Mark LeTourneau et al v. Kansas Department of Transportation, et al

Filing 82

MEMORANDUM AND ORDER granting 77 Motion to Designate Wichita as Place for Trial. Signed by Chief District Judge Julie A Robinson on 01/19/2018. (tvn)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MARK LeTOURNEAU and DEBORAH
LeTOURNEAU,
Plaintiffs,
Case No. 15-2629-JAR
v.
VENTURE CORPORATION, a Kansas
Corporation,
Defendant.

MEMORANDUM AND ORDER
This matter is before the Court on Defendant Venture Corporation’s Motion to Designate
Wichita as Place for Trial (Doc. 77). The motion is fully briefed, and the Court is prepared to
rule. For the reasons set forth below, Defendant’s motion is granted.
I.

Factual Background
This is a diversity case arising from Plaintiff Mark LeTourneau’s October 2012

motorcycle accident in a construction zone on U. S. Highway 281 in Barton County, Kansas,
near Great Bend. Plaintiffs Mark and Deborah LeTourneau are residents of Temecula,
California and originally filed this case in the U. S. District Court for the Central District of
California.1 Plaintiffs sued the Kansas Department of Transportation (“KDOT”), the Kansas
Secretary of Transportation, and Venture Corporation, which was hired by KDOT to perform
improvements to U. S. Highway 281. On December 16, 2014, Judge Phillips of the Central
District of California dismissed KDOT and the Kansas Secretary of Transportation on Eleventh

1

Doc. 1.

Amendment immunity grounds, leaving Venture Corporation as the only defendant.2 Venture
Corporation then moved to dismiss on the basis of improper venue and lack of personal
jurisdiction.3
On February 26, 2015, the California court found that it lacked personal jurisdiction over
Venture Corporation and transferred the case to the District of Kansas.4 Judge Phillips denied
Venture Corporation’s motion as moot to the extent that it raised venue-related arguments and
made no comment regarding which division within the District of Kansas would be appropriate
for transfer and/or trial.5 Following transfer, the case was internally assigned to the Kansas City
Division and to the undersigned.
After the case was transferred to this Court in February 2015, Plaintiffs never filed a
designation of place of trial as required by Local Rule 40.2(a). Defendant Venture Corp. did file
a designation on March 5, 2015, requesting that trial be held in Wichita.6 On the same date,
Defendant filed an Unopposed Motion to Reassign and Transfer Case to the Wichita Division of
the U.S. District Court for the District of Kansas.7 That motion stated that Plaintiffs’ counsel had
been consulted and did not object to reassignment and transfer.
In an Order dated April 3, 2015, this Court denied Defendant’s motion for reassignment
and transfer, stating:
The Court finds that a transfer is unnecessary in this case.
Considering the Court’s electronic filing system, the
assignment of the case to the Kansas City Division will not
affect the pretrial proceedings and filings in this case.
2

Doc. 12.

3

Doc. 14.

4

Doc. 19.

5

Id. at 5.

6

Doc. 24.

7

Doc. 25.

2

Defendant has filed a Designation of Place of Trial, naming
Wichita as the trial location. It is not necessary to transfer
this case to the Wichita division in order to hold the trial
there. Furthermore, if the parties agree to the Wichita trial
location, the undersigned can conduct the trial at that
location.8
Defendant renewed its request to have the trial in Wichita at the pretrial conference before
Magistrate Judge Rushfelt on March 28, 2017. Judge Rushfelt did not resolve the issue, but
noted in his Pretrial Order that Defendant had designated Wichita as the place for trial.9 This
case is currently set for trial in Kansas City on August 6, 2018.
On November 27, 2017, Defendant filed another Motion to Designate Wichita as Place
for Trial.10 At the final pretrial conference on November 30, 2017, Plaintiffs’ counsel indicated
that contrary to Plaintiffs’ prior position on the matter, Plaintiffs intended to oppose Defendant’s
motion, which they did on December 11, 2017, arguing that the trial location should remain
Kansas City.11
II.

Legal Standard
Defendant moves to designate Wichita as the place of trial pursuant to D. Kan. Rule

40.2(e). While a plaintiff’s request governs the place of trial unless the court orders otherwise,12
“[t]he court is not bound by the requests for place of trial. It may determine the place of trial
upon motion or in its discretion.”13 Because Kansas constitutes one judicial district and division,
28 U.S.C. § 1404(a), which governs change of venue, is not technically applicable to a request

8

Doc. 29 at 2.

9

Doc. 66 at 20.

10

Doc. 77.

11

Doc. 80.

12

Oliver v. Schmidt Transp., Inc., No. 11-1158-JAR, 2011 WL 4368999, at *1 (D. Kan. Sept. 19, 2011)
(citing D. Kan. R. 40.2(a)).
13

D. Kan. R. 40.2(e).

3

for intra-district transfer.14 However, when considering a motion for intra-district transfer, courts
of this district look to the same factors used to analyze a request for change of venue under §
1404(a).15 That statute provides, in pertinent part, that “[f]or the convenience of the parties and
witnesses, in the interest of justice, a district court may transfer any civil action to any other
district or division where it might have been brought.”16
The factors considered by the court when conducting a § 1404(a) analysis include “the
plaintiff’s choice of forum, the convenience for witnesses, the accessibility of witnesses and
other sources of proof, the possibility of obtaining a fair trial, difficulties that may arise from
congested dockets, and ‘all other considerations of a practical nature that make a trial easy,
expeditious and economical.’”17 Section 1404(a) “grants a district court broad discretion in
deciding a motion to transfer based on a case-by-case review of convenience and fairness.”18
The burden of establishing that the existing forum is inconvenient lies with the moving party.19
While a plaintiff’s choice of forum “should rarely be disturbed,”20 the plaintiff’s choice
receives little deference when the plaintiff does not reside in his or her chosen forum.21 This

14

The United States District Court for the District of Kansas is considered one district with three divisions
in Kansas City, Topeka, and Wichita. Thus, a motion for transfer within the District of Kansas is considered a
motion for an intra-district transfer between the divisions.
15

McDermed v. Marian Clinic, Inc., No. 14-2194-EFM-KMH, 2014 WL 6819407, at *1 (D. Kan. Dec. 2,
2014) (quoting Twigg v. Hawker Beechcraft Corp., No. 08-2632-JWL, 2009 WL 1044942, at *1 (D. Kan. Apr. 20,
2009)).
16

28 U.S.C. § 1404(a).

17

Oliver, 2011 WL 4368999, at *1 (quoting Chrysler Credit Corp. v. Country Chrysler, Inc., 928 F.2d
1509, 1516 (10th Cir. 1991)); see also Callahan v. Bledsoe, Case No. 16-CV-2310-JAR-GLR, 2017 WL 1303269,
at *1 (D. Kan. Apr. 6, 2017).
18

McDermed, 2014 WL 6819407, at *1 (citing Chrysler Credit Corp., 928 F.2d at 1516).

19

Oliver, 2011 WL 4368999, at *1 (citing Scheidt v. Klein, 956 F.2d 963, 965 (10th Cir. 1992)).

20

Callahan, 2017 WL 1303269, at *2 (quoting Mortg. Research Ctr., LLC v. Flagship Fin. Group, LLC,
No. 16-2253-JAR, 2016 WL 7229259, at *3 (D. Kan. Dec. 14, 2016)).
21

Id. (citing 613 Agro Holdings, LLC v. Renick, No. 12-245, 2013 WL 1091632, at *7 (D. Kan. Mar. 15,
2013); Menefee v. Zepick, No. 09-1227-JWL, 2009 WL 1313236, at *1 (D. Kan. May 12, 2009)); see also McIntosh
v. City of Wichita, No. 14-2402, 2015 WL 1646402, at *2 (D. Kan. Apr. 14, 2015) (noting that the plaintiff’s choice

4

Court recently found that while the “[p]laintiff’s choice of forum is at least a factor to be
considered . . . it must be given less weight in light of the fact that ‘the rationale for allowing the
plaintiff to dictate the forum evaporates’ when the plaintiff lives outside of the forum.”22
Further, “courts have given little weight to a plaintiff’s choice of forum where the facts giving
rise to the lawsuit have no material relation or significant connection to the plaintiff’s chosen
forum.”23
In deciding a motion to transfer under § 1404(a), the relative convenience of the forum is
“a primary, if not the most important, factor to consider.”24 The moving party must establish that
the proposed forum is “substantially inconvenient,” meaning that “all or practically all the
witnesses reside in a different forum and traveling to the proposed forum is a substantial
burden.”25 Demonstrating that the proposed forum is “substantially inconvenient” requires more
than a showing that the movant’s “alternative forum is marginally more convenient.”26 Rather,
the movant must “identify the witnesses and their locations, indicate the quality or materiality of
their testimony, and indicate that depositions from witnesses who are unwilling to come to trial
would be unsatisfactory and the use of compulsory process would be necessary.”27 Unlike the
convenience of the witnesses, “the convenience of counsel is entitled to little, if any, weight in

of forum is a “largely inapplicable” factor where the plaintiff does not reside in the forum) (quoting Menefee, 2009
WL 1313236, at *1).
22

Callahan, 2017 WL 1303269, at n.7 (quoting McIntosh , 2015 WL 1646402, at *2).

23

Id. at *2 (quoting McIntosh, 2015 WL 1646402, at *2).

24

McIntosh, 2015 WL 1646402, at *2 (quoting Menefee, 2009 WL 1313236, at *2); see also McDermed,
2014 WL 6819407, at *2 (stating that under § 1404(a), “the convenience of the witnesses is the most important
factor”) (citing Cook v. Atchison, Topeka & Santa Fe Ry. Co., 816 F. Supp. 667, 669 (D. Kan. 1993).
25

McIntosh, 2015 WL 1646402, at *2 (citing Menefee, 2009 WL 1313236, at *2).

26

Hughes v. Blue Cross Blue Shield of Kan., Inc., No. 12-2339 JTM, 2012 WL 3644845, at *2 (D. Kan.
Aug. 24, 2012) (citing Smith v. Staffmark Temp. Agency, No. 07-2089-CM-GLR, 2007 WL 2436669, at *2 (D. Kan.
Aug. 22, 2007)).
27

McDermed, 2014 WL 6819407, at *2 (citing Scheidt, 956 F.2d at 966).

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ruling on a § 1404(a) transfer . . . This is particularly so when no other factors weigh in favor of
plaintiff’s choice of forum.”28
The parties in this case make no arguments concerning a difference between Kansas City
and Wichita with respect to the possibility of obtaining a fair trial or any difficulties that might
arise from congested dockets. Thus, the Court will focus its analysis on Plaintiffs’ choice of
forum and the convenience and accessibility of the witnesses and other sources of proof.
III.

Analysis
A.

Plaintiffs’ Choice of Forum

Plaintiffs contend that their “preference” for Kansas City weighs in favor of holding the
trial in Kansas City. Plaintiffs explain that they did not file a designation of place of trial
because this case was originally filed in California and, “[h]ad the case not been transferred, the
place of trial would have been California.”29 Plaintiffs suggest that their preference for trial in
Kansas City is at least partly due to their counsel’s location in Kansas City, Missouri. They also
point out that mediation was held in the Kansas City suburb of Overland Park and that
Defendant’s insurance carrier has offices located in Overland Park, although they do not explain
how proximity to Defendant’s insurer would have any impact on the convenience or
appropriateness of the trial location.
Defendant argues that Plaintiffs, unlike Defendant, never filed a designation of place of
trial. Defendant contends that Plaintiffs’ choice of forum was California—not Kansas City—and
that in any event, Plaintiffs’ choice of forum is entitled to little deference because Plaintiffs are
not residents. The Court is not persuaded by Plaintiffs’ arguments and agrees with Defendant

28

Hughes, 2012 WL 3644845, at *4 (quoting Studdard v. Connaught Labs, Inc., 793 F. Supp. 291, 292 (D.
Kan. 1992)).
29

Doc. 80 at 2.

6

that Plaintiffs’ choice of forum should receive little deference because Plaintiffs are not residents
of their preferred forum and—as set forth more fully below—this case has no meaningful
connection Kansas City.
B.

Convenience and Accessibility of Witnesses and Other Sources of Proof

Defendant argues that the trial of this matter should take place in Wichita because
Wichita is, on balance, the most economic and convenient location. Defendant is headquartered
in Great Bend, near where the accident occurred in Barton County, and Defendant asserts that
most of the witnesses are located in Great Bend or Wichita. More specifically, Defendant
contends that it needs to call twelve witnesses to testify in person at trial, nine of which live
and/or work in Great Bend and two of which live in Wichita. These witnesses are Defendant’s
representatives, KDOT witnesses, law enforcement officers, and first responders (the twelfth
anticipated defense witness is an expert located in Topeka). Defendant further argues that
Plaintiffs, their lay witness (who was with Mark LeTourneau at the time of his accident), and
Plaintiffs’ four expert witnesses will be required to travel for trial regardless of whether it is held
in Wichita or Kansas City, as they are all located in either California or Michigan. Defendant
argues that no witness or evidence is located in Kansas City, and that this case has no connection
to Kansas City whatsoever.
Plaintiffs contend that Defendant has not met its burden to show that the current trial
location, Kansas City, is substantially inconvenient. Plaintiffs argue that Defendant need not call
many out-of-town witnesses to testify in person at trial given the parties’ stipulation in the
Pretrial Order30 as to the admissibility of the accident report, certain KDOT records and
contracts, and Mark LeTourneau’s medical records, whereas in comparison, Plaintiffs, their

30

Doc. 66 at 4–5.

7

expert witnesses, and their lay witness will have to travel from out of state. Although Plaintiffs
concede that Defendant’s employees from Great Bend and two defense experts located in
Wichita would need to travel to Kansas City, they state that the Great Bend witnesses would be
traveling regardless and that the “travel time difference for any witness traveling from Great
Bend to Kansas City, Kansas would result in an approximately less than two-hour difference in
travel time.”31
Plaintiffs contend that the most important issue here is the availability of flight and hotel
accommodations for themselves and their out-of-state witnesses. Although they do not explain
their objection to Wichita’s lodging options, they do state that the Wichita airport offers a more
limited flight schedule and only six commercial airline options, compared to nine carriers
operating at the Kansas City airport. Plaintiffs state that their witnesses will be less likely to find
direct flights to Wichita, that flights to Wichita will be more expensive, and that witnesses may
be forced to spend an additional night in Wichita if a return flight cannot be had on the same date
that testimony concludes.
In its reply brief, Defendant counters that despite the parties’ stipulation as to the
admissibility of certain exhibits, it still intends to call nine witnesses from Great Bend and two
from Wichita to testify in person at trial. Defendant further argues that it may need to call
medical providers who live in Wichita for rebuttal or impeachment purposes. Defendant states
that contrary to Plaintiffs’ assertion, Wichita offers more than adequate travel accommodations
for witnesses traveling from out of state, including a virtually new airport with several major
airlines, 8,000 hotel rooms, and 1,000 restaurants. Defendant points out that these witnesses will
be traveling from long distances regardless of the trial location, and that Plaintiffs provide no

31

Doc. 80 at 6.

8

support for their assertion that travel options for Wichita would be insufficient or more costly
compared to Kansas City.
On balance, and giving little deference to Plaintiffs’ choice of forum given that they are
not residents (and never filed a designation of place of trial), the Court finds that the § 1404(a)
factors favor transfer to Wichita for trial. Although the parties have not provided the Court with
their Rule 26 disclosures, their briefing collectively identifies nineteen specific witnesses who
will testify at trial and whose convenience and accessibility must be considered. Of these, nine
are in Great Bend (an eight-hour round trip to Kansas City versus a four-hour round trip to
Wichita), two are in Wichita (a six-hour round trip to Kansas City versus no travel required), one
is in Topeka, and the remaining seven will be traveling by air from out-of-state regardless of
whether the trial takes place in Wichita or Kansas City.32
Although it is possible that Plaintiffs are correct that flights to Wichita would be more
expensive, a comparison of flight options for witnesses traveling from California and Michigan
to Wichita or Kansas City, respectively, cannot be done without additional information about
which airports in California and Michigan those witnesses would be using. Plaintiffs provide no
estimates of how much longer travel would take or what the additional costs would be. Further,
this Court recently found in a similar case that where the majority of the witnesses lived in
Wichita, and the non-resident plaintiff and her experts would be required to travel from out of

32

The Court takes judicial notice of the fact that per Google Maps, Defendant’s headquarters are located
one hour and 50 minutes (112 miles) from the Wichita courthouse, versus three hours and 40 minutes (251 miles)
from the Kansas City courthouse. Thus, conducting the trial of this matter in Kansas City would mean a nearly
eight-hour round trip by car for witnesses who reside in Great Bend, compared to a roughly four-hour round trip
from Great Bend to Wichita and back. Witnesses who reside in Wichita would have to make an approximately sixhour round trip to testify in Kansas City, while they would have no need to travel if the trial took place in Wichita.

9

state regardless, Wichita was a more convenient trial location under § 1404(a).33 The Court
stated:
Plaintiff makes a particularly unavailing argument that her
current treating physicians and unidentified experts will be
coming to Kansas from out of state, so the trial should be
held in Kansas City to accommodate these witnesses. As
out-of-state witnesses, these physicians and experts will
bear the burden of travel regardless of whether the trial is in
Wichita or Kansas City. The Court does not agree that
because witnesses will be coming from out of state, the trial
should be held in Kansas City. As the Court has previously
explained, to the extent that Plaintiff requests the Court
take judicial notice of a price difference in flights to Kansas
City and Wichita, the Court declines to do so. These outof-state witnesses may fly to Wichita rather than Kansas
City.34
While holding the trial in Wichita will still require some travel for witnesses residing in
Great Bend, Kansas City would be substantially inconvenient for these witnesses compared to
Wichita. Although some of Plaintiffs’ out-of-state witnesses may be required to spend an extra
night in Wichita if their testimony concludes after the last departing flight, the same could easily
happen were trial to be held in Kansas City. Further, were the trial to be held in Kansas City,
witnesses who reside in Wichita and Great Bend could likewise face additional time away from
home and work that could otherwise be avoided. Under § 1404(a) and this Court’s precedent,
Wichita is a more convenient trial location because out-of-state witnesses will incur travel costs
regardless of whether the trial is in Wichita or Kansas City, whereas Wichita will be substantially
more convenient for witnesses travelling by car from within the state.
The Court notes that although Wichita is the more convenient and appropriate trial
location under § 1404(a), holding the trial there may require a change to the current trial date of

33

Callahan, 2017 WL 1303269, at *4-5.

34

Id. at *4.

10

August 6, 2018 to accommodate the Court’s schedule. Chambers staff will be in touch with
counsel regarding scheduling.
IT IS THEREFORE ORDERED BY THE COURT that Defendants’ Motion to
Designate Wichita as Place for Trial (Doc. 77) is granted. This case will be transferred to
Wichita, Kansas for trial.
IT IS SO ORDERED.
Dated: January 19, 2018
S/ Julie A. Robinson
JULIE A. ROBINSON
CHIEF UNITED STATES DISTRICT JUDGE

11