Page v. Hicks et al (JOINT ASSIGN)

Filing 17

OPINION AND ORDER: it is the ORDER, JUDGMENT, AND DECREE of the court that the 7 motion to transfer filed by dfts Todd L. Hicks, Susan P. McMullan, Peter M. Tofani, and the University of Alabama at Birmingham is granted and this lawsuit is transfer red in its entirety to the United States District Court for the Northern District of Alabama; All other pending motions remain for resolution by the transferee court; DIRECTING the clerk to take appropriate steps to effect the transfer; This case is closed in this court. Signed by Honorable Judge Myron H. Thompson on 12/9/2016. (wcl, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
ASHLEY WILCOX PAGE,
Plaintiff,
v.
TODD L. HICKS, NNA, CRNA, et
al.,
Defendants.

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CIVIL ACTION NO.
2:16cv902-MHT
(WO)

OPINION AND ORDER
Plaintiff Ashley Wilcox Page, a student enrolled at
the University of Alabama at Birmingham School of Nursing
Anesthesia program, brought this lawsuit in the Circuit
Court

of

Montgomery

County,

Alabama

against

four

defendants--the University of Alabama at Birmingham, as
well

as

an

administrator

university--asserting

two

and

two

federal

professors
claims

at

that

the
they

improperly dismissed her from the program in violation
of her Fourteenth Amendment due process rights and 42
U.S.C. § 1983.

Page also brought three state-law claims

that each individual defendant acted negligently leading

up to her dismissal.

The defendants then removed the

action to the Middle District of Alabama.

Jurisdiction

is proper under 28 U.S.C. § 1331 (federal question) and
28 U.S.C. § 1367(a) (supplemental jurisdiction).
This matter is before the court on the defendants’
motion to transfer venue to the Northern District of
Alabama.

In their motion, the defendants argue that the

case should be transferred because it would promote the
convenience of the parties and witnesses pursuant to 28
U.S.C. § 1404.

For reasons that will be explained, the

defendants’ motion will be granted.
28 U.S.C. § 1404 gives district courts authority to
transfer any civil action to any district in which it
could have been brought originally for “the convenience
of parties and witnesses, in the interest of justice.”
28 U.S.C. § 1404(a).

“Trial judges are permitted a broad

discretion in weighing the conflicting arguments as to
venue.”

England v. ITT Thompson Indus., Inc., 856 F.2d

1518, 1520 (11th Cir. 1988).
In deciding whether a transfer is proper, the court
2

“must

engage

in

an

individualized,

case-by-case

consideration of convenience and fairness.”

McGlathery

v. Corizon, Inc., 2012 WL 1080789, at *1 (M.D. Ala. 2012)
(Thompson,

J.)

(quoting

Stewart

Org.,

Inc.

v.

Ricoh

Corp., 487 U.S. 22, 29 (1988)) (internal quotation marks
omitted).

The court conducts this inquiry in two steps.

First, it determines whether the case could “originally
have been brought in the proposed transferee district
court.”

Id. at *1.

Next, it “must decide whether the

balance of convenience favors transfer.”

Id.

As to the

second step, several relevant factors include
“(1) the convenience of the witnesses;
(2) the location of relevant documents
and the relative ease of access to
sources of proof; (3) the convenience
of the parties; (4) the locus of
operative facts; (5) the availability
of process to compel the attendance of
unwilling witnesses; (6) the relative
means of the parties; (7) a forum's
familiarity with the governing law; (8)
the weight accorded a plaintiff's
choice
of
forum;
and
(9)
trial
efficiency
and
the
interests
of
justice, based on the totality of the
circumstances.”
Manuel v. Convergys Corp., 430 F.3d 1132, 1135 n.1 (11th
3

Cir. 2005).
Page could have originally brought this case in the
Northern District.

“A civil action may be brought in ...

a judicial district in which any defendant resides, if
all defendants are residents of the State in which the
district

is

located;

[or

a

district

in

which]

a

substantial part of the events or omissions giving rise
to the claim occurred, or a substantial part of property
that is the subject of the action is situated.” 28 U.S.C.
§ 1391(b)(1)-(2).
State

of

defendants
university

All defendants are residents of the

Alabama;
reside
is

all
in

also

the

but

one

Northern

located

of

the

individual

District;

there.

In

and

the

addition,

substantial events giving rise to Page’s claims occurred
in the Northern District, including faculty and staff
communications related to her dismissal, a meeting to
discuss Page’s performance, and the convocation of the
advisory committee hearing panel that will review Page’s
dismissal.
The court must therefore turn to the balance of the
4

Manuel

factors

appropriate.

to

determine

whether

transfer

is

Because the parties do not rely on--and

have not provided evidence related to--the “relative
means of the parties,” or either “forum’s familiarity
with the governing law,” Manuel, 430 F.3d at 1135, the
court will consider only the remaining factors.
The defendants rely on the fact that located in the
Northern

District

is

the

“locus

of

operative

relevant to the merits of Page’s claims.

facts”

The core of

Page’s complaint consists of the federal claims that the
university

and

its

officials

failed

to

provide

constitutionally adequate due process prior to dismissing
her, and the state claims that they acted negligently in
doing so; the locus of operative facts for these claims
undoubtedly lies within the Northern District, where the
administrators who decided her fate made their decisions
and where an ongoing hearing panel has been convened to
review the dismissal.1

As such, this factor weighs

1. Admittedly, the locus of operative facts
concerning Page’s state-law claim of negligence against
one of the individual defendants, Todd Hicks (her
5

heavily in favor of transfer.
The defendants also suggest that the location of
witnesses

supports

transfer.

Prior

to

removal

Page

subpoenaed for testimony at a state-court hearing three
witnesses in addition to the individual defendants: each
witness is a university official or instructor who is
employed within the Northern District.
Record (doc. no. 1-5) at 27-34.

See State Court

Although not defendants

in this case, employees of a party are considered party
witnesses for the purposes of the venue transfer analysis
and

therefore

given

less

weight.

See

Weintraub

v.

Advanced Corr. Healthcare, Inc., 161 F. Supp. 3d 1272,
1280 (N.D. Ga. 2015) (Totenberg, J.) (“The convenience
of a certain venue for party witnesses is given less
weight because party witnesses are the parties themselves
and those closely aligned with a party, and they are
presumed to be more willing to testify in a different

clinical supervisor), appears to be within the Middle
District of Alabama, where he is employed. But the locus
of each of Page’s four other claims concerns the actions
of the university or its officials within the geographic
area of the Northern District.
6

forum,

while

there

is

no

such

presumption

as

to

a

non-party witness.” (internal quotation marks, citation
and alterations omitted)).

Nonetheless, the location of

these

indicates

university

staff

that

the

most

significant witnesses and the locus of operative facts
are located in the Northern District.
materiality

and

significance

of

these

The apparent
witnesses,

as

reflected by Page’s own planned reliance on them in state
court, weighs in favor of transfer.
The

convenience

important

factor

in

of

non-party

the

venue

slightly in favor of transfer.

witnesses--the

most

analysis--weighs

only

The defendants identify

several non-party witnesses, members of the university
hearing panel convened to review the appeal of Page’s
recommended dismissal, who are located in the Northern
District.2 These witnesses are likely to provide relevant

2. A hearing panel for academic misconduct is to be
comprised of three faculty and two student members. See
University of Alabama at Birmingham School of Nursing
2016-2017 Student Handbook (doc. no. 1-4) at 33. For the
purposes of this motion, it appears the two student
members would be considered non-party witnesses.
7

testimony about the adequacy of the procedures employed
by the defendants leading up to Page’s dismissal.

In an

effort to oppose transfer, Page identifies 15 Certified
Registered Nurse Anesthetists (“CNRAs”) with whom she
worked during her clinical rotation at Baptist South
Medical Hospital, which is located within the Middle
District’s

geographic

area.

However,

while

Page

indicates that she worked with each during her rotation,
she

has

not

explained

how

their

testimony

would

be

relevant or material to this case, which centers not
around

the

adequacy

of

her

performance

during

the

rotation but rather the adequacy of procedures provided
by the university and its officials.

The mere recitation

of a large number of employees in a relevant group “does
not, on the basis of that fact alone, necessarily mean
that all of them are likely trial witnesses with material
and reasonably nonduplicative knowledge.”

Carroll v.

Texas Instruments, Inc., 910 F. Supp. 2d 1331, 1337 (M.D.
Ala. 2012) (Thompson, J.).

Because the court should

“consider the content of the witnesses’ testimony in
8

determining whether [the convenience of the witnesses]
weighs

in

favor

of

transfer,”

Frederick

v.

Advanced

Financial Solutions, Inc., 558 F. Supp. 2d 699, 704 (E.D.
Tex. 2007) (Schell, J.), the critical factor of non-party
witnesses, although close, supports transfer.3
The

convenience

of

parties,

although

given

less

weight than the factors discussed previously, weighs
heavily in favor of transfer. Two of the three individual
defendants reside in the Northern District, as does Page,
and

the

university

is

located

there.

The

parties’

location also confirms that the locus of operative facts
resides in the Northern District.
Page also contends that deference is due to her forum
choice.

However, less deference is due here because the

locus of operative facts occurred outside this district.
“[W]here the operative facts underlying the cause of

3. To the extent that the testimony of any non-party
Baptist South CNRA witness is relevant, that witness
would appear to fall within the subpoena power of the
Northern District because Baptist South is less than 100
miles from that court. See Fed. R. Civ. P. 45(c)(1)(A).
9

action did not occur within the forum chosen by the
plaintiff,

the

consideration.”

choice

of

forum

is

entitled

to

less

Osgood v. Discount Auto Parts, LLC, 981

F. Supp. 2d 1259, 1267 (S.D. Fla. 2013) (Marra, J.);
accord Internap Corp. v. Noction Inc., 114 F. Supp. 3d
1336, 1342 (N.D. Ga. 2015) (Totenberg, J.) (“[M]ultiple
district courts within the Eleventh Circuit have found,
and this Court agrees, that Plaintiff’s choice of forum
should be entitled to less weight where the locus of
operative facts is outside of the chosen forum.”).

The

fact that Page does not herself reside in this district
also makes her forum choice deserving of less deference.
See Patel v. Howard Johnson Franchise Sys., Inc., 928 F.
Supp. 1099, 1101 (M.D. Ala. 1996) (DeMent, J.).
Page also contends that the location of documents
disfavors transfer.
her

clinical

district,

Although some documents related to

performance

documents

are

relevant

located
to

the

within

this

university’s

procedures and decision-making appear to be located in
the Northern District.

Accordingly, this factor is, at
10

best, neutral.

In any event, the location of documents

deserves little weight in light of electronic discovery
and transmission methods.

Carroll, 910 F. Supp. 2d at

1339.
Finally, the interests of justice and the public
interest weigh in favor of the case being heard in the
Northern District, where the university is located and
where the most relevant events occurred.

As the Supreme

Court has said, “There is a local interest in having
localized controversies decided at home.”

Gulf Oil Corp.

v. Gilbert, 330 U.S. 501, 509 (1947); see also Piper
Aircraft v. Reyno, 454 U.S. 235, 260 (1981).
Based

on

these

facts,

a

transfer

of

venue

is

warranted.
***
Accordingly, it is the ORDER, JUDGMENT, AND DECREE
of the court that the motion to transfer (doc. no. 7)
filed by defendants Todd L. Hicks, Susan P. McMullan,
Peter

M.

Tofani,

and

the

University

of

Alabama

at

Birmingham is granted and this lawsuit is transferred in
11

its entirety to the United States District Court for the
Northern District of Alabama.
All other pending motions remain for resolution by
the transferee court.
The

clerk

of

the

court

is

DIRECTED

to

appropriate steps to effect the transfer.
This case is closed in this court.
DONE, this the 9th day of December, 2016.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

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