United States District Court, D. Kansas
RADIOLOGIX, INC. and RADIOLOGY AND NUCLEAR MEDICINE IMAGING PARTNERS, INC., Plaintiffs,
RADIOLOGY AND NUCLEAR MEDICINE, LLC, Defendant.
MEMORANDUM AND ORDER
D. Crabtree United States District Judge.
plaintiffs filed this breach of contract lawsuit more than
three years ago, they designated Topeka, Kansas, as the place
of trial. Doc. 1 at 1. With trial scheduled to begin on
February 5, 2019, plaintiffs now ask the court to
re-designate the place of trial from Topeka to Kansas City,
Kansas. Doc. 404. Plaintiffs contend that Kansas City is a
more convenient location for the parties to try the case.
Defendant opposes plaintiffs' motion, arguing that Topeka
remains the more convenient forum for trial. Doc. 410.
Defendant thus asks the court to deny plaintiffs' motion.
After considering the parties' arguments, the court
exercises its discretion and grants plaintiffs' motion.
For reasons explained below, the court designates the place
of the February 5, 2019, trial as Kansas City, Kansas.
D. Kan. Rule 40.2(e), the court is not bound by a party's
designated place of trial and may determine the place of
trial upon motion or at its discretion. When determining the
proper place of trial, the court “generally look[s] to
the same factors relevant to motions for change in venue
under 28 U.S.C. § 1404(a).” Lopez-Aguirre v.
Bd. of Cty. Comm'rs, No. 12- 2752-JWL, 2014 WL
853748, at *1 (D. Kan. Mar. 5, 2014). 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.” ABF Freight Sys., Inc.
v. McMillian, No. 17-2324-JWL, 2018 WL 4154014, at *1
(D. Kan. Aug. 30, 2018). The court considers these factors
when deciding whether to transfer the place of trial: (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. McDermed v.
Marian Clinic, Inc., No. 14-2194-EFM-KMH, 2014 WL
6819407, at *1 (D. Kan. Dec. 2, 2014) (citing Chrysler
Credit Corp. v. Country Chrysler, Inc., 928 F.2d 1509,
1516 (10th Cir. 1991)). The moving party bears the burden to
establish that the existing forum is an inconvenient one.
Id. (citations omitted).
with the governing standard, the court applies the §
1404(a) factors to the facts of this case to determine
whether the court should re-designate the trial location from
Topeka to Kansas City.
Plaintiff's Choice of Forum
[the § 1404(a)] factors weigh strongly in the
defendant's favor, the ‘plaintiff's choice of
forum should rarely be disturbed.'” Tiffany v.
City of Topeka, No. 09-2232-CM, 2009 WL 1683515, at *1
(D. Kan. June 16, 2009) (quoting Scheidt v. Klein,
956 F.2d 963, 965 (10th Cir. 1992)). But this factor is
“largely inapplicable if the plaintiff does not
reside” in the location it has designated for trial.
Menefee v. Zepick, No. 09-2127-JWL, 2009 WL 1313236,
at *1 (D. Kan. May 12, 2009); cf. Benson v. Hawker
Beechcraft Corp., No. 07-2171-JWL, 2007 WL 1834010, at
*1 (D. Kan. June 26, 2007) (concluding that “the
rationale for allowing the plaintiff to dictate the forum
evaporates” when the plaintiff lives outside his choice
of forum); but see Tiffany, 2009 WL
1683515, at *1 (stating that “the factor weighs only
slightly in favor of plaintiff” in such a situation).
Also, “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.'”
McDermed, 2014 WL 6819407, at *2 (quoting Cook
v. Atchison, Topeka & Santa Fe Ry. Co., 816 F.Supp.
667, 669 (D. Kan. 1993)).
plaintiffs seek to move the trial to Kansas City, the court
considers plaintiffs' chosen forum as Kansas City-the
location they are requesting as the place of trial.
Plaintiffs explain that they originally chose Topeka for
trial because, when they filed suit in September 2015, they
“had a large business operation in Topeka . . . with
many Topeka-based employees who regularly served”
defendant. Doc. 405 at 1. Plaintiffs assert that they filed
the lawsuit to “preserve [the] business
relationship” between plaintiffs and defendant, after
plaintiffs learned that defendant was planning to move its
billing and coding services from plaintiffs to a competing
company. After defendant moved its administrative services to
the other company, plaintiffs' “Topeka-based
operation was eliminated” and all of its Topeka-based
employees- except one-were discharged. Id. at 2.
Because plaintiffs no longer have “any meaningful
Topeka-based operations, ” they ask the court to move
the trial location to Kansas City because, they contend, it
is a more convenient location for their counsel and staff as
well as several out-of-town witnesses who plan to come to
Kansas for trial via the Kansas City airport.
responds, arguing that the court should give little weight to
plaintiffs' choice of forum-i.e., re-designation
of the trial location to Kansas City-because plaintiffs have
no connection to Kansas City. See Bright v. BHCMC,
LLC, No. 17-2529-JWL-GEB, 2018 WL 398450, at *2-3 (D.
Kan. Jan. 12, 2018) (Birzer, J.) (giving “reduced
weight” to plaintiff's chosen forum when
“[t]he 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”). The court agrees that plaintiffs' choice
of Kansas City “is lessened by the fact that they do
not reside” there. Nkemakolam v. St. John's
Military Sch., 876 F.Supp.2d 1240, 1248 (D. Kan. 2012)
(Lungstrum, J.). Nevertheless, “plaintiffs'
[re-]designation of Kansas City as the place of trial remains
at least a factor to be considered.” Id. The
court thus finds that this factor favors plaintiffs, but just
Convenience and Accessibility of Evidence
relative convenience of the forum is a primary, if not the
most important, factor to consider in deciding a motion to
transfer.” Menefee, 2009 WL 1313236, at *2. A
plaintiff's proposed forum must be “substantially
inconvenient” to warrant a change in forum.
Id. A proposed forum is substantially inconvenient
if all or practically all the witnesses reside in a different
forum and traveling to the proposed forum is a substantial
burden. Id. (holding that there was an
“enormous disparity in convenience between Kansas City
and Wichita” because all witnesses would have to travel
200 miles from Wichita to Kansas City);
Lopez-Aguirre, 2014 WL 853748, at *2 (granting
motion to designate Topeka as the place of trial rather than
Kansas City because the “great majority of witnesses
[were] located in the Topeka area” and holding trial in
Kansas City would “cause much more disruption” to
these witnesses); Nkemakolam, 876 F.Supp.2d at 1248
(denying a motion to move the trial from Kansas City to
Topeka because “the presence of a large airport makes
Kansas City a more convenient forum for plaintiffs, who must
travel to Kansas” and while “Topeka might be
marginally more convenient for [defendant] and its witnesses,
that factor is at least counter-balanced by the loss in
convenience to plaintiffs and other witnesses residing
outside the state . . . that would occur with a transfer to
some of the witnesses reside in Topeka. Defendant represents
that 18 of the 47 potential witnesses live in or around
Topeka. Doc. 410 at 4. That means the other 29 witnesses-a
majority of them-live outside Topeka. Five of defendant's
physicians live in Lawrence, Kansas-a distance that defendant
calculates as a 27-mile trip from Topeka and a 45-mile trip
from Kansas City. Doc. 410 at 4. The difference in the amount
of travel that these five physicians will incur if the trial
is held in Kansas City instead of Topeka is not so
significant that it imposes a substantial burden on them.
Also, one of defendant's physicians lives in Olathe,
Kansas-a suburb of Kansas City. And, as plaintiffs argue,
defendant now operates a radiology practice in Kansas City
that requires its physicians to travel regularly to Kansas
City to serve that site. So, plaintiffs argue, Kansas City is
not a substantially inconvenient trial location for these
physicians. Because a minority share of witnesses reside in
Topeka and requiring those witnesses to travel to Kansas City
for trial does not impose a substantial burden, the court
concludes that this factor favors designating Kansas City as
the trial location.
defendant represents that 17 of the potential witnesses must
travel to Kansas from out of state for the trial. Plaintiffs
assert that these witnesses will incur increased travel time
and expenses if the trial is held in Topeka because they will
have to travel 74 miles from the Kansas City airport to the
Topeka courthouse instead of just 17 miles from the airport
to the Kansas City courthouse. Doc. 410 at 5. Defendant
argues that the additional 57 miles that out-of-town
witnesses must travel to reach Topeka will not require them
to incur significant additional expenses. The court
disagrees. An additional 57 miles equates to at least one
more hour of travel time each way for each of the 17
out-of-town witnesses. Also, it requires the witnesses to
incur additional transportation expenses. Indeed, our court
previously has held that “the presence of a large
airport makes Kansas City a more convenient forum” for