United States District Court, D. Kansas
MEMORANDUM AND ORDER
E. BIRZER UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on defendant BHCMC, LLC's
Motion for Determination of Place of Trial (ECF No.
21). The Court has considered the motion and
supporting memorandum (ECF No. 22), as well as
Plaintiff's Response (ECF No. 26) and BHCMC's Reply
(ECF No. 27). For the reasons set forth below, BHCMC's
motion is GRANTED and the trial of this
matter shall take place in Wichita, Kansas.
case arises from a slip-and-fall accident which occurred in
the parking lot of BHCMC (dba the Boothill Casino)
in Dodge City, Kansas. Plaintiff, a resident of the State of
Texas, was visiting the casino on business in November 2015.
After exiting his car in the casino parking lot, he slipped
and fell on ice, hitting his head and resulting in brain
hemorrhaging. After his fall, Plaintiff was initially treated
by medical providers and in facilities in both Dodge City and
Wichita, Kansas. He spent almost a month (ECF No. 22 at 6) at
Via Christi hospital in Wichita, Kansas, and was later
transferred to an inpatient facility in Houston, Texas and a
rehabilitation center in Conroe, Texas.
initially filed suit against multiple entities he contended
either owned or operated the casino, along with Steve's
Welding and Repair, LLC-a Dodge City company he claims was
responsible for maintaining the condition of the parking lot.
Plaintiff later dismissed a number of the alleged ownership
entities, and his lawsuit is now focused on negligence claims
against BHCMC and against Steve's Welding, and its owner,
filed this case on September 12, 2017 and designated Kansas
City, Kansas as the place of trial (ECF No. 1 at 7). On
October 25, 2017, defendant BHCMC filed its motion seeking to
change the place of trial to Wichita, Kansas (ECF No. 21).
The motion is now ripe for decision.
argues Wichita is substantially more convenient for the trial
of this case. It contends Plaintiff's residence in Texas
is actually closer to Wichita. Also, a majority of the
witnesses likely to be called are located in either Dodge
City or Wichita, given that the accident occurred in Dodge
City and the initial medical providers are in Dodge City and
Wichita. All defense counsel are located in Wichita. The only
connection this matter has with Kansas City is the location
of Plaintiff's counsel, although BHCMC itself is
headquartered in Kansas City.
maintains there is no perfect place to hold the trial, and
neither location is more convenient than the other. He argues
a trial in Wichita would only serve to shift attorney travel
expenses from Defendants to Plaintiff, and Plaintiff could
more economically travel to Kansas City by direct flight than
to Wichita. Although Plaintiff permanently resides in
Livingston, Texas, he currently works in Mendenhall,
Mississippi. His employment records and witnesses are found
in Oklahoma and Mississippi, and his family witnesses and
medical specialists dealing with his chronic care are all
located in Texas. Finally, Plaintiff contends he retained
counsel in Kansas City and requested Kansas City as the place
of trial for all of these reasons, and his choice should be
given paramount consideration.
defendant BHCMC filed the motion, it indicates the
Steve's Welding defendants agree Wichita is a more
convenient place for trial (ECF No. 22 at 4, ¶ 13). The
Steve's Welding defendants did not file a formal
the party initiating a federal case must designate its
preferred place of trial, the “court is not bound by
the requests for place of trial. It may determine the place
of trial upon motion or in its discretion.” D. Kan.
Rule 40.2(e). When reviewing motions to determine place of
trial, the judges in this district have long applied the
factors relevant to a 28 U.S.C. § 1404(a) motion for
change of venue.
… This statute grants a district court broad
discretion in deciding a motion to transfer based on a
case-by-case review of convenience and fairness. The court
considers the following factors in determining whether to
transfer the case: (1) plaintiff's choice of forum; (2)
the convenience of the witnesses; (3) the accessibility of
witnesses and other sources of proof; (4) the possibility of
obtaining a fair trial; and (5) all other practical
considerations that make a trial easy, expeditious and
The party seeking to transfer the case has the burden of
proving that the existing forum is
Court considers the applicable factors below.
Plaintiff's Choice of Forum
the balance tips heavily in favor of transfer, the
plaintiff's choice of forum is generally of significant
weight. However, “when the plaintiff does
not reside in the chosen forum, the rationale for allowing
plaintiff to dictate the forum
evaporates.”Plaintiff has designated Kansas City,
Kansas as the place of trial but he resides in Livingston,
Texas-approximately 578 miles from the Wichita courthouse and
approximately 677 miles from the Kansas City court. This
100-mile difference, on its own, is not enough to shift the
balance one way or another. The facts giving rise to the
lawsuit have no connection to Kansas City, and Plaintiff
provides no personal connection to Kansas City, aside from
his choice of counsel there.
this lack of connection, Plaintiff contends his choice should
remain a factor for consideration. Plaintiff relies on the
case of Nkemakolam v. St. Johns,  a case in which
the court afforded plaintiffs' choice of trial location
some weight because the plaintiffs lived in neither proposed
forum. However, that case is distinguishable on its facts. In
Nkemakolam, all plaintiffs lived out of state, as
does Plaintiff here, but the venue dispute was between Kansas
City-the location of a large international airport- and
Topeka, a city only one hour from Kansas City with a much
smaller regional airport. No. parties or witnesses were
located in either forum, and though the defendant and ...