Opinion
Case No. 2:02-CV-1235TC
April 25, 2003
ORDER
On August 22, 2002, an accident occurred on Interstate 80 in Nebraska, involving an Archway Cookies semi-truck and a Greyhound bus (on which Plaintiff Vickie Wood was traveling as a passenger). On November 18, 2002, Plaintiffs Vickie and Jay Wood ("Mrs. and Mr. Wood") filed a Complaint in the United States District Court for the District of Utah against Defendants Archway Cookies ("Archway") and Greyhound Lines ("Greyhound"), alleging negligence and loss of consortium.
Both Defendants in this case bring venue challenges. Greyhound moves to dismiss Mrs. and Mr. Wood's claims under 28 U.S.C. § 1391 (a) and 1406(a), claiming that venue is not proper here. Both Greyhound and Archway move to change venue under 28 U.s.c. § 1404(a). For the reasons set forth below, the court denies the Defendants' motions.
Analysis
1. Motion to Dismiss for Lack of Proper Venue
Defendant Greyhound seeks dismissal of this action pursuant to Rule 12(b)(3) of the Federal Rules of Civil Procedure, for lack of proper venue under 28 U.S.C. § 1391 (a) and 1406(a). Section 1406(a) provides, "The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought." Section 1391(a) controls the issue of whether the District of Utah is the proper venue for this diversity action:
The Woods both reside in Summit County, State of Utah, and are citizens of Utah. Greyhound is a Delaware corporation with its principal place of business in Dallas, Texas Archway is incorporated in Delaware with its principal place of business in Battle Creek, Michigan. Consequently, this court's jurisdiction is premised solely on diversity of citizenship pursuant to 28 U.S.C. § 1332 and 1391.
(a) a civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought 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 a substantial part of property that is the subject of the action is situated, 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.
Greyhound argues that because both Defendants are "from" states other than Utah, the plain language of § 1391(a)(1) provides conclusively that venue is not proper in the District of Utah. 28 U.S.C. § 1391 (c), however, provides that "[f]or purposes of venue under this chapter, a defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced." According to both the Woods' and Archway's representations, both Archway and Greyhound "do business in Utah." (Def.'s Mem. Supp. Mot. to Change Venue at 2, ¶ 6-7); (Pl's Mem. Opp. Mot. to Dismiss/Transfer at 3-4, ¶ 2-3.) Doing business in Utah renders both Defendants subject to general personal jurisdiction in Utah. See Soma Med. Int'l v. Standard Chartered Bank, 196 F.3d 1292, 1295-96 (10th Cir. 1999) (listing "engaged in business in this state" and "licensed to do business in this state" among factors relevant to the general jurisdiction inquiry).
The Woods have also alleged, with supporting documentation, that Greyhound has a registered agent situated in Salt Lake City, Utah. See Id. (including "maintaining employees, offices, agents, or bank accounts in this state" as a factor going to general jurisdiction). Furthermore, as the Woods point out, neither Defendant has moved for dismissal for lack of personal jurisdiction, and have instead filed these motions under Rule 12(b)(3), thereby waiving their defense of lack of personal jurisdiction as provided in Rule 12(h)(1). See Travelers Cas. and Sur. Co. of America v. Unistar Fin. Serv. Corp., 35 Fed. Appx. 787, 789 — 790 (10th Cir. 2002) (unpublished opinion) (citing United States v. 51 Pieces of Real Prop., Roswell. N.M., 17 F.3d 1306, 1314 (10th Cir. 1994); Brightway Adolescent Hosp. v. Health Plan of Nevada, Inc., 2000 WL 33710845. at *4 (D. Utah Sept. 20, 2000) (noting that defendants "have not moved to dismiss for lack of subject matter jurisdiction, and their participation in this lawsuit (by, for example, filing these pending motions) indicates that they have consented to personal jurisdiction in this court"). Accordingly, Greyhound's motion to dismiss for lack of proper venue is
DENIED.
2. Motion to Transfer Venue
In the alternative, both Greyhound and Archway move to transfer venue to the United States District Court for the District of Nebraska. Under 28 U.S.C. § 1404, the court has discretion to change venue "for the convenience of parties and witnesses, [and] in the interests of justice." 28 U.S.C. § 1404 (a). Indeed, district courts have broad discretion in determining whether to grant motions to transfer venue. Chrysler Credit Corp v. Country Crysler, Inc., 928 F.2d 1509, 1515 (10th Cir. 1991). The party moving for transfer of venue bears the burden of demonstrating that the existing forum is inconvenient. Id. Furthermore, the moving party must provide evidence showing the inconvenience; mere allegations are not sufficient to meet the moving party's burden of proofBriesh v. Automobile Club of Southern Cal., 40 F. Supp.2d 1318, *1322 (D. Utah 1999) (citing Rivendell Forest Prods. Ltd. v. Canadian Pac. Ltd., 2 F.3d 990, 993 (10th Cir. 1993), a forum non conveniens case).
The Tenth Circuit has recognized a number of factors that are relevant to an "`individualized, case by case consideration of convenience and fairness.'" Chrysler Credit Corp, 928 F.2d at 1516 (quoting Stewart Org. v. Ricoh Corp., 487 U.S. 22, 29 (1988)). Among these factors are
the plaintiffs choice of forum; the accessibility of witnesses and other sources of proof, including the availability of compulsory process to insure attendance of witnesses; the cost of making the necessary proof; questions as to the enforceability of a judgment if one is obtained; relative advantages and obstacles to a fair trial; difficulties that may arise from congested dockets; the possibility of the existence of questions arising in the area of conflict of laws; the advantage of having a local court determine questions of local law; and, all other considerations of a practical nature that make a trial easy, expeditious, and economical.Id. (quoting Texas Gulf Sulphur Co. v. Ritter, 371 F.2d 145, 147 (10th Cir. 1967).
According to Greyhound, venue should be transferred to Nebraska because (1) Nebraska was the situs of the accident giving rise to this case; (2) All of the key liability witnesses reside in Nebraska or nearby, including the emergency response personnel and eyewitness drivers; (3) Nebraska citizens, unlike Utah citizens, have a strong public interest in the decision of this case, given that they "bore witness to this scene" and "their government's resources were spent in response and to aid the individuals involved;" (4) Nebraska law will control in this case, making the District Court for Nebraska the more knowledgeable and appropriate forum; and (5) The accident giving rise to this case is already the subject of litigation in the District Court for Nebraska in the case ofSimon Augyte and Chad Oetjen v. Greyhound Lines, Case No. 4:02-CV-03312.
Archway advances arguments almost identical to those of Greyhound, maintaining that venue should be transferred because (1) The accident in question occurred entirely in Nebraska, and thus the Nebraska forum offers greater ease of access to sources of proof including the accident scene; (2) The majority of the witnesses, other than the plaintiffs themselves, reside in Nebraska or nearby; (3) Public interest concerns militate against trying this case to a Utah jury, which imposes an unreasonable burden which should in reality be born by Nebraska citizens; (4) the District Court for Nebraska would be better suited to apply Nebraska law, which will be the governing law in this case; and (5) The accident is already the subject of litigation in the District of Nebraska in the Augyte case, a case that has been consolidated with yet another case, Greyhound Lines, Inc. v. Robert Wade and Archway Cookies, LLC d/b/a Specialty Foods, Case No. 8:02-CV-00191, for purposes of discovery, pretrial preparation, and trial.
The Woods, on the other hand, contend that (1) given the extent of her injuries and her compromised health condition, Mrs. Wood would be considerably inconvenienced and burdened if this case were tried in Nebraska; (2) Defendants overstate the number of witnesses who reside in Nebraska, when, in fact, only emergency personnel and two eye-witnesses reside there; (3) in contrast, approximately 30 fact witnesses reside in Utah, including approximately twenty medical providers, five eyewitness passengers, and several other fact witnesses to Mrs. Wood's condition before and after the accident; (4) Utah has a significant interest in this case; and (5) there is no certainty that Nebraska law will govern here.
The Tenth Circuit has stated that the plaintiffs choice of forum should not be disturbed unless the evidence strongly favors the moving party.Scheidt v. Klein, 956 F.2d 963, 965 (10th Cir. 1992) (internal citations omitted). In this case, the Defendants' most compelling factor, and the only one supported by evidence, is the litigation of this accident already underway in Nebraska. They argue that allowing venue to remain in Utah will require re-litigating the accident in Utah, involving costly and time-consuming duplication of witness testimony. Even so, the court finds that, given the strong preference that is to be given to the plaintiffs choice of forum, Mrs. Wood's physical limitations are no less compelling. Furthermore, based on the parties' arguments, neither forum appears to be clearly more convenient in terms of accessibility of witnesses and evidence. See Scheidt, 956 F.2d at 966 (internal citations omitted) "Merely shifting the inconvenience from one side to the other . . . obviously is not a permissible justification for a change in venue.") Accordingly, Defendants' motion to transfer venue is also DENIED.
SO ORDERED