FINLEY v. MEMORIAL HOSPITAL OF SOUTH BEND, INC. et al
Filing
198
ORDER denying 185 Motion to Transfer Case (see Order for details). Signed by Magistrate Judge Debra McVicker Lynch on 2/27/2014. (PG)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
SUSAN FINLEY Individually and on behalf
of Robert Finley, deceased,
Plaintiff,
vs.
MEMORIAL HOSPITAL OF SOUTH BEND,
INC.,
DAVID HALPERIN, M.D.,
SOUTH BEND EMERGENCY
PHYSICIANS, INC.,
Defendants.
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No. 1:11-cv-01390-DML-RLY
Order Denying Motion to Transfer Case (Dkt. 185)
This medical malpractice action was brought in this district court on October
17, 2011, by Susan Finley, a Michigan citizen, against Christopher Evanson, M.D.
and Meridian Surgical Group, Inc. (citizens of Indiana located in Carmel, Indiana,
which is in the Southern District of Indiana), and against David Halperin, M.D. and
South Bend Emergency Physicians, Inc. (“Emergency Physicians”) (citizens of
Indiana located in South Bend, Indiana, which is in the Northern District of
Indiana). The case is set for jury trial to begin on March 3, 2014. On February 18,
2014 (the day of the final pretrial conference), the plaintiff moved to dismiss
defendants Evanson and Meridian Surgical Group.1 A few days later, defendants
Halperin and Emergency Physicians moved to transfer this case to the Northern
District of Indiana, citing two alternate bases. First, they maintain that because no
1
The court granted the motion on February 25, 2014.
remaining defendant is located in the Southern District of Indiana, venue is now
improper under 28 U.S.C. § 1391(b) and the case must therefore be transferred to
the Northern District as provided by 28 U.S.C. § 1406(a). If the court does not
accept that argument, they urge it nevertheless to transfer the case to the Northern
District under 28 U.S.C. § 1404(a). The court DENIES the motion.
Transfer based on improper venue is not appropriate.
Dr. Halperin and Emergency Physicians do not dispute that this action was
properly brought in the Southern District of Indiana under section 1391(b)(1), which
provides for venue in “a judicial district in which any defendant resides, if all
defendants are residents of the State in which the district is located.” Rather, their
motion to transfer is premised on the contention that an action properly venued at
its inception must be transferred—no matter how advanced the action—if the
defendants who “reside” in the forum district are no longer defendants in the case.
But they cite no authority for this proposition, and the court has located none.
Furthermore, section 1391(b) speaks to the district in which a “civil action
may be brought”; it does not address where an action may be maintained. Nor does
it address jurisdiction or the court’s power or authority to hear a dispute. See 28
U.S.C. § 1390(a). 28 U.S.C. § 1406(a), the statute these defendants cite as the
vehicle for transfer for improper venue, also supports this textual analysis. It says
that a case “which is filed . . . laying venue in the wrong . . . district” may—in lieu
of dismissal—be transferred to any district in which it could have been brought.
The conclusion that section 1391(b) focuses where an action can be filed is further
2
buttressed by its consistency with Fed.R.Civ.P. 12(h), which says that the defense of
improper venue is waived unless raised by responsive pleading or in a Rule 12
motion, events that by definition occur at the beginning of the case.
The two decisions cited by Dr. Halperin and Emergency Physicians are not
persuasive. Both Smith v. Thompson, 685 F.Supp. 177 (N.D. Ill. 1988), and Maxey
v. Illinois Department of Corrections, 1992 WL 133199 (N.D. Ill. June 11, 1992),
dealt with prisoners’ petitions to file their complaints in forma pauperis.2 Petitions
in forma pauperis are filed at the start of a case along with a tendered complaint
and cause the court to examine, among other things, the merits of that complaint.
In each of those cases, the court determined that the prisoner had named certain
individuals who were not proper defendants, and whose residence therefore could
not support venue. The circumstances of those cases are quite different from those
presented here. The transfers in Smith and Maxey occurred at the complaint stage
of the cases and were based on the fact that the defendants who supplied venue had
not been properly named in the first place. This motion to transfer has been filed
on the eve of trial, and there is no contention that Dr. Evanson and Meridian
Surgical were not properly named.3
A petition in forma pauperis is a request to file a complaint without payment of
the filing fee.
2
Dr. Halperin and Emergency Physicians do suggest that Dr. Evanson and
Meridian Surgical were named in mere furtherance of what they term forum
shopping, but that suggestion is hard to square with the fact that Mrs. Finley
expended substantial time and other resources in pursuing those claims through
the panel review process and this litigation. In any event, naming a defendant for
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Dr. Halperin and Emergency Physicians’ improper venue argument is flawed
in another important respect. It ignores the application of subsection (d) of section
1391. Subsection (d) provides that when a state has more than one judicial district,
a corporation like Emergency Physicians is deemed to reside in any district in that
state within which its contacts would be sufficient to subject it to personal
jurisdiction if that district were a separate state. In other words, Emergency
Physicians is a resident of the Southern District of Indiana for purposes of section
1391(b)(1) if it has the requisite minimum contacts with the “state” of the Southern
District of Indiana to support personal jurisdiction. Dr. Halperin and Emergency
Physicians have not argued or demonstrated in connection with their motion that
these minimum contacts are lacking; they indeed have not mentioned this
provision.
For these reasons, the motion to transfer for improper venue is DENIED.
Transfer under 28 U.S.C. § 1404(a) is not warranted.
Section 1404(a) permits a district court, for the convenience of parties and
witnesses and in the interest of justice, to transfer an action to any other district
where it could have been brought. The determination is committed to the sound
discretion of the trial judge. State Farm v. Estate of Bussell, 939 F.Supp. 646, 651
(S.D. Ind. 1996).
strategic reasons is a far cry from naming a defendant, like those in Smith and
Maxey, against whom the complaint fails to state a non-frivolous claim.
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This is not a close call. Trial is set to begin in four days. Jurors have been
summoned. The court has ruled on a host of pretrial issues. Dr. Halperin and
Emergency Physicians argue that the Northern District would be a more convenient
forum for them and perhaps for Mrs. Finley, but they do not address the
convenience of the many witnesses (including experts) who are scheduled to testify.
They also assert that the citizens of the Northern District have an interest in
deciding cases that affect members of their community.4 These considerations do
not outweigh the compelling circumstances that make trial as scheduled in the
Southern District consonant with the interests of justice. The motion to transfer
under section 1404(a) is DENIED.
So ORDERED.
02/27/2014
Date: ___________________
____________________________________
Debra McVicker Lynch
United States Magistrate Judge
Southern District of Indiana
Distribution:
All ECF-registered counsel of record via email generated by the court’s ECF system
Transferring this case to the Northern District of Indiana would not necessarily
put this case before these defendants’ “community.” The Northern District crosses
the entire state, and a case in that district could be filed in, for example, Lafayette,
Hammond, or Fort Wayne.
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