United States District Court, W.D. North Carolina, Asheville Division
L. HOWELL UNITED STATES MAGISTRATE JUDGE
before the Court is Plaintiffs' Motion to Change Venue [#
29]. On April 19, 2016, Plaintiff filed her Complaint in the
Western District of North Carolina. On October 23, 2017,
Plaintiff filed her Motion to Change Venue. On November 6,
2017, the Government filed is Response in Opposition to
Plaintiff's Motion [# 30].
applicable law regarding Plaintiff's underlying lawsuit
is the Federal Tort Claims Act, 28 U.S.C. §§
1346(b)(1), 2671-2680. Regarding appropriate venue, 28 U.S.C.
§ 1402(b) governs and states that claims “may be
prosecuted only in the judicial district where the plaintiff
resides or wherein the act or omission complained of
occurred.” 28 U.S.C. § 1402(b). Title 28
U.S.C. § 1404(a), allows district courts to transfer
cases for convenience of the parties and witnesses, and in
the interest of justice, to any other jurisdiction where it
might have been brought. See Van Dusen v. Barrack,
376 U.S. 612, 617 (1964). The decision to transfer under
§ 1404(a) “rests in the discretion of the District
Judge.” Akers v. Norfolk & Western Railway
Co., 378 F.2d 78, 80 (4th Cir. 1967). The Fourth Circuit
has, however, “recognize[d] the primary right of the
plaintiff to choose his forum, a selection not easily to be
overthrown.” Akers, 378 F.2d at 80; see
Datasouth Computer Corp. v. Three Dimensional Tech.,
Inc., 719 F.Supp. 446, 450-51 (W.D. N.C. 1989).
initially filed her Complaint in the Western District of
North Carolina. In her Motion to Change Venue, Plaintiff asks
that the Court transfer the case to the Middle District of
Florida, where Plaintiff resides. Plaintiff states that a
subsequent trip to Asheville, North Carolina, will result in
a financial hardship.
November 1, 2017, discovery concluded in this case. On
December 1, 2017, dispositive motions were due. The trial is
scheduled for the first session beginning on or after May 14,
Standard. In determining a § 1404(a) motion to
change venue, the Court applies a multi-factor test:
(1) plaintiff's initial choice of the forum; (2) the
relative ease of access to sources of proof; (3) availability
of compulsory process for attendance of unwilling, and the
costs of obtaining attendance of willing, witnesses; (4)
possibility of view of premises, if view would be appropriate
to the action; (5) enforceability of a judgment if one is
obtained; (6) relative advantages and obstacles to a fair
trial; (7) all other practical problems that make a trial
easy, expeditious, and inexpensive; (8) administrative
difficulties of court congestion; (9) local interests in
having localized controversies settled at home; (10) the
appropriateness in having the trial of a diversity case in a
forum that is at home with the state law that must govern the
action; and (11) avoidance of unnecessary problems with
conflict of laws.
Datasouth Computer Corp. v. Three Dimensional
Technologies, Inc., 719 F.Supp. 446, 450-51 (W.D. N.C.
Regarding Factor 1, Plaintiff initally chose to pursue
litigation in the Western District of North Carolina. After
one and a half years, and only nine days before the close of
discovery, Plaintiff asked the Court to transfer venue.
Plaintiff cites financial hardship as her primary reason.
Plaintiff cites no reason for why this transfer request was
not submitted earlier.
Court finds that ease of access to sources of proof to be
greater in North Carolina than in Florida. The Government
plans to argue that N.C. G.S. § 38A-1, et seq.,
applies in this case. The ease of obtaining proof that the
state statute applies or does not apply is greater in North
Carolina. Additonally, the alleged negligence occurred in
North Carolina. Thus, access to the site of the negligence is
easier in North Carolina.
has not stated if her intended witnesses, either willing or
compulsory, would be impacted by the venue change. The
Government has retained an expert who resides in Greensboro,
North Carolina. Additionally, the Governerment plans to call
several Department of Interior witnesses. Finally, the
Government plans to call a witness to testify regarding North
Carolina premises liabilty law. The Government states that
venue change at this point in the litigation would cause cost
and delay regarding witnesses.
not argued for by either party, view of premises in this case
might be necessary in this case as Plaintiff alleges that the
Government was negligent in its maintencne of a walkway. The
alleged negligence orrcured in the Western District of North
of a judgment obtained and opportunity for a fair trial will
carry little weight in this analysis. If Plaintiff obtained a
judgment from the Western District of North Carolina or the
Middle District of Florida, either judgment would be equally
enforceable. Futher, the Court finds that the Parties would
obtain a fair trial in either district court.
practicality, the Parties have prepared up to this point for
trial in the Western District of North Carolina. The
Government has already retained a local expert. And at trial,
the the Government plans to argue that North Carolina state
law applies. It appears that transfering the ...