Opinion
IP 02-0249-C-T/K.
October 3, 2002
Entry on Defendants' Motion to Transfer
This Entry is a matter of public record and is being made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
This matter is before the court on Defendants North American Van Lines, Inc. ("North American") and Willis A. Dessesaure's motion to transfer venue pursuant to 28 U.S.C. § 1404(a) to the United States District Court, District of Kansas. This litigation concerns a traffic accident that occurred on December 11, 2000, in Kansas along Interstate 70. Defendant Willis Dessesaure was driving a semi-tractor in the scope of his agency for Defendant North American when he struck a vehicle occupied by Michael Utley, who was killed in the collision. Plaintiffs suing on behalf of Utley claim that his death was caused by Defendants' negligence.
It is unclear from the record in this case where in Kansas the collision occurred. The complaint alleges that it occurred "in the area of milepost 314 in the vicinity of Gary, in the State of Kansas." (Compl. ¶ 11). The Defendants admit that portion of the complaint. (Answer ¶ 11). However, in the Defendants' statement in its Proposed Case Management Plan, the Defendants assert that the collision occurred near Manhattan, Kansas. (Def.'s Proposed CMP at 2.) Yet again, in their motion to transfer, they assert that the collision occurred in Geary County, Kansas. As it turns out, Manhattan, Kansas is in Riley County, and Riley County is adjacent to Geary County, and Interstate 70 passes through or near both counties, so it is quite possible that the collision occurred in Geary County, at a location that is near Manhattan, Kansas. The court is simply unable to find any location in Kansas named Gary, and suspects that the collision actually occurred in Geary County and that the reference in the complaint to Gary, Kansas is a scrivener's error. It doesn't matter though, for purposes of this motion, but the exact location in Kansas of the collision may be of interest to the district judge there who may need to decide where to hold the trial in this matter.
The statements which follow are derived from the submissions of the parties on this motion. This court does not intend those these statements to constitute adjudications of facts or preclusive determinations of agency, causation, fault or other matters. These statements are, in effect, the rather undeveloped and minimal assertions of the parties, necessary only for the determination of this motion, not larger issues in the case.
Plaintiffs filed their complaint in the United States Court for the Southern District of Indiana. Defendants now seek to transfer to the District of Kansas (sitting in Topeka), which Plaintiffs oppose. The court orders as follows.
I. Legal Standard
Change of venue is governed by 18 U.S.C. § 1404(a), which reads: "For the convenience of 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." As a procedural matter, transfer requires proper venue and subject matter jurisdiction in the transferor court. Kendall U.S.A., Inc. v. Central Printing Co., 666 F. Supp. 1264, 1267 (N.D.Ind. 1987). As a district where suit "might have been brought," venue and jurisdiction must also be proper in the transferee district. Id.; State Farm Mut. Auto. Ins. Co. v. Estate of Robert Busell, 939 F. Supp. 646, 651 (S.D.Ind. 1996). There is no dispute as to these requirements, nor indeed, as there is complete diversity between the parties and Kansas is the site of the accident, could there be.
The other preconditions to transfer contained in Section 1404 are the convenience of the parties, the convenience to witnesses, and the interest of justice. The task of the court is to weigh these statutory factors in view of the full context of the case. Kendall U.S.A., 666 F. Supp. at 1267. While the court is limited to the three listed factors, they are "best viewed as placeholders for a broader set of considerations, the contours of which turn upon the particular facts of each case." Coffey v. Van Dorn Iron Works, 796 F.2d 217, 219 n. 3 (7th Cir. 1986); see also Van Dusen v. Barrack, 376 U.S. 612, 622 (1964) (describing transfer analysis as "individualized, case-by-case consideration of convenience and fairness.") Because of the degree of specificity involved, the decision to change venue "is committed to the sound discretion of the trial judge." Coffey, 796 F.2d at 219. The party moving for transfer, here the Defendants, has the burden of demonstrating that the transferee forum is "clearly more convenient" than the transferor forum. Id. at 220. However, this requires less of a showing of inconvenience than a dismissal for forum non conveniens. Id. (citing Piper Aircraft Co. Reyno, 454 U.S. 235, 253 (1981)).
Generally, courts should give due deference to the plaintiff's choice of forum. But where none of the plaintiffs reside in the chosen forum, or where that forum lacks any significant contact with the underlying cause of action, plaintiff's choice is not owed similar consideration. Kendall U.S.A., 666 F. Supp. at 1268; Hanley v. Omarc, Inc., 6 F. Supp.2d 770, 775 (N.D.Ill. 1998); State Farm Mut. Auto. Ins. Co., 939 F. Supp. at 651. That is the case here. Neither decedent nor any of his representatives in this suit reside in Indiana; nor did the accident take place there. Thus, Plaintiffs' choice of the Southern District of Indiana is entitled to no weight in this court's analysis.
II. Discussion
Regard for convenience of the parties does not tip the scales one way or the other. Defendant North American is incorporated in Delaware with its principal place of business in Fort Wayne, Indiana. Fort Wayne, though not located in this district, is certainly closer to Indianapolis than Topeka, Kansas, but it is Defendants who have requested the transfer. Defendant Dessasaure resides in Maryland, distant from both fora, but the same is true for him.
Plaintiff's widow and representative, Tara Utley, lives in Iowa. She states in an affidavit that the Southern District of Indiana would be more convenient for her because of the location of her late husband's relatives in the area. (Utley Aff. ¶ 7.) However, her principal motivation for favoring Indiana seems to be to avoid Kansas' $250,000 cap on non-economic damages. Her wish to transfer the case elsewhere rests on the mistaken premise that the law which will govern her case depends on the state of trial — whether Kansas or Indiana. (Utley Aff. ¶ 5.) That is not so in the federal system. Under well-established Supreme Court precedent, it is the law of the district where the case is filed, including the choice of law rules applicable in that district, which thereafter control. See Van Dusen v. Barrack, 376 U.S. 612 (1964) (transferee court must apply law of transferor court where defendant requests transfer); Ferens v. John Deere, 494 U.S. 516 (1990) (extending Van Dusen to plaintiff-initiated transfers). In this case Indiana's choice of law rules will apply regardless of the state of trial. Mrs. Utley's desire to circumvent Kansas' statutory cap is therefore beside the point. Plaintiffs' remaining argument in favor of convenience, the proximity of decedent's relatives, is entitled to little weight, and, moreover, is wholly eclipsed by other factors pertinent to this case.
The next factor, the convenience of witnesses, "is often viewed as the most important factor in the transfer balance." Hanley, 6 F. Supp.2d at 775. Here the court must look to the residence of the witnesses, the cost of obtaining their attendance, the nature of their potential testimony, and the availability of compulsory process for nonparty witnesses. Id. This factor overwhelmingly favors transfer to Kansas. Defendants have specifically identified several nonparty witnesses all of whom reside in Kansas, and many of whom are direct eyewitnesses to the accident. John Rumpson, whose pick-up truck was being towed at the time of the incident, witnessed events leading up to it; he resides in Fort Riley, Kansas. Geary County Deputy Sheriff James Cotton was also on the scene just before the collision; he lives in Junction City, Kansas. David Slack, who resides in Lawrence, Kansas, went to Michael Utley's assistance prior to the accident and witnessed the collision. Jarrod Smith, the driver of the truck sent to tow John Rumpson's pick-up, observed the accident. So did Officer Rich Shivers of the Kansas Highway Patrol, who was the chief investigating officer on the scene, and who prepared a detailed accident report. Finally, Erik Craig Mitchell, M.D., performed an autopsy on decedent at the Shawnee County Morgue on December 12, 2000. Defendants have indicated Dr. Mitchell will likely be called to testify as to his findings regarding the timing and manner of Mr. Utley's death. In fact, the only critical nonparty witness identified by Defendants who does not reside in Kansas is Duane Curry, a resident of Maryland, who was a passenger in Willis Dessesaure's vehicle at time of the accident.
Plainly, a trial in Kansas would be far more convenient for these potential witnesses. There would be a high cost involved in arranging their transportation and lodging during a lengthy trial in Indiana. Important as well, in the event witnesses from Kansas would be unwilling to participate in an Indiana trial, this court would lack compulsory process over them. The district court in Kansas, on the contrary, would have the power to compel their attendance if necessary. See Fed.R.Civ.P. 45(b)(2) (limiting subpoena power to 100 miles from place of trial); Kendall, 666 F. Supp. at 1268 (considering availability of compulsory process over nonparty witnesses); accord Hanley, 6 F. Supp.2d at 775; FUL Inc. v. Unified School District Number 204, 839 F. Supp. 1307, 1312 (N.D.Ill. 1993).
Plaintiffs argue that the possibility of compulsory process should not carry much weight in the analysis because of the availability of depositions, including the use of videotape. However, the law is clear that "[w]henever possible a court should facilitate the `live' presence of material nonparty witnesses." Kendall, 666 F. Supp. at 1268; FUL Inc., 839 F. Supp. at 1312 ("[L]ive testimony is preferred over deposition testimony.") This view is confirmed by the court's experience that litigators strive to present critical witnesses "live" before juries.
Plaintiffs counter with the assertion that they intend to offer "multiple . . . witnesses from southern Indiana including decedent's grandmother, father, sister-in-law, nephews, and friends." (Pl.'s Br. at 13.) Plaintiffs have either failed to identify their potential witnesses with the requisite specificity, see id. at 1312 n. 5, or they have not established the materiality of their proposed testimony to any issue that may arise in the case, see Hanley, 6 F. Supp.2d at 775. By contrast, the relevance of the testimony proffered by the Kansas witnesses is manifest. Additionally, Plaintiffs' reliance on a Kansas federal court's lack of power of subpoena over named and unnamed friends and relatives of Mr. Utley from Indiana is unavailing because those individuals are party witnesses, and "it is generally assumed that witnesses within the control of party calling them . . . will appear voluntarily." FUL Inc., 839 F. Supp. at 1311. Plaintiffs point to the likelihood of an unspecified number of North American employees from Indiana called as defense witnesses, but as these witnesses are within Defendants' control, their presence can be presumed and the costs of their transport and lodging will be borne by Defendants. In sum, Defendants' showing that Kansas is the more convenient venue for the witnesses has not been seriously undermined by Plaintiffs.
The last factor in the transfer analysis, the "interest of justice," pertains to the efficient functioning of the courts, and includes such considerations as the ability to receive a speedy trial, the feasibility of consolidation, and, most relevant here, the familiarity of the judge trying the case with the applicable law. Coffey, 796 F.2d at 221 (citations omitted). As mentioned above, this case will be governed by Indiana choice of law rules. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487 (1941) (federal court sitting in diversity applies same choice of law principles as state in which it sits); supra at 4. Plaintiffs accordingly argue that transfer is not in the "interest of justice" because the Kansas court will have to perform an Indiana choice of law analysis to determine the substantive law. True enough, but the choice of law issue in this case is straightforward. Although the parties have not fully briefed the question, and the court does not intend its discussion to be binding on the transferee court, it is almost certain that Kansas tort law will control. Indiana follows lex loci delicti as to tort actions, applying the law of the state where the tort was committed, unless that place "bears little connection" to the lawsuit. Hubbard Mfg. Co., Inc. v. Greeson, 515 N.E.2d 1071, 1074 (1987). The complaint does not allege the type of tort, such as a manufacturing defect, that might suggest little connection between the accident scene and the present action. Indeed, despite the tragic consequences of the collision, as a legal matter, it appears to be nothing more than a run of the mill motor vehicle negligence case. Therefore, Kansas law will likely apply, and any difficult questions of law which might arise in the course of this litigation will arise under that state's law. And as the Supreme Court has recognized, "There is an appropriateness in having the trial of a diversity case in a forum that is at home with the state law that must govern the case. . . ." Van Dusen, 376 U.S. at 645; see also Coffey, 796 F.2d at 221. For that reason, the "interest of justice" militates in favor of transfer to a judge sitting in the District of Kansas who would be more familiar with Kansas tort law than this court.
III. Conclusion
Defendants have carried their burden of establishing that Kansas is a "clearly more convenient" forum than Indiana. Based on the foregoing examination, this court finds no reason why a lawsuit stemming from a vehicle collision which occurred in Kansas should not be tried there. And, for what it is worth, there is virtually no reason why it should be tried here. Defendants' Motion to Transfer to the United States District of Court, District of Kansas, is GRANTED.
Plaintiffs raise the specter of the Kansas court and this court playing ping-pong with this case, for Tenth Circuit law would supposedly require the Kansas court to retransfer the lawsuit back to Indiana. That would be truly surprising. Like the law in other circuits, the Tenth Circuit accords "considerable weight" to plaintiff's choice of forum. Sheidt v. Klein, 956 F.2d 963, 965 (10th Cir. 1992); Texas Eastern Transmission Corp. v. Marine Office-Appleton Cox, 579 F.2d 561, 566 (10th Cir. 1978). But there is no suggestion in these cases that plaintiffs' choice is dispositive, which would render Section 1404 a dead letter as far as defendants are concerned. Moreover, "[t]ransferee courts have expressed a strong reluctance to review a transfer order indirectly by means of a motion to retransfer." 15 Charles Alan Wright, Arthur R. Miller, Edward H. Cooper, Federal Practice Procedure § 3846 (2d ed. 1986). Short of lack of power to transfer or changed circumstances, the decision to transfer should not be reviewed by a coordinate court. Id.
ALL OF WHICH IS ENTERED this 3rd day of October 2002.