IS ORDERED that Defendant's Motion to Transfer Venue Pursuant to 28 U.S.C. § 1404(a) should be and hereby is DENIED.
Rec. Doc. 8.