Austin v. Nestle USA, Inc., Civ. No. 09-2675 (RHK/JSM).

• Decision Date: 28 December 2009
• Docket Number: Civ. No. 09-2675 (RHK/JSM).
• Citation: 677 F. Supp.2d 1134
• Parties: Brandy AUSTIN, individually and as mother and natural guardian of Christa B. Austin, Plaintiff, v. NESTLE USA, INC., Defendant.
• Court: U.S. District Court — District of Minnesota

677 F.Supp.2d 1134

Brandy AUSTIN, individually and as mother and natural guardian of Christa B. Austin, Plaintiff, v. NESTLE USA, INC., Defendant.

Civ. No. 09-2675 (RHK/JSM).

United States District Court, D. Minnesota.

December 28, 2009.

Stephen C. Rathke, Lommen, Abdo, Cole, King & Stageberg, PA, Minneapolis, MN, for Plaintiff.

James A. O'Neal, Kristin R. Eads, James E. Springer II, Faegre & Benson LLP, Minneapolis, MN, Samuel L. Felker, Jody E. O'Brien, Bass, Berry & Sims PLC, Nashville, TN, for Defendant.

MEMORANDUM OPINION AND ORDER

RICHARD H. KYLE, District Judge.

INTRODUCTION

This action arises out of the ingestion of powdered infant formula by Plaintiff Brandy Austin's daughter, Christa, shortly after her birth.¹ On behalf of herself and Christa, she sued Defendant Nestle USA, Inc. ("Nestle"), the formula's manufacturer, alleging that Christa suffered severe brain damage because the formula was contaminated with Enterobacter sakazakii bacteria. Nestle now moves to transfer this action to the United States District Court for the District of South Carolina. For the reasons set forth below, the Court will grant the Motion.

BACKGROUND

Plaintiff, a South Carolina resident, gave birth to Christa on September 19, 2006, at Spartanburg Regional Medical Center in Spartanburg, South Carolina. (Am. Compl. ¶¶ 1, 4.) Plaintiff and Christa were discharged from the hospital two days later; at that time, the hospital gave Plaintiff an unsolicited gift bag containing a can of Nestle Good Start Supreme powdered infant formula. (Id. ¶ 5.) According to Plaintiff, the formula was contaminated with Enterobacter sakazakii bacteria. (Id. ¶ 16.)²

Following their discharge, Plaintiff exclusively fed Christa the powdered infant formula she had been given. (Id. ¶ 7.) Three days later, Christa began to exhibit symptoms of a possible infection. (Id. ¶ 8.) She was then taken to the emergency room at Wallace Thomson Hospital in Union, South Carolina, for treatment. (Id. ¶ 8.) The Complaint does not specify precisely what occurred there, noting only that she was "evaluated and discharged." (Id.)

The following morning, September 25, 2006, Christa remained ill. As a result, Plaintiff took her to Spartanburg Regional Medical Center. (Id. ¶ 9.) There, she was diagnosed with Enterobacter sakazakii meningitis and was transferred to Greenville Hospital System University Medical Center in Greenville, South Carolina. (Id.) According to Plaintiff, the meningitis resulted in severe brain damage that will prevent Christa from ever living independently. (Id. ¶¶ 9, 72.)

Plaintiff later commenced the instant action against Nestle in Hennepin County District Court, alleging various tort and warranty claims. Nestle timely removed it to this Court and now moves to transfer it to the District of South Carolina.

STANDARD OF REVIEW

28 U.S.C. § 1404(a) provides that "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." A court faced with a motion to transfer, therefore, must undertake a two-part inquiry. "The initial question. . . is whether the action might have been brought in the proposed transferee district. If so, the Court must then consider the convenience and interest of justice factors." Totilo v. Herbert, 538 F.Supp.2d 638, 639-40 (S.D.N.Y.2008).

As the text of Section 1404(a) makes clear, three general factors inform whether a district court should grant a motion to transfer: (1) the convenience of the parties, (2) the convenience of the witnesses, and (3) the interests of justice. See also Terra Int'l. Inc. v. Miss. Chem. Corp., 119 F.3d 688, 691 (8th Cir.1997). A district court may also consider any other factors it finds relevant when deciding whether transfer is warranted. Id. There is no precise mathematical formula to be employed when balancing these factors. As one court has noted, "`weighing' and `balancing' are words embodying metaphors which, if one is not careful, tend to induce a fatuous belief that some sort of scales or weighing machinery is available. Of course it is not. At best, the judge must guess, and we should accept his guess unless it is too wild." Ford Motor Co. v. Ryan, 182 F.2d 329, 331-32 (2d Cir.1950). Hence, a district court enjoys "much, discretion" when deciding whether to grant a motion to transfer. Terra Int'l, 119 F.3d at 697.

Courts must be cognizant, however, that transfer motions "should not be freely granted." In re Nine Mile Ltd., 692 F.2d 56, 61 (8th Cir.1982), abrogated on other grounds by Mo. Hous. Dev. Comm'n v. Brice, 919 F.2d 1306 (8th Cir.1990). A "heavy" burden rests with the movant to demonstrate why a case should be transferred. E.g., Integrated Molding Concepts, Inc. v. Stopol Auctions L.L.C., Civ. No. 06-5015, 2007 WL 2263927, at *5 (D.Minn. Aug. 6, 2007) (Schiltz, J., adopting Report & Recommendation of Erickson, M.J.); Radisson Hotels Int'l. Inc. v. Westin Hotel Co., 931 F.Supp. 638, 641 (D.Minn.1996) (Kyle, J.). To satisfy that "heavy" burden, the movant must demonstrate that the relevant factors weigh "strongly" in its favor. Id.

ANALYSIS

The first question in the transfer analysis—whether this action "might have been brought" in the District of South Carolina—is not in dispute. Hence, the Court proceeds directly to the second (and final) question: do the convenience of the parties, the convenience of the witnesses, and the interests of justice, taken collectively, weigh "heavily" in favor of transfer? The Court concludes that this question should be answered in the affirmative.

I. Convenience of parties

The first factor, the convenience of the parties, is neutral. On one hand, there cannot be any serious dispute that South Carolina is a more convenient forum than Minnesota for Plaintiff, a South Carolina resident. See Hughes v. Wheeler, 364 F.3d 920, 924-25 (8th Cir.2004) ("There is no doubt some inconvenience in litigating a case far from home.").³ This is particularly true given Christa's alleged medical condition; obviously, Plaintiff cannot attend to her daughter's serious medical needs if she is compelled to travel halfway across the country for a deposition or trial.⁴ On the other hand, Nestle will be inconvenienced regardless of where this case is venued—it is headquartered in California; Nestle Nutrition, the Nestle subsidiary that manufactured the formula in question, is headquartered in New Jersey; and the Nestle laboratory that tested the formula is located in Ohio. At first blush, therefore, it would seem that the convenience-of-parties factor favors transfer.⁵

Yet, Plaintiff correctly notes that the subject formula was manufactured at a Nestle Nutrition plant in Eau Claire, Wisconsin, approximately 70 miles from St. Paul. Nestle employees with pertinent information may be located there, and litigating in Minnesota rather than South Carolina will be far more convenient for such individuals.⁶ Moreover, Nestle has several offices in this state, lessening the inconvenience for out-of-state employees traveling here for depositions or for trial.⁷

Because there are facts pressing on both sides of the convenience-of-parties scale, the Court concludes that this factor favors neither Minnesota nor South Carolina.

II. Convenience of Witnesses

Regarding the convenience of witnesses—which is often considered the most important factor in the transfer analysis, 15 Wright, Miller & Cooper, Federal Practice & Procedure: Jurisdiction § 3849 at 199 (3d ed.2007)—the Court focuses on non-parties because "it is generally assumed that witnesses within the control of the party calling them, such as employees, will appear voluntarily in a foreign forum." FUL Inc. v. Unified Sch. Dist. No. 204, 839 F.Supp. 1307, 1311 (N.D.Ill.1993): accord Continental Airlines, Inc. v. Am. Airlines, Inc., 805 F.Supp. 1392, 1397 (S.D.Tex.1992). Here, the key non-party witnesses are located in or near South Carolina.

For example, Christa's treating physicians—those treating her currently and those treating her when she first fell ill— will provide important information regarding her medical condition and her prognosis. Plaintiff concedes that these individuals are located in South Carolina but attempts to deflect the importance of their testimony, arguing that "Christa's condition is what it is" and that her physicians will "have little to say concerning the central issue in this case," namely, whether the formula was contaminated. (Mem. in Opp'n at 10-11.) Yet, the physicians are likely to have information relevant to causation—for instance, whether the symptoms Christa exhibited as a newborn were consistent with bacterial meningitis—and may be particularly relevant for any third-party claims Nestle might later assert (as discussed in more detail below). They will also provide information regarding the extent of Christa's injuries, which is critical to any assessment of damages, see, e.g., Foley v. United States, No. 09-cv-239, 2009 WL 3400997, at *3 (D.Me. Oct. 19, 2009) (testimony by friends and medical providers regarding plaintiff's damages relevant to convenience of witnesses analysis), particularly in a case involving life-long injuries suffered by a newborn.

Moreover, each of these witnesses is beyond the subpoena power of this Court and, hence, could not be compelled to testify at trial if this case were to remain here. While the parties could preserve these witnesses' testimony for trial by videotaping their depositions, the Court believes that "trial by videotape is simply not preferable to live examination in front of a jury." In re Aredia & Zometa Prods. Liab. Litig., No. 3:06-MD-1760, 2008 WL 686213, at *3 (M.D.Tenn. Mar. 6, 2008); accord, e.g., Kay v. Nat'l City Mortgage Co., 494 F.Supp.2d 845, 853 (S.D.Ohio 2007); Hoppe v. G.D. Searle & Co., 683 F.Supp. 1271, 1276 (D.Minn.1988) (Renner, J.) ("Forcing the defendant to conduct its case by...