Evans v. Union Pacific Railroad Company

Filing 21

ORDER denying 8 Defendant's Motion to Transfer Venue under 28 U.S.C. § 1404 (a) to the District Court for the District of Wyoming, by Judge William J. Martinez on 4/1/2014.(evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 13-cv-1732-WJM-BNB
JEFFREY R. EVANS,
Plaintiff,
v.
UNION PACIFIC RAILROAD COMPANY,
Defendant.

ORDER DENYING DEFENDANT’S MOTION TO TRANSFER VENUE
UNDER 28 U.S.C. § 1404(A)

Plaintiff Jeffrey R. Evans (“Plaintiff”) brings this action against his employer,
Defendant Union Pacific Railroad Company (“Defendant”), under the provisions of the
Federal Employers’ Liability Act (“FELA”), 35 U.S.C. §§ 51 et seq., to recover damages
for spinal injuries suffered while working in the course and scope of his employment for
Defendant. (ECF No. 1.) Before this Court is Defendant’s Motion to Transfer Venue
under 28 U.S.C. § 1404(a) to the District Court for the District of Wyoming sitting in
Cheyenne (the “Motion”). (ECF No. 8.) For the reasons set forth below, Defendant’s
Motion to Transfer Venue is denied.
I. BACKGROUND
Plaintiff is a locomotive conductor who has worked for Defendant, a common
carrier engaged in interstate transportation, for over thirty years. (Compl. (ECF No. 1) ¶
5; Resp. (ECF No. 13) at 3.) Plaintiff worked a rail line that runs between Cheyenne,
Wyoming and North Platte, Nebraska, and crosses into Colorado for nine miles on

every trip. (Resp. at 3; ECF No. 14-1; Reply (ECF No. 14) at 2.)
Plaintiff filed his Complaint on July 1, 2013, alleging that he suffered personal
injuries to his spine as a result of exposure to severe lateral shocks and jolts in the cab
of one of Defendant’s locomotives on December 5, 2012. (Compl. ¶ 6.) The injury
occurred when Plaintiff was operating the locomotive in Wyoming. (ECF No. 8-1.)
Plaintiff also alleges that he has suffered personal injuries after being subjected to
repetitive and cumulative trauma due to Defendant’s negligence. (Compl. ¶ 7; Resp. at
3; ECF No. 14-1.) Plaintiff is seeking monetary damages for Defendant’s alleged FELA
violations. (Id.)
On October 11, 2013, Defendant filed a Motion to Transfer Venue under
28 U.S.C. § 1404(a) to the District Court for the District of Wyoming sitting in Cheyenne.
(Motion (ECF No. 8.)) Plaintiff filed his Response in Opposition to Defendant’s Motion
on October 31, 2013 (ECF No. 13), and Defendant filed its Reply on November 12,
2013 (ECF No. 14).
This Motion is now ripe for resolution.
II. LEGAL STANDARD
Under FELA, venue is proper “in the district of the residence of the defendant, or
in which the cause of action arose, or in which the defendant shall be doing business at
the time of commencing such action.” 45 U.S.C. § 56. In this case, it is undisputed that
Defendant does business in both Colorado and Wyoming and, therefore, venue is
proper under FELA in both states. Notwithstanding FELA’s broad venue provision,
however, cases brought under FELA may still be transferred pursuant to 28 U.S.C. §
1404(a). See Ex parte Collett, 337 U.S. 55, 60–61 (1949).
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“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.” 28 U.S.C. § 1404(a). The party seeking to transfer a case pursuant to §
1404(a) bears the burden of establishing that the existing forum is inconvenient. See
Chrysler Credit Corp. v. Cnty. Chrysler, Inc., 928 F.2d 1509, 1515 (10th Cir. 1991).
In ruling on a motion to transfer venue, district courts must assess whether the
“competing equities” weigh in favor of adjudicating the case in that district. See Hustler
Magazine, Inc. v. U.S. Dist. Court, 790 F.2d 69, 71 (10th Cir. 1986). The competing
equities include the following factors:
(1) plaintiff’s choice of forum; (2) the accessibility of witnesses and other
sources of proof, including the availability of compulsory process to insure
attendance of witnesses; (3) the cost of making the necessary proof; (4)
questions as to the enforceability of a judgment if one is obtained; (5) relative
advantages and obstacles to a fair trial; (6) difficulties that may arise from
congested dockets; (7) the possibility of the existence of questions arising in
the area of conflict of laws; (8) the advantage of having a local court
determine questions of local law; and (9) all other considerations of a
practical nature that make a trial easy, expeditious and economical.
Chrysler Credit Corp., 928 F.2d at 1516 (quoting Texas Gulf Sulphur Co. v. Ritter, 371
F.2d 145, 147 (10th Cir. 1967)). The decision to transfer venue, however, lies in the
sole discretion of the district court and should be based on an “individualized,
case-by-case consideration of convenience and fairness.” Texas E. Transmission Corp.
v. Marine Office-Appleton & Cox Corp., 579 F.2d 561, 567 (10th Cir. 1978); Stewart
Org. v. Ricoh Corp., 487 U.S. 22, 29 (1988). “Unless the balance of the inconvenience
is strongly in favor of the movant, the plaintiff's choice of forum should rarely be
disturbed.” Bailey v. Union Pac. R.R. Co., 364 F. Supp. 2d 1227, 1229 (D. Colo. 2005).

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III. ANALYSIS
In support of its Motion, Defendant asserts that transfer to the District of
Wyoming is appropriate because Plaintiff is not a resident of Colorado,1 Plaintiff’s injury
occurred in Wyoming, the majority of Plaintiff’s work was conducted in Wyoming, the
majority of the evidence is locating in Wyoming, and most if not all of the fact witnesses
reside in Wyoming.2 (Motion at 2; ECF No. 8-3 ¶¶ 4, 6, 7.)
“Although a plaintiff’s chosen forum is generally given deference, courts have
afforded ‘little’ weight to the plaintiff’s choice when the plaintiff does not reside in the
chosen forum and there is no significant connection between the chosen forum and the
cause of action.” Springer v. Union Pac. R.R. Co., 2009 WL 960720, at *2 (D. Colo.
Apr. 8, 2009) (internal citations omitted). Here, even though Plaintiff asserts that a
substantial portion of his cumulative trauma injury occurred in Colorado (Compl. ¶ 7;
Resp. at 3), the line Plaintiff worked only ran through Colorado for nine miles. (Reply at
2; ECF No. 14-1.) The Court, therefore, gives little deference to Plaintiff’s choice of
forum because he is a non-resident and his injuries have, at best, a tenuous connection
to Colorado. See Michaels v. Union Pac. R.R. Co., 2007 WL 1832109, at *3 (D. Colo.
June 22, 2007) (affording plaintiff’s choice of forum little weight where his cumulative
injury occurred on the same rail line at issue here); Bailey, 364 F. Supp. 2d at 1230.

1

Although Plaintiff resided in Wyoming when he filed the Complaint, he subsequently
moved to Nebraska. (Reply at 2.)
2

Defendant also argues that its Colorado counsel will be inconvenienced by having to
conduct discovery in Wyoming. (ECF No. 8 at 2.) Defendant does not explain how its counsel
will not continue to be inconvenienced if the entire case were to be transferred to Wyoming.
Regardless, the location and convenience of counsel is a not a relevant factor. Bailey, 364 F.
Supp. 2d at 1230.

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The Court next turns to Defendant’s argument that a substantial portion of the
evidence is located in Cheyenne, Wyoming. (Motion at 7; ECF No. 8-3 ¶ 6.) Defendant
has not attempted to explain, let alone substantiate, why these documents could not be
sifted through in Cheyenne, and the probative ones shipped at relatively minor cost to
Colorado for trial. See Scheidt v. Klein, 956 F.2d 963, 966 (10th Cir. 1992) (finding
similar argument regarding out-of-district documents deficient). Therefore, the location
of the files are afforded minimal significance. See Bailey, 364 F. Supp. 2d at 1231
(“[T]he location of plaintiff’s files are of minimal significance.”); Cooksey v. Union Pac.
R.R. Co., 2008 WL 4457863, at *3 (D. Colo. Oct. 2, 2008) (“[T]he location of the
documentary evidence . . . is of minimal significance.”).
The Court next turns to potential witnesses who reside in either Colorado or
Wyoming to determine whether Defendant has met its burden of proving that the
balance of inconvenience is strongly in its favor.3 With respect to accessibility of
witnesses, to discharge his burden a defendant must set out the substance of the
evidence of the inconvenienced witness so the court may consider the materiality of that
witness’s testimony. See Springer, 2009 WL 960720, at *2 (citation omitted).
As to Defendant’s witnesses residing in Wyoming, Defendant merely states that
all of Plaintiff’s supervisors, as well as the witnesses to Plaintiff’s alleged accident, all
work and reside in Cheyenne, Wyoming. (ECF No. 8-3 ¶ 7.) Defendant has provided
no evidence indicating “the quality of materiality of the testimony of said witnesses, nor

3

Both Plaintiff and Defendant reference potential witnesses who reside in Nebraska.
(ECF Nos. 8 at 2, 13 at 4.) These potential witnesses have no impact on the venue transfer
analysis. See Michaels, 2007 WL 1832109, at *3 (citing Bailey, 364 F. Supp. 2d at 1231).

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has Defendant shown that any such witnesses were unwilling to come to trial in
[Denver]; that deposition testimony would be unsatisfactory; or that use of compulsory
process would be necessary.” Scheidt, 956 F.2d at 966 (brackets omitted). This
“meager showing” fails to demonstrate the requisite inconvenience of Defendant’s
witnesses. See id.
As to Plaintiff’s potential witnesses, Defendant points to several medical witness
who reside and practice in Cheyenne, Wyoming. (Motion at 7; ECF No. 8-3 ¶ 4.)
Defendant argues that these witnesses cannot be compelled to testify because they
reside outside the one hundred mile territorial limit of this District’s compulsory service
of process. (Motion at 7.) In response, Plaintiff points to a number of potential
witnesses who reside in Colorado including Dr. Kleiner, Plaintiff’s principal treating
physician. (Resp. at 3-4.) While Dr. Kleiner’s location is not controlling, it does support
Plaintiff’s choice of venue in Colorado. See Michaels, 2007 WL 1832109, at *5. Given
the presence of potential witnesses with allegedly relevant information in both Colorado
and Wyoming, transfer of venue is inappropriate in this case. Id. (finding inconvenience
not strongly in the defendant’s favor where fact witnesses resided in Colorado).
Accordingly, the Court finds that the balance of factors weighs in favor of
Plaintiff.4 Here, the convenience of the witnesses and the availability of compulsory

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Additionally, this Court has previously taken judicial notice of the fact that “the distance
between Denver, Colorado, the location of this Court, and Cheyenne, Wyoming, the location of
the District Court for the District of Wyoming, and where many of Union Pacific’s potential
witnesses work and/or reside, is 100 miles.” Hall v. Union Pac. R.R. Co., 2006 WL 1041718, at
*2 (D. Colo. Apr. 19, 2006). Due to the relative proximity of the two courts, the Court finds that
trying this case in Denver will not be excessively burdensome to Defendant or Defendant’s
witnesses.

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process to insure their attendance were the most compelling factors. See Michaels,
2007 WL 1832109, at *3 (citing Bailey, 364 F. Supp. 2d at 1230 (D. Colo. 2005). Since
Defendant failed to meet its burden of proving that inconvenience of the witnesses was
strongly in its favor, Plaintiff’s choice of forum will not be disturbed. See Bailey, 364 F.
Supp. 2d at 1229 (“Unless the balance of the inconvenience is strongly in favor of the
movant, the plaintiff's choice of forum should rarely be disturbed.”); Michaels, 2007 WL
1832109, at * 5 (“[T]o meet its burden, Union Pacific must show that the balance of the
inconvenience is strongly in its favor.”).
IV. CONCLUSION
Accordingly, Defendant’s Motion to Transfer Venue (ECF No. 8) is DENIED.
Dated this 1st day of April, 2014.
BY THE COURT:

_______________________
William J. Martínez
United States District Judge

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