Opinion
Civil Action No: 00-3080.
February 12, 2001.
MEMORANDUM AND ORDER
Background
Plaintiffs, Brenda J. Whitney and her husband, David Whitney, are residents of Many, Louisiana, located in Sabine Parish. According to plaintiffs' complaint, on or about November 27, 1999, Mrs. Whitney was shopping for a Christmas tree at the Wal-Mart Store in Many, when she tripped over a cinder block obscured from her view. She alleges that she sustained serious injuries to her left knee, as well as other unspecified injuries. Both she and her husband seek damages, in an aggregate amount exceeding $75,000.
Defendant, Wal-Mart Stores, Inc. ("Wal-Mart"), has filed a motion for change of venue from the Eastern District to the Shreveport Division of the Western District of Louisiana.
Discussion 28 U.S.C. § 1391, entitled "Venue generally," provides in paragraph (a) that a civil action founded solely on diversity of citizenship may be brought only in:
(1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred . . . or (3) a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought.
When the defendant is a corporation subject to personal jurisdiction at the time that the action commenced, the corporation is deemed to reside:
. . . in any district in that State within which its contacts would be sufficient to subject it to personal jurisdiction if that district were a separate State. . . . 28 U.S.C. § 1391(c)
Defendant concedes that it has numerous facilities and employees located in the Eastern District of Louisiana, and that accordingly the Eastern District is a proper venue under 28 U.S.C. § 1391. However, defendant argues that the convenience of the parties and the witnesses would be better served through a transfer of this action to the Western District of Louisiana. Accordingly, defendant seeks a change of venue pursuant to 28 U.S.C. § 1404(a), which authorizes a court to transfer any civil action to any other district or division where it could have been brought, "for the convenience of parties and witnesses, in the interest of justice. . . ."
Although Sabine Parish is located within the Shreveport Division of the Western District of Louisiana, plaintiffs chose to file their action in the Eastern District. According to plaintiffs, Many is located between seventy-five and eighty miles from Shreveport. Their daughter, who was shopping with Mrs. Whitney in Many at the time of the accident and will be a witness at trial, resides in the Eastern District. Further, one of Mrs. Whitney's physicians, Dr. Mark Juneau, has his offices in Marrero, Louisiana, and performed an arthroscopic procedure on Mrs. Whitney's knee at West Jefferson Hospital. Mrs. Whitney's other physicians, however, have their offices in Shreveport or Many, and Mrs. Whitney underwent a second surgery in Shreveport.
Defendant claims that the manager of the Many, Louisiana Wal-Mart Store, as well as all of its employees, reside in or near Many. However, several of these employees are apparently scheduled to give their depositions in New Orleans in April, 2001. Plaintiffs and their daughter are also scheduled for their depositions in New Orleans.
Defendant bears the burden of demonstrating why the case should be transferred. Time, Inc. v. Manning, 366 F.2d 690 (5th Cir. 1966); M/G Transport Services, Inc. v. Devall Towing Boat Service of Hackberry, Inc., 2000 WL 1140495 (E.D. La. 2000). "Plaintiff's privilege to choose, or not to be ousted from, his chosen forum is highly esteemed." Time, Inc., at 698. Unless the factors balance strongly in favor of the defendant, the plaintiff's choice of forum should not be disturbed. M/G Transport, supra.
It appears that transferring this action to the Western District will merely shift inconvenience to the plaintiffs and two other primary witnesses — their daughter and Dr. Juneau, the New Orleans surgeon who performed the first surgery. If this action is transferred to the Shreveport Division of the Western District, plaintiffs will be at least seventy-five miles from their home in Many during the trial and will most likely have to make arrangements to stay in Shreveport. If the action remains in the Eastern District, plaintiffs have stated that they will stay with their daughter during the trial. Defendants have not suggested any reason for the transfer sufficiently compelling to justify "ousting" plaintiffs' choice of venue.
Accordingly,
IT IS ORDERED, that the defendant's motion to transfer venue is DENIED.