Opinion
CIVIL ACTION No. 03-2534-CM
January 26, 2004
MEMORANDUM AND ORDER
Plaintiff sued defendants under the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001, et seq., seeking to enforce a third-party recovery provision in the GSA Employer's Welfare Trust Fund, in which defendants were participants. This matter comes before the court on defendants' Motion for Intra-District Transfer of Pre-Trial Matters to Wichita, Kansas (Doc. 8).
I. Legal Standard
The court reviews a motion for intra-district transfer under the same factors as a motion for change of venue pursuant to 28 U.S.C. § 1404(a). See Busey v. Bd. of County Comm'rs of County of Shawnee, Kan., 210 F.R.D. 736, 737 (D. Kan. 2002) (citing Lavin v. Lithibar Co., No. 01-2174-JWL, 2001 WL 1175096, at * 1 (D. Kan. Sept. 19, 2001); Wiggans v. Hartford Life Accident Ins. Co., No. 02-2080-JWL, 2002 WL 731701, at *2 (D. Kan. Apr. 15, 2002)). In reviewing such a motion, therefore, the court will consider the plaintiff's choice of forum, the convenience for witnesses, the accessibility of witnesses and other sources of proof, the possibility of obtaining a fair trial, and "`all other considerations of a practical nature that make a trial easy, expeditious and economical.'" Busey, 210 F.R.D. at
737 (quoting Chrysler Credit Corp. v. Country Chrysler, Inc., 928 F.2d 1509, 1515-16 (10th Cir. 1991)). The "`party moving to transfer a case pursuant to § 1404(a) bears the burden of establishing that the existing forum is inconvenient.'" Scheldt v. Klein, 956 F.2d 963, 965 (10th Cir. 1992) (quoting Chrysler Credit Corp., 928 F.2d at 1515). Moreover, "`[u]nless the balance is strongly in favor of the movant the plaintiff's choice of forum should rarely be disturbed.'" Id. (quoting William A. Smith Contracting Co. v. Travelers Indem. Co., 467 F.2d 662, 664 (10th Cir. 1972)).
II. Analysis
Defendants title their motion as one for transfer of " pre-trial" matters but then also argue that the court should also designate Wichita, Kansas, as the place of trial. The court will therefore consider defendants' motion as one to transfer the entire case to Wichita and rule accordingly.
Defendants contend that Wichita is the more appropriate forum because many of the potential witnesses reside in Wichita; defendants and their son reside in Valley Center, Kansas, which is closer to Wichita, and traveling to Kansas City would result in inconvenience and economic burden; the insurance contract giving rise to the subrogation/reimbursement claim was issued in Wichita; and, the accident causing injuries to defendants' son occurred in Sedgwick County, Kansas, the county in which Wichita sits. Plaintiff objects to defendants' factual assertions and contends that many of them are unrelated to the current lawsuit.
Even taking defendants' arguments as true, the court concludes that they have not met their burden of establishing that Kansas City is an inconvenient forum. Most, if not all, pre-trial matters do not require the parties to be in Kansas City. The District's electronic filing system allows both parties to file motions with the court from any location. Moreoever, the parties may be able to arrange pre-trial conference by telephone, if the magistrate judge determines that such an arrangement is possible. Indeed, if any party is inconvenienced under the facts set out by defendants, it is plaintiff who will potentially have to travel to Wichita to depose witnesses.
Defendants' arguments are also not persuasive to move the place of trial away from Kansas City. The court accords deference to a plaintiffs choice of forum. See Scheldt, 956 F.2d at 965; Lavin, 2001 WL 1175096 at *1. The fact that witnesses who live in Wichita and defendants, who live near Wichita, may have to drive to Kansas City for an eventual trial is not sufficient for the court to override plaintiff's choice of forum.
IT IS THEREFORE ORDERED that defendants' Motion for Intra-District Transfer of Pre-Trial Matters to Wichita, Kansas (Doc. 8) is denied.