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deferring to plaintiff's choice of forum when the accident occurred within the chosen forum but neither party resided there
Summary of this case from Holmes v. Warrior Gulf Navigation CompanyOpinion
CIVIL ACTION NO: 03-2688, SECTION: "J"(2)
January 7, 2004
MINUTE ENTRY
Before the Court is the Motion to Transfer Venue filed by the defendant. Rec. Doc. 3. Plaintiff opposes the motion. The motion, set for hearing on January 7, 2004, is before the Court on briefs without oral argument. Finding that defendant has not met its burden of proving that the public and private interest factors to be weighed in determining whether a 28 U.S.C. § 1404 (a) transfer is appropriate require a transfer, defendant's motion is denied as more fully explained below.
BACKGROUND
This matter arises out of an alleged injury suffered by plaintiff on November 9, 2002, while he was working aboard defendant's vessel on the Mississippi River near Donaldsonville, Louisiana at the CF Industries dock. Plaintiff is a resident of Senatobia, Mississippi; defendant is a Tennessee corporation with its principal place of business in Memphis. Defendant operates a barge towing business on the inland and coastal waterways of the United States, including waterways in Louisiana, Mississippi, and Tennessee.
According to the complaint, at the time of his injury, the only eyewitness nearby was another Southern Towing Company employee, Victor Rainey. Rainey is domiciled in Waynetown, Indiana. Plaintiff received treatment for his injury in Memphis, Tennessee, and Southaven, Mississippi, a Memphis suburb.
Given this background, defendant argues that this matter should be transferred to the Western District of Tennessee or the Northern District of Mississippi. Defendant contends that either of those districts is more convenient to plaintiff's potential witnesses, the seven crewmembers on board the vessel at the time of plaintiff's injury; that New Orleans is twice as far as Memphis from the hometown of the identified eyewitness, Victor Rainey; and that neither plaintiff's residence nor the defendant's principal place of business is located in Louisiana. Defendant further claims that the fact that plaintiff's medical providers and its employment records are located in Memphis weigh in favor of transfer.
Plaintiff, in contrast, argues that a transfer of venue would undermine his choice of forum, which is owed great deference; that the injury occurred in the Eastern District of Louisiana; that the availability and convenience of witnesses do not favor transfer; that the location of treating physicians and employment records in Memphis (or nearby) is immaterial; and that the Eastern District of Louisiana has a greater interest in hearing this case and can hear it more quickly.
DISCUSSION
Change of venue in admiralty cases, like ordinary civil cases, is governed by § 1404(a). See Continental Grain Co. v. The FBL-585, 364 U.S. 19, 26-27, 80 S.Ct. 1470, 1475 (1960). Under 1404(a), "[f]or the convenience of parties, witnesses and in the interest of justice," courts may transfer an action "to any other district or division where it might have been brought." In determining whether transfer is proper under § 1404(a), courts generally consider the factors articulated by the United States Supreme Court in Gulf Oil Corp. v. Gilbert, 330 U.S. 505, 508, 67 S.Ct. 839, 843 (1947). These factors include both "private interest" and "public interest" factors. Id. The private interest factors are: (1) "the relative ease of access to sources of proof;" (2) "availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses;" (3) "possibility of view of premises, if view would be appropriate to the action;" and (4) "all other practical problems that make trial of a case easy, expeditious and inexpensive." The public interest factors to be considered are: (1) the administrative difficulties created by court congestion; (2) the "local interest in having localized controversies decided at home;" (3) the interest in "having the trial of a diversity case in a forum that is at home with the state law that must govern the case;" (4) the unfairness of burdening citizens in an unrelated forum with jury duty; and (5) the interest in avoiding unnecessary problems in conflict of laws, or in the application of foreign law. Id. at 509, 67 S.Ct. at 843. As an additional public interest factor, courts consider judicial economy — that is, whether a transfer would avoid duplicative litigation and prevent waste of time and money. Van Dusen v. Barrack, 376 U.S. 612, 616, 84 S.Ct. 805, 809 (1964). Finally, "while neither conclusive nor determinative," in this circuit "the plaintiff's choice of forum is clearly a factor to be considered." In re Horseshoe Entertainment, 337 F.3d 429, 434-35 (5th Cir. 2003).
A district where a lawsuit "might have been brought" is one in which the court would have had subject matter jurisdiction, the defendants would have been subject to personal jurisdiction, and venue would have been proper. Hoffman v. Blaski, 363 U.S. 335, 80 So. Ct. 1084, 1089-190 (1960).
The burden of proof in a motion to transfer is on the moving party.Karim v. Finch Shipping Co., Ltd., 94 F. Supp.2d 727 (E.D. La. 2000), citing In re Air Crash Disaster Near New Orleans, 821 F.2d 1147 (5th Cir. 1987) (vacated and remanded on other grounds); see also. Time, Inc. v. Manning, 366 F.2d 690, 698 (5th Cir. 1966). As proof, the movant must provide affidavits containing admissible evidence (i.e., non-hearsay). Conclusory allegations are not sufficient — the moving party must identify the key witnesses to be called and present a generalized statement of what their testimony would include. Al Copeland Enterprises, Inc. v. Mowen, No. 92-1989, 1992 WL 300771, *2 (E.D. La., Oct. 6, 1992); see also, Heller Financial, Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1293 (7th Cir. 1989).
Upon application of the Gilbert factors to the instant case, the Court concludes that Southern Towing has failed to carry its burden of showing that the convenience of witnesses and public interest require that the case should be transferred to the Western District of Tennessee or the Northern District of Mississippi. With respect to the question of the convenience of witnesses, defendant has provided a list of seven crewmembers, their hometowns, and the distance from the hometown of each to the three possible venues, to demonstrate the relative inconvenience of their travel to New Orleans. However, defendant provides no description, even generalized, of the expected testimony of any of these crewmembers, only one of which witnessed the accident (and thus is likely to have something relevant to say at trial). Any of them who do testify will be required to undertake some travel, and the incremental increase in travel to New Orleans versus the other possible venues is not dispositive. Moreover, because they are all employees of defendant, their attendance can easily be secured.
As for the treating physicians, plaintiff's point is well-taken that they were selected by defendant, and to use their residence to guide venue decisions would result in creating a forum-shopping opportunity for defendants who could simply always send injured employees to physicians in a venue they desire. Further, it appears that the doctors will testify by deposition and may well not be required to physically appear at trial. Finally, with respect to the employment records, defendant has made no showing of any impediment to shipping any needed records to Mew Orleans as required.
As for the public interest considerations, the Court is not persuaded that, as defendant contends, the Eastern District of Louisiana does not have an interest in the controversy decided here. To the contrary, the accident complained of occurred in this district, where defendant regularly conducts business. Given this, one might fairly conclude that the heart of the instant case lies in this district. Thus, the Eastern District of Louisiana has a sufficiently proper stake in the resolution of this matter so as not to be overly burdensome to the community of this district. The legal issues involve maritime law, specifically the Jones Act. This Court is obviously as competent to resolve such issues as is the Western District of Tennessee or the Northern District of Mississippi.
In conclusion, in addition to whatever deference the plaintiff's choice of forum is owed, both the private and public interest factors outlined in Gilbert clearly weigh in favor of maintaining the current venue. Southern Towing has failed to carry its burden of showing that convenience and the public interest mandates a transfer of this matter to the Western District of Tennessee or the Northern District of Mississippi. Accordingly,
IT IS ORDERED that the Motion to Transfer Venue (Rec. Doc. 3) filed by the defendant, Southern Towing Company, should be and is hereby DENIED.