Opinion
Case No. 02-2597-JWL
March 16, 2004
MEMORANDUM AND ORDER
This personal injury action is before the court on the motion of plaintiff Benjamin Clayman to change venue (Doc. 20). Plaintiff asks the court to transfer this action to the United States District Court for the District of the Virgin Islands so that this case can be consolidated with a related case that arose from the same incident that is pending in the Virgin Islands. For the reasons explained below, the court will deny plaintiff's motion.
Plaintiff's complaint alleges that in late 2000 he was vacationing at a resort owned by defendant Starwood Hotels Resorts Worldwide, Inc. d/b/a Westin Resorts ("Starwood") on the island of St. John in the United States Virgin Islands. During plaintiff's stay, he used the weight machines at the resort's gym facilities. While he was using a lat pull-down machine, a cable on the machine broke and the stack of weights crashed into his skull. He was immediately taken to a health clinic on the island and treated for a concussion. He continues to receive medical treatment for his injuries, including taking medication for chronic, severe, and debilitating headaches caused by the concussion.
The machine was manufactured by Paramount Fitness Corp. ("Paramount Fitness"), a company with its principal place of business in Los Angeles. Plaintiff originally filed his complaint in this case against Starwood and Paramount Fitness, but the court dismissed plaintiff's complaint against Paramount Fitness for lack of jurisdiction (Doc. 12). Subsequently, plaintiff filed a complaint against Paramount Fitness in the United States District Court for the District of the Virgin Islands. Plaintiff now asks the court to transfer this case to the Virgin Islands so that it can be consolidated with the case pending there against Paramount Fitness.
A motion for transfer to a more convenient forum is governed by 28 U.S.C. § 1404(a), which permits a district court, "[f]or the convenience of the parties and witnesses, in the interest of justice [to] transfer any civil action to any other district or division where it might have been brought." Id.; accord Trierweiler v. Croxton Trench Holding Corp., 90 F.3d 1523, 1544 (10th Cir. 1996). Section 1404(a) affords the district court broad discretion to adjudicate motions to transfer based upon a case-by-case review of convenience and fairness. Chrysler Credit Corp. v. Country Chrysler, Inc., 928 F.2d 1509, 1516 (10th Cir. 1991) (quoting Stewart Org. v. Ricoh Corp., 487 U.S. 22, 29 (1988)). The party seeking to transfer the case has the burden of proving that the existing forum is inconvenient. Scheldt v. Klein, 956 F.2d 963, 965 (10th Cir. 1992). The court should consider the following factors in determining whether to transfer a case:
the plaintiff's choice of forum; the accessibility of witnesses and other sources of proof, including the availability of compulsory process to insure 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.Chrysler Credit Corp., 928 F.2d at 1516.
As to the first consideration — that is, the plaintiff's choice of forum-this case is somewhat rare in the sense that typically it is the defendant who moves to transfer a case to another venue. Here, however, it is the plaintiff who initially chose this forum and who now seeks to transfer the case to another venue. Under these circumstances, "the burden should be at least as heavy on a plaintiff, seeking to change a forum that he had himself selected, as it is when the defendant is the moving party." 15 Charles Alan Wright et al., Federal Practice Procedure § 3848, at 393-94 (2d ed. 1986) (citing case law, and observing that "[i]t is one thing to give weight to plaintiff's initial choice of forum, but it seems odd that a plaintiff . . . should have great weight given to her second choice"). Thus, the plaintiff's initial choice of forum, i.e., this court, is a factor that weighs in favor of retaining the case here.
The second factor the court must consider is the accessibility of witnesses and other sources of proof, including the availability of compulsory process. As plaintiff points out, "at least four of the Westin employees who made out incident reports, the employee who used the same exercise machine prior to plaintiff's use, and the managers and employees responsible for the installation and maintenance of the resort's gym facilities all reside in the Virgin Islands." On the other hand, though, Starwood has offered to make its witnesses in the Virgin Islands available via a video or telephone for deposition. Further, Starwood argues that plaintiff resides in Kansas, and plaintiff's medical care providers and witnesses as well as documents associated with his economic damages are located in Kansas. Given the locations of the witnesses in Kansas and the Virgin Islands, compulsory process will be unavailable as to some of the witnesses whether the court retains the case or transfers the case to the Virgin Islands. Starwood's company witnesses are located in New York, and Starwood states that traveling from New York to Kansas is much more convenient and cost effective for those witnesses than traveling from New York to the Virgin Islands. The court finds that this factor weighs slightly in favor of retaining the case here.
The parties do not discuss the next few factors, and the court is of the opinion that they do not weigh in favor of either party.
Lastly, the court will evaluate practical considerations that make a trial easy, expeditious, and economical. Plaintiff argues the court should transfer this case to the Virgin Islands because consolidation of the two cases will be more efficient. The court agrees that consolidation of the two cases would certainly be more efficient for plaintiff because plaintiff would be able to avoid the burden of conducting two sets of pretrial discovery, retaining two sets of experts, and conducting two separate trials. Nevertheless, the belated nature of plaintiff's motion certainly does little to promote the easy, expeditious, and economical resolution of this case. The court dismissed Paramount Fitness from this litigation more than nine months ago on June 6, 2003. Since then, the court held the initial scheduling conference in this case nearly seven months ago on August 19, 2003. During that conference, the court set a discovery deadline of February 27, 2004, and set the final pretrial conference for today. Plaintiff then waited more than five months, until January 30, 2004, which was less than a month before the February 27, 2004, discovery deadline which was in place at that time, before filing the motion to change venue. At this late date, the court is not particularly sympathetic to plaintiff's plight — which is a plight plaintiff has been well aware of for more than nine months — regarding the burdensome nature of pursuing somewhat duplicative litigation against Starwood in this court and the related case against Paramount Fitness in the Virgin Islands. In addition, transferring the case at this late date would be inconvenient for defense counsel, who is already entrenched in pursuing the case in this court. Thus, the court finds that practical considerations regarding consolidation weigh in plaintiff's favor, but only slightly given plaintiff's substantial delay in seeking the transfer.
On balance, then, the court finds that these considerations do not warrant transferring this case to the Virgin Islands. The court is simply unpersuaded that plaintiff has borne his burden of proving that pursuing this case in this court will be sufficiently inconvenient that a transfer of the case is warranted.
IT IS THEREFORE ORDERED BY THE COURT that plaintiff's motion to change venue (Doc. 20) is denied.
IT IS SO ORDERED this 16th day of March, 2004.