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LeTourneau v. Venture Corp.

United States District Court, D. Kansas

January 19, 2018

MARK LeTOURNEAU and DEBORAH LeTOURNEAU, Plaintiffs,
v.
VENTURE CORPORATION, a Kansas Corporation, Defendant.

          MEMORANDUM AND ORDER

          JULIE A. ROBINSON CHIEF UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Defendant Venture Corporation's Motion to Designate Wichita as Place for Trial (Doc. 77). The motion is fully briefed, and the Court is prepared to rule. For the reasons set forth below, Defendant's motion is granted.

         I. Factual Background

         This is a diversity case arising from Plaintiff Mark LeTourneau's October 2012 motorcycle accident in a construction zone on U.S. Highway 281 in Barton County, Kansas, near Great Bend. Plaintiffs Mark and Deborah LeTourneau are residents of Temecula, California and originally filed this case in the U.S. District Court for the Central District of California.[1] Plaintiffs sued the Kansas Department of Transportation (“KDOT”), the Kansas Secretary of Transportation, and Venture Corporation, which was hired by KDOT to perform improvements to U.S. Highway 281. On December 16, 2014, Judge Phillips of the Central District of California dismissed KDOT and the Kansas Secretary of Transportation on Eleventh Amendment immunity grounds, leaving Venture Corporation as the only defendant.[2] Venture Corporation then moved to dismiss on the basis of improper venue and lack of personal jurisdiction.[3]

         On February 26, 2015, the California court found that it lacked personal jurisdiction over Venture Corporation and transferred the case to the District of Kansas.[4] Judge Phillips denied Venture Corporation's motion as moot to the extent that it raised venue-related arguments and made no comment regarding which division within the District of Kansas would be appropriate for transfer and/or trial.[5] Following transfer, the case was internally assigned to the Kansas City Division and to the undersigned.

         After the case was transferred to this Court in February 2015, Plaintiffs never filed a designation of place of trial as required by Local Rule 40.2(a). Defendant Venture Corp. did file a designation on March 5, 2015, requesting that trial be held in Wichita.[6] On the same date, Defendant filed an Unopposed Motion to Reassign and Transfer Case to the Wichita Division of the U.S. District Court for the District of Kansas.[7] That motion stated that Plaintiffs' counsel had been consulted and did not object to reassignment and transfer.

         In an Order dated April 3, 2015, this Court denied Defendant's motion for reassignment and transfer, stating:

The Court finds that a transfer is unnecessary in this case. Considering the Court's electronic filing system, the assignment of the case to the Kansas City Division will not affect the pretrial proceedings and filings in this case. Defendant has filed a Designation of Place of Trial, naming Wichita as the trial location. It is not necessary to transfer this case to the Wichita division in order to hold the trial there. Furthermore, if the parties agree to the Wichita trial location, the undersigned can conduct the trial at that location.[8]

         Defendant renewed its request to have the trial in Wichita at the pretrial conference before Magistrate Judge Rushfelt on March 28, 2017. Judge Rushfelt did not resolve the issue, but noted in his Pretrial Order that Defendant had designated Wichita as the place for trial.[9] This case is currently set for trial in Kansas City on August 6, 2018.

         On November 27, 2017, Defendant filed another Motion to Designate Wichita as Place for Trial.[10] At the final pretrial conference on November 30, 2017, Plaintiffs' counsel indicated that contrary to Plaintiffs' prior position on the matter, Plaintiffs intended to oppose Defendant's motion, which they did on December 11, 2017, arguing that the trial location should remain Kansas City.[11]

         II. Legal Standard

         Defendant moves to designate Wichita as the place of trial pursuant to D. Kan. Rule 40.2(e). While a plaintiff's request governs the place of trial unless the court orders otherwise, [12]“[t]he court is not bound by the requests for place of trial. It may determine the place of trial upon motion or in its discretion.”[13] Because Kansas constitutes one judicial district and division, 28 U.S.C. § 1404(a), which governs change of venue, is not technically applicable to a request for intra-district transfer.[14] However, when considering a motion for intra-district transfer, courts of this district look to the same factors used to analyze a request for change of venue under § 1404(a).[15] That statute provides, in pertinent part, that “[f]or the convenience of the 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.”[16]

         The factors considered by the court when conducting a § 1404(a) analysis include “the plaintiff's choice of forum, the convenience for witnesses, the accessibility of witnesses and other sources of proof, the possibility of obtaining a fair trial, difficulties that may arise from congested dockets, and ‘all other considerations of a practical nature that make a trial easy, expeditious and economical.'”[17] Section 1404(a) “grants a district court broad discretion in deciding a motion to transfer based on a case-by-case review of convenience and fairness.”[18]The burden of establishing that the existing forum is inconvenient lies with the moving party.[19]

         While a plaintiff's choice of forum “should rarely be disturbed, ”[20] the plaintiff's choice receives little deference when the plaintiff does not reside in his or her chosen forum.[21] This Court recently found that while the “[p]laintiff's choice of forum is at least a factor to be considered . . . it must be given less weight in light of the fact that ‘the rationale for allowing the plaintiff to dictate the forum evaporates' when the plaintiff lives outside of the forum.”[22]Further, “courts have given little weight to a plaintiff's choice of forum where the facts giving rise to the lawsuit have no material relation or significant connection to the plaintiff's chosen forum.”[23]

         In deciding a motion to transfer under § 1404(a), the relative convenience of the forum is “a primary, if not the most important, factor to consider.”[24] The moving party must establish that the proposed forum is “substantially inconvenient, ” meaning that “all or practically all the witnesses reside in a different forum and traveling to the proposed forum is a substantial burden.”[25] Demonstrating that the proposed forum is “substantially inconvenient” requires more than a showing that the movant's “alternative forum is marginally more convenient.”[26] Rather, the movant must “identify the witnesses and their locations, indicate the quality or materiality of their testimony, and indicate that depositions from witnesses who are unwilling to come to trial would be unsatisfactory and the use of compulsory process would be necessary.”[27] Unlike the convenience of the witnesses, “the convenience of counsel is entitled to little, if any, weight in ruling on a § 1404(a) transfer . . . This is particularly so when no other factors weigh in favor of plaintiff's choice of forum.”[28]

         The parties in this case make no arguments concerning a difference between Kansas City and Wichita with respect to the possibility of obtaining a fair trial or any difficulties that might arise from congested dockets. Thus, the Court will focus its analysis on Plaintiffs' choice of forum and the convenience and accessibility of the witnesses and other sources of proof.

         III. Analysis

         A. Plaintiffs' Choice of Forum

         Plaintiffs contend that their “preference” for Kansas City weighs in favor of holding the trial in Kansas City. Plaintiffs explain that they did not file a designation of place of trial because this case was originally filed in California and, “[h]ad the case not been transferred, the place of trial would have been California.”[29] Plaintiffs suggest that their preference for trial in Kansas City is at least partly due to their counsel's location in Kansas City, Missouri. They also point out that mediation was held in the Kansas City suburb of Overland Park and that Defendant's insurance carrier has offices located in Overland Park, although they do not explain how proximity to Defendant's insurer would have any impact on the convenience or appropriateness of the trial location.

         Defendant argues that Plaintiffs, unlike Defendant, never filed a designation of place of trial. Defendant contends that Plaintiffs' choice of forum was California-not Kansas City-and that in any event, Plaintiffs' choice of forum is entitled to little deference because Plaintiffs are not residents. The Court is not persuaded by Plaintiffs' arguments and agrees with Defendant that Plaintiffs' choice of forum should receive little deference because ...


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