United States District Court, W.D. North Carolina, Asheville Division
CARLETON METCALF UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Defendant's Motion to
Transfer Venue (Doc. 7). The issues have been fully briefed,
and the matter is ripe for ruling. For the reasons set forth
below, the Motion is denied.
August 27, 2018, Plaintiff filed his Complaint in the
Superior Court Division of the General Court of Justice of
Jackson County, North Carolina. See (Doc. 1-1).
removed the case to the Western District of North Carolina,
Charlotte Division, on October 26, 2018 based on diversity
jurisdiction. The case was then transferred to the Asheville
November 9, 2018, Defendant filed its Answer (Doc. 6).
November 20, 2018, Defendant filed the instant Motion to
Transfer Venue (Doc. 7) and a supporting brief (Doc. 8).
Plaintiff later filed a response (Doc. 12) and Defendant
replied (Doc. 13). Plaintiff also filed, with leave of Court,
a sur-reply (Doc. 19).
filings were interspersed with the parties' submissions
concerning the Motion to Transfer Venue, including an Amended
Complaint (Doc. 10) and a partial motion to dismiss, which
motion was denied by the presiding District Judge (Doc.
summary of the facts, as set forth in Plaintiff's Amended
Complaint (Doc. 10), is as follows:
is a resident of Jackson County, North Carolina, and
Defendant is a Delaware corporation that conducts business in
Braselton, Georgia. Am. Compl. (Doc. 10) ¶¶ 1, 2,
7. Plaintiff contends that Defendant has significant contacts
with the state of North Carolina, “including but not
limited to owning and/or operating fifteen stores in North
Carolina . . . operating commercial motor vehicles on the
roads and highways throughout North Carolina . . . and
sell[ing] other products . . . with other entities in North
Carolina.” Id. ¶ 3.
September 28, 2015, Plaintiff, an employee of Grant &
Holden, Inc., was directed by his employer to pick up a
loaded commercial trailer that contained bales of
“bundled cardboard” from Defendant's
Distribution Center located in Braselton, Georgia.
Id. ¶¶ 7, 8. Employees at the Distribution
Center had loaded the trailer with the bales prior to
Plaintiff's arrival and left the trailer parked outside
of the security gates of the Distribution Center “on an
incline and/or hill” for Plaintiff to pick up.
Id. ¶¶ 8, 10, 11.
arrived at the Distribution Center after it had closed and
attached his tractor to the loaded trailer. Id.
¶¶ 13, 14. Plaintiff transported the trailer to
Jackson County, North Carolina. Id. When he arrived
at Jackson Paper Manufacturing in Sylva, North Carolina,
Plaintiff opened the doors of the trailer and two bales of
cardboard fell out and onto Plaintiff, crushing his pelvis.
Id. ¶¶ 14, 16.
has asserted the following claims: (1) Negligence; (2)
Negligent Hiring, Training, and Supervision; (3) Res Ipsa
Loquitur; and (4) Last Clear Chance. See id.
28 U.S.C. § 1404(a) allows a case to be transferred for
the convenience of the parties and witnesses, and in the
interest of justice, to any jurisdiction where the matter
“might have been brought.” Van Dusen v.
Barrack, 376 U.S. 612, 613 (1964). The decision to
transfer a matter pursuant to § 1404(a) is
discretionary. See Akers v. Norfolk & Western Railway
Co., 378 F.2d 78, 80 (4th Cir. 1967).
burden of persuasion is on the movant to show “(1) more
than a bare balance of convenience in [its] favor and (2)
that a transfer does more than merely shift the
inconvenience.” Datasouth Computer Corp. v. Three
Dimensional Tech., Inc., 719 F.Supp. 446, 451 (W.D. N.C.
1989) (quotation omitted, and alteration added).
following factors are reviewed when a motion to ...