Opinion
Case No. 02-2232-JAR
October 31, 2002
MEMORANDUM AND ORDER DENYING MOTION FOR CHANGE OF VENUE
Defendant Sprint Spectrum, L.P., dba Sprint PCS, filed a Motion For Change of Venue (Doc. 3) to the Western District of Missouri, where Plaintiff and Defendant are the parties in a lawsuit pending since July 1999, styled Gagnon v. Sprint Corporation dba Sprint Spectrum, L.P., and Sprint Spectrum Finance Corporation dba Sprint PCS, 99-0683-CV-W-1 ("Missouri action"). In this action, Plaintiff alleges that on or about January 22, 2001, Defendant demanded that its on-site contractor, CVA Consulting, terminate Plaintiff, in retaliation for Plaintiff having filed the Missouri action. There is no dispute that venue is proper in Kansas. Plaintiff resides in Kansas; Defendant is a resident of Kansas; and the conduct at issue occurred at Defendant's campus in Kansas. For the reasons set forth below, the Court denies Defendant's motion.
Defendant does not allege that venue is improper in this district, but seeks transfer to the Western District of Missouri for the sake of convenience and judicial economy and efficiency, so that this case can be consolidated for trial with the Missouri action. Pursuant to 28 U.S.C. § 1404(a), the Court can transfer a case if the moving party meets its burden of proving that the existing forum is inconvenient. The court may consider, among other factors, practical considerations weighing in favor of ease, expediency and economy of trial. Nevertheless, the movant's burden is heavy, for as the Tenth Circuit in Scheidt v. Klein has noted, plaintiffs choice of forum should rarely be disturbed. In Kansas City Bricklayers Employees Pension Fund v. Jerry Bennett Masonry Contractor, Inc., the court explained that "to prevail in a motion to transfer, a movant must demonstrate that the balance of considerations tilts strongly in its favor."
Scheidt v. Klein, 956 F.2d 963, 965 (10th Cir. 1992) (quoting Chrysler Credit Corp. v. Country Chrysler, Inc., 928 F.2d 1509, 1516 (10th Cir. 1991)).
Id.
703 F. Supp. 883 (D. Kan. 1988).
Id. at 884 (emphasis added).
This Court granted transfer of venue in another case, Xerox Corp. v. Hewlett-Packard Co. in the interests of judicial economy where there were two cases relating to the same parties and issues; and there was an "absence of any close Kansas connection to the dispute between the parties . . ." of course, in this case, the parties and the conduct at issue were in Kansas. Defendant also cites the Hill's Pet Products case, where in the interests of time, energy and money, this Court transferred venue to another district where the parties were simultaneously engaged in litigation that involved a partial overlap of claims.
63 F. Supp.2d 1317 (D. Kan. 1999).
Id. at 1324.
Hill's Pet Products v. A.S.U., Inc., 808 F. Supp. 774 (D. Kan. 1992), citing Cessna Aircraft Co. v. Brown, 348 F.2d 689, 696 (10th Cir. 1965)[Plaintiff filed the identical six actions in the District of Kansas after defendant asserted it was not subject to service of process in the federal court in Louisiana.]
In Hill's, however, there were common claims in the Kansas and California actions, for breach of contract and counterclaims arising under the same contract. In contrast, there are no common claims in this action and the Missouri action. Plaintiff's claims in the Missouri action concern discrimination and retaliation occurring during the period in which Plaintiff was employed by Defendant. March 1997 through May 2000. In this case, Plaintiff's claims are based on Defendant's alleged retaliation against Plaintiff in January 2001, which occurred after Plaintiff left Defendant's employ and was working for CVA Consulting, a contractor that worked at Defendant's campus. The fact that these claims are not common was one reason the court in the Missouri action denied Plaintiff's motion to amend his complaint and reopen discovery to add the 2001 retaliation claim to the Missouri action. Another reason was that Plaintiff filed this motion shortly before the January 22, 2001 trial in the Missouri action.
Id. at 775.
While Plaintiff's complaint sets out some of the events leading up to his leaving Defendant's employ and his filing the Missouri action against Defendant, this is merely background information, relevant to establish the conduct and events which motivated Defendant's alleged retaliatory conduct in January 2001. The fact that Plaintiff may present evidence of these events, does not mean that this action and the Missouri action have common claims; they do not. The respective claims are based on actionable conduct that occurred at different times, and in the context of two different relationships between the parties. The overlap of evidence is not significant. Although in this action, Plaintiff must establish that Defendant retaliated against him for his protected activity of suing Defendant for adverse employment action(s), Plaintiff need not prove the merits of his claims in the Missouri action. He need only prove that he was engaging in litigation or other protected activity that has a nexus to the retaliation claim in this case.
A transfer of venue may be appropriate in the interests of judicial economy so that the same parties can try the same or many of the same issues once, rather than twice. But, the interests of judicial economy and efficiency would not necessarily be served by transferring venue of this case. Unlike the cases cited by Defendant, the pending litigation in Missouri is not "simultaneous" with this action. The cases are in quite different stages. This action was filed on May 17, 2002, and is in the preliminary or early stages of discovery. The Missouri action was filed in 1999, tried to a jury in January 2001, appealed to the Eighth Circuit Court of Appeals, and has now been affirmed in part, and reversed in part by the appellate court. The Eighth Circuit Court of Appeals reversed and remanded to the district court, one claim, for reverse discrimination. Because the district court had granted Defendant judgment as a matter of law on the reverse discrimination claim and did not submit the claim to the jury, presumably, the reverse discrimination claim will now have to be tried in the Missouri action. However, both parties have filed petitions for certiorari to appeal the Eighth Circuit Court's ruling. Thus, the Missouri action and this action are in significantly different procedural postures. At this juncture, the Court is not convinced that transferring this case to Missouri will allow for an expeditious consolidated trial of both actions.
In his September 2, 2002 Memorandum in Opposition to Defendant's Motion for Change of venue, Plaintiff asserted that both parties had filed petitions for certiorari.
IT IS THEREFORE ORDERED BY THE COURT that Defendant's Motion for Change of Venue (Doc. 3) shall be DENIED.