Cunningham v. Cunningham

• Decision Date: 26 September 1979
• Docket Number: No. 78 C 1001.,78 C 1001.
• Citation: 477 F. Supp. 632
• Parties: Lori CUNNINGHAM, Plaintiff, v. Robert M. CUNNINGHAM, Defendant.
• Court: U.S. District Court — Northern District of Illinois

477 F. Supp. 632

Lori CUNNINGHAM, Plaintiff, v. Robert M. CUNNINGHAM, Defendant.

No. 78 C 1001.

United States District Court, N. D. Illinois, E. D.

September 26, 1979.

Robert Gonnella, Elmhurst, Ill., for plaintiff.

Walter H. Djokic, Pretzel, Stouffer, Nolan & Rooney, Chicago, Ill., for defendant.

MEMORANDUM OPINION AND ORDER

ASPEN, District Judge:

Lori Cunningham ("plaintiff") brought suit in the Northern District of Illinois against Robert Cunningham ("defendant") for injuries arising out of a shooting incident in Van Buren County, Michigan, in 1972. Plaintiff is a resident of Illinois and the Northern District, and the defendant resides in the Western District of Michigan. The shooting occurred in Michigan during a weekend when plaintiff was visiting the defendant pursuant to a court order involving visitation rights.

Defendant has filed a motion under 28 U.S.C. § 1404(a) for an order to transfer this action to the U.S. District Court for the Western District of Michigan. 1404(a) provides:

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.

This provision is designed to prevent waste of time, energy, and money, as well as to protect litigants, witnesses, and the public against inconvenience and expense. Continental Grain Co. v. The FBL-585, 364 U.S. 19, 80 S.Ct. 1470, 4 L.Ed.2d 1540 (1960). The issue before the Court is whether this action should be transferred to the Western District of Michigan.

The decision to transfer lies within the sound discretion of the trial judge. Houston Fearless Corp. v. Teter, 318 F.2d 822 (10th Cir. 1963); Wm. A. Smith Contracting Co. v. Travelers Indemnity Co., 467 F.2d 662 (10th Cir. 1972). The moving party has the burden of proving that the suit should be transferred, and must establish that the balance weighs strongly in favor of the proposed transferee-district. Wm. A. Smith, supra, at 664; Houston, supra, at 827-828.

A 1404(a) motion to change venue is analyzed and determined by a two-step process. First, assuming that venue is proper in the transferor-court, the court must have the power to transfer the case. 1404(a) requires that the proposed transferee-court be a district "where it might have been brought." If the original and proposed districts are found to be proper, the second step under 1404(a) is to determine that the transfer is for the "convenience of parties and witnesses, in the interest of justice."

I. VENUE GENERALLY

In a diversity action, proper jurisdiction under 28 U.S.C. § 1391(a) lies only in those judicial districts where all plaintiffs or all defendants reside, or where the claim arose. Applied to the facts in this case, venue would be proper in either the Northern District of Illinois (where the plaintiff resides) or the Western District of Michigan (where the defendant resides and where the injury occurred). In addition, the proposed transferee-court will be proper only if it has jurisdiction over the subject matter of the case. In this situation, the basis is diversity of citizenship. The last element necessary for transfer is that the defendant must be amenable to process issued by the transferee-court (personal jurisdiction). See American Telephone & Telegraph Company v. Milgo Electronic Corporation, 428 F.Supp. 50 (S.D.N.Y.1977). The defendant in this action, being a resident of Michigan, is amenable to process. Since the case could have been brought originally in either the transferor or transferee district, this Court does have the power to transfer the case to the Western District.

II. 1404(a) REQUIREMENTS FOR TRANSFER

A. Convenience of the Parties

The first element to be considered under 1404(a) is whether the proposed change is for the convenience of the parties. The plaintiff's choice of a forum is entitled to substantial consideration in the decision to transfer, although less with respect to a motion to transfer under 1404(a) than with a motion to dismiss for forum non conveniens. A. Olinick & Sons v. Dempster Bros., 365 F.2d 439 (2d Cir. 1966); Shutte v. Armco Steel Corp., 431 F.2d 22 (3d Cir. 1970). "However, this factor has reduced value where . . . there is an absence of any significant contact by the forum state with the transactions or conduct underlying the cause of action." Pope v. Missouri Pacific Railroad Company, 446 F.Supp. 447 (W.D. Okl.1978).

Plaintiff in this action is a resident of the Northern District of Illinois, and the defendant is a resident of Michigan's Western District. There are no other factors which affect the two parties themselves. Thus, there is no reason to transfer the case solely for the convenience of the parties.

B. Convenience of the Witnesses

In this action, plaintiff and her expert witness appear to be the only witnesses actually living in Illinois. Neither is the type of witness who is likely to be reluctant to testify. Therefore, there is no need for compulsory process. The other witness who resides in Illinois is also an occurrence witness, but is presently stationed in the military at San Diego, California. This witness must travel from California to testify regardless of where the case is heard.

The defendant has asserted, apparently contrary to the plaintiff's knowledge, that there are additional occurrence witnesses who all reside in Michigan. Furthermore, there are other material witnesses who would be unlikely to appear and testify unless served with a subpoena under Rule 45(e) Fed.R.Civ.P. These include the treating physician at the time of the injury, the paramedics, and the investigating officers at the scene. All these witnesses are physically located in Michigan but the medical personnel are outside the jurisdictional limits of the Northern District. Thus, the medical witnesses cannot be compelled to testify if the trial is held in Illinois.

Certainly to fix the place of trial at a point where litigants cannot compel personal attendance and may be forced to try their cases on deposition, is to create a condition not satisfactory to court, jury or most litigants. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 511, 67 S.Ct. 839, 884, 91 L.Ed. 1055 (1947).

Even if all the witnesses expected to testify at trial would do so voluntarily, most do live in Michigan, and a trial there would be more convenient for these witnesses. The plaintiff asserts that the difference in mileage is 170 miles for the plaintiff to travel to Michigan but only 100 for the defendant to go to Illinois. This must be balanced against the need of the defendant to have his witnesses testify at trial. In addition, the defendant's witnesses are apparently of the type who would not voluntarily travel to Illinois; whereas, the plaintiff's expert witness would be expected to voluntarily appear if this case was transferred to Michigan.

Given the facts in this case, the convenience of the witnesses would best be served by a transfer of the case to the Western District of Michigan.

C. Interest of Justice

The final factor to be considered under a 1404(a) motion is whether the transfer is in the interest of justice. The Supreme Court has listed the factors which are to be considered in a forum non conveniens case:

Important considerations are the relative

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