Opinion
22-2137-JWB-GEB
09-26-2022
DUANE G. LEGLEITER Plaintiff, v. RUSH COUNTY, KANSAS BOARD OF COMMISSIONERS Defendants.
MEMORANDUM AND ORDER
GWYNNE E. BIRZER United States Magistrate Judge
This matter comes before the Court on Defendant Rush County, Kansas, Board of Commissioners' Motion for Determination of Place of Trial, ("Motion") (ECF No. 16). After review of the Motion and corresponding Memorandum, Plaintiffs Memorandum in Opposition, and Defendant's Reply, the Court is prepared to rule. For the reasons stated below, Defendant's Motion (ECF No. 16) is DENIED, without prejudice as premature.
I. Background
This case was brought by Duane G. Legleiter on April 14, 2022, against his former employer pursuant to: 1) 42 U.SC. § 2000e, asserting gender discrimination during his employment; 2) 29 U.S.C. § 621, claiming violations of the Age Discrimination in Employment Act; 3) 42 U.S.C. § 12101, alleging violations of the Americans with Disabilities Act; and 4) 29 U.S.C. § 2601, for alleged violations of the Family and Medical Leave Act.
Plaintiff was employed by Defendant for approximately 37 years and avers during his years of employment, he met all expectations and received raises and positive reviews for his work performance. Plaintiff alleges he had foot and leg amputation surgery in September 2020 yet continued to have the ability to perform the demands of his job upon his return. However, he argues, subsequent to the surgery, he began to experience a hostile work environment and pattern and practice of discrimination based upon his disability, age and gender. In May 2021, Plaintiff was fired by Defendant, which Plaintiff alleges was based upon false pretense.
Defendant generally denies all allegations of Plaintiff. Further arguing it acted, at all times, based upon legitimate, non-discriminatory and non-retaliatory reasons.
Defendant also denies Plaintiff suffered the damages claimed, never requested a reasonable accommodation that was not provided, and failed to mitigate any damages.
II. Defendant's Motion to Designate Wichita, Kansas as Location of Trial (ECF No. 16)
Plaintiff, in his First Amended Complaint, designated Kansas City, Kansas as the place of trial. (ECF No. 21). In its Answer, Defendant counter-designated Wichita, Kansas as place of trial (ECF No. 24). The parties exchanged Fed.R.Civ.P. 26 disclosures in early July 2022. Based upon those disclosures, and without duplicating witnesses identified by both parties, the residences of non-party witnesses are as follows:
LaCrosse
Lawrence
Kansas City
Hays
McCracken
Rush Center
Plainville
Otis/Bison
Texas
7
1
10
6
2
3
1
2
1
The Court finds the following one-way distances from each witness' city to both trial locations:
Wichita Kansas
City
LaCrosse
150 miles
275 miles
Lawrence
162 miles
38 miles
Kansas City
195
miles N/A
Hays
183 miles
265 miles
McCracken
175 miles
292 miles
Rush Center
146 miles
280 miles
Plainville
198 miles
280 miles
Otis/Bison
144 miles
270 miles
Central Texas
470 miles
662 miles
On July 13, 2022, the Court entered a Scheduling Order, and discovery is just underway. On August 8, 2022, Defendant filed its Motion for Determination of Place of Trial. (ECF No. 16).
Defendant contends the only connections to Kansas City in this case are the location of several medical witnesses and the location of Plaintiff s counsel. Further arguing trial should be in Wichita based upon: 1) Plaintiffs choice of forum should be given little weight because the facts giving rise to this lawsuit took place in Rush County, Kansas, which is much closer to Wichita than Kansas City; 2) the majority of the witnesses reside closer to Wichita than Kansas City; 3) a fair trial can be had in Wichita; and 4) the considerable cost to the witnesses in the form of hotel, mileage, meals and potential missed days from work for travel to Kansas City.
Plaintiff contends the balance of all the factors weighs in favor of trial in Kansas City. Plaintiffs basis for its argument is that none of the witnesses actually reside in Wichita, only some of the witnesses reside closer to Wichita than Kansas City, many nonparty witnesses either work or live in Kansas City, and Plaintiff and his wife (also identified as a witness) have a family member in Kansas City who they will stay with for the duration of trial. Finally, Plaintiff argues Defendant has not met its burden to move trial from Kansas City to Wichita.
A. Legal Standard
The parties are required to designate a place of trial in their pleadings, however, D. Kan. Rule 40.2(e) makes clear the Court is not bound by the parties' requests regarding place of trial and may determine the place of trial upon motion by any party. The district court has broad discretion to decide the location of trial "based on a case-by-case review of convenience and fairness." When considering an intra-district transfer, "the courts of this district generally look to the same factors relevant to motions for change in venue under 28 U.S.C. § 1404(a)." Section 1404(a) provides in relevant part: "For the convenience of the parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought."
The parties correctly identify the factors the Court is to evaluate when determining the place of trial. Those factors are: (1) Plaintiffs choice of forum; (2) the convenience of the witnesses; (3) the accessibility of witnesses and other sources of proof; (4) the possibility of obtaining a fair trial; and (5) all other practical considerations that make a trial easy, expeditious and economical.
"It is the moving party's burden to show that the designated forum is inconvenient." "Generally, unless the balance weighs strongly in favor of transfer, the plaintiffs choice of forum is not disturbed." However, when "the plaintiff does not reside in the chosen forum, the rationale for allowing plaintiff to dictate the forum evaporates."
B. Discussion
The Court considers all relevant factors in its analysis of Defendant's Motion.
1. Plaintiffs Choice of Forum
Plaintiff does not reside in Kansas City, but designated Kansas City as the location of trial. A plaintiffs chosen trial setting should be respected and is generally not disturbed. Although he does not reside in Kansas City, Plaintiff does not reside in any city with a federal courthouse. Still, Plaintiffs designation is given less weight if plaintiff resides outside the forum of choice and "little weight" where the "facts giving rise to the lawsuit have no material relation or significant connection to the plaintiffs chosen forum." The facts giving rise to this lawsuit almost exclusively took place in Rush County, Kansas. As such, the Court affords Plaintiffs trial location "little weight."
Although Plaintiff chose trial in a city farther away from his residence, with little connection to the facts giving rise to his case, he argues Kansas City is more convenient and less expensive for him than Wichita because he has family he can stay with during the duration of trial in Kansas City. Trial in Wichita would require Plaintiff pay for a hotel room the five days designated for trial. While the Court appreciates Plaintiffs reasoning, this argument does not convince the Court any additional weight should be given to Plaintiffs trial designation.
2. Convenience for Witnesses, Accessibility of Witnesses and Other Sources of Proof
The court considers the relative convenience of the forum a "primary, if not the most important, factor to consider." As the party seeking to move the location of trial, Defendant "must establish that the proposed forum [Kansas City], is 'substantially inconvenient,' meaning that 'all or practically all the witnesses reside in a different forum and traveling to the proposed forum is a substantial burden.'" This requires Defendant to adequately demonstrate more than a showing that Wichita is "marginally more convenient." To meet this burden, Defendant must "identify the witnesses and their locations, indicate the quality or materiality of their testimony, and indicate that depositions from witnesses who are unwilling to come to trial would be unsatisfactory and the use of compulsory process would be necessary."
Defendant argues the location of witnesses identified in the parties' Fed.R.Civ.P. 26 disclosures demand trial be moved to Wichita, first arguing 25 of the 28 fact witnesses reside closer to Wichita. Defendant further asserts that, of Plaintiffs four damage witnesses, two reside closer to Wichita than Kansas City. Defendant then speculates that the 15 physicians identified by Plaintiff would not all be necessary for trial, that they will be designated and called as expert witnesses, are duplicative, or could testify through deposition testimony. The quality and materiality of the witness' testimony are important factors for the Court to consider in its analysis. However, the vast majority of the nonparty witnesses have not been deposed. At this early stage it is pure conjecture as to which fact witnesses are truly material and offer quality testimony to establish the claims and defenses alleged by the parties. Likewise, without having deposed many of the fact witnesses, at this juncture, neither party can speak to which witnesses' testimony can be presented via transcript or video. Due to the early stage of this litigation and the current status of discovery, this information is not available, so this factor weighs against transfer to Wichita.
The Court agrees that many of the potential non-party fact witnesses reside in locations closer to Wichita - there are 11 witnesses closer to Kansas City and 22 nearer to Wichita. However, this case is still in its infancy and discovery is only just underway, which is why Defendant is forced to speculate about the need for the testimony of the treating physicians in this case. At this early stage, before any of the medical professionals have been deposed, it is impossible to know who or how many will be necessary for trial. Furthermore, the parties have taken six depositions thus far: Plaintiff and five management-level employees of Defendant. None of the non-party fact witnesses have been deposed, so it is unknown to the parties, and thus, this Court, how many of those witnesses will be necessary at trial and where they reside. As such, this factor weighs against a transfer to Wichita at this time.
The Court also considers the accessibility of the witnesses and whether the Court can compel attendance at trial, if necessary. The Court has subpoena power over witnesses who reside or work within 100 miles of the trial location or witnesses residing in Kansas if the person is a party's officer or can attend trial without incurring substantial expense.All of the non-party witnesses fall outside the subpoena power of the Court if trial is held in Wichita. However, if trial is held in Kansas City, 11 of the non-party witnesses are subject to the Court's subpoena power. The parties do not indicate which witnesses will have to be compelled to appear. Again, at this early stage, the parties may not have that information to give the Court. However, the Court must give weight to this issue and, at this time, with the information presented, it weighs against transfer to Wichita.
The only other sources of proof referenced by the parties are Plaintiffs medical records. Presumably, Plaintiffs personnel records will also be an issue. In any event, those sources can be presented in Kansas City as easily as in Wichita. There is no argument, despite the location of the alleged discrimination happening in Rush County, that there are any sources of proof in Rush County that cannot be presented in either trial location. The Court agrees, "in this age of electronic medical recordkeeping, the 'location' of records holds little importance in determining convenience." The Court applies the same reasoning to personnel records.
While Defendant cites Barge v. O 'Malley as persuasive on the issue of transfer, the Court disagrees. Barge involved a personal injury case suffered by plaintiff at defendant's location in Manhattan (Riley County,) Kansas. Plaintiff designated Kansas City as the location of trial, and defendant moved seeking a transfer of trial to Topeka. In granting the motion to change the trial location, the court found: 1) plaintiff did not live in her chosen forum; 2) of the 33 potential fact witnesses only one resided in Kansas City; 3) at least 15 of the witnesses resided in Riley and Geary Counties, west of Topeka; 4) the court in Topeka had subpoena power, but if trial were in Kansas City, many of the witnesses fell outside the court's subpoena power; and 5) the possibility of the jurors traveling to view the location in Manhattan where plaintiff was injured. The underlying facts in Barge are substantially different than the facts presented in this case, (where multiple witnesses reside in Kansas City, the Wichita court does not have subpoena power, and there is no request for jurors to travel to the site of Plaintiff s injury,) and easily distinguished.
The Court is also directed to consider the convenience of the parties with regard to a transfer of the trial location. Presumably, both Plaintiff and the Rush County Commissioners will all be witnesses at trial. Plaintiff alleges Kansas City is more convenient to him, as he has family in Kansas City, which will negate the need to travel back and forth for trial every day or incur hotel expenses. Conversely, the Rush County Commissioners all reside in Rush County, Kansas, and will likely incur lodging expenses at either location if they are at trial for the duration. Convenience to the parties weighs in favor of Plaintiff because the Rush County Commissioners will be forced to travel regardless of the trial location.
3. Possibility of Obtaining a Fair Trial
Neither party asserts any argument regarding the inability to have a fair trial in either location. The Court agrees the parties would be afforded a fair trial whether held in Wichita or Kansas City, making this factor neutral.
4. Other Practical Considerations
The final factor the Court evaluates includes "all other practical considerations that make a trial easy, expeditious, and economical." When weighing these practical considerations, the Court often considers "costs in the form of mileage, meals, and hotel expenses." The Court reiterates this case is in the early stages of discovery, so it is not yet known which witnesses, from which locations, will be called as witnesses. Further, there is no way to ascertain what testimony will be presented in the form of deposition transcript or video. As previously set forth, there are 11 non-party witnesses closer to Kansas City and 22 closer to Wichita. Right now, the Court cannot say 'all or practically all the witnesses reside in a different forum and traveling to the proposed forum is a substantial burden' because neither the parties nor the Court know, with any degree of certainty, who will be called to testify in-person at trial.
Plaintiffs counsel is in Kansas City, and Defendant's counsel is in Wichita. The court may consider the location and convenience of counsel, but this consideration is given "little if any weight." This Court finds location of counsel is less important to the analysis, as have many other courts in this District. The Court views this factor as neutral.
III. Conclusion
The burden lies with Defendant to convince the Court Kansas City is substantially inconvenient and for the location of trial to be moved. As set forth above, neither Plaintiff resides in Kansas City nor do the facts giving rise to this case have a connection to Kansas City, so the Court gives very little weight to Plaintiffs choice of forum in this case. However, this case is still in the early stages of discovery. While it is conceivable that all or the vast majority of witnesses will be located in Rush County or other locations closer to Wichita, it is simply speculation at this juncture. Based on the above, the Court does not find the balance weighs in favor of transfer. Therefore, the Court DENIES Defendant's motion for Wichita, Kansas to be the designated place of trial, without prejudice to reasserting the motion at a later time when the facts of the case are more fully developed.
IT IS THEREFORE ORDERED that Defendant's Motion to Designate Wichita as the Place of Trial (ECF No. 16) is DENIED without prejudice as premature.
IT IS SO ORDERED