Page v. Hicks et al (JOINT ASSIGN)
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,
TODD L. HICKS, NNA, CRNA, et
CIVIL ACTION NO.
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
defendants--the University of Alabama at Birmingham, as
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.
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
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
England v. ITT Thompson Indus., Inc., 856 F.2d
1518, 1520 (11th Cir. 1988).
In deciding whether a transfer is proper, the court
consideration of convenience and fairness.”
v. Corizon, Inc., 2012 WL 1080789, at *1 (M.D. Ala. 2012)
Corp., 487 U.S. 22, 29 (1988)) (internal quotation marks
The court conducts this inquiry in two steps.
First, it determines whether the case could “originally
have been brought in the proposed transferee district
Id. at *1.
Next, it “must decide whether the
balance of convenience favors transfer.”
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
justice, based on the totality of the
Manuel v. Convergys Corp., 430 F.3d 1132, 1135 n.1 (11th
Page could have originally brought this case in the
“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
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.
All defendants are residents of the
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
The court must therefore turn to the balance of the
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
relevant to the merits of Page’s claims.
The core of
Page’s complaint consists of the federal claims that the
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
heavily in favor of transfer.
The defendants also suggest that the location of
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
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.
non-party witness.” (internal quotation marks, citation
and alterations omitted)).
Nonetheless, the location of
significant witnesses and the locus of operative facts
are located in the Northern District.
reflected by Page’s own planned reliance on them in state
court, weighs in favor of transfer.
slightly in favor of transfer.
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.
testimony about the adequacy of the procedures employed
by the defendants leading up to Page’s dismissal.
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
indicates that she worked with each during her rotation,
relevant or material to this case, which centers not
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.”
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
determining whether [the convenience of the witnesses]
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
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,
location also confirms that the locus of operative facts
resides in the Northern District.
Page also contends that deference is due to her forum
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).
action did not occur within the forum chosen by the
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.”).
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
Although some documents related to
procedures and decision-making appear to be located in
the Northern District.
Accordingly, this factor is, at
In any event, the location of documents
deserves little weight in light of electronic discovery
and transmission methods.
Carroll, 910 F. Supp. 2d at
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).
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,
Birmingham is granted and this lawsuit is transferred 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.
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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