Opinion
Civil Action No. 02-2186-CM
August 7, 2002
MEMORANDUM AND ORDER
Plaintiff has filed the instant lawsuit in federal district court in the city of Kansas City, Kansas. Defendants request, pursuant to D. Kan. Rule 40.2, that the court issue an order determining the place of docketing, maintenance, and trial to be in Wichita, Kansas. This matter is before the court on defendants' Request for Determination of Wichita as the Place for Docketing, Maintenance and Trial (Doc. 10).
The subject matter of this lawsuit involves real estate located in the city of Wichita, Kansas. The case involves a dispute over various agreements, most notably a Lease Agreement dated July 19, 1972, between defendants and plaintiff's predecessor in interest, a Kansas corporation with its principal place of business in Wichita, Kansas. Plaintiff is located in the Kansas City metropolitan area. Defendants are not residents of Kansas.
The complaint in this case arises out of the same facts and occurrences and involves the identical parties as a previously filed case, Civil Action No. 01-1044-JTM. That case was voluntarily dismissed without prejudice. Defendants contend that the initial disclosures filed in that case reveal that many of the witnesses with substantive information are located in Wichita and that virtually none of the witnesses, with the exception of plaintiff's representatives, are located in Kansas City. Defendants also argue that they will be prejudiced if the case stays in Kansas City because, they assert, some discovery already occurred in the previous case.
Pursuant to D. Kan. Rule 40.2, the court may in its discretion determine the place of trial. Included among the factors to be considered are the plaintiff's choice of forum, the convenience of the witnesses, the accessibility of the witnesses and other sources of proof, the relative advantages and obstacles to a fair trial, and "all other considerations of a practical nature that make a trial easy, expeditious and economical." Chrysler Credit Corp. v. Country Chrysler, Inc., 928 F.2d 1509, 1515-16 (10th Cir. 1991). The court notes that the plaintiff's choice of forum is given great deference. Scheidt v. Klein, 956 F.2d 963, 965 (10th Cir. 1992). However, where the plaintiff's choice of forum is not its residence, that consideration is given much less weight. Ervin Assocs., Inc. v. Cisneros, 939 F. Supp. 793, 799 (D.Colo. 1996).
The court finds that the appropriate place for docketing, maintenance, and trial is Kansas City. The court first notes that plaintiff chose Kansas City as the place for trial and, accordingly, that choice is given great deference, especially in light of the fact that plaintiff is itself located in Kansas City. Moreover, a review of the previously filed witness and exhibit lists show that, while many witnesses expected to testify are from Wichita, there also are witnesses from Kansas City, Topeka, New Jersey, and New York. Moreover, there were a substantial number of witnesses whom plaintiff designated "Unknown at this time" in the "Address" category. The court will not presume that each of those witnesses are from Wichita. Thus, the court finds unavailing defendants' argument regarding the location of witnesses.
The court also is not convinced that maintaining this case in Kansas City will be prejudicial to defendants. The parties have agreed that the discovery conducted in the previous case will be used in this case. As such, there is no apparent prejudice to defendants regarding former discovery that has taken place. Defendants' motion is denied. IT IS THEREFORE ORDERED that defendants' Request for Determination of Wichita as the Place for Docketing, Maintenance and Trial (Doc. 10) is denied.