Bjoraker v. Dakota, Minnesota & Eastern Railroad et al

Filing 79

MEMORANDUM Opinion and Order Signed by the Honorable Harry D. Leinenweber on 3/12/2013.(pcs, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

BRANDON BJORAKER and EMILY
BJORAKER, his Wife,
Plaintiffs,
Case No. 12 C 7513

v.
DAKOTA, MINNESOTA & EASTERN
RAILROAD CORPORATION; CANADIAN
PACIFIC RAILWAY; ADVANCED TOWER
SERVICES (2007), LTD.; MILLER
TRUCKING & EXCAVATING; and
SEESER CRANE SERVICES, INC.,

Hon. Harry D. Leinenweber

Defendants.

MEMORANDUM OPINION AND ORDER
Before the Court is Defendant Dakota, Minnesota & Eastern
Railroad Corporation’s Motion to Transfer this matter to the
Northern District of Illinois, Western Division, in Rockford,
Illinois, pursuant to 28 U.S.C. § 1404(a).

For the reasons stated

herein, the Motion is granted.
I.
Plaintiff

Brandon

BACKGROUND

Bjoraker

(hereinafter,

“Bjoraker”

or

“Plaintiff”) and his wife, Emily Bjoraker, residents of Garner,
Iowa (“Plaintiffs”), brought this suit against Defendants following
an incident at work that led to Bjoraker sustaining injuries.
Defendant Dakota, Minnesota & Eastern Railroad Corporation (“DM&E”)
is a Delaware rail freight carrier that operates across several

states,

including

Illinois,

Minneapolis, Minnesota.

and

has

its

principal

office

in

Defendant Advanced Tower Services (2007)

Ltd. (“Advanced”) builds, delivers and assembles radio towers, and
has its principal place of business in Ontario, Canada.

Defendant

Miller Excavating, Inc. (“Miller”) is a trucking company based in
Silvis, Illinois with experience in loading and hauling materials
with flatbed trucks.

Defendant Seeser Storage Systems, Inc.

(“Seeser”) provides cranes and crane operators with experience in
loading and unloading materials from flatbed trucks, and has its
principal place of business in Clinton, Iowa.
Plaintiff alleges that on approximately November 1, 2011,
DM&E’s parent company entered into an agreement whereby Advanced
would supply, deliver and assemble a steel radio tower on DM&E
property.

The tower was to be used as part of DM&E’s railroad

signal system operations.

As part of this project, Advanced

contracted with Miller to pick up a 150-foot radio tower from
DM&E’s Rail Yard in Kirkland, Illinois and deliver it to Genoa,
Illinois.

In addition, Advanced contracted with Seeser to provide

a crane and operator to assist in the unloading of the radio tower
at Genoa, Illinois.
Bjoraker is employed by DM&E as an Assistant in the Signal and
Communication Department.

Bjoraker claims that on December 6,

2011, he reported for duty at the DM&E Rail Yard in Kirkland,
Illinois and was assigned by DM&E Supervisor John Morris to the

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radio tower

project

in

Genoa.

Bjoraker

proceeded

to

DM&E’s

property at 980 Park Avenue, Genoa, Illinois.

Also present at

DM&E’s

employees

property

that

morning

were

Advanced

Jacob

Lundrigan (“Lundrigan”), Jessie E. Harrison (“Harrison”) and Joseph
L. Wideman (“Wideman”); Seeser employee Donald Burken (“Burken”);
Miller employee James H. Mich (“Mich”); and Officer Kevin Heiser
(“Heiser”) of the Genoa Police Department.
Sections of the radio tower had been loaded onto a flatbed
truck and driven by Mich from Kirkland to Genoa near the assembly
site.

As the tower was being unloaded off the flatbed by Wideman

and Bjoraker, a section of tower fell off of the truck and landed
on Bjoraker, seriously injuring him.

Emergency personnel from

Genoa-Kingston Ambulance Rescue responded to assist Bjoraker, and
transported him to Saint Anthony Medical Center in Rockford,
Illinois.

Plaintiff then received medical treatment from a number

of health care institutions in Minnesota and Iowa.
Bjoraker and his wife filed this suit on September 9, 2012,
asserting

claims

under

the

Federal

(“FELA”), 45 U.S.C. § 51 et seq.

Employers’

Liability

Act

Defendant DM&E now moves to

transfer this case to the Western Division of this District.
II.

LEGAL STANDARD

A district court may transfer a civil action to any district
or

division

where

the

case

may

have

been

brought

“for

the

convenience of parties and witnesses, in the interest of justice.”

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28 U.S.C. § 1404(a).

Section 1404(a) has been applied to requests

for intradistrict transfers.

See, e.g., Gulf Coast Bank & Trust

Co. v. Home State Bank, N.A., No. 11-CV-2617, 2011 U.S. Dist. LEXIS
128359 (N.D. Ill. Nov. 4 2011) (granting § 1404 transfer to Western
Division); Navarette v. JQS Prop. Maint., No. 07 C 6164, 2008 U.S.
Dist. LEXIS 7541 (N.D. Ill. Jan. 29, 2008) (same).

A transfer

under § 1404(a) is proper if (1) venue is proper in both the
transferee and transferor courts; (2) it is for the convenience of
the parties or witnesses; and (3) it is in the interest of justice.
See Navarette, 2008 U.S. Dist. LEXIS 7541 at *3.

District courts

have broad discretion in the interpretation and weighting of these
factors. Id.

The party moving to transfer the case bears the

burden of establishing, based on the particular circumstances of
the case, that the transferee forum is “clearly more convenient.”
Id.
III.
A.

ANALYSIS
Venue

The first consideration for the transfer motion is whether the
venue is proper in both the Eastern and Western Divisions.

It is

uncontested that the events giving rise to this action occurred in
the Northern District of Illinois, so the venue is proper in this
District.

The parties do not dispute that the case could have been

brought in either division.

Indeed, because the Northern District

of Illinois has no local rule requiring divisional venues, this
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case may be brought in either the Eastern or Western Division. See
I&M Rail Link v. Northstar Navigation, 21 F.Supp.2d 849, 858 (N.D.
Ill. 1998).
B.

Convenience of the Parties and Witnesses

With respect to examining the convenience of the parties or
witnesses, courts look at a variety of factors including:

(1) the

plaintiff’s choice of forum; (2) the situs of material events; (3)
the

relative

ease

of

access

to

sources

of

proof;

(4)

the

convenience of the witnesses; and (5) the relative convenience of
the parties.

Navarette, 2008 U.S. Dist. LEXIS 7541 at *4.

The

Court will examine each factor in turn.
1.
The

Plaintiff’s Choice of Forum

plaintiff’s

significant weight.

choice

of

forum

is

usually

accorded

However, the Plaintiff’s choice of forum is

given less weight if it is not its home forum or if it lacks
substantial contact with the material events of the case.

See

Navarette, 2008 U.S. Dist. LEXIS 7541 at *4-5.
Plaintiffs live in Garner, Iowa, which is outside of both
divisions of the Northern District of Illinois. Plaintiffs also do
not dispute that the events that form the basis of this lawsuit
occurred in the Western Division.

Bjoraker was injured in Genoa,

Illinois, which is in the Western Division.
Despite the lack of connection to the Eastern Division,
Plaintiffs, relying upon Barr v. National Railroad Passenger Corp.,
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No. 08-CV-2529, 2009 U.S. Dist. LEXIS 101090 (E.D. Pa. Oct. 28,
2009), argue that “[t]he Plaintiff’s choice of forum in a FELA case
should be given a heightened level of deference.”

Pls.’ Resp.

at 2, ECF No. 30. Barr, however, stated expressly (and repeatedly)
that it was not ruling on whether a plaintiff’s choice of venue
should be treated with more deference in a FELA case.

Id. at *12

(“The Court need not rule on whether FELA provides Plaintiff’s
choices of venue with more deferential weight

. . . ”); id. at *13

(“Without ruling whether FELA cases necessarily grant more weight
to Plaintiff forum choice

. . . ”).

More relevant for this

matter, courts in this District have not extended heightened
deference to a plaintiff’s choice of forum in FELA cases.

As the

court stated in Diaz v. Indiana Harbor Belt Railroad Co., another
case involving a FELA claim stemming from a railroad injury:
Plaintiff urges the Court to deny the motion
to transfer on the grounds that Plaintiff’s
choice of forum is entitled to deference,
particularly
because
this
is
a
FELA
case. . . . Plaintiff overstates the emphasis
to be placed on a plaintiff’s choice of forum
in FELA cases.
It is well settled that a
1404(a) motion to transfer is appropriate in
FELA actions, and Plaintiff’s choice does not
automatically
trump
the
usual
1404(a)
considerations.
Diaz v. Indiana Harbor Belt Railroad Co., 99 C 2247, 1999 U.S.
Dist. LEXIS 16824 at *8 (N.D. Ill. Oct. 19, 1999) (granting
§ 1404(a) transfer of plaintiff’s FELA case to Western Division);
see also, Gasda v. Indiana Harbor Belt Railroad Co., No. 98 C 8371,

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1999 U.S. Dist. LEXIS 11979 (N.D. Ill. Jul. 30, 1999) (granting
§ 1404(a) transfer of plaintiff’s FELA case).

Thus, the Court

rejects Plaintiffs’ argument that their forum choice warrants
increased deference because it is a FELA action.
Here,
Division

Plaintiffs

is

not

are

their

residents

home

forum.

of

Iowa,

The

so

events

the

Eastern

that

caused

Bjoraker’s injuries occurred in Genoa, Illinois, which is in the
Western Division.

For these reasons, the Court finds Plaintiffs’

choice of forum only warrants minimal weight.
2.

The Location of Material Events

The next factor to consider is the location of material events
giving rise to the case.

This factor “becomes comparably more

important when it differs from the plaintiff’s choice of forum.”
Gulf Coast, 2011 U.S. Dist. LEXIS 128359 at *8.

Plaintiffs do not

dispute that their claim arose in the Western Division.

According

to the Complaint, Bjoraker was injured on DM&E’s property at 980
Park Avenue, Genoa, Illinois.

Genoa is in the Western Division.

Indeed, Plaintiffs acknowledge that the site where Bjoraker’s
injuries occurred is closer to the Western Division courthouse in
Rockford than to Chicago.

Pls.’ Resp. at 3, ECF No. 30.

claim arose in Genoa, Illinois.
of Illinois.

(“The

Genoa is in the Northern District

It is 60 miles from Chicago, Illinois.

miles from Rockford, Illinois.”)

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Genoa is 30

The Court finds that this factor favors transfer to the
Western Division, as all of the material events that form the basis
of Plaintiffs’ claims occurred there.
3.

Access to Evidence

The next factor to consider is the access to evidence at each
location.

DM&E contends that this factor weighs in favor of

transfer because Bjoraker’s injuries, Bjoraker’s initial treatment
and

DM&E’s

first

investigation

all

occurred

in

the

Western

Division. DM&E cites the affidavit of Michael Schmidt, an employee
of a subsidiary of DM&E’s parent company, to assert that “the
majority of records relating to DM&E’s investigation are not
located in the Eastern Division.”
to Transfer at 9, ECF No. 23.

Def.’s Mem. in Support of Mot.

DM&E also contends that, “[t]o the

extent that a jury view of the site of Plaintiff’s injury and the
now-constructed

radio

tower

is

necessary,”

it

would

be

more

convenient to arrange the visit if the case was in the Western
Division.

Id.

Plaintiffs respond that DM&E has “not assert[ed] that any
books and records it needs to defend this case are unavailable in
the Eastern Division.”

Pls.’ Resp. at 3, ECF No. 30.

They argue

that Bjoraker has executed medical releases for DM&E to obtain the
medical records from his physicians.

Bjoraker has also provided

medical records, bills, and Genoa ambulance and police records to
DM&E.

Plaintiffs contend further that records located in Rockford

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or Genoa are within this Court’s subpoena power, since they are
within 100 miles of Chicago.

Finally, Plaintiffs argue that

transfer to Rockford would not make obtaining records from Iowa or
Minnesota any easier.
The Court finds this factor weighs slightly in favor of
transfer.

Access to proof is less of a consideration in this case

due to technological advancements that have lessened traditional
concerns about access to evidence and the fact that this transfer
motion only involves moving from one division to another in the
same district. DM&E does not dispute Bjoraker’s contention that he
has provided his various medical records, or that records within
Genoa or Rockford would be within this Court’s subpoena power. And
while DM&E claims none of its records regarding this matter are in
the Eastern Division, a review of Mr. Schmidt’s affidavit reveals
that those records are not in the Western Division, either.

M.

Schmidt Aff. ¶ 14, ECF No. 22-1 (“The majority of DM&E’s records
pertaining to this matter are maintained in Minnesota, Iowa or
Canada.”).

Those DM&E records in Minnesota and Iowa would be

closer to Rockford than Chicago, however.
DM&E mentions the possibility of a jury visit to the site of
the accident.

While no party makes a firm assertion that a jury

visit will be necessary at this point, such a visit would require
less travel from Rockford to Genoa than it would from Chicago.
these reasons, this factor favors transfer.

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For

4.

Convenience of the Witnesses

The next factor is the convenience of the witnesses.

“The

convenience of the witnesses is often characterized as the most
important factor in a decision to transfer.” Gasda, 1999 U.S. Dist
LEXIS 11979 at *9.

The convenience of non-party witnesses is

accorded greater weight than the convenience of party witnesses.
Gulf Coast Bank, 2011 U.S. Dist. LEXIS

128359 at *7.

When

evaluating the convenience of the witnesses, consideration may
include the number of potential witnesses located in the two
venues, the expense of transportation, the nature and necessity of
the witnesses’ testimony and whether the witnesses can be compelled
to testify.

See Medi USA L.P. v. Jobst Inst., Inc., 791 F.Supp.

208, 211 (N.D. Ill. 1992).
At this stage in the case, the Court considers the eye
witnesses of the incident that caused Mr. Bjoraker’s injuries to be
significant.

According to DM&E, there appear to be six such

individuals:

Joseph

L.

Wideman,

Jesse

E.

Harrison,

Jacob

Lundrigan, James Mich, Donald Burken and Officer Kevin Heiser.
Schmidt Aff. ¶ 11, ECF No. 22-1.
witnesses,
convenience

as
of

they
party

are

All but Officer Heiser are party

employees

witnesses

M.

is

of

the

given

Defendants.
less

The

consideration.

However, while Officer Heiser (a resident of Genoa) would be within
this Court’s subpoena power, the Western Division would be a closer
venue for him.

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None of the parties have identified any of Bjoraker’s treating
physicians that they may call at trial, but the Court will assume
some of them may be witnesses. Bjoraker received medical treatment
from a number of non-party health care providers in addition to the
emergency medical personnel from Genoa-Kingston Ambulance Rescue
who first came to his aid.

These providers include:

(1) Saint

Anthony Medical Center in Rockford, Illinois; (2) Saint Mary’s
Hospital in Rochester, Minnesota; (3) Hancock County Memorial
Hospital in Britt, Iowa; (4) Mayo Clinic in Rochester, Minnesota;
(5) Accelerated Rehab in Forest City, Iowa; and (6) Forest Park
Clinic in Garner, Iowa.

M. Schmidt Aff. ¶ 9, ECF No. 22-1.

It is

likely that the emergency medical professionals from Genoa or those
physicians at Saint Anthony Medical Center, while within this
Court’s subpoena power, would find it more convenient if the case
was in the Western Division.

In addition, the Court sees no reason

why the Western Division would be any more inconvenient for those
health care professionals in Iowa and Minnesota than the Eastern
Division.
DM&E also identified two more of its employees, Bjoraker’s
supervisor John Morris, a resident of Missouri, and David Vaughn,
a resident of Iowa, as potential witnesses with “knowledge of Mr.
Bjoraker’s employment with DM&E.”
1.

M. Schmidt Aff. ¶ 6, ECF No. 22-

These are party witnesses who apparently did not witness

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Bjoraker get injured, and the Court gives less weight to their
consideration.
The convenience of the witnesses favors transfer. None of the
potential witnesses appear to live in the Eastern Division.

Many

are employees of the Defendants, who have incentive to make sure
they attend trial no matter where it occurs, and whose convenience
is given less weight.

But at least one non-party eye witness to

the incident that injured Bjoraker, Officer Heiser, and the nonparty

medical

providers

in

Rockford

and

Genoa

that

treated

Bjoraker’s injuries immediately after the injuries, would find
appearing in the Western Division more convenient despite being
within this Court’s subpoena power. As such, this factor weighs in
favor of transfer.
5.

Relative Convenience of the Parties

The next consideration is the relative convenience of the
parties.

In considering the relative convenience of the parties,

the court should consider where the parties reside and their
respective abilities to bear the expense of a trial in a particular
forum.

Braddock v. Jolie, No. 11-CV-8597, 2012 U.S. Dist. LEXIS

83598 at *6 (N.D. Ill. Jun. 15, 2012).

A court will not transfer

a case if doing so will simply shift the inconvenience from one
party to another.

Medi USA, 791 F.Supp. at 211.

DM&E claims that

the Western Division is a more convenient forum for it because “the
bulk of DM&E’s operations are closer [to] the Western Division and

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the DM&E supervisors and employees likely to have knowledge of
Plaintiff’s injury work in the Western Division.”
Support of Mot. to Transfer at 6, ECF No. 23.

Def’s. Mem in

DM&E also claims

that the Western Division would be more convenient for its coDefendants, despite none of them being located there.
Plaintiffs respond that, despite Rockford being closer to
their residence than Chicago, it would be more convenient for them
to fly to Chicago rather than drive to Rockford because Bjoraker
has problems sitting for lengths of time.
ECF No. 31.

Bjoraker Aff. ¶¶ 8-10,

His preference is to fly from Rochester, Minnesota to

Chicago instead of driving the 300 miles from their home to
Rockford. Id. Plaintiffs also claim that, “[a]ll of the attorneys
in this case have offices in Chicago, Illinois.
Rockford is not free.”

Travel time to

Pls.’ Resp. at 4, ECF No. 30.

DM&E

responds that Plaintiffs’ argument is disingenuous, since they
could have filed suit somewhere closer to their home if they were
concerned about Bjoraker sitting for prolonged periods of travel.
DM&E argues that Plaintiffs’ true motivation for filing in the
Eastern Division is because their attorney is in Chicago.
The Court finds this factor favors transfer. The Court agrees
with DM&E that it would be inappropriate for Plaintiffs to bring
suit in this Division solely for the convenience of their attorney.
Although courts consider a variety of factors in determining
whether to transfer a case, the convenience of the attorneys is not

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one of them.

See Bank of Am., N.A. v. Illumination Station, Inc.,

No. 10 C 3061, 2011 U.S. Dist. LEXIS 46734 at 13-14 n.5 (N.D. Ill.
May 2, 2011).

While the Court accepts (and is sympathetic to)

Bjoraker’s sworn statement that he has difficulty sitting for long
stretches of time, it fails to see how his proposed journey to
Chicago would save him any discomfort.

Plaintiff proposes driving

to Rochester Minnesota (approximately 111 miles from his home in
Iowa), flying from Rochester to Chicago, and then traveling from
O’Hare Airport to the Court in downtown Chicago.

The Court does

not see that as being a more convenient, or inexpensive, trek than
the 300 mile drive from Garner to Rockford.
In addition, DM&E claims transfer will be more convenient for
the

other

Illinois),

Defendants.
and

Seeser

Rockford than Chicago.

DM&E

argues

(in Clinton,

that
Iowa)

Miller
are

(in

both

Silvis,

closer

to

That is true, and should make the Western

Division more convenient for both of those Defendants.

DM&E did

not address whether the Western Division would be more convenient
for the Canadian Defendant, Advanced.

As Advanced is based in

Ontario, either the Western or Eastern Division is likely an
inconvenient forum for it.

However, the Court sees no reason why

trial in the Western Division would be more inconvenient for it
than the Eastern Division.
Transferring this case to the Western Division thus does not
appear to be an instance of shifting inconvenience from one party

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to another.

Instead, it would appear to be more convenient for

nearly all of the parties.
C.

Interests of Justice

In determining which venue best serves the interests of
justice, courts consider (1) the familiarity of the courts with the
applicable law; (2) the speed at which the case will proceed to
trial; and (3) the desirability of resolving controversies in the
respective locales.

Navarette, 2008 U.S. Dist. LEXIS 7541 at *7.

However, these considerations are given less weight in the case of
an intradistrict transfer.

Id. at *7-8.

Courts in both the Eastern and Western Divisions are equally
familiar with the applicable law to be applied, and are equally
capable of resolving the case.
neutral.

As

for

interest

in

So two of these factors are
resolving

the

controversy,

as

previously discussed, the events that caused Bjoraker’s injuries
occurred in the Western Division.
While the Court gives these factors less weight because DM&E
seeks an

intradistrict

transfer,

it

finds

that

one

of these

“interests of justice” factors favors transfer, while the other two
are neutral.
In sum, this action has far more connection to the Western
Division than this forum.
Division.

The injuries occurred in the Western

No witnesses have been identified that reside in the

Eastern Division.

Most of the Defendants and sources of proof are

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located closer to the Western Division.

Plaintiffs have not

pointed to any factor favoring the Eastern Division except their
preference to litigate here, and that preference is given less
deference because it is not their home division or the location
where the events giving rise to their claim occurred.

DM&E has

therefore met its burden of showing that such a transfer to the
Western Division would be “clearly more convenient” based on the
facts of this case.

See Navarette, 2008 U.S. Dist. LEXIS 7541 at

*3.
IV.

CONCLUSION

For the reasons stated herein, DM&E’s Motion to Transfer Venue
Pursuant to 28 U.S.C. § 1404(a) is granted.
IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
Date:3/12/2013

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