Radiologix, Inc. et al v. Radiology and Nuclear Medicine, LLC

Filing 420

MEMORANDUM AND ORDER granting 404 Plaintiffs' Motion to Re-Designate the Place of Trial from Topeka to Kansas City. Signed by District Judge Daniel D. Crabtree on 01/07/2019. (mig)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
RADIOLOGIX, INC. and RADIOLOGY
AND NUCLEAR MEDICINE IMAGING
PARTNERS, INC.,
Plaintiffs,
v.
Case No. 15-4927-DDC-KGS
RADIOLOGY AND NUCLEAR
MEDICINE, LLC,
Defendant.
_____________________________________
MEMORANDUM AND ORDER
When plaintiffs filed this breach of contract lawsuit more than three years ago, they
designated Topeka, Kansas, as the place of trial. Doc. 1 at 1. With trial scheduled to begin on
February 5, 2019, plaintiffs now ask the court to re-designate the place of trial from Topeka to
Kansas City, Kansas. Doc. 404. Plaintiffs contend that Kansas City is a more convenient
location for the parties to try the case. Defendant opposes plaintiffs’ motion, arguing that
Topeka remains the more convenient forum for trial. Doc. 410. Defendant thus asks the court to
deny plaintiffs’ motion. After considering the parties’ arguments, the court exercises its
discretion and grants plaintiffs’ motion. For reasons explained below, the court designates the
place of the February 5, 2019, trial as Kansas City, Kansas.
I.

Legal Standard

Under D. Kan. Rule 40.2(e), the court is not bound by a party’s designated place of trial
and may determine the place of trial upon motion or at its discretion. When determining the
proper place of trial, the court “generally look[s] to the same factors relevant to motions for
change in venue under 28 U.S.C. § 1404(a).” Lopez-Aguirre v. Bd. of Cty. Comm’rs, No. 12-

2752-JWL, 2014 WL 853748, at *1 (D. Kan. Mar. 5, 2014). 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.” ABF Freight Sys., Inc. v. McMillian, No. 17-2324-JWL, 2018 WL
4154014, at *1 (D. Kan. Aug. 30, 2018). The court considers these factors when deciding
whether to transfer the place of trial: (1) plaintiff’s choice of forum; (2) the convenience of the
witnesses; (3) the accessibility of witnesses and other sources of proof; (4) the possibility of
obtaining a fair trial; and (5) all other practical considerations that make a trial easy, expeditious,
and economical. McDermed v. Marian Clinic, Inc., No. 14-2194-EFM-KMH, 2014 WL
6819407, at *1 (D. Kan. Dec. 2, 2014) (citing Chrysler Credit Corp. v. Country Chrysler, Inc.,
928 F.2d 1509, 1516 (10th Cir. 1991)). The moving party bears the burden to establish that the
existing forum is an inconvenient one. Id. (citations omitted).
II.

Analysis

Consistent with the governing standard, the court applies the § 1404(a) factors to the facts
of this case to determine whether the court should re-designate the trial location from Topeka to
Kansas City.
A. Plaintiff’s Choice of Forum
“Unless [the § 1404(a)] factors weigh strongly in the defendant’s favor, the ‘plaintiff’s
choice of forum should rarely be disturbed.’” Tiffany v. City of Topeka, No. 09-2232-CM, 2009
WL 1683515, at *1 (D. Kan. June 16, 2009) (quoting Scheidt v. Klein, 956 F.2d 963, 965 (10th
Cir. 1992)). But this factor is “largely inapplicable if the plaintiff does not reside” in the location
it has designated for trial. Menefee v. Zepick, No. 09-2127-JWL, 2009 WL 1313236, at *1 (D.
Kan. May 12, 2009); cf. Benson v. Hawker Beechcraft Corp., No. 07-2171-JWL, 2007 WL
1834010, at *1 (D. Kan. June 26, 2007) (concluding that “the rationale for allowing the plaintiff
to dictate the forum evaporates” when the plaintiff lives outside his choice of forum); but see
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Tiffany, 2009 WL 1683515, at *1 (stating that “the factor weighs only slightly in favor of
plaintiff” in such a situation). Also, “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.’” McDermed, 2014 WL 6819407, at *2 (quoting
Cook v. Atchison, Topeka & Santa Fe Ry. Co., 816 F. Supp. 667, 669 (D. Kan. 1993)).
Because plaintiffs seek to move the trial to Kansas City, the court considers plaintiffs’
chosen forum as Kansas City—the location they are requesting as the place of trial. Plaintiffs
explain that they originally chose Topeka for trial because, when they filed suit in September
2015, they “had a large business operation in Topeka . . . with many Topeka-based employees
who regularly served” defendant. Doc. 405 at 1. Plaintiffs assert that they filed the lawsuit to
“preserve [the] business relationship” between plaintiffs and defendant, after plaintiffs learned
that defendant was planning to move its billing and coding services from plaintiffs to a
competing company. After defendant moved its administrative services to the other company,
plaintiffs’ “Topeka-based operation was eliminated” and all of its Topeka-based employees—
except one—were discharged. Id. at 2. Because plaintiffs no longer have “any meaningful
Topeka-based operations,” they ask the court to move the trial location to Kansas City because,
they contend, it is a more convenient location for their counsel and staff as well as several out-oftown witnesses who plan to come to Kansas for trial via the Kansas City airport.
Defendant responds, arguing that the court should give little weight to plaintiffs’ choice
of forum—i.e., re-designation of the trial location to Kansas City—because plaintiffs have no
connection to Kansas City. See Bright v. BHCMC, LLC, No. 17-2529-JWL-GEB, 2018 WL
398450, at *2–3 (D. Kan. Jan. 12, 2018) (Birzer, J.) (giving “reduced weight” to plaintiff’s
chosen forum when “[t]he facts giving rise to the lawsuit have no connection to Kansas City, and

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Plaintiff provides no personal connection to Kansas City, aside from his choice of counsel
there”). The court agrees that plaintiffs’ choice of Kansas City “is lessened by the fact that they
do not reside” there. Nkemakolam v. St. John’s Military Sch., 876 F. Supp. 2d 1240, 1248 (D.
Kan. 2012) (Lungstrum, J.). Nevertheless, “plaintiffs’ [re-]designation of Kansas City as the
place of trial remains at least a factor to be considered.” Id. The court thus finds that this factor
favors plaintiffs, but just slightly.
B. Convenience and Accessibility of Evidence
“[T]he relative convenience of the forum is a primary, if not the most important, factor to
consider in deciding a motion to transfer.” Menefee, 2009 WL 1313236, at *2. A plaintiff’s
proposed forum must be “substantially inconvenient” to warrant a change in forum. Id. A
proposed forum is substantially inconvenient if all or practically all the witnesses reside in a
different forum and traveling to the proposed forum is a substantial burden. Id. (holding that
there was an “enormous disparity in convenience between Kansas City and Wichita” because all
witnesses would have to travel 200 miles from Wichita to Kansas City); Lopez-Aguirre, 2014
WL 853748, at *2 (granting motion to designate Topeka as the place of trial rather than Kansas
City because the “great majority of witnesses [were] located in the Topeka area” and holding
trial in Kansas City would “cause much more disruption” to these witnesses); Nkemakolam, 876
F. Supp. 2d at 1248 (denying a motion to move the trial from Kansas City to Topeka because
“the presence of a large airport makes Kansas City a more convenient forum for plaintiffs, who
must travel to Kansas” and while “Topeka might be marginally more convenient for [defendant]
and its witnesses, that factor is at least counter-balanced by the loss in convenience to plaintiffs
and other witnesses residing outside the state . . . that would occur with a transfer to Topeka”).
Here, some of the witnesses reside in Topeka. Defendant represents that 18 of the 47
potential witnesses live in or around Topeka. Doc. 410 at 4. That means the other 29
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witnesses—a majority of them—live outside Topeka. Five of defendant’s physicians live in
Lawrence, Kansas—a distance that defendant calculates as a 27-mile trip from Topeka and a 45mile trip from Kansas City. Doc. 410 at 4.1 The difference in the amount of travel that these five
physicians will incur if the trial is held in Kansas City instead of Topeka is not so significant that
it imposes a substantial burden on them. Also, one of defendant’s physicians lives in Olathe,
Kansas—a suburb of Kansas City. And, as plaintiffs argue, defendant now operates a radiology
practice in Kansas City that requires its physicians to travel regularly to Kansas City to serve that
site. So, plaintiffs argue, Kansas City is not a substantially inconvenient trial location for these
physicians. Because a minority share of witnesses reside in Topeka and requiring those
witnesses to travel to Kansas City for trial does not impose a substantial burden, the court
concludes that this factor favors designating Kansas City as the trial location.
Also, defendant represents that 17 of the potential witnesses must travel to Kansas from
out of state for the trial. Plaintiffs assert that these witnesses will incur increased travel time and
expenses if the trial is held in Topeka because they will have to travel 74 miles from the Kansas
City airport to the Topeka courthouse instead of just 17 miles from the airport to the Kansas City
courthouse. Doc. 410 at 5. Defendant argues that the additional 57 miles that out-of-town
witnesses must travel to reach Topeka will not require them to incur significant additional
expenses. The court disagrees. An additional 57 miles equates to at least one more hour of
travel time each way for each of the 17 out-of-town witnesses. Also, it requires the witnesses to
incur additional transportation expenses. Indeed, our court previously has held that “the

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Defendant does not reveal the place of origin that it uses to calculate its 27 vs. 45 mile
comparison. And it does matter. For instance, if one begins at the intersection of Ninth and
Massachusetts Streets in downtown Lawrence, one commonly used software calculates the measurement
as 31.4 miles (to the Topeka courthouse) vs. 38.1 miles (to the Kansas City courthouse), a much smaller
difference.

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presence of a large airport makes Kansas City a more convenient forum” for out-of-town
witnesses than Topeka. Nkemakolam, 876 F. Supp. 2d at 1248. The court thus concludes that
Kansas City is not a “substantially inconvenient” place for trial. Instead, it likely is more
convenient for many of the witnesses in the case.
C. Fair Trial
Defendant asserts that the parties will receive a fair trial in Topeka. But defendant never
argues that it would not receive a fair trial in Kansas City. And the court knows of nothing that
suggests a Kansas City trial location will prevent any party from receiving a fair trial. Thus, this
factor is a neutral one.
D. Other Factors
The court also may consider various other factors when determining the place of trial.
For example, in Spires v. Hospital Corporation of America, our court considered the cost of
forcing medical practitioners to travel for trial testimony at the expense of time lost treating
patients. No. 06-2137-JWL, 2006 WL 1642701, at *3 (D. Kan. June 8, 2006). But here,
plaintiffs argue, only a few of defendant’s doctors will attend trial each day, allowing plenty of
time for the doctors to travel to and from the trial while maintaining adequate staffing levels at
their practice.
Also, plaintiffs argue that the court should consider that voir dire may take additional
time if trial is held in Topeka. Plaintiffs explain that they intend to ask jurors about their
familiarity with Topeka-based witnesses and the two major hospitals in Topeka—Stormont Vail
and St. Francis—because the parties’ contractual relationship involved frequent interactions with
those hospitals. Plaintiffs anticipate that Topeka jurors likely will have more familiarity with the
Topeka-based hospitals, requiring more questions of Topeka jurors during voir dire to determine

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their ability to serve on the jury. In contrast, plaintiffs argue, it is unlikely that Kansas City
jurors will have the same familiarity with the Topeka-based hospitals.
Defendant responds that these concerns will not prevent the court from impaneling a jury.
Indeed, as defendant correctly explains, the Topeka venire is significantly broader than the City
of Topeka—it includes 17 surrounding counties. So, while defendant concedes that “the Court
may encounter a potential juror who is acquainted with a witness,” defendant argues it “is
unlikely to present a significant problem in impaneling a jury.” Doc. 410 at 8. But plaintiffs do
not argue that the court will have difficulty impaneling a jury. Instead, plaintiffs argue that
impaneling a jury likely will consume more time in Topeka because the court or the parties may
need to ask jurors individually about their familiarity with Topeka witnesses or the two major
Topeka-based hospitals. The court agrees. It is likely voir dire in Topeka will take longer than
voir dire in Kansas City, where the jurors likely have less familiarity with the two major Topekabased hospitals.
Finally, plaintiff asserts that Kansas City is a more convenient forum for the parties’
counsel because both plaintiffs and defendant’s counsel are located in Kansas City. But our
court usually gives the convenience of counsel “little if any weight.” Taher v. Wichita State
Univ., No. 06-2132-KHV-DJW, 2007 WL 1149143, at *2 (D. Kan. Apr. 18, 2007); see also
Jones v. Wichita State Univ., No. 06-2131-KHV-GLR, 2007 WL 1173053, at *2 (D. Kan. Apr.
19, 2007). But see Nkemakolam, 876 F. Supp. 2d at 1248 (“[T]he fact that counsel both for
[defendant] and for plaintiffs have their offices in the Kansas City area weighs against the
requested transfer.”). Plaintiffs also argue that Kansas City is more convenient for the court and
its staff because the assigned district judge is located in Kansas City. Our court previously has

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held that “the convenience of the Court weighs in favor of a trial in Kansas City” when “the
district judge and staff are located in Kansas City.” Jones, 2007 WL 1173053, at *2.
On balance, the court finds that these other considerations—particularly the additional
time the court may have to devote in voir dire to understand jurors’ familiarity with the Topekabased witnesses and the two major hospitals in Topeka—favor designating the trial location as
Kansas City.
E. Considering the Factors as a Whole
After considering all the § 1404(a) factors, the court finds that they favor designating the
trial location as Kansas City. The court thus grants plaintiffs’ request to re-designate the place of
trial from Topeka to Kansas City.
III.

Conclusion

For the reasons explained above, the court grants plaintiffs’ Motion to Re-Designate the
Place of Trial From Topeka to Kansas City (Doc. 404). The court designates Kansas City,
Kansas, as the place of trial for the February 5, 2019, trial.
IT IS THEREFORE ORDERED BY THE COURT THAT plaintiffs’ Motion to ReDesignate the Place of Trial From Topeka to Kansas City (Doc. 404) is granted.
IT IS SO ORDERED.
Dated this 7th day of January, 2019, at Kansas City, Kansas.
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge

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