Houk v. Kimberly-Clark Corp.

• Decision Date: 12 July 1985
• Docket Number: No. 84-1161-CV-W-0.,84-1161-CV-W-0.
• Citation: 613 F. Supp. 923
• Parties: Robert HOUK and Jane Houk, Plaintiffs, v. KIMBERLY-CLARK CORPORATION, Defendant.
• Court: U.S. District Court — Western District of Missouri

613 F. Supp. 923

Robert HOUK and Jane Houk, Plaintiffs, v. KIMBERLY-CLARK CORPORATION, Defendant.

No. 84-1161-CV-W-0.

United States District Court, W.D. Missouri, W.D.

July 12, 1985.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Paul L. Redfearn, Robert J. Perkins, Kansas City, Mo., for plaintiffs.

Joseph A. Sherman, Steven J. Quinn, Richard D. Rhyne, Kansas City, Mo., for defendant.

ORDER

ROSS T. ROBERTS, District Judge.

This is an action to recover damages for personal injuries allegedly sustained by plaintiff Robert Houk as a result of the negligence of defendant in connection with safety procedures at a construction site located in La Grange, Georgia. Jane Houk, the injured plaintiff's wife, seeks damages for loss of consortium. Both plaintiffs are residents of Missouri, and have been so for all relevant times described in this lawsuit. The matter is presently before the court for a ruling on defendant's motion that the cause be transferred to the United States District Court for the Northern District of Georgia pursuant to 28 U.S.C. § 1404(a). After considering the excellent briefs submitted by the parties, and for the reasons expressed hereinbelow, the court has concluded that defendant's motion will be denied.

BACKGROUND

The pleadings appearing in the record indicate that defendant, a Delaware corporation registered to do business in Georgia and Missouri, contracted with the Daniel Construction Company, a South Carolina corporation, as the general contractor, to build a non-woven fabric manufacturing plant for it on land leased by defendant from The Development Authority of La Grange. Daniel Construction Company in turn subcontracted with Southern Foundations, Inc., a Georgia corporation, for the installation of piles for the plant's foundation.

Sometime prior to July 6, 1983, Charles Houk, the president and general manager of Southern Foundations, contacted his brother, Robert Houk, in Oak Grove, Missouri, and asked if he would temporarily work at the La Grange construction site. On July 6, 1983, Robert Houk, while working as an employee of Southern Foundations, was injured when he was struck by one of three piles that fell from a crane at the construction site. Houk received emergency medical care at a hospital in Columbus, Georgia, and, some three weeks following the accident, was flown by air ambulance to Missouri where he was admitted to the University of Kansas Medical Center.¹ Houk was later transferred to The Medical Center of Independence, and is presently a long-term patient at the Swope Ridge Rehabilitation Center where he receives around-the-clock medical care for the injuries he sustained.

This action, originally filed by plaintiffs in the Circuit Court of Jackson County, Missouri, was removed to this forum by defendant on November 20, 1984. Defendant has now moved that the case be transferred to the United States District Court for the Northern District of Georgia under § 1404(a), which 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."²

GOVERNING STANDARDS

In determining whether to exercise its discretion to transfer an action on the basis of § 1404(a), the court may consider a myriad of factors, including the convenience of the parties, the convenience of the witnesses, the availability of judicial process to compel the attendance of unwilling witnesses, the governing law, the relative ease of access to sources of proof, the possibility of delay and prejudice if a transfer is granted, and practical considerations indicating where the case can be tried more expeditiously and inexpensively. See, e.g., Stabler v. New York Times Co., 569 F.Supp. 1131, 1137 (S.D.Tex.1983); Durham Productions v. Sterling Film Portfolio, 537 F.Supp. 1241, 1243 (S.D.N.Y.1982); Dayton Power & Light Co. v. East Kentucky Power Corp., 497 F.Supp. 553, 555 (E.D.Kent.1980).

In any determination of a motion to transfer under § 1404(a), the plaintiff's choice of a proper forum is entitled to great weight, and will not be lightly disturbed, Shutte v. Armco Steel Corp., 431 F.2d 22, 25 (3rd Cir.1970), cert. denied, 401 U.S. 910, 91 S.Ct. 871, 27 L.Ed.2d 808 (1971) (plaintiff's choice of forum is "paramount consideration"); Mowrey v. Johnson & Johnson, 524 F.Supp. 771, 775 (W.D.Pa. 1981), especially where the plaintiff is a resident of the judicial district in which the suit is brought, as is the case here. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255, 102 S.Ct. 252, 265, 70 L.Ed.2d 419 (1981); Culbertson v. Ford Motor Co., Inc., 531 F.Supp. 406, 407 (E.D.Pa.1982); Ronco, Inc. v. Plastics, Inc., 539 F.Supp. 391, 401 n. 12 (N.D.Ill.1982).

It is incumbent upon the party seeking transfer to make a clear showing that the balance of interests weighs in favor of the proposed transfer, and unless that balance is strongly in favor of the moving party, the plaintiff's choice of forum should not be disturbed. Carty v. Health-Chem Corp., 567 F.Supp. 1, 3 (E.D. Pa.1982); Hodson v. A.H. Robins Co., Inc., 528 F.Supp. 809, 817 (E.D.Va.1981); Oce-Industries, Inc. v. Coleman, 487 F.Supp. 548, 553 (N.D.Ill.1980). Where the balance of relevant factors is equal or only slightly in favor of the movant, the motion to transfer should be denied. Lee v. Ohio Casualty Ins. Co., 445 F.Supp. 189, 192 (D.Del. 1978); B.J. McAdams, Inc. v. Boggs, 426 F.Supp. 1091, 1105 (E.D.Pa.1977). Concomitantly, a transfer which would merely shift the inconvenience from one party to another should not be granted. Darby Drug Co., Inc. v. Zlotnick, 573 F.Supp. 661, 664 (E.D.N.Y.1983); Lieb v. American Pacific Inter., Inc., 489 F.Supp. 690, 697 (E.D.Pa. 1980); 15 Wright, Miller & Cooper, Federal Practice and Procedure: § 3848 at 246.

CONVENIENCE OF WITNESSES

The convenience of witnesses is said to be a primary, if not the most important, factor in passing on a motion to transfer under § 1404(a). Cambridge Filter Corp. v. International Filter Co., 548 F.Supp. 1308, 1311 (D.Nev.1982); American Standard, Inc. v. Bendix Corp., 487 F.Supp. 254, 262 (W.D.Mo.1980). This factor involves not merely a consideration of the number of witnesses located in or near the respective forums, but the nature and quality of their testimony in relationship to the issues of the case. Midwest Precision Services v. PTM Industries, 574 F.Supp. 657, 659 (N.D.Ill.1983); Vaughn v. American Basketball Association, 419 F.Supp. 1274, 1276-77 (S.D.N.Y.1976). As a result, it is the burden of the party seeking transfer to specify clearly the key witnesses to be called and indicate what their testimony will entail. Factors Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215, 218 (2nd Cir. 1978), cert. denied, 440 U.S. 908, 99 S.Ct. 1215, 59 L.Ed.2d 455 (1979); American Standard, Inc. v. Bendix Corp., supra at 263; American Can Co. v. Crown Cork & Seal Co., Inc., 433 F.Supp. 333, 338 (E.D. Wis.1977).

In an attempt to satisfy this burden, defendant has identified a number of witnesses deemed to be material by indicating their name, job title or description, relationship to the events or issues in this lawsuit, and place of residence. Moreover, defendant has indicated, with varying degrees of specificity, what the testimony of these witnesses would be at trial.

Three of the witnesses so identified were employees of Daniel Construction Co. on the day of the accident and were eyewitnesses to the accident. All three reside in La Grange, Georgia. Another employee of Daniel Construction Co. identified by defendant is Thomas C. Casper, safety manager at the construction site, who could describe the usual procedure followed by Southern Foundation employees in transporting piles. Mr. Casper, also a resident of La Grange, Georgia, further indicates in his affidavit that he would testify that defendant had no supervision or control over the construction site or safety procedures in force there.

Defendant has also identified six of its employees said to possess information relating to the duties and responsibilities of the contractor, subcontractor, and engineering companies involved in the construction project. All six of these individuals reside in Georgia. In addition, Charles Houk, plaintiff's brother and supervisor for Southern Foundations at the La Grange project site, resides in La Grange. Of the other individuals listed by plaintiffs in their interrogatory answers as having witnesses the accident, four are residents of California, one of Alabama, and one of North Carolina. Defendant also suggests that since the contractor, subcontractors, and engineering companies involved in the project are corporations with their principal places of business in Georgia or adjoining states, any employees of those companies with material knowledge regarding the issues of site control and safety responsibility are likely to be located in Georgia or its vicinity. Finally, defendant notes that the treating physicians who were involved in the diagnosis and care of plaintiff for the approximately three weeks immediately following the accident are located in Columbus, Georgia.

In summary, defendant contends that the predominant number of key witnesses with material testimony to offer at trial are located in Georgia or states adjacent to Georgia, so that Georgia would be a more convenient forum for them than Missouri. Those witnesses listed by plaintiffs as residing in California, defendant suggests, would be equally inconvenienced by either a Georgia or Missouri forum. Defendant acknowledges that plaintiffs themselves would be inconvenienced by a Georgia forum, but suggests that their testimony as to liability would not be material, so that this factor does not outweigh the inconvenience of the present forum to the great number of key witnesses located in Georgia.

Plaintiffs disagree with the assertion that eyewitnesses to the accident and those...