United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA United States District Judge.
matter is before the court on defendant Coulter and
Associates, Inc.'s Motion to Transfer Venue Pursuant to
28 U.S.C. § 1404. (Doc. 16.)
case arises from plaintiff's attempts to expand its
business to include short-term medical insurance
(“STM”) products. Because the STM field is
subject to varying state-by-state regulations, plaintiff
contracted with defendant for development, compliance, and
filing services in support of plaintiff's STM product.
Plaintiff alleges that negligence and inadequacies in
defendant's services led to the Massachusetts Attorney
General's Office (“MAGO”) launching an
investigation of plaintiff's Massachusetts STM product
for failure to comply with various state laws and
regulations. Plaintiff incurred substantial damages through
both the settlement of that matter and defending several
follow-on investigations of plaintiff's other STM
products in other states.
the MAGO's investigation, defendant allegedly spoke with
a representative of the Massachusetts Division of Insurance
(“MDOI”), Mr. Ed Charbonnier. Defendant alleges
that it relied on conversations with Mr. Charbonnier when
advising plaintiff on regulatory and legal compliance under
Massachusetts law. Defendant asks the court to transfer this
case to the District of Massachusetts because one of
plaintiff's STM products was marketed in Massachusetts,
the MAGO was the first Office to investigate plaintiff's
STM product and trigger the other investigations,
plaintiff's settlement in the MAGO investigation was paid
to persons in Massachusetts, and because Mr. Charbonnier is
allegedly located there.
1404(a) is a “judicial housekeeping measure”
designed “to prevent the waste of time, energy and
money and to protect litigants, witnesses and the public
against inconvenience and expense” by allowing easy
change of venue. Van Dusen v. Barrack, 376 U.S. 612,
616, 636 (1964) (citation and quotation marks omitted). To
facilitate these goals, “[f]or the convenience of
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 or to any district
or division to which all parties have consented.” 28
U.S.C. § 1404(a). A motion for transfer under Section
1404(a) is reviewed “according to an individualized,
case-by-case consideration of convenience and
fairness.” Chrysler Credit Corp. v. Country
Chrysler, Inc., 928 F.2d 1509, 1516 (10th Cir. 1991)
(citing Stewart Org. v. Ricoh Corp., 487 U.S. 22, 29
(1988)). The moving party bears the burden of showing that
the existing forum is inconvenient. Id. at 1515.
To determine whether to transfer a case, the court considers:
[P]aintiff's choice of forum; the accessibility of
witnesses and other sources of proof, including the
availability of compulsory process to insure the attendance
of witnesses; the cost of making the necessary proof;
questions as to 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 the existence of questions arising in the area
of conflict of laws; 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.
Id. at 1516 (quoting Texas Gulf Sulfur Co. v.
Ritter, 371 F.2d 145, 147 (10th Cir. 1967)).
will rarely be granted unless the above factors weigh
strongly in the moving party's favor, and transfer is not
appropriate merely to shift burdens from one party to
another. See KCJ Corp. v. Kinetic Concepts, Inc., 18
F.Supp.2d 1212, 1214 (D. Kan. 1998) (citing Scheidt v.
Klein, 956 F.2d 963, 965 (10th Cir. 1992)).
argues that the District of Kansas is an inconvenient forum
because (1) at least one witness and some evidence may be
more easily obtained in Massachusetts, and (2) this case may
involve issues of Massachusetts law. Defendant does not argue
that other considerations weigh in its favor. Plaintiff
argues that most of the relevant evidence is likely within
the parties' control, the court's subpoena power is
sufficient for any witnesses in Massachusetts, and that no
other considerations plausibly weigh in defendant's
demonstrate inconvenience, the moving party must (1) identify
the witnesses and their locations; (2) indicate the quality
or materiality of their testimony; and (3) show that the
witnesses are unwilling to appear at trial, that deposition
testimony would be insufficient, or that the court's
compulsory process would be ...