Opinion
Civil Action No. 98-BB-1897
December 10, 2001
ORDER
Plaintiff Fred Bitler was seriously injured in a liquid propane explosion allegedly caused by a defective hot water heater. The accident occurred at Mr. Bitler's home on the Oldham Brothers Ranch near Meeker, Colorado.
On November 19, 2001, defendant National Propane filed a Motion for Trial in Grand Junction (the "Motion to Transfer"), now before me for determination. Defendants A.O. Smith Corporation and White Rodgers, a division of Emerson Electric Company, joined in the Motion to Transfer. The plaintiffs strongly oppose transfer. The Motion to Transfer is DENIED.
This case has been referred to me for determination on the consent of all parties pursuant of 28 U.S.C. § 636(c) and D.C.COLO.LR 72.6.
A two week jury trial is set to begin on January 28, 2002, at the United States Courthouse in Denver, Colorado. The record reflects that at the time of the preliminary pretrial conference on July 12, 1999, the defendants indicated their preference that the case be tried in Grand Junction, Colorado, rather than in Denver. Magistrate Judge O. Edward Schlatter recommended that they file an appropriate motion. Court Minutes of Preliminary Pretrial Conference, dated July 12, 1999.
In support of the Motion to Transfer, the defendants argue that "[a]ll the witnesses to the incident . . . reside in the Grand Junction Division Area," and that most of the expert witnesses will be traveling from out of state to attend the trial. Defendants A.O. Smith Corp. (etc.) Memorandum In Support of . . . Motion for Trial In Grand Junction (the "A.O. Smith Memorandum In Support"), at p. 1. Consequently, according to the defendants, trial in Grand Junction will be more convenient for the non-party witnesses.
The state of Colorado constitutes a single judicial district with one division. See 28 U.S.C. § 85. There is no separate Grand Junction Division of the court, as the parties argue in their briefs. The District of Colorado is divided into four jury divisions, however — Denver (composed of 24 counties in the northeast portion of the state); Grand Junction (composed of 14 counties predominantly on the Western Slope); Pueblo (composed of 21 counties in the southern tier of the state); and Durango (composed of 5 counties in the southwestern corner of the state). District of Colorado Amended Plan for the Random Selection of Grand and Petit Jurors, adopted Feb. 14, 2001. An intra-division transfer, such as the defendants seek here, is governed by 28 U.S.C. § 1404(c), which provides that "[a] district court may order any civil action to be tried at any place within the division in which it is pending."
28 U.S.C. § 85 provides:
Colorado constitutes one judicial district. Court shall be held at Boulder, Denver, Durango, Grand Junction, Montrose, Pueblo, and Sterling.
In deciding a motion for intra-division transfer, courts generally look to the factors relevant under 28 U.S.C. § 1404(a) to a transfer between districts or divisions. See Grossman v. Smart, 1995 WL 767893 **1 (7th Cir. Dec. 29, 1995); Lavin v. The Lithibar Co., 2001 WL 1175096 *1 (D.Kan. Sept. 19, 2001); Shaffer v. Union Pacific Railroad, 1995 WL 561455 *1 (D. Ore. Sept. 14, 1995). Under § 1404(a), a district court should consider the following: (1) the 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 considerations of a practical nature that make a trial easy, expeditious, and economical. Lavin, 2001 WL 1175096 at *1; see Chrysler Credit Corp. v. Country Chrysler, Inc., 928 F.2d 1509, 1515-16 (10th Cir. 1991). The party seeking to transfer a case has the burden of proving that the existing forum is inconvenient, and the plaintiff's choice of forum should be disturbed only when the balance of factors tips strongly in favor of transfer. Lavin, 2001 WL 1175096 at *1; see Scheit v. Klein, 956 F.2d 963, 965 (10th Cir. 1992). In addition, a court must "adjudicate motions for transfer according to an `individualized, case-by-case consideration of convenience and fairness.'" Stewart Org. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (quoting Van Dusen v. Barrack, 376 U.S. 612, 622 (1964)).
28 U.S.C. § 1404(a) states:
For 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.
(1) Plaintiff's Choice of Forum
Where an action is commenced in Denver and there is no motion under § 1404(c) to change the place of trial, it is the practice in this district ordinarily to conduct the trial in Denver. In addition, in this case Denver is closer to and more readily accessed from the plaintiffs' residence in Bennington, Kansas.
The defendants argue that the plaintiffs' choice of forum in Denver is "given less weight when the plaintiffs do not reside in the requested forum," citing Cargill, Inc. v. Prudential Ins., 920 F. Supp. 144, 146 (D.Colo. 1996). A.O. Smith Memorandum In Support, at p. 2. The Cargill case presented very different facts, however, and provides little guidance in assessing convenience and fairness here. Specifically, in Cargill suit was brought in Denver by a Delaware corporation with its principal offices in Minnesota against a New Jersey corporation with principal offices in Newark. The cause of action concerned the manner in which the defendant administered the plaintiff's health care plan. The plaintiff had employees in several states, and fewer than 10 percent of those employees were in Colorado. Under those facts, the court in Cargill stated that "little deference is accorded a plaintiff's choice of forum where plaintiff has chosen a district in which a corporate defendant is doing business, but which has no factual connection to the lawsuit." Id., at p. 147. This case, by contrast, involves individual plaintiffs who reside closer to Denver than to Grand Junction. In addition, Mr. Bitler received medical treatment in Denver following the explosion. Thus there is a factual connection in this case to Denver, and a reasonable explanation exists for the plaintiffs' choice of Denver as the place of trial. I will give the plaintiffs' choice of forum great weight. Int'l Power Machinery, Inc. v. Midwest Energy, Inc., 1997 WL 614341*1 (D.Kan. Sept. 26, 1997) (stating that the court "must give great weight . . . to the plaintiff's choice of forum").
(2) Convenience of the Witnesses
The defendants have identified 16 non-party fact witnesses who "reside in the Grand Junction Division Area," A.O. Smith Memorandum in Support at p. 1, and "in close proximity to Grand Junction." National Propane Memorandum In Support at p. 2. On closer scrutiny, however, it appears that a number of the non-party fact witnesses identified by the defendants reside in or near Rifle, Colorado (64 miles from Grand Junction; 182 miles from Denver); Rio Blanco, Colorado (83 miles from Grand Junction; 201 miles from Denver); Meeker, Colorado (103 miles from Grand Junction; 221 miles from Denver); and Craig, Colorado (153 miles from Grand Junction; 194 miles from Denver). All of these witnesses will have to travel at least one hour to reach a federal courthouse, whether the trial is held in Grand Junction or in Denver.
These distances are base on Rand McNally, The Road Atlas: United States, Canada Mexico (2002 ed).
Three of the fact witnesses identified by the defendants are medical doctors who treated Mr. Bitler after the explosion, and they do practice in Grand Junction. As to them, trial in Grand Junction would be more convenient. Two other treating physicians live in Denver, however, and for them trial in Grand Junction would be less convenient.
The parties have retained numerous experts who will testify at trial. The experts are located across the nation, including the Denver metropolitan area, Minnesota, New York, Missouri, Wisconsin, and California. It is, or course, more convenient to fly to Denver, a major international airport, than it is to fly to the mountainous regional airport in Grand Junction. One expert is located in Grand Junction, but he is an expert for the plaintiff.
On balance, I find that the defendants have failed to show that trial in Denver is inconvenient to the witnesses.
(3) Accessibility to Sources of Proof
There is no issue concerning the ability of the court to subpoena witnesses, whether trial is in Denver or in Grand Junction. Colorado is a single district, and the witnesses in Grand Junction, Rifle, Rio Blanco, Meeker, and Craig all are subject to the subpoena power of this court regardless of whether the trial is in Denver or in Grand Junction.
The defendants argue that they anticipate requesting that the jury view the scene of the explosion. No motion for a view has been filed, and the defendants do not state with certainty that such a motion is forthcoming. It is not immediately apparent to me, based on the present record, what benefit would result from a jury view of the scene more than five years after the explosion. See Int'l Power Machinery, 1997 WL 614341 at *2. In addition, among the exhibits listed by the plaintiffs in the Preliminary Pretrial Order are numerous photographs of the scene. There has been no attempt to explain, let alone substantiate, why evidence of the physical condition of the scene cannot be presented through photographs. See Knapp v. Romer, 909 F. Supp. 810, 813 (D.Colo. 1995).
I conclude that the defendants have not shown that evidence necessary for trial is not readily accessible if the trial occurs in Denver.
(4) Possibility of Obtaining a Fair Trial
The defendants do not suggest that there is any reason a fair trial cannot occur in Denver.
(5) Practical Considerations for an Easy, Expeditious, and Economical Trial
To summon a jury in the Grand Junction Jury Division would require a minimum of five weeks time. No such jury has been summoned for late January, and to do so now would place a substantial burden on the court. This problem is of the defendants making, because they have delayed their request for more than three years since answering and more than two years since the preliminary pretrial conference, at which they were advised by Judge Schlatter to file a motion to transfer if that was their intention.
In weighing the appropriate factors, I find that the defendants have failed to establish that trial in Denver would be sufficiently inconvenient to tip the balance of equities in favor of transferring the trial to Grand Junction. Accordingly,
IT IS ORDERED that the Motion to Transfer is DENIED.