Opinion
Case No. 01-2174-JWL
September 18, 2001
MEMORANDUM ORDER
Mr. Lavin filed suit on April 12, 2001, against The Lithibar Company ("Lithibar"), Besser Company ("Besser"), and Lithibar Matik, Inc. ("Matik"), alleging that the defendants violated the Kansas Products Liability Act, K.S.A. § 60-3301 et seq., and were negligent in their design and manufacturing of the Lithibar machine, a machine used for cubing and palletizing concrete blocks. In his complaint, Mr. Lavin requested Kansas City, Kansas, as the place of trial. This matter is currently before the court on the defendants' "Motion for Designation of Place of Trial" (Doc. 14), asking the court to designate Topeka, Kansas, as the appropriate place for trial. Defendants argue that trial should be in Topeka because plaintiff is from Topeka, the accident that spawned this litigation occurred in Topeka, many of the potential witnesses live in Topeka and no one in this case has ties to Kansas City, Kansas. For the reasons set out below, defendants' motion is denied.
Under D. Kan. Rule 40.2, the court is not "bound by the requests for place of trial but may, upon motion by a party, or in its discretion determine the place of trial." In considering intra-district transfer, the courts of this district have looked to the factors relevant to change of venue motions under 28 U.S.C. § 1404 (a). See Zhu v. Countrywide Realty Co., Inc., 2001 WL 950040, at *1 (D. Kan. May 29, 2001); Hartwick v. Lodge 70 Int'l, No. 99-4139-SAC, 2000 WL 970670, at *1 (D. Kan. June 16, 2000) (citing Aramburu v. Boeing Co., 896 F. Supp. 1063, 1064 (D. Kan. 1995); Curtis 1000, Inc. v. Pierce, No. 94-4086 RDR, 1994 WL 478744, at *1 (D. Kan. Aug. 25, 1994)).
The court acknowledges that § 1404(a) is inapplicable on its face because Kansas constitutes only one judicial district and division. However, 28 U.S.C. § 1404 (c), does provide that "[a] district court may order any civil action to be tried at any place within the division in which it is pending."
Under the § 1404(a) analysis, a district court should 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." Chrysler Credit Corp. v. Country Chrysler, Inc., 928 F.2d 1509, 1515-1516 (10th Cir. 1991) (citing Texas Gulf Sulphur Co. v. Ritter, 371 F.2d 145, 147 (10th Cir. 1967)). Further, the party seeking to transfer a case pursuant to § 1404(a) has the burden of proving that the existing forum is inconvenient. Scheidt v. Klein, 956 F.2d 963, 965 (10th Cir. 1992) (citing Chrysler Credit Corp., 928 F.2d at 1515). Finally, "[u]nless the balance is strongly in favor of the movant the plaintiff's choice of forum should rarely be disturbed." Scheidt, 956 F.2d at 965 (citing William A. Smith Contracting Co. v. Travelers Indem. Co., 467 F.2d 662, 664 (10th Cir. 1972); Texas E. Transmission Corp. v. Marine Office-Appleton Cox Corp., 579 F.2d 561, 567 (10th Cir. 1978)).
Applying the above factors, the court finds that the defendants have failed to meet their burden of showing that Kansas City is an inconvenient place for trial. The court does not find defendants' arguments persuasive. First, Kansas City is not presumed inconvenient because the plaintiff resides in Topeka. He chose to file his lawsuit in Kansas City and that choice is given deference by the court. Second, defendants reside in Michigan and it will obviously be more convenient to travel to Kansas City than Topeka. Further, defendants' counsel is located in Kansas City. Thus, defendants have failed to show how they will be inconvenienced.
More importantly, defendants failed to provide the court with a list of witnesses who live in Topeka and explain how they will be inconvenienced by trying this case in Kansas City. Merely alleging that some potential witnesses probably live in Topeka and would be inconvenienced by the one-hour drive to Kansas City is not sufficient to overcome the strong presumption that the plaintiff's choice of forum should be respected. Additionally, as the plaintiff points out, it is likely that many fact and expert witnesses in this case will come from outside of Kansas. Kansas City is more convenient in that respect. Moreover, the defendants fail to show how the fact that the machine which gave rise to this accident is located in Topeka will inconvenience them. Defendants do not allege that they will use the machine as an exhibit nor do they explain how difficult it would be to transport the machine to Kansas City. Looking at the totality of the factors, the court finds that the plaintiff's choice for the place of trial should be upheld.
IT IS THEREFORE ORDERED BY THE COURT THAT the defendants' motion for designation of place of trial (Doc. 14) is denied.
IT IS SO ORDERED.