Tuholski v. Delavan Rescue Squad, Inc. et al
MEMORANDUM Opinion and Order Entered by the Honorable Marvin E. Aspen on 11/13/2013: Mailed notice (tlm)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
JOSEPH TUHOLSKI, individually and as
Independent Administrator of the Estate of
DELAVAN RESCUE SQUAD, INC., a
corporation, and the WALWORTH
COUNTY SHERIFF’S DEPARTMENT,
Case No. 13 C 1093
Hon. Marvin E. Aspen
MEMORANDUM OPINION AND ORDER
MARVIN E. ASPEN, District Judge:
Plaintiff Joseph Tuholski (“Tuholski”) filed a complaint alleging survival, negligence,
and wrongful death against Defendants Delavan Rescue Squad, Inc. (“Delavan”) and Walworth
Country Sheriff’s Department (“Walworth”), after his brother died from an asthma attack.
Walworth removed the case to the Northern District of Illinois from the Circuit Court of Cook
County. On April 9, 2013, Walworth filed a motion to transfer venue to Wisconsin pursuant to
28 U.S.C. § 1404(a). For the reasons discussed below, we grant Walworth’s motion to transfer
this action to the U.S. District Court for the Eastern District of Wisconsin.
On July 22, 2012, Delavan, an ambulance service, responded to a 911 call after Dennis
Tuholski experienced an asthma attack. (2nd Am. Compl. ¶¶ 20–31.) Later that day, Dennis
died in the hospital. (Id. ¶ 31.) Tuholski, individually and on behalf of Dennis’ estate, brought
suit in the Circuit Court of Cook County on January 4, 2013 against Walworth and Delavan.
The second amended complaint includes three counts, alleging wrongful death, negligence, and
survival. Walworth removed to the Northern District of Illinois, and we now confirm that there
is diversity between the parties such that we have subject matter jurisdiction.1 We turn to
consider Walworth’s motion to transfer venue to the Eastern District of Wisconsin, filed on
April 9, 2013.
Pursuant to 28 U.S.C. § 1404(a), for the convenience of the parties and witnesses and in
the interest of justice, a court may transfer any civil matter to another district where venue is
proper. The moving party must show that: (1) venue is proper in the district where the action
was originally filed; (2) venue would be proper in the transferee court; and (3) the transfer will
serve the convenience of the parties and witnesses as well as the interests of justice. See Morton
Grove Pharm., Inc. v. Nat’l Pediculosis Ass’n, 525 F. Supp. 2d 1039, 1044 (N.D. Ill. 2007). As
the party seeking transfer in the present case, Walworth has the burden to show that the Eastern
District of Wisconsin is “clearly more convenient” than the Northern District of Illinois. Heller
Fin. Inc. v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1293 (7th Cir. 1989); Lewis v. Grote
Indus., Inc., 841 F. Supp. 2d 1049, 1053 (N.D. Ill. 2012).
Tuholski acknowledges that venue is proper in both the Eastern District of Wisconsin and
the Northern District of Illinois. (Resp. Mot. Trans. at 1.) Walworth, in its amended motion for
removal, reserved the right to challenge personal jurisdiction. (Am. Notice Rem. at 4.)
In the original notice of removal filed on February 11, 2013, Walworth failed to prove, as “a
matter of certainty and not of probabilities,” that there was diversity between the parties. Murphy
v. Schering Corp., 878 F. Supp. 124, 125–26 (N.D. Ill. 1995). We allowed Walworth an
opportunity to amend the notice of removal. Tuholski v. Delavan Rescue Squad, Inc., 13 C 1093,
2013 WL 4052611 at *4 (N.D. Ill. Aug. 12, 2013). On September 10, 2013, Walworth
appropriately asserted diversity jurisdiction between parties: Tuholski admits that he is a citizen
of Illinois in his response to Walworth’s Motion to Transfer; Walworth is a citizen of Wisconsin,
as its principal place of business and nerve center are in Walworth County, Wisconsin; and
Delavan is a citizen of Wisconsin, as its headquarters, nerve center, and principal place of
business are in the state of Wisconsin.
However, Walworth urges that transfer may still occur. (Reply Mot. Trans. at 2.) “Under
1404(a) as under 1406(a), the transferring court need not have personal jurisdiction over the
defendants.” Cote v. Wadel, 796 F.2d 981, 985 (7th Cir. 1986); Cont’l Cas. Co. v. Staffing
Concepts, Inc., 06 C 5473, 2009 WL 3055374, at *2 (N.D. Ill. Sept. 18, 2009.) Since Walworth
concedes this point, we address whether transfer will serve the convenience of parties and
witnesses as well as the interests of justice.
The Seventh Circuit has stated that the transfer decision requires “flexible and
individualized analysis” based on the circumstances of a particular case. Research Automation,
Inc. v. Schrader–Bridgeport Int’l, Inc., 626 F.3d 973, 978 (7th Cir. 2010); Body Sci. LLC v.
Boston Scientific Corp., 846 F. Supp. 2d 980, 997 (N.D. Ill. 2012). The district court is given
wide discretion in weighing the factors involved in each case. Lewis, 841 F. Supp. 2d 1049, at
1053 (citing Heller Fin., 883 F.2d at 1293).
Convenience (or Private) Factors
In deciding whether transfer would promote convenience, courts consider such private
interest factors as: “(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 parties; and (5) the
convenience of witnesses.” Morton Grove Pharms., 525 F. Supp. 2d at 1044 (citing Schwartz v.
Nat’l Van Lines, Inc., 317 F. Supp. 2d 829, 835 (N.D. Ill. 2004)); see also Amoco Oil Co. v.
Mobil Oil Corp., 90 F. Supp. 2d 958, 960 (N.D. Ill. 2000). We evaluate each factor in turn.
Plaintiff’s Choice of Forum & the Situs of Material Events
The plaintiff’s choice of forum “should rarely be disturbed.” In re Nat’l Presto Indus.,
Inc., 347 F.3d 662, 664 (7th Cir. 2003) (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67
S. Ct. 839, 843 (1947)); Amoco Oil Co. v. Mobil Oil Corp., 90 F. Supp. 2d 958, 960 (N.D. Ill.
2000). Courts in this district have held, however, that if the “events giving rise to the cause of
action did not take place in the plaintiff’s selected forum, the ‘plaintiff’s preference has minimal
value.’” Dunn v. Soo Line R. Co., 864 F. Supp. 64, 65 (N.D. Ill. 1994) (quoting Robinson v.
Town of Madison, 752 F. Supp. 842, 847 (N.D. Ill. 1990)); see also Metzger v. SleeceCo, Inc., 09
C 6071, 2010 WL 563073, at *2 (N.D. Ill. Feb. 12, 2010). The events giving rise to the present
action indisputably took place entirely in Wisconsin. Accordingly, Tuholski’s choice of the
Northern District of Illinois as the forum for this action has minimal weight in our analysis,
while the situs of material events factor weighs heavily in favor of transfer.
Access to Sources of Proof
The next convenience factor concerns the relative ease of access to evidence. Tuholski
argues that evidence in Wisconsin, “most likely limited to medical records or policies and
procedures,” can be transported electronically. (Resp. Mot. Trans. at 3.) Tuholski thus contends
that transfer “will not ease any party’s access to evidence.” (Id.) As Walworth contends,
however, documentary evidence may not be the only evidence used at trial.
Walworth points out that some non-documentary sources of proof are located in
Wisconsin and cannot be replicated. (Reply Mot. Trans. at 5.) For example, Walworth suggests
that Tuholski may wish to inspect the Walworth County 911 dispatch center, or that a jury view
may become desirable. (Id.) While “[t]he location of a party’s documents and records is usually
not a very persuasive reason to transfer a case,” Morton Grove Pharm., 525 F. Supp. 2d at
1045–46 (internal quotation omitted), we recognize that truly unique sources of proof in
Wisconsin are available and may become necessary. In light of that legitimate possibility, this
factor slightly favors transfer to the Eastern District of Wisconsin.
Convenience of Parties
Next we evaluate the convenience of the parties in this action. As the moving party,
Walworth has the burden of showing that “the original forum is inconvenient for the defendant
and that the alternative forum does not significantly inconvenience the plaintiff.” Continental
Cas. Co. v. Staffing Concepts, Inc., No. 06 C 5473, 2009 WL 3055374, at *5 (N.D. Ill.
Sept. 18, 2009); First Nat’l Bank v. El Camino Res., Ltd., 447 F. Supp. 2d 902, 912–13 (N.D. Ill.
As Tuholski is a resident of Illinois, Wisconsin is presumably a less convenient forum for
him. (Resp. Mot. Trans. at 3.) We assume for purposes of this motion that Chicago is more
convenient because Tuholski chose to file suit here. Walworth asserts that it is more convenient
for it to litigate in Wisconsin, given the location of its headquarters, employees, and witnesses.
(Reply Mot. Trans. at 5–7.) Nonetheless, Walworth has not demonstrated that transfer would not
significantly inconvenience Tuholski. We recognize that Walworth’s attempt to meet this
standard is somewhat hampered by the complaint’s failure to identify the city where Tuholski
lives. Walworth thus lacks useful information on which it could persuasively argue the relative
convenience of Chicago and Milwaukee as potential venues for Tuholski’s claims. Ultimately,
Walworth bears the burden of proof on this question and yet cannot satisfy it. As such, this
factor does not weigh in favor of transfer.
Convenience of Witnesses
The last of the private factors is the convenience of witnesses, which “is often viewed as
the most important factor in the transfer analysis.” JDA eHealth Sys., Inc. v. Chapin Revenue
Cycle Mgmt., LLC, 10 C 7781, 2011 WL 2518938, at *4 (N.D. Ill. June 23, 2011) (quoting
Preussag Int’l Steel Corp. v. Ideal Steel & Builder’s Supplies, Inc., No. 03 C 6643, 2004 WL
783102, at *5 (N.D. Ill. Jan. 20, 2004)). Besides demonstrating that it would be inconvenient for
witnesses to be called in the Northern District of Illinois, “[t]he party seeking transfer must
specify the key witnesses to be called and make a generalized statement of their testimony.”
Heller Fin., 883 F.2d at 1293; First Nat’l Bank, 447 F. Supp. 2d at 913; Bauer v. Holder, 12 C
2424, 2013 WL 80371, at *3 (N.D. Ill. Jan. 4, 2013).
Walworth contends that Defendants’ witnesses are almost exclusively located in
Wisconsin. (Mem. Mot. Trans. at 6.) These include individuals who were with the decedent
when he died, employees of Delavan and Walworth, medical providers, the coroner, and
individuals at Mercy Hospital. (Id; Reply Mot. Trans. at 7–9.) Walworth argues that the
testimony of these individuals will be crucial, since many of the potential witnesses treated
Tuholski, were involved in dispatching the Delavan Rescue Squad to the scene, or have
knowledge of the operational procedures and relationships between Defendants. (Reply Mot.
Trans. at 8–9.) On the other hand, Tuholski urges that his witnesses are all located in Illinois, or
that in the alternative, that it is no easier for those witnesses located in Wisconsin to travel to
Milwaukee than to Chicago. (Resp. Mot. Trans. at 4.)
In balancing these facts, we focus particularly on the availability of non-party witnesses,
“because party witnesses are required to appear.” Amorose v. C.H. Robinson Worldwide, Inc.,
521 F. Supp. 2d 731, 736 (N.D. Ill. 2007). Walworth’s witness list includes the medical
examiner and coroner, both non-party witnesses who examined the decedent. Additionally,
according to Walworth, the testimony of the Walworth and Delavan employees will bear
significantly on the determination of Defendants’ fault. See Aramark Mgmt. Servs. Ltd. P’ship v.
Martha’s Vineyard Hosp., Inc., 03 C 1642, 2003 WL 21476091, at *4 (N.D. Ill. June 23, 2003)
(citing United Air Lines, Inc. v. Mesa Airlines, Inc., 8 F. Supp. 2d 796, 799 (N.D. Ill. 1998)
(“[C]ourts consider not only the number of witnesses, but also the anticipated quality and impact
of their testimony.”)).
Tuholski’s witness list identifies important witnesses as well, including a third-party
witness present with Dennis when he suffered the asthma attack. Tuholski’s remaining
witnesses include family members (including Tuholski) and a witness who, while an Illinois
resident, has a home in Delavan. “As a practical matter, it is usually assumed that witnesses
within the control of the parties will appear voluntarily.” Am. Family Ins. v. Wal–Mart Stores,
Inc., No. 02 C 8017, 2003 WL 1895390, at *2 (N.D. Ill. Apr. 17, 2003); see Childress v. Ford
Motor Co., 03 C 3656, 2003 WL 23518380, at *4 (N.D. Ill. Dec. 17, 2003) (explaining that “it is
reasonable to conclude that [a family member] is more likely to attend trial than the non-party . .
. witnesses who are neither blood relatives of Plaintiffs or employees of Defendant.”) Tuholski’s
witness list consists primarily of the types of witnesses who either must or would voluntarily
appear to testify. (Resp. Mot. Trans. at 4 (identifying family members, Dennis’s girlfriend, and
the Delavan neighbor as witnesses).)
On the whole, we are persuaded that it would be more inconvenient for the Wisconsin
witnesses to appear in an Illinois federal court. Walworth lists two non-party witnesses with no
ties to Dennis or his family such that their personal interest in testifying might outweigh their
inconvenience. In addition, Walworth’s briefs identify as potential witnesses various officials
and employees from Walworth, Delavan, and Mercy Hospital, all of whom work in Wisconsin.
(See Reply Mot. Trans. at 8–9 (describing additional witnesses and stating that none of them
could be compelled to testify in Chicago).) In light of the above, we conclude that this factor
favors transfer to the Eastern District of Wisconsin.
Interest of Justice (or Public) Factors
We now consider the relevant interest of justice factors under the transfer statute. These
public factors include the “court’s familiarity with the applicable law, the speed at which the
case will proceed to trial, and the desirability of resolving controversies in their locale.” First
Nat’l Bank, 447 F. Supp. 2d at 912 (internal quotation omitted); TIG Ins. Co. v. Brightly
Galvanized Prods. Inc., 911 F. Supp. 344, 346 (N.D. Ill. 1996); see also Research Automation,
626 F.3d at 978. Here, our analysis looks to “the efficient functioning of the courts.” Coffey v.
Van Dorn Iron Works, 796 F.2d 217, 221 (7th Cir. 1986.)
Court’s Familiarity with Applicable Law
The first inquiry is whether the Eastern District of Wisconsin is more familiar with the
applicable law in this case than the Northern District of Illinois. Walworth argues that the
substantive law of Wisconsin would apply, based upon Illinois conflict of law principles, and
that the Wisconsin courts are more familiar with the application of such laws. (Mem. Mot.
Trans. at 6.) Tuholski does not challenge this assertion, and thus we accept it. See Dunn, 864 F.
Supp. at 67. Tuholski, however, contends that federal courts are often called upon to apply the
laws of other states. (Resp. Mot. Trans. at 6.) We conclude that this factor may support transfer
in some small degree.
The Speed at Which the Case Will Proceed to Trial
The second public factor concerns the likelihood that a litigant will receive a speedy trial
in the interest of justice. Coffey, 796 F.2d at 221. According to recent Federal Court
Management Statistics for both courts,2 the time between filing a case to trial is 31.5 months in
the Northern District of Illinois and is 25.6 months in the Eastern District of Wisconsin. The
time from filing to disposition in civil cases is the same for both courts, at 6.7 months. While the
times for disposition are identical, the interest in a speedy trial overall may favor transfer to the
Eastern District of Wisconsin in some degree.
Desirability of Resolving Controversies in Their Locale
Finally, we evaluate Wisconsin’s and Illinois’s respective interest in resolving this
controversy. “Resolving litigated controversies in their locale is a desirable goal of federal
courts.” First Nat’l Bank, 447 F. Supp. 2d at 914 (quoting Doage v. Bd. of Regents, 950 F. Supp.
258, 262 (N.D. Ill. 1997)). Walworth argues that Wisconsin’s interest in this controversy relates
to “the local interest in having localized disputes decided at home,” and contends that an Illinois
jury and judge should not be burdened with this case where the majority of those involved reside
in the Eastern District of Wisconsin. (Reply Mot. Trans. at 6) (citing Clerides v. Boeing Co.,
534 F.3d 623, 628 (7th Cir. 2008)). Walworth asserts that the injury occurred in Wisconsin and
the parties’ relationship centers in Wisconsin, giving rise to an interest for Wisconsin to resolve
the controversy. (Mem. Mot. Trans. at 12.) We agree.
Although Tuholski argues that both states have an interest in the controversy, he fails to
effectively articulate Illinois’s interest. We assume that Tuholski resides, and that Dennis
Comparison of Districts Within the Seventh Circuit — 12 Month Period Ending June 30, 2013,
Federal Court Management Statistics,
resided, in the Northern District because Tuholski filed the suit in Cook County. While Illinois
surely has an interest in litigating disputes that involve a resident’s death, Wisconsin has a
stronger interest in resolving a dispute that arose entirely in Wisconsin and involves several of its
corporations, municipalities, and citizens, including Defendants, party witnesses, and other
potential witnesses. This factor weighs significantly in favor of transfer.
Summary of Factors
After analyzing all of the factors for transfer under 28 U.S.C. § 1404(a), we hold that the
balance warrants transfer of this action to the Eastern District of Wisconsin. In particular,
efficiency and convenience to the parties and non-party witnesses weigh significantly in favor of
For the reasons stated above, this case is hereby transferred to the Eastern District of
Wisconsin. It is so ordered.
Marvin E. Aspen
United States District Judge
November 13, 2013
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