FRYE et al v. INDIANA CONCRETE SAWING AND DRILLING, INC.
Filing
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ORDER denying Defendant's 13 Motion to Change Venue (see Order). Signed by Magistrate Judge Mark J. Dinsmore on 7/1/2015. (SWM)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
DAVID FRYE TRUSTEE,
INDIANA LABORERS WELFARE,
PENSION AND TRAINING FUNDS,
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Plaintiffs,
vs.
INDIANA CONCRETE SAWING AND
DRILLING, INC.,
Defendant.
No. 1:15-cv-00137-JMS-MJD
ORDER ON MOTION TO CHANGE VENUE
This matter comes before the Court on Defendant’s Motion for Change of Venue. [Dkt.
13.] For the reasons set forth below, the Court DENIES Defendant’s motion.
I.
Background
On February 2, 2015, David Frye (“Plaintiff”) sued Indiana Concrete Sawing and
Drilling, Inc. (“Defendant”), alleging that Defendant had violated the Employee Retirement
Income Security Act of 1974 (“ERISA”). [Dkt. 1.] Plaintiff alleged that Defendant 1) had
committed to making contributions to the Indiana Laborers Welfare Pension and Training Funds
(“the Funds”) and 2) had committed to allowing the Funds to examine Defendants’ payroll books
and records, but that Defendant had failed comply with these obligations. [Id. ¶¶ 6-10.] Plaintiff
also alleged that the Funds maintain their office and principal place of business in Terra Haute,
Indiana—i.e., within the Southern District of Indiana—and that Defendant is a corporation with
its principal place of business in Fort Wayne, Indiana—i.e., within the Northern District of
Indiana. [Id. ¶¶ 2-3.]
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On April 21, 2015, Defendant moved the Court to transfer this case to the Northern
District of Indiana, Fort Wayne Division. [Dkt. 13.] Defendant initially argued that venue in this
Court was improper under 28 U.S.C. § 1391, [see id.], such that transfer was mandatory. See 28
U.S.C. 1406(a) (“The district court of a district in which is filed a case laying venue in the wrong
division or district shall . . . transfer such case to any district or division in which it could have
been brought.”). In response, Plaintiff observed that, regardless of Defendant’s argument, venue
is proper in this Court under ERISA’s specific venue provision. [See Dkt. 16 at 2 (citing 29
U.S.C. § 1132(e)(2) (“Where an action under this subchapter is brought in a district court of the
United States, it may be brought in the district where the plan is administered[.]”)).] Defendant
conceded as much in reply, [see Dkt. 17 at 2], but Defendant then argued that the Court should
nonetheless transfer this case pursuant to 28 U.S.C. § 1404(a). [See id.] That subsection gives the
Court discretion to transfer a case, and Defendant asked the Court to exercise this discretion
because it would allegedly be more convenient to litigate this case in the Northern District of
Indiana. [See id. at 2-6.]
Defendant raised this argument for the first time in its reply brief, and the Court observed
that such arguments are typically waived. [Dkt. 20 (citing Rives v. Whiteside Sch. Dist. No. 115,
575 F. App’x 678, 680 (7th Cir. 2014)).] The Court, however, also observed that it may sua
sponte consider whether transfer under 28 U.S.C. § 1404(a) is appropriate, and so rather than
ignore Defendant’s arguments, the Court ordered the parties to submit supplemental briefing on
the issue. [Id.] The parties have now done so, and the Court now addresses their arguments.
II.
Discussion
A district court may transfer a civil action to any other judicial district in which the action
could have been brought, provided that such transfer is “in the interest of justice” or will promote
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“the convenience of parties and witnesses.” 28 U.S.C. § 1404(a). The parties in this case agree
that this action could have been brought in either the Northern or Southern District of Indiana,
[see Dkt. 21 at 2; Dkt. 22 at 1], and the only question is thus whether transfer to the Northern
District will promote the interests of justice and the convenience of the parties and witnesses.
This determination requires a “flexible and individualized analysis” that accounts for “all factors
relevant to convenience and/or the interests of justice.” Research Automation, Inc. v. SchraderBridgeport Int’l, Inc., 626 F.3d 973, 978 (7th Cir. 2010) (quoting Stewart Org., Inc. v. Ricoh
Corp., 487 U.S. 22, 29 (1988)). Specific factors to consider in the “convenience” analysis
include “the availability of and access to witnesses;” “each party’s access to and distance from
resources in each forum;” and “the location of material events and the relative ease of access to
sources of proof.” Id. Specific factors to consider in the “interest of justice” analysis include
“docket congestion and likely speed to trial;” “each court’s relative familiarity with the relevant
law;” the “desirability of resolving controversies in each locale;” and the “relationship of each
community to the controversy.” Id. The Court should balance each of these factors, but the Court
will typically not disturb the plaintiff’s choice of forum unless that balance “is strongly in favor
of the defendant[.]” In re Nat’l Presto Indus., Inc., 347 F.3d 662, 663 (7th Cir. 2003) (quoting
Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947)).
A. Convenience
The parties first dispute whether the Northern or Southern District would be more
convenient for their officers and representatives. Defendant notes that it has offices only in the
Northern District of Indiana and does business only in the Northern District of Indiana, [Dkt. 22
at 4], with the implication that it would be more convenient for it to defend this case in Fort
Wayne. [See id.] Plaintiff, however, has offices only in Terra Haute, [Dkt. 21 at 5], such that a
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transfer to Fort Wayne would necessarily make it more difficult for Plaintiff to pursue its cause
of action. In light of this geographical arrangement, it appears that transferring this case to Fort
Wayne would simply shift the inconvenience from Defendant to Plaintiff.
The goal of transfer, however, should be to eliminate—not merely shift—any
inconvenience to the parties. See, e.g., Key Electronics, Inc. v. Earth Walk Commc’ns, Inc., No.
4:13-CV-00098-SEB-DML, 2014 WL 2711838, at *8 (S.D. Ind. June 16, 2014) (citing In re
Nat’l Presto Indus., Inc. ., 347 F.3d 662, 665 (7th Cir.2003)) (“[T]he effect of a transfer cannot
be merely to shift the inconveniences from one party to the other.”); see also, e.g., Gilman v.
Walters, No. 1:12-CV-0128-SEB-TAB, 2012 WL 3229283, at *3 (S.D. Ind. Aug. 6, 2012)
(citation omitted) (“[W]e must ensure that the effect of this transfer is not ‘a mere shift of
inconveniences among parties.’”). Hence, even if a transfer of this case would be convenient for
Defendant, the fact that such convenience would come only at Plaintiff’s expense militates in
favor of denying Defendant’s motion.
The parties then dispute the convenience of litigating this case for their likely witnesses.
Plaintiff asserts that its likely witnesses reside predominantly in Terra Haute, such that litigating
this case in Indianapolis would be more convenient than litigating this case in Fort Wayne. [Dkt.
21 at 6; see also Dkt. 21-1 (Aff. of Tim Patrick).] Defendant asserts that its likely witnesses “are
believed to reside in the Northern District [of Indiana] or are Michigan residents,” such that they
may more easily travel to Fort Wayne than to Indianapolis. [Dkt. 22 at 3; see also Dkt. 22-1
(Supplemental Aff. of Thomas K. Lowry).]
As an initial matter, the Court finds it speculative for Defendant to assert that litigating in
Fort Wayne would be more convenient than litigating in Indianapolis: if Defendant’s witnesses
plan to fly from Michigan to Indiana, then it may in fact be more convenient for them to fly to
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Indianapolis than to Fort Wayne. In addition, depending on where in the Northern District of
Indiana Defendant’s witnesses reside, Defendant’s witnesses may actually live closer to
Indianapolis than Fort Wayne. Thus, Defendant’s current representations do not establish that its
witnesses would in fact find it more convenient to litigate in the Northern District than the
Southern District.
Next, even assuming that it is more convenient for some of Defendant’s witnesses to
litigate this case in the Northern District of Indiana, this does not end the analysis: Just as it is
inappropriate to transfer a case if doing so would merely shift the inconvenience from one party
to another, it is inappropriate to do so if transfer would merely shift inconvenience from one
witness to another. See, e.g., Transnord, Inc. v. Saenz, No. 87 C 9356, 1988 WL 31455, at *2
(N.D. Ill. Mar. 25, 1988) (“A plaintiff’s choice of forum should not be disturbed where transfer
merely shifts, rather than eliminates, inconvenience to the parties or witnesses.”). Here, a transfer
from Indianapolis to Fort Wayne could make it easier for some of Defendant’s witnesses to
appear at trial, but at the same time, such a transfer would make it more difficult for Plaintiff’s
Terra Haute-based witnesses to so appear. Transfer, that is, would merely shift the inconvenience
to Plaintiff’s witnesses, such that this factor does not support transfer.
Defendant then addresses the parties’ resources and the ease of access to evidence and
sources of proof. Defendant observes that it is a “small, locally-owned business with five
employees,” [Dkt. 22 at 4], and that “records and documents, including the payroll records and
related information” at issue in this case, are located in the Northern District. [Dkt. 17 at 3.] It
thus asserts that it would be overly burdensome to try to produce these materials at a location
outside the Northern District of Indiana. [See Dkt. 22 at 4.]
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This assertion overstates Defendant’s alleged burden. As Plaintiff notes, the location of
documents has little weight in the modern transfer analysis, as technology and electronic
discovery have obviated many of the concerns associated with producing such documents. See,
e.g., Got Gold? LLC v. Temple, No. 12-2278, 2013 WL 139436, at *1 (C.D. Ill. Jan. 10, 2013)
(“Plaintiff correctly notes that technology permitting electronic discovery diminishes the
relevance of the location of documents.”); Aearo Co. v. Bacou-Dalloz USA Safety, Inc., No.
1:03-CV-01406-DFH-VS, 2004 WL 1629566, at *3 (S.D. Ind. July 21, 2004) (citation omitted)
(“[T]o the extent that the parties’ evidence consists of records and documents, their location is a
small matter ‘in these more modern days of photocopying, faxing and other electronic means of
retrieval.’”); accord, e.g., ESPN, Inc. v. Quiksilver, Inc., 581 F.Supp.2d 542, 548 (S.D.N.Y.
2008) (“In an era of electronic documents, easy copying and overnight shipping, this factor
assumes much less importance than it did formerly.”). This factor thus has little relevance in
deciding whether transfer is appropriate.
Defendant finally relies heavily on Hanley v. Omarc, Inc., 6 F. Supp. 2d 770 (N.D. Ill.
1998). [See Dkt. 17 at 2-5; Dkt. 22 at 4-5.] There, the plaintiff alleged that Omarc, Inc. had
violated ERISA by failing to make contributions to a large pension fund. 6 F. Supp. 2d at 77273. The fund was administered in Naperville, Illinois, and the defendant was a New Jersey
corporation with its principal place of business in Atlantic City, New Jersey. Id. at 772. The
plaintiffs filed suit in the Northern District of Illinois, but that court ultimately transferred the
case to New Jersey. Id. It noted that many more witnesses were located in New Jersey than were
located in Illinois; that the defendant was a small company that lacked the resources to litigate
the case far from its home; and that New Jersey was the site of the events giving rise to the
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litigation. Id. at 775-77. It thus determined that these factors outweighed the deference typically
granted to a plaintiff’s choice of forum. Id. at 777.
Defendant in this case contends that it is in the same position as the defendant in Hanley,
insofar as Defendant alleges that it, too, is a small company that would prefer to litigate in the
judicial district where many of its potential witnesses are located. [Dkt. 17 at 2-5.] The Court,
however, finds that this case is easily distinguishable from Hanley: in that case, the New Jerseybased defendant and its witnesses were faced with litigating a case in an Illinois forum located
halfway across the country. Here, in contrast, the Fort Wayne-based Defendant faces only a twohour drive to Indianapolis. The degree of inconvenience in this case is simply not comparable to
the degree of inconvenience in Hanley, and Defendant’s reliance on that case thus does little to
support its position.
Ultimately, then, the Court finds that the convenience factors outlined above are largely
neutral. Both the parties and their witnesses will inevitably face inconvenience no matter where
this case is tried, and to the extent that Defendant is in fact a small company with limited
resources, the close proximity of Indianapolis and Fort Wayne will mitigate any burden
Defendant faces. The convenience analysis therefore does not strongly favor transfer.
B. Interests of Justice and Plaintiff’s Choice of Forum
As noted above, the “interests of justice” involve factors such as docket congestion; the
courts’ familiarity with the relevant law; and the interest in having local controversies resolved
within the relevant community. Research Automation, 626 F.3d at 978. The parties in this case
did not discuss the first two factors, [see Dkts. 17, 21 & 22], and the Court thus assumes these
factors are neutral to the transfer analysis. Defendant then briefly argues that the interest in
having local controversies resolved within the relevant community favors transfer to the
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Northern District of Indiana, as any ERISA violation that actually occurred in this case would
have necessarily occurred when Defendant failed to make necessary payments while operating in
the Northern District. [Dkt. 22 at 4.] Defendant, however, does not explain why such alleged
violations are of any particular importance to the Northern District of Indiana, and indeed,
Defendant repeatedly asserts that is a small business that presumably has little influence on the
community as a whole. [See, e.g., Dkt. 17 at 4; Dkt. 22 at 4.] The Court thus finds it difficult to
imagine that the community within the Northern District of Indiana has any especial concern that
this case be decided close to home, such that this factor—at most—only minimally favors
transfer.
The parties then devote the majority of their discussion of the “interest of justice” to the
plaintiff’s choice of forum. [See Dkts. 21 & 22.] As noted earlier, the Court must respect the
Plaintiff’s choice and will typically not disturb that choice unless the balance of other factors
strongly favors transfer. See Presto Indus, 347 F.3d at 663. In addition, Congress intended for
ERISA’s special venue provisions to help “protect the financial integrity of employee benefit
plans” by allowing the plans to file suit “in the district where the plan is administered.” Dugan v.
M & W Dozing & Trucking, Inc., 727 F. Supp. 417, 419 (N.D. Ill. 1989). Giving the plans the
option to litigate in such a district advances Congressional intent by relieving the plans of the
“undue hardship and expense to the funds” that would result from forcing the plans to litigate
elsewhere. Id. As a result, a plaintiff’s choice of forum in an ERISA action is “entitled to
especially great weight.” Cent. States, Se. & Sw. Areas Pension Fund v. Salasnek Fisheries, Inc.,
977 F. Supp. 888, 890 (N.D. Ill. 1997); see also, e.g., Chicago Truck Drivers, Helpers &
Warehouse Workers Union (Indep.) Pension Fund v. Bhd. Labor Leasing, No. 93 C 1803, 1993
WL 385133, at *2 (N.D. Ill. Sept. 27, 1993) (“[I]n deciding a motion to transfer under section
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1404(a) in the context of an ERISA action, we treat the Plaintiff's choice of forum as a primary
consideration.”).
Here, Plaintiff filed suit in this district, and the Funds’ Collection Manager submitted an
affidavit specifically stating that litigating in a different district would “increase the Funds’
litigation costs and expenses because it will increase travel expenses and necessitate the payment
of lodging expenses.” [Dkt. 21-1 ¶ 7.] The Court thus finds that trying the current matter in this
district would in fact advance the Congressional goal of protecting the Funds’ financial health,
and the Court consequently grants great weight to Plaintiff’s choice of this forum. Furthermore—
and as explained above—the other factors encompassed in the “convenience” and “interest of
justice” analysis—at most—only minimally support a transfer to the Northern District of
Indiana. As such, the Court finds that the great weight attributed to Plaintiff’s choice of forum is
sufficient to render transfer inappropriate.
In resisting this conclusion, Defendant again relies on Hanley. [Dkt. 22 at 4-5.] There, the
court noted that a plaintiff’s chosen forum—even in an ERISA action—“is not absolute and will
not defeat a well-founded motion to transfer.” 6 F. Supp. 2d at 775. As explained above,
however, Hanley involved a situation in which the convenience factors much more strongly
favored transfer than do the same factors in this case. Thus, even if Hanley stands for the
proposition that the plaintiff’s choice of forum is not entitled to “absolute” deference, the
decision in that case does not change the Court’s conclusion that—in this case—it should respect
Plaintiff’s choice of forum. The 1404(a) factors in this case are not arrayed as “strongly in favor”
of transfer, Presto Indus, 347 F.3d at 663, as they were in Hanley, and so the Court will not
override Plaintiff’s choice forum. Defendant’s motion is accordingly DENIED.
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III.
Conclusion
For the reasons set forth below, the Court DENIES Defendant’s Motion for Change of
Venue. [Dkt. 13.]
Date: 07/01/2015
Distribution:
Shane C. Mulholland
BURT, BLEE, DIXON, SUTTON & BLOOM
smulholland@burtblee.com
Frederick W. Dennerline, III
FILLENWARTH DENNERLINE GROTH & TOWE LLP
fdennerline@fdgtlaborlaw.com
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