Fizer et al v. ThyssenKrupp Elevator et al

Filing 15

MEMORANDUM DECISION AND ORDER OF TRANSFER granting 7 Motion to Transfer Case. The Clerk of Court shall transfer this case to the U.S. District Court for the District of Utah, Central Division. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by cjm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
CLINT AND SANDY FIZER, husband and
wife,
Case No. 4:11-CV-364-BLW
Plaintiffs,
MEMORANDUM DECISION
AND ORDER OF TRANSFER

v.
THYSSENKRUPP ELEVATOR, a
Delaware Corporation, and JOHN and/or JANE
DOES I through V,
Defendants.

INTRODUCTION
The Court has before it a motion to transfer venue filed by defendant
ThyssenKrupp Elevator Corporation. The motion is fully briefed and at issue. For the
reasons explained below, the Court will grant the motion.
LITIGATION BACKGROUND
The plaintiff Clint Fizer originally filed this suit on behalf of himself and his wife
in the Seventh Judicial District Court in Bonneville County, Idaho. Fizer claimed that
while working at Cargill Dry Milling in Ogden, Utah, he was injured when a
malfunctioning elevator, manufactured and serviced by defendant ThyssenKrupp,
dropped some 18 feet and then stopped abruptly. Fizer claims his injuries will need
continuing treatment, including numerous back surgeries.
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Defendant ThyssenKrupp removed the case to this Court, and filed a motion to
transfer the case to Utah under 28 U.S.C. § 1404(a).
LEGAL STANDARDS
The parties assume that this Court has venue under the general venue statute, 28
U.S.C. § 1391, and that the proper analysis for transfer is under § 1404(a) rather than
§ 1406(a). The Court will proceed accordingly.
Section 1404(a) allows transfer of a case from one federal district court to another
“for the convenience of parties and witnesses in the interest of justice.” 28 U.S.C. §
1404(a). The district court has discretion “to adjudicate motions for transfer according to
an individualized, case-by-case consideration of convenience and fairness.” Jones v.
GNC Franchising, Inc., 211 F.3d 495, 498-99 (9th Cir. 2000).
The Court must first determine if the Fizers could have filed suit originally in
Utah. See Hoffman v. Blaski, 363 U.S. 335 (1960)(holding that transfer under § 1404(a)
is only proper if transferee court was one in which plaintiff could have filed suit
originally); 15 Wright et.al., Federal Practice & Procedure, § 3845 (3d ed. 2007)(“a case
cannot be transferred to a district in which the defendant is not subject to service of
process, and where, therefore, in personam jurisdiction cannot be obtained over the
defendant”). Venue would have been proper in Utah originally because the accident
occurred there. See 28 U.S.C. § 1391(a)(2) (finding that venue lies where a “substantial
part of the events or omissions giving rise to the claim” occurred). Moreover, the record
contains evidence that ThyssenKrupp’s Utah office entered into a service agreement with
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Cargill in Utah for the elevator at issue here, and thus it appears ThyssenKrupp would be
subject to personal jurisdiction in Utah. Finally, there appears to be diversity between
plaintiffs, Utah residents, and ThyssenKrupp, a Delaware corporation.
Finding that the case could have brought originally in Utah federal court, the Court
proceeds next to determine if the convenience factors warrant transferring the case there.
The relevant factors include the following: (1) the location where the relevant
agreements were negotiated and executed, (2) the state that is most familiar with the
governing law, (3) the plaintiff’s choice of forum, (4) the respective parties’ contacts with
the forum, (5) the contacts relating to the plaintiff’s cause of action in the chosen forum,
(6) the differences in the costs of litigation in the two forums, (7) the availability of
compulsory process to compel attendance of unwilling non-party witnesses, and (8) the
ease of access to sources of proof. Jones, 211 F.3d at 498-99.
ANALYSIS
The Fizers allege that they have “significant contacts with the State of Idaho.” See
Fizer Affidavit (Dkt. No. 10-1) at p. 2. Clint Fizer alleges that he lived in Idaho Falls,
Idaho for three years from 2003 to 2006 and that his wife grew up in Idaho. Id. He also
alleges that he has “received significant medical treatment while living in or traveling to
Southeast Idaho,” although this treatment relates to pre-existing conditions; he was
treated in Utah for the injuries he received in the elevator accident. He does allege that he
has “scheduled follow-up medical care with physicians in Idaho as a result of” the injuries
at issue here. Id.
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While the plaintiff’s choice of forum is to be respected in the venue determination,
it “is given less weight if . . . the plaintiff is a nonresident of the chosen forum . . . .” See
15 Wright, supra, at § 3848 (concluding that this result “is one of sound judicial
administration and reflects good common sense”). The Fizers are residents of Utah and
so their choice to sue in Idaho is entitled to little weight. Their connection to Idaho is
slight: They have scheduled some follow-up medical care here and will call some Idaho
residents to testify about Clint Fizer’s condition before the accident. While Fizer’s Idaho
witnesses may be beyond the subpoena power of a Utah court, they all appear to be
“friendly” witnesses who are much more likely to appear voluntarily.
In comparison to these weak Idaho connections, the link to Utah is much stronger.
It was in Utah that (1) the accident occurred, (2) the elevator was installed and serviced,
and (3) the initial medical care for Clint Fizer was delivered. Moreover, the Fizers have
not countered ThyssenKrupp’s assertion that Utah law will apply to this dispute.
Under these circumstances, the factors in the § 1404(a) analysis tip decidedly
toward transferring the case to Utah. Accordingly, the Court will grant ThyssenKrupp’s
motion.
ORDER
In accordance with the Memorandum Decision set forth above,
NOW THEREFORE IT IS HEREBY ORDERED, that the motion to transfer
(docket no. 7) is GRANTED.
IT IS FURTHER ORDERED, that the Clerk of the Court shall take the steps
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necessary to transfer this case pursuant to 28 U.S.C. § 1404(a) to the United States
District Court for the District of Utah, Central Division.

DATED: December 19, 2011

Honorable B. Lynn Winmill
Chief U. S. District Judge

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