Summary
denying transfer request where defendant only identified one significant witness in transfer forum and plaintiff had designated expert witnesses located in the area of plaintiff's chosen forum
Summary of this case from Monington v. CSX Transportation, Inc.Opinion
Civil Action No. 04-1927.
October 6, 2004
MEMORANDUM
In this case arising under the Federal Employer's Liability Act, 45 U.S.C. §§ 51-60 ("FELA"), Defendant has moved to transfer venue pursuant to 28 U.S.C. § 1404(a) to the Eastern District of Kentucky or any other forum that is more relevant to the facts of the case. For the reasons set forth below, the Defendant's motion will be denied.
The Plaintiff is an employee of the Defendant who resides in Russell, Kentucky and alleges in Count I that "while working within the scope of his employment in the Russell, Kentucky area was exposed to excessive and harmful cumulative trauma to his back, neck and shoulders due to the overhead work which he performed working for the Defendant. . . ." In Count II, the Plaintiff alleges that "he was exposed to occupational risk factors for carpel tunnel syndrome including but not limited to repetition, force, vibration and awkward arm postures."
The Defendant contends that this district has no connection with the facts of this case, but is merely the location of the Plaintiff's attorney. However, Defendant supports its motion with only a single affidavit of Edward S. Holmes, who states that he is a shop manager for the Defendant, familiar with the Plaintiff and familiar with his job duties, requirements and job and safety training and that traveling to Philadelphia would take a great deal of time and cause him to miss significant amounts of work. Although Defendant indicates that there may be additional witnesses in the Russell, Kentucky area, Defendant does not name them or state what their testimony may be, or why it would be a hardship for them to travel to Philadelphia.
The law governing such motions is well settled and was accurately summarized by Judge Gawthorp of this Court in Luther v. Consolidated Rail Corp., 1999 W.L. 387075 (E.D. Pa. 1999). To paraphrase Judge Gawthorp's recitation of the well-settled factors:
1. The defendant making a 1404(a) motion has the burden of satisfying the requisites of that statute.
2. The court must give weight to the plaintiff's choice of forum, but less weight when the plaintiff has chosen a forum in which the plaintiff does not reside and the incident did not take place.
3. The court should consider various public and private factors such as the convenience of the parties, their relevant financial condition, availability of witnesses, and any other administrative problems such as court congestion.
In Judge Gawthorp's decision, relied on by Defendant, the defendant had presented more significant facts concerning specific witnesses who were available in the proposed transferee state, and there was no evidence that the plaintiff had any witnesses in this district.
In this case, the Court concludes that Defendant has not carried its burden of proof because Defendant only identifies one individual, Mr. Holmes, who may be inconvenienced by traveling to Philadelphia. The Court will require, at Defendant's option, that Plaintiff take the deposition of Mr. Holmes in Russell, Kentucky or nearby, and that Defendant may require that such deposition to be taken by videotape, and Defendant may use such videotaped deposition at trial at its option.
Because Plaintiff has chosen this district, the presence of only one significant witness in Russell, Kentucky is not sufficient to overcome Plaintiff's choice of forum. The Court also gives some weight to the fact that Plaintiff has already designated certain expert witnesses located in the Philadelphia area, and the Court finds that Plaintiff would incur a significant expense to transport those witnesses to the Eastern District of Kentucky or such other forum that may be selected for deposition and/or trial, rather than this District.
This Court believes that discovery can be completed and the trial can be scheduled within one year of the filing of the Complaint. There is no evidence in the record whether a trial could take place as quickly in the Eastern District of Kentucky.
An appropriate Order follows.