Summary
noting that doctors often testify by deposition
Summary of this case from Holmes v. Warrior Gulf Navigation CompanyOpinion
No. 3:02-CV-0052-R
May 14, 2002
CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636 (b) and an order of the District Court, Defendant Miles R. Day's "Motion for Transfer of Venue," filed February 11, 2002, has been referred to the United States Magistrate Judge. The conclusions and recommendation of the Magistrate Judge follow:
ANALYSIS AND CONCLUSIONS
Plaintiff, Eugene V. Abravanel, M.D., a resident of Sacramento, California, filed a tort complaint based upon diversity jurisdiction for injuries he allegedly suffered as a result of medical treatment by Miles R. Day, M.D., a physician in Lubbock, Texas. Plaintiff also brought claims against Texas Tech University Health Sciences Center in Lubbock, but the District Court dismissed those claims without prejudice for lack of subject matter jurisdiction.
Defendant Day seeks this case's transfer to the Northern District of Texas, Lubbock Division, under 28 U.S.C. § 1404 (a). The party moving for change of venue bears the burden of proving that a change of venue is warranted. See Peteet v. Dow Chemical Co., 868 F.2d 1428, 1436 (5th Cir.). A district court may transfer any civil case "[f]or the convenience of parties and witnesses, in the interest of justice, . . . to any other district or division where it might have been brought." 28 U.S.C. § 1404 (a). The purpose of Section 1404(a) "is to prevent the waste "of time, energy, and money' and `to protect litigants, witnesses and the public against unnecessary inconvenience and expense . . .'" Van Dusen v. Barrack 376 U.S. 612, 616 (1964) (quoting Continental Grain Company v. Barge FBL-585, 364 U.S. 19, 26, 27, (1960)).
The decision to transfer a pending case is committed to the sound discretion of the district court. Jarvis Christian College v. Exxon Corporation, 845 F.2d 523, 528 (5th Cir. 1988). The plaintiffs choice of forum, however, is given substantial weight and should not be disturbed without giving full consideration to the equities of the particular case. See Time, Inc. v. Manning, 366 F.2d 690, 698 (5th Cir. 1966). To decide whether to transfer a case, the court should consider (1) the convenience of the parties, (2) the convenience of material witnesses, (3) the availability of process to compel the presence of unwilling witnesses, (4) the cost of obtaining the presence of witnesses, (5) the relative ease of access to sources of proof, (6) where the events in issue took place, (7) calendar congestion, and (8) the interests of justice. Gundle, 844 F. Supp. at 1165.
Convenience of the Parties and the interests of Justice
Although a court considering transfer of venue under section 1404(a) does not necessarily exercise a strong presumption in favor of the plaintiffs choice of forum, it is certainly a factor to be considered. See Contimental Airlines, Inc., v. American Airlines, Inc., 805 F. Supp. 1392, 1395 (S.D.Tex. 1992) (comparing the standard of 28 U.S.C. § 1404 (a) with the standard offorum non conveniens); Mohamed v. Mazda Motor Corporation, 90 F. Supp.2d 757, 771-74 (E.D.Tex. 2000). Some courts give the plaintiff's choice of forum substantial weight. See Time, Inc. v. Manning, 366 F.2d at 698; American Airlines, Inc. v. Rogerson ATS, 952 F. Supp. 377, 383 (N.D. Tex. 1996) (considering the plaintiff's choice of forum "the primary factor for a court to consider in deciding a motion to transfer venue").
In this case, Plaintiff has chosen this forum not merely for his own convenience, but because he suffers from serious health problems. Plaintiffs severe health problems must be given careful consideration. Plaintiff is totally disabled, cannot stand or sit for extended periods of time, experiences painful spasms and would have great difficulty traveling beyond Dallas to Lubbock. (Plaintiff's Appendix at 6, Declaration of Harvey Rose, M.D.) In fact Defendant acknowledges that Plaintiff is no longer able to travel from California to Lubbock for medical treatment and pain management. (Plaintiffs Appendix at 9-10.) Plaintiff has relatives in the Dallas area who are willing to provide lodging and care for him during the trial. (Plaintiffs Appendix at 6, Declaration of Harvey Rose, M.D.) Plaintiffs physician, Harvey L. Rose, M.D., finds that it is medically contraindicated that Plaintiff travel beyond Dallas, a location that is served non-stop by major airlines from Sacramento, California, where Plaintiff lives.
Defendant's traveling from Lubbock to Dallas is purely a matter of inconvenience and does not involve health considerations. The convenience of the parties and the interests of justice weigh heavily in favor of the Court's retaining jurisdiction.
The Convenience of Material Witnesses, Availability rocess, and Cost of Obtaining Witnesses
The convenience of the witnesses is often regarded as the most important factor to be considered in deciding whether to transfer venue. Gundle, 844 F. Supp. at 1166; Fletcher v. Southern Pacific Transportation Company 648 F. Supp. 1400, 1401-02 (E.D.Tex. 1986). Both parties have identified their witnesses and summarized the witnesses' testimony. Defendant contends that all of the witnesses, the healtheare providers, and the pertinent medical records, as well as the custodian of such records, are located within the Lubbock Division of the Northern District of Texas where the events in question took place. Plaintiff counters that the key element to be considered in determining the weight to be given to the convenience of the witnesses is the convenience of the "key witnesses" who will be called to testify at trial. See Contimental Airlines, Inc., 805 F. Supp. at 1397.
Plaintiff lists nine witnesses who are Plaintiffs treating doctors, psychologists, and physical therapists who live and work in Sacramento, California. Plaintiff contends that Defendant has not identified which of his witnesses are key witnesses who will testify at trial and contends the testimony of some of the witnesses listed in Defendant's Appendix would be cumulative.
Although it would be at least minimally inconvement for medical professionals to travel from California or Lubbock to Dallas to testify, doctors often appear by deposition in trials. At least some of the witnesses may be able to appear by deposition. Travel for record custodians and other non-key witnesses can be eliminated by stipulation or deposition. The cost of depositions would not vary greatly depending upon the location, and airfares between Dallas and Lubbock are relatively inexpensive. Plaintiff would bear the greater expense for witness travel. The Court is not convinced that the factors such as the convenience of the material witnesses, the availability of process, and the costs of obtaining the presence of the witnesses favor either party.
Sources of Proof and Where the Events in Issue Occurred
It is undisputed that the medical care for which Plaintiff seeks damages took place in Lubbock, Texas. Hence, the court assumes that most sources of proof are also located in Lubbock, Texas. However, the sources of proof for Plaintiffs damages are in Sacramento, California. Thus although the fact that the events occurred in Lubbock, Texas would ordinarily favor Lubbock as a venue, this factor is not compelling here.
Calendar Conjestion
Judge Buchmeyer has entered a scheduling order, and the parties have submitted a Joint Status Report. This case is set on Judge Buchmeyer's February 2003 jury docket. Calendar conjestion is not a problem in either venue. Athough this case is in its early stages, a transfer would involve at least some duplication of efforts by the parties and the courts. Accordingly, this factor favors retention of the case in this Division.
RECOMMENDATION
This Court has carefully considered and weighed the relevant factors. Plaintiffs proof that he cannot travel from Sacramento to Lubbock (but that he is able to travel as far as Dallas) is the deciding factor which requires this Court to retain jurisdiction in the interests ofjustice. The Court concludes that Defendant has not carried his burden of proof on the Motion to Transfer Venue. be DENIED.