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Bright v. BHCMC, LLC

United States District Court, D. Kansas

January 12, 2018

TED BRIGHT, Plaintiff,
v.
BHCMC, LLC, et al., Defendants.

          MEMORANDUM AND ORDER

          GWYNNE E. BIRZER UNITED STATES MAGISTRATE JUDGE.

         This 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.

         I. Background[1]

         This 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.

         Plaintiff 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, Steven Deges.

         Plaintiff 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.

         II. Arguments

         BHCMC 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.

         Plaintiff 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.

         Although 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 response.

         III. Legal Standard

         Although 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.[2]

… 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 economical.
The party seeking to transfer the case has the burden of proving that the existing forum is inconvenient.[3]

         The Court considers the applicable factors below.

         IV. Discussion

         A. Plaintiff's Choice of Forum

         Unless the balance tips heavily in favor of transfer, the plaintiff's choice of forum is generally of significant weight.[4] However, “when the plaintiff does not reside in the chosen forum, the rationale for allowing plaintiff to dictate the forum evaporates.”[5]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.

         Despite this lack of connection, Plaintiff contends his choice should remain a factor for consideration. Plaintiff relies on the case of Nkemakolam v. St. Johns, [6] 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 ...


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