Opinion
Civil Action No. 3:00-CV-0083-D
February 8, 2001.
MEMORANDUM OPINION AND ORDER
In this removed case, two defendants move to dismiss the actions against them or transfer the case to the District of Kansas pursuant to 28 U.S.C. § 1404 (a). A third defendant also moves to transfer the case. Plaintiff does not oppose the motion to dismiss but does contest the transfer motion. For the reasons that follow, the court grants the motion to dismiss and the motion to transfer.
I
Plaintiff Marvin Heppner d/b/a Heppner and Associates ("Heppner") sued defendant Krause Plow Corporation, Inc. ("Krause") and Krause employees Don Rogers ("Rogers") and Dennis Dorr ("Dorr") in Texas state court. Defendants removed the case based on diversity of citizeriship. Rogers and Dorr, both citizens of Kansas, now move to dismiss the claims against them for lack of personal jurisdiction or, alternatively, to transfer venue to the District of Kansas. Krause separately moves to transfer venue. Heppner does not oppose Rogers and Dorr's motion to dismiss, see P. Resp. at 5, and the court therefore grants it and dismisses the actions against them without prejudice. The court addresses the merits of Krause's motion to transfer.
Krause is a Kansas corporation with its principal place of business in Hutchinson, Kansas. Among other things, it is in the business of providing solid waste receptacle systems. Heppner, a citizen of Arkansas, is a wholesale purchaser and distributor of Krause's receptacles. Heppner alleges that various warranty defects, mechanical failures, operating shortcomings, and poor warranty handling of Krause's equipment have caused him to lose valuable business. He asserts claims for fraud, breach of warranty, and deceptive trade practices. Krause counterclaims for breach of contract and to recover money not paid on current accounts.
II A
Section 1404(a) provides that "[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." The decision to transfer is made to prevent waste of time, energy, and money and to protect litigants, witnesses, and the public against unnecessary inconvenience and expense. Stabler v. New York Times Co., 569 F. Supp. 1131, 1137 (S.D. Tex. 1983). The court considers several factors in their totality, including (1) plaintiff's choice of forum; (2) the availability of compulsory process for the attendance of unwilling witnesses; (3) the cost of obtaining the attendance of willing witnesses; (4) the accessibility and location of sources of proof; (5) the relative congestion of the courts' dockets; (6) the accessibility of the premises to jury view; (7) the relation of the community in which courts and the jurors are required to serve to the occurrence giving rise to the suit; and (8) the time, cost, and ease with which the trial can be conducted, and all other practical considerations relative to the trial and determination of the case. Fletcher v. Southern Pac. Transp. Co., 648 F. Supp. 1400, 1401 (E.D. Tex. 1986); Greiner v. American Motor Sales Corp., 645 F. Supp. 277, 278 (E.D. Tex. 1986).
The moving party must make a particularized showing regarding why transfer is necessary, including identification of key witnesses and the general content of their testimony. Young v. Armstrong World Indus., Inc., 601 F. Supp. 399, 401-02 (N.D. Tex. 1984) (Sanders, J.). The court may not transfer venue where the result will be merely to shift the burden of the trial from one party to the other. Enserch Int'l Exploration, Inc. v. Attock Co., 656 F. Supp. 1162, 1167 n. 15 (N.D. Tex. 1987) (Fitzwater, J.).
B
This case could have been brought in the District of Kansas. Krause is a Kansas corporation with its principal place of business in Kansas, thereby making venue in the District of Kansas proper under 28 U.S.C. § 1391 (a)(1). Furthermore, Heppner's state-court petition demonstrates that "a substantial part of the events or omissions giving rising to the claim occurred" in the District of Kansas. 28 U.S.C. § 1391 (a)(2). Therefore, the court now focuses on whether the convenience of the parties and witnesses and the interests of justice would be better served by transferring this case to that district.
Although a plaintiff's choice of forum is entitled to substantial weight and should be highly esteemed, see Enserch, 656 F. Supp. at 1167 n. 15, the weight to be accorded the choice is diminished where plaintiff brings suit outside his home forum, Alexander Alexander, Inc. v. Donald F. Muddoon Co., 685 F. Supp. 346, 349 (S.D.N.Y. 1988). Heppner has chosen this forum over his home district in Arkansas. Furthermore, none of the operative facts surrounding the dispute occurred in the Northern District of Texas. Heppner lives and works in Arkansas, and although he has customers in Texas, his dealings with Krause took place outside this state. Therefore, Heppner has failed to demonstrate that his choice of forum is entitled to deference.
The court also finds, based on the location of the witnesses and the evidence, that the District of Kansas is a more convenient forum. Krause asserts that "most if not all of the non-party, witnesses reside and/or work in the District of Kansas or in nearby Kansas City, Missouri." D. Br. 11. In particular, Krause notes that the six individuals whom Heppner has noticed for depositions are in the District of Kansas. Heppner responds that five of these individuals are employees of Krause and therefore may be compelled to testify regardless of the fact that they are located further than 100 miles from Dallas. See Fed.R.Civ.P. 45(b)(2) (district court has subpoena power over persons located outside the district if they are within 100 miles of the place of the proceeding). Heppner also asserts that "most of the complaints that Plaintiff has received regarding problems with the compactors . . . have been from AMC theaters located in Texas[.]" P. Resp. at 3. Although Heppner provides letters from employees of various AMC movie theaters, see id. at Exh. A, he has not adduced any evidence that these employees will be material witnesses or that they possess relevant documents. To the contrary, Krause points out that the records, contracts, and warranties surrounding the purchases of the machines are likely to be in the possession of the AMC purchasing agent, National Cinema Supply Corporation ("NCS"), in Lenexa, Kansas. In fact, AMC's principal place of business is Kansas City, Missouri. Moreover, even if Krause employees could be compelled to participate in proceedings in the Northern District of Texas, a transfer to the District of Kansas would make their participation more convenient and affordable, reducing their driving time and travel costs. Finally, in addition to accommodating witnesses, a transfer would also make discovery substantially more convenient.
The remaining factors also support transfer to the District of Kansas. The District of Kansas does not have a significantly more congested docket than the Northern District of Texas, and Heppner does not contend that the Northern District of Texas's adjudication of the dispute would be less expensive, easier, or faster. Furthermore, Kansas has a greater interest in the litigation than Texas given the location of Krause, AMC, and NCS. Kansas's interest in the case raises the likelihood that a court would conclude that Kansas, not Texas, law applies. Moreover, the case's only connection with the Northern District of Texas is the location of two AMC theaters in Grapevine, Texas and Mesquite, Texas. Given the tenuous nature of these contacts, it would not be fair to burden jurors within the Northern District of Texas with service in this case.
* * *
The court grants Rogers and Dorr's motion to dismiss and dismisses the actions against them without prejudice. The court grants Krause's motion to transfer and transfers this action to the District of Kansas for the convenience of the parties and witnesses and in the interest of justice. The clerk of court shall effect the transfer in accordance with the usual procedure.
SO ORDERED.