Opinion
Civil Action No. 04-2386-CM.
November 12, 2004
MEMORANDUM AND ORDER
Plaintiff brings this complaint against defendant, alleging violations of the federal Family and Medical Leave Act (FMLA), 29 U.S.C. § 2611 et seq. This matter comes before the court on defendant's Motion to Determine Place of Trial as Topeka (Doc. 15).
Plaintiff designated Kansas City, Kansas as the place of trial in this case. Defendant has moved for an order pursuant to D. Kan. Rule 40.2, designating Topeka, Kansas as the place of trial. Defendant contends that all of plaintiff's claims involve alleged violations of the FMLA at defendant's Topeka office, that most of the witnesses in the case reside in Topeka, and that counsel for both parties have offices in Topeka. Plaintiff claims that she lives in Bonner Springs, a suburb of Kansas City. Plaintiff also claims that Kansas City, Kansas provides a more neutral forum because, plaintiff contends, if the case is tried in Topeka, defendant's connection to the Topeka community could influence the jury pool and impact plaintiff's right to receive a fair trial. Plaintiff also points out that Topeka is not a distant forum, and that defendant will not experience a significant hardship if the case is litigated in Kansas City.
Pursuant to D. Kan. Rule 40.2, the court may in its discretion determine the place of trial. In making such a determination, the court should consider the plaintiff's 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, 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 conflict of laws issues, 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. Hill's Pet Prods. v. A.S.U., Inc., 808 F. Supp. 774, 776 (D. Kan. 1992).
The court first notes that plaintiff's concern over a fair trial in Topeka is nothing more than mere speculation. The court is confident that the voir dire process would adequately protect the plaintiff's right to a fair and impartial jury. Aramburu v. Boeing Co., 896 F. Supp. 1063, 1064 (D. Kan. 1995); see also Wallace v. Beech Aircraft Corp., No. 96-4128-SAC, 1997 WL 723436, at *6 (D. Kan. Oct. 22, 1997). However, the court also notes that, unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed. Scheidt v. Klein, 956 F.2d 963, 965 (10th Cir. 1992). In this case, plaintiff lives in Bonner Springs, a suburb of Kansas City, and has designated Kansas City, Kansas as the place for trial.
Defendant's only argument that the trial should be held in Topeka, Kansas is that the defendant, most of the witnesses, and counsel are located in Topeka. However, transfer is not warranted where it results merely in shifting inconvenience from one party to another. U.S. Telecom, Inc. v. Hubert, 678 F. Supp. 1500, 1505 (D. Kan. 1987). The court finds that defendant has failed to establish that the trial should be transferred to Topeka, Kansas. IT IS THEREFORE ORDERED that defendant's Motion to Determine Place of Trial as Topeka (Doc. 15) is denied.