Opinion
Case No. 02-2337-JWL
April 2, 2004
MEMORANDUM ORDER
Plaintiff filed suit against defendants alleging that defendants unlawfully terminated his employment on the basis of his race and/or in retaliation for Plaintiff's engaging in protected activity, both in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. On February 13, 2004, the court granted in part and denied in part defendants' motion for summary judgment. Specifically, the court granted the motion with respect to Plaintiff's race discrimination claim, denied the motion with respect to Plaintiff's retaliation claim and denied the motion to the extent defendants sought to limit Plaintiff's remedies based on the after-acquired evidence doctrine. Moreover, the court rejected defendants' argument that Plaintiff's claims were barred by the doctrine of claim preclusion. This matter is presently before the court on defendants' motion to transfer the case to Wichita, Kansas for trial (doc. 96) and defendants' motion to reconsider that portion of the court's summary judgment order rejecting defendants' claim preclusion argument (doc. 97). Both motions are denied.
The court begins with defendants' request that the court transfer this case to Wichita for trial purposes. According to defendants, the case should be transferred because nearly all of the witnesses live and work in Wichita, the Plaintiff's claim arose in Wichita, the plaintiff lives in Wichita and defense counsel live in Wichita. Defendants contend that these factors are sufficient to override Plaintiff's designation of Kansas City, Kansas as the place of trial when, as defendants assert, the only factor connecting this case to Kansas City is that Kansas City is where Plaintiff's counsel resides. In response, plaintiff urges the court to uphold Plaintiff's choice of forum because defendants have not met their burden of proving that Kansas City is an inconvenient forum.
As this court has previously noted, a Plaintiff's choice of forum should be respected and rarely disturbed. See Wiggans v. Hartford Life Accident Ins. Co., 2002 WL 731701, at *1 (D. Kan. Apr. 15, 2002) (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 265-66 (1981) (there is ordinarily a strong presumption in favor of the Plaintiff's choice of forum)). In considering a request for intradistrict transfer, the court looks to the factors relevant to change of venue motions under 28 U.S.C. § 1404(a). See id. at *2. Such factors include the Plaintiff's choice of forum, the convenience for witnesses, the accessibility of witnesses and other sources of proof, the possibility of obtaining a fair trial, and "all other considerations of a practical nature that make a trial easy, expeditious and economical." See id. (quoting Chrysler Credit Corp. v. Country Chrysler, Inc., 928 F.2d 1509, 1515-16 (10th Cir. 1991)). The party seeking to transfer the case has the burden of proving that the existing forum is inconvenient. Id. (citing Scheldt v. Klein, 956 F.2d 963, 965 (10th Cir. 1992)).
The court agrees with plaintiff that defendants have not met their burden of showing that Kansas City is an inconvenient place for trial and have not overcome the presumption in favor of plaintiffs designation. Defendants do not suggest that witnesses and other sources of proof will not be accessible in Kansas City and they do not suggest that the trial should be transferred for purposes of obtaining a fair trial. The only factor in the § 1404(a) analysis upon which defendants rely, then, is the convenience of the witnesses. While the court appreciates that Kansas City will not be the most convenient forum for the vast majority of the witnesses, the court is unwilling to override Plaintiff's designation simply for the convenience of witnesses in the absence of other factors weighing in favor of transfer ( e.g., fair trial concerns, accessibility of evidence). Defendants' motion, then, is denied.
Defendants also move the court to reconsider that portion of its summary judgment order denying defendants' argument that Plaintiff's claims are barred by the doctrine of claim preclusion. A motion seeking reconsideration "shall be based on (1) an intervening change in controlling law, (2) the availability of new evidence, or (3) the need to correct clear error or prevent manifest injustice." D. Kan. R. 7.3(b). Reconsideration is also appropriate where a court "has obviously misapprehended a party's position on the facts or the law." See Hammond v. City of Junction City, 168 F. Supp.2d 1241, 1244 (D. Kan. 2001). According to defendants, reconsideration is appropriate in this case to prevent the manifest injustice that will necessarily result if plaintiff is permitted to proceed with his retaliation claim a second time.
While defendants style their motion as a motion to alter or amend the judgment, no judgment has been entered in this case and, thus, the motion is not properly brought pursuant to Federal Rule of Civil Procedure 59(e). While the local rules governing motions to reconsider do not appear to apply to this case as the issue that defendants want the court to reconsider is a dispositive one, the court nonetheless retains the inherent power to reconsider the issue because no judgment has been entered. Thus, the court construes defendants' motion as a motion to reconsider pursuant to Local Rule 7.3(b). In any event, the issue is largely irrelevant as the standard for reconsideration under Local Rule 7.3(b) and the standard under Rule 59(e) are essentially the same. See Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (grounds warranting a Rule 59(e) motion include an intervening change in the controlling law; new evidence previously unavailable; and the need to correct clear error or prevent manifest injustice).
The motion is denied. Significantly, defendants' motion to reconsider is based on defendants' apparent belief that the court rejected defendants' claim preclusion argument "because plaintiff did not seek leave to add an additional retaliation claim to his existing Complaint" in the case before Judge Murguia. Defs. Motion at 2. However, that is not why the court rejected the argument. The court rejected the argument because the circumstances surrounding Plaintiff's retaliation claim in this case ( i.e., his termination) were not in existence at the time he filed his initial complaint in the first case and, thus, he was under no obligation to amend his complaint. See Johnson v. Board of County Comm'rs of Johnson County, Kansas, 1999 WL 1423072, at *3 (D. Kan. Dec. 9, 1999) ("Because a plaintiff has no obligation to expand his or her suit in order to add a claim that he or she could not have asserted at the time the suit was commenced, several circuits have held that res judicata does not bar a second lawsuit to the extent that suit is based on acts occurring after the first suit was filed."). While defendants in their reply brief to their motion to reconsider again attempt to distinguish the Johnson case from the facts of this case, those arguments are simply not persuasive to the court and the court reiterates its conclusion that plaintiffs' retaliation claim is not barred by the doctrine of claim preclusion.
IT IS THEREFORE ORDERED BY THE COURT THAT defendants' motion to transfer the case for trial purposes (doc. 96) is denied and defendants' motion to alter or amend (doc. 97) is denied.