Opinion
CIVIL ACTION NO: 02-2057, SECTION: "A" (4)
January 15, 2003
ORDER AND REASONS
Before the Court is Illinois Central Railroad Company's Motion to Transfer Pursuant to 28 U.S.C. § 1404(a) (Rec Doc. 6). Plaintiff opposes the motion. The motion is before the Court on the briefs without oral argument. For the reasons that follow, the motion is Granted and this case is Transferred to the United States District Court for the Southern District of Alabama pursuant to 28 U.S.C. § 1404(a).
BACKGROUND
The plaintiff is a resident of Eight Mile, Alabama, a suburb of Mobile, Alabama. At the time of the accident that is the subject of this lawsuit, he was an employee of Illinois Central Railroad Company. Plaintiff alleges that on November 15, 2001, he was injured while in the course and scope of his employment when the welding truck he was operating was struck by an Illinois Central (IC) freight train. The accident occurred in Lucedale, Mississippi, thirty-nine miles from Mobile, Alabama. Lucedale is approximately two and one half hours from New Orleans, Louisiana.
It is unclear to the Court whether or not, as of this date, plaintiff is still employed by Illinois Central Railroad Company.
Affidavit of H. J. Freeman (Mr. Freeman is the Risk Manager for Canadian National/Illinois Central Railroad Company and is the person responsible for managing, supervising and overseeing the claims of plaintiff, Joseph Young.
Plaintiff's opposition, p. 2.
Plaintiff was taken to the emergency room at Spring Hill Memorial Hospital in Mobile, Alabama, and was treated by emergency room physician Dr. Donna Ballard. After the accident plaintiff followed up with his family physician Dr. Donald Newman, also located in Mobile, Alabama. Dr. Newman referred plaintiff to orthopedist, Dr. Harry Lusher, who has been plaintiff's primary treating physician since the accident. Dr. Lusher is also located in Mobile, Alabama. Starting in January, 2002, plaintiff participated in numerous physical therapy sessions with Health South Rehabilitation also located in Mobile, Alabama. These sessions were conducted by occupational therapist Vanessa Fridge.
Affidavit of H.J. Freeman.
Id.
Id.
Id.
On April 2, 2002, the plaintiff completed a cervical and lumbar MRI at Southwest Alabama MRI Services located in Mobile, Alabama. Evaluation of the MRI was made by radiologist Dr. Lane Kannegieter, also of Mobile, Alabama. Beginning in May, 2002, plaintiff went through further extensive physical therapy and work hardening programs at industrial Wellness Rehabilitation Center located in Saraland, Alabama, nine miles from Mobile. These programs were administered by Deborah Nelson, David Dimmick and Kristen Zarocostas. The plaintiff also saw Dr. Jane Epker, a licensed psychologist, on several occasions. Dr. Epker is located in Mobile, Alabama.
Id.
After retaining counsel, the plaintiff was referred to the Louisiana Clinic in New Orleans, Louisiana, where he has been seeing Dr. Stuart Phillips. The plaintiff notes that Dr. Phillips is a treating physician and not an examining physician retained only for the purpose of giving testimony at trial. Dr. Phillips and plaintiff's attorney are the only connections this action has to New Orleans, Louisiana, and the United States District Court for the Eastern District of Louisiana.
Id.
Plaintiff's opposition, p. 2.
The accident was investigated by police authorities of George County, Mississippi, located approximately thirty-nine miles from Mobile. The defendant's truck that plaintiff was operating at the time of his injury was maintained in Hattiesburg, Mississippi and maintenance records were maintained in defendant's engineering department in Jackson, Mississippi. Allegedly plaintiff's place of employment while working for defendant was Hattiesburg, Mississippi.
These investigating officers would be subject to the subpoena power of the federal court located in Mobile, Alabama, but would not be subject to the subpoena power of the federal court located in New Orleans, Louisiana. See Fed.R.Civ.P. 4 and 45.
Id.
Id at p. 3.
Plaintiff alleges that two eyewitnesses are from Mississippi. Train engineer Roy Ellis is from Tylertown, Mississippi, and plaintiff's co-worker Shawn McLaughlin resides in Gulfport, Mississippi. According to defendant, the other witnesses to the accident are all defendant's employees and will appear to testify at trial regardless of where the case is tried (unlike the treating physicians or investigating officers).
The Court notes that after a cursory review of a Rand McNally road atlas, both Tylertown, Mississippi, and Gulfport, Mississippi, appear to be approximately the same distance from New Orleans, Louisiana and Mobile, Alabama.
DISCUSSION
The plaintiff's claims against Illinois Central are made pursuant to the Federal Employers' Liability Act (FELA). This act exclusively governs his claim. Under FELA, venue lies in either: (1) the residence of the defendant (2) where the cause of action arose, or (3) where the defendant was doing business at the time of the commencement of the action. The jurisdiction of the courts of the United States under this chapter are concurrent with that of the courts of the several States. Under the strictures of 45 U.S.C. § 51, et seq, venue in this case would be proper in Louisiana, Mississippi or Alabama.
45 U.S.C. § 51, et seq.
Nevertheless, defendant moves this Court to transfer this lawsuit from the Eastern District of Louisiana to the Southern District of Alabama pursuant to 28 U.S.C. § 1404(a). Section 1404(a) provides:
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 be brought.
In determining whether to transfer venue in a particular case, "the court must exercise its discretion in light of the particular circumstances of the case." In doing so, the court must balance two categories of interests: 1) the so-called private interests, which take into account the convenience of the litigants, and 2) the public interests, which take into account the fair and efficient administration of justice. In balancing the aforementioned categories of interests, courts are to consider the following factors:
Hanby v. Shell Oil Co., 2001 WL 640639, at *3 (E.D.Tex. 2001) (citing Radio Santa Fe v. Sena, 687 F. Supp. 284, 287 (E.D.Tex. 1988).
Hanby, 2001 WL 640639, at *3 (citing Robertson v. Kiamichi RR Co., L.L.C., 42 F. Supp.2d 651, 655 (E.D.Tex. 1999).
Convenience factors, [which] include: (1) plaintiff's choice of forum; (2) convenience of parties and witnesses; (3) place of the alleged wrong; (4) location of counsel; (5) cost of obtaining the attendance of witnesses; (6) accessibility and location of sources of proof; and (7) possibility of delay and prejudice if transfer is granted.
Public interest factors, [which] include: (1) administrative difficulties caused by court congestion; (2) local interest in adjudicating local disputes; (3) unfairness of burdening citizens in an unrelated forum with jury duty; and (4) avoidance of unnecessary problems in conflict of laws.
Hanby, id. at *3 (quoting Robertson v. Kiamichi RR Co., L.L.C., 42 F. Supp.2d 651, 655 (E.D.Tex. 1999); see also Willis v. Parrot, 1996 WL 337241, at *4 (E.D.La. 1996).
It is important to note that typically, unless these factors balance heavily in favor of the defendants, the plaintiff's choice of forum should rarely be disturbed. The plaintiff's choice of forum "is held to be 'highly esteemed,' and entitled to great weight, especially if the forum he chooses is in the district in which he resides." (Emphasis added). Sorrels Steel Co., Inc., 651 F. Supp. 623, 628 (S.D.Miss. 1986) (quoting Time, Inc. v. Manning, 366 F.2d 690, 698 (5th Cir. 1966). The plaintiff here does not reside in the United States District Court for the Eastern District of Louisiana. He in fact resides in the United States District Court for the Southern District of Alabama. "The plaintiff's privilege of choosing his venue, at the very least, places the burden on the defendants to demonstrate why the forum should be changed." Id. at 629 ( citing Time, Inc., 366 F.2d at 698). Therefore, the defendant moving for a change of venue pursuant to Section 1404(a) must show both that the original forum is inconvenient for itself and that the plaintiff would not be substantially inconvenienced by a transfer. See id. (citing Wright, Miller Cooper, Federal Practice and Procedure S 3849, at 408 (1986)).
Willis, id. at *4 (citing Schexnider v. McDermott Intern., Inc., 817 F.2d 1159, 1163 (5th Cir. 1987), cert. denied, 484 U.S. 977, 108 S.Ct. 488, 98 L.Ed.2d 486 (1987); Peteet v. Dow Chemical Co., 868 F.2d 1428, 1436 (5th Cir. 1989), cert. denied, 493 U.S. 935, 110 S.Ct. 328, 107 L.Ed.2d 318.
Although plaintiff's choice of forum is clearly a factor to be considered on motion to transfer in and of itself it is neither conclusive nor determinative. FELA contains very broad venue provisions. Under that statute, venue is proper in the district where the defendant resides, where the cause of action arose, or where the defendant is 'doing business' at the time of the commencement of the action. 45 U.S.C.A. § 56.
In Re: Horseshoe Entertainment, 305 F.3d 354 (5th Cir. 2002).
In the instant case, defendant resides in both Louisiana and Alabama. The cause of action arose in Lucedale, Mississippi, and the defendant was 'doing business' in both Louisiana and Alabama.
The Court agrees with defendant that this matter should be transferred to the United States District Court for the Southern District of Alabama for the following reasons:
1. The case might have originally been brought in the United States District Court for the Southern District of Alabama;
2. The plaintiff is a resident of Eight Mile, Alabama, a suburb of Mobile, Alabama;
3. All of plaintiff's treating physicians and healthcare providers, with the exception of Dr. Stuart Phillips, reside in the Mobile, Alabama area;
4. The accident occurred in Lucedale, Mississippi, thirty-nine miles away from Mobile, Alabama;
5. The cost of litigation can be expected to be reduced if the need for ten or more "video depositions" is obviated;
6. The eyewitness co-worker is within the subpoena power of the Alabama court;
7. The only witness for whom it is more convenient to try this matter in the United States District Court for the Eastern District of Louisiana is plaintiff's retained orthopedic/surgical expert, Dr. Stuart Phillips, who has handled cases previously in the United States District Court for the Southern District of Alabama.
The weight of these factors leads the Court to the conclusion that this action more properly belongs in the United States District Court for the Southern District of Alabama The Court is satisfied that the majority of private and public interest factors weigh in favor of transfer. The convenience of the parties and the interests of justice would be best served by transferring this case.
Accordingly,
IT IS ORDERED that defendant, Illinois Central Railroad Company's Motion to Transfer Pursuant to 28 U.S.C. § 1404(a) should be and is hereby Granted and this matter is Transferred to the United States District Court for the Southern District of Alabama.