Wilfong v. Norfolk Dredging Company

Filing 18

MEMORANDUM AND ORDER denying 10 Motion of Defendant to Transfer Venue to the Eastern District of Virginia. Signed by Judge Marvin J. Garbis on 4/25/2012. (bf2, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
NORMAN WILFONG, III

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Plaintiff
vs.

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NORFOLK DREDGING COMPANY
Defendant
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CIVIL ACTION NO. MJG-11-3766

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MEMORANDUM AND ORDER
The Court has before it Defendant’s Motion to Transfer
Venue to the Eastern District of Virginia [Document 10], and the
materials submitted relating thereto.

The Court finds that a

hearing is unnecessary.
Plaintiff, Norman Wilfong, III (“Plaintiff”), was injured
in an accident occurring in the harbor of Norfolk, Virginia, was
treated for injuries for three weeks in that city, is now
residing in Chesapeake City, Maryland, and will have further
treatment in Maryland, Delaware, and Pennsylvania.

The instant

case was filed in this Court and would be tried in this Court’s
Courthouse in Baltimore, Maryland.
Defendant, Norfolk Dredging Company (“Defendant”), seeks to
have the Court transfer the case to the Eastern District of
Virginia, Norfolk Division, because, according to Defendant:

(a)

The majority of likely witnesses in this case are
located in the Eastern District of Virginia [];

(b)

The barge “Choctaw” and its appurtenances alleged
to have caused the injuries are located in the
Eastern District of Virginia, if it should become
necessary for the parties or the jury to examine
such equipment;

(c)

There are fewer obstacles to a fair trial in that
District;

(d)

The case can proceed less expensively and more
expeditiously in that District; and

(e)

A Maryland jury should not be burdened with
deciding a case about an incident that occurred
in Virginia.

Def.’s Mot. 3.
Title 28 U.S.C. § 1404(a) provides that, “[f]or the
convenience of 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 . .
. .”
In Dow v. Jones, 232 F. Supp. 2d 491, 499 (D. Md. 2002),
this Court stated:
The standards for transfer are:
(1) the transferee court must be a
court in which the action could have
been brought initially; (2) the
transfer must be convenient to the
parties and witnesses; and (3) the
transfer must be in the interest of
justice. Further, “unless the balance
is strongly in favor of the defendant,
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the plaintiff’s choice of forum should
rarely be disturbed.”
Id. (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501,
508 (1947); other citations omitted).
This case could have been filed in the Eastern
District of Virginia, but Plaintiff chose not to.
As discussed herein, Defendant has not presented valid
reasons for the Court to give preference to Defendant’s choice
of forum. It is, of course, possible that the lineup of actual
trial witnesses who need to be compelled to appear at trial and
the actual need for a jury (or court) view of the barge may
warrant a change in place of trial.

However, at present, it is

not at all clear that the actual trial content would
sufficiently favor Norfolk over Baltimore.
Nor does there appear to be a valid reason to favor Norfolk
over Baltimore with regard to pretrial proceedings that may
require court appearances.

Indeed, to the extent that the

Plaintiff himself would be present in court, Baltimore is far
closer to his home than Norfolk.
Only a brief discussion of Defendant’s stated reasons for
the transfer at this time is necessary.

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A.

Location of Witnesses

As noted above, the parties disagree as to which issues
will actually be tried and who would be the actual trial
witnesses.

Until such time as the witnesses can be identified

or reliably predicted, it is not possible to determine the
effect, if any, of the differences in subpoena range and the
relative cost of bringing witnesses to the place of trial.

B.

The Barge

In regard to pretrial matters, the place of trial is
immaterial.

All who wish to inspect the barge will,

necessarily, have to travel to the barge location. In regard to
the trial, there could be a factor favoring transfer if a jury
view of the barge – as distinct from reliance upon photographs
and equivalents – were necessary.

However, the significance,

if any, of this factor cannot now be determined.

C.

Obstacles to Fair Trial

In this category, Defendant repeats its position regarding
the availability of compulsory process.

As noted above, it is

not now possible reliably to determine the extent to which, if
at all, there would be a difference in the respective court’s
subpoena range in regard to actual trial witnesses.
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D.

Less Expense

Defendant asserts that the rapid pace of the Eastern
District of Virginia will serve to reduce expenses.

However,

this Court will determine the schedule for the case upon
consideration of the positions of both sides.

There is no

reason why this Court could not and would not – if it determines
it to be appropriate – have this case proceed to trial on the
same pace as it would in the Eastern District of Virginia.
However, if this Court finds that justice requires a pace less
rapid than would the Eastern District of Virginia, the Court
would not transfer the case over Plaintiff’s objection and
substitute speed for fairness.

E.

Burdening the Jury

In the motion, Defendant graciously notes its concern for
the burden on Maryland jurors who would, senselessly according
to Defendant, have to devote their time and effort to resolving
a case concerning an accident occurring in Virginia.

Perhaps

Defendant is basing its concern for Maryland jurors on the fact
that Plaintiff is not a native of Maryland.

However, the

Plaintiff has resided in Maryland for the 27 years since he came
to the state at age three, and is likely to reside there for the
rest of his life.

Accordingly, it could be viewed as not an
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excessive burden, or “senseless” for a Maryland jury to decide
the extent to which, if at all, Plaintiff should recover from
Defendant.

F.

Additional Arguments

Defendant’s additional arguments, essentially reiterations
of the witness convenience theme and “filler,” are unpersuasive.

G.

Conclusion

Although it presently appears unlikely, it is possible that
there could be a reasonable basis for consideration of a change
of venue at a later stage of the case.

However, the Court does

not find a change of venue warranted at present.
Accordingly:
1.

Defendant’s Motion to Transfer Venue to the
Eastern District of Virginia [Document 10] is
DENIED.

2.

Plaintiff shall arrange a telephone conference to
be held by May 11, 2012 to discuss the Scheduling
Order that shall be issued thereafter.

SO ORDERED, on Wednesday, April 25, 2012.

/s/___
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Marvin J. Garbis
United States District Judge
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