Bomkamp v. Hilton Worldwide, Inc.

Filing 36

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that defendant Hilton Worldwide, Inc.'s motion to dismiss Plaintiff's First Amended Complaint, construed in part as a motion for judgment on the pleadings, is DENIED. [Doc. 17] IT IS FURTHER ORDERED that Hilton Worldwide, Inc.'s alternative motion to transfer venue of this case to the United States District Court for the Western District of Wisconsin pursuant to 28 U.S.C. 1404(a) is GRANTED. [Doc. 17] An appropriate order of transfer will accompany this Memorandum and Order. Signed by District Judge Charles A. Shaw on 3/6/2014. (NCL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

BRIAN BOMKAMP,
Plaintiff,
v.
HILTON WORLDWIDE, INC.,
Defendant.

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No. 4:13-CV-1569 CAS

MEMORANDUM AND ORDER
This diversity matter is before the Court on defendant Hilton Worldwide, Inc.’s (“HWI”)
Motion to Dismiss Plaintiff’s First Amended Complaint. The motion seeks dismissal based on (1)
lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure;
(2) failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6), Fed. R. Civ.
P.; and (3) improper venue pursuant to Rule 12(b)(3), Fed. R. Civ. P. In the alternative, HWI moves
to transfer venue of this action to the United States District Court for the Western District of
Wisconsin pursuant to 28 U.S.C. § 1404(a). Plaintiff Brian Bomkamp opposes the motion and it is
fully briefed. For the following reasons, the Court will deny the motion to dismiss in all respects
and grant the alternative motion to transfer venue.
I. Background
Plaintiff Brian Bomkamp alleges that he was injured on the premises of the Hilton Madison
Monona Terrace hotel (the “Hilton Madison”) in Madison, Wisconsin, when he slipped and fell on
ice on the driveway outside the hotel’s entrance on February 7, 2013. Plaintiff alleges that HWI
knew or should have known of the ice and failed to use ordinary care to remove the ice, barricade
the area, warn of the ice, or otherwise remedy the condition. Plaintiff alleges that as a result of the

fall, he suffered injuries to his neck, back and upper right extremity that are permanent, progressive
and cause him pain and discomfort, and have caused him to incur medical and other healthcare
related expenses.
The original complaint filed in this case asserted that the Court had jurisdiction over the
action pursuant to 28 U.S.C. § 1332 because the lawsuit is between citizens of different States and
the matter in controversy exceeds the sum of $75,000. The original complaint alleged that plaintiff
was a “resident” of Missouri, Complaint at 1, ¶ 2 (Doc. 1), and that defendant HWI was a Delaware
corporation “with hotels located in the State of Missouri.” Id., ¶ 2. HWI filed its Answer to the
Complaint and simultaneously filed a motion to dismiss pursuant to Rule 12(b)(3) and 12(b)(6), Fed.
R. Civ. P., but did not move to dismiss for lack of subject matter jurisdiction.
The Court concluded the original complaint’s factual allegations relating to jurisdiction were
insufficient for it to determine whether complete diversity of citizenship existed, and ordered
plaintiff to file an amended complaint alleging facts establishing the parties’ citizenship. See Mem.
and Order of Sept. 26, 2013 (Doc. 13). When plaintiff complied with the Order and filed his First
Amended Complaint, the Court denied as moot, without prejudice, HWI’s motion to dismiss the
original complaint. See Order of Oct. 2, 2013 (Doc. 15).
With respect to factual allegations concerning the parties’ citizenship, plaintiff’s First
Amended Complaint (“Complaint”) (Doc. 14) alleges that Bomkamp is a citizen and resident of the
State of Missouri, Complaint at 1, ¶¶ 3, 5, and that defendant HWI is a Delaware corporation with
its principal place of business located in the State of Virginia. Id., ¶ 1. Plaintiff also alleges that
HWI has sufficient minimum contacts with the State of Missouri to justify the exercise of personal
jurisdiction over it by this Court, including the ownership, operation and management of hotel
properties in Missouri. Id., ¶ 4.
2

HWI filed an Answer to the Complaint and then filed the instant motion to dismiss. The
Court will separately address the three grounds asserted in HWI’s motion to dismiss.
II. Motion to Dismiss for Lack of Subject Matter Jurisdiction
HWI moves to dismiss for lack of subject matter jurisdiction asserting that plaintiff’s
Complaint fails to correct the pleading deficiencies of the original Complaint, as it fails to allege a
factual basis for complete diversity of citizenship between the parties.
As a threshold matter, the consolidation and waiver provisions of Rule 12 “make clear that
to avoid waiving most available Rule 12 defenses or objections, a party must raise them in one initial
motion or, if none if filed, in the first responsive pleading.” 2 James Wm. Moore, et al., Moore’s
Federal Practice § 12.20 (3d ed. 2013). “Rule 12 further dictates that such a motion must be made
before any responsive pleading, so it is sometimes referred to as a pre-answer or Rule 12 motion.”
Id. In this case, in response to both the original and amended complaints, HWI filed its answer prior
to filing its Rule 12 motion, and did not raise lack of subject matter jurisdiction as an affirmative
defense in either answer. Lack of subject matter jurisdiction, however, cannot be waived. See Fed
R. Civ. P. 12(h)(3).
“In order to properly dismiss [an action] for lack of subject matter jurisdiction under Rule
12(b)(1), the complaint must be successfully challenged on its face or on the factual truthfulness of
its averments.” Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993) (citing Osborn v. United States,
918 F.2d 724, 729 n.6 (8th Cir. 1990) (citation omitted)). Distinguishing between a facial and
factual challenge is critical to determining how the Court should proceed when resolving a motion
to dismiss for lack of subject matter jurisdiction. Under a facial challenge to jurisdiction, a court
restricts itself to the face of the pleadings, Osborn, 918 F.2d at 729, n.6, and all of the factual
allegations concerning jurisdiction in the plaintiff’s complaint are presumed to be true, while under
3

a factual challenge no presumptive truthfulness attaches. See Titus, 4 F.3d at 593 & n.1. The
motion asserting a facial challenge will be successful if the plaintiff fails to allege an element
necessary for subject matter jurisdiction. Id. Here, HWI makes a facial challenge to plaintiff’s
complaint.1 Accordingly, for purposes of this motion, all factual allegations are accepted as true.
HWI states that plaintiff alleges he is a “resident” of the State of Missouri, and contends that
plaintiff fails to adequately plead HWI’s citizenship because he alleges only that HWI is a Delaware
corporation and “has not shown where HWI’s principal place of business is located, nor has Plaintiff
made any reference to HWI’s ‘nerve center.’” Def.’s Mem. Supp. Mot. Dismiss at 6. HWI also
asserts that plaintiff has alleged facts which appear to indicate that HWI’s nerve center may in fact
be in Missouri, because he alleges that HWI “conducts substantial business in the State of Missouri,
to include ownership, operation, and management of hotel properties in the State of Missouri and
directs activities towards the residents and citizens of the State of Missouri.” Complaint at 1, ¶ 4.
HWI’s assertions are factually incorrect and appear to be based on a misreading of the
Complaint. Plaintiff’s Complaint sufficiently asserts the requisite jurisdictional facts necessary to
establish subject matter jurisdiction, because it alleges that plaintiff is a citizen of Missouri and that
HWI is a Delaware corporation with its principal place of business in Virginia. These factual
allegations are sufficient to establish complete diversity of citizenship and confer subject matter
jurisdiction on this Court.

1

Defendant HWI does submit the Affidavit of Frank Bruner in support of its motion to
dismiss, but the Affidavit does not address fact issues relevant to subject matter jurisdiction.
Instead, the Affidavit avers facts related to HWI’s motion to dismiss under Rule 12(b)(6) for failure
to state a claim upon which relief can be granted, and will be discussed in connection with that
ground of HWI’s motion to dismiss.
4

The Supreme Court has adopted the “nerve center” test for determining where a
corporation’s principal place of business is located for purposes of diversity jurisdiction under 28
U.S.C. § 1332(c)(1), see Hertz Corp. v. Friend, 559 U.S. 77, 92-93 (2010). HWI cites no legal
authority, however, for the proposition that a plaintiff must plead using the term “nerve center” as
opposed to principal place of business. Further, the Court disagrees with HWI’s assertion that the
Complaint pleads facts which may tend to show HWI’s nerve center is located in Missouri. The
Complaint asserts the legal conclusion that HWI has sufficient minimum contacts with Missouri to
justify the exercise of personal jurisdiction over it, and then supports this conclusion with the factual
assertions that HWI conducts substantial business in Missouri, owns and operates hotels here, and
directs activities toward Missouri residents. In contrast, the Supreme Court described the principal
place of business or “nerve center” of a corporation as the location–most often the corporate
headquarters–where corporate officers exercise control of the corporation’s activities, as follows:
We conclude that “principal place of business” is best read as referring to the place
where a corporation’s officers direct, control, and coordinate the corporation’s
activities. It is the place that Courts of Appeals have called the corporation’s “nerve
center.” And in practice it should normally be the place where the corporation
maintains its headquarters—provided that the headquarters is the actual center of
direction, control, and coordination, i.e., the “nerve center,” and not simply an office
where the corporation holds its board meetings (for example, attended by directors
and officers who have traveled there for the occasion).
Hertz, 559 U.S. at 92-93. The allegations of plaintiff’s Complaint do not address the location of
HWI’s headquarters, or the place where its officers direct, control and coordinate its activities.
Plaintiff’s allegations are therefore not properly understood to concern HWI’s “nerve center.”
HWI’s motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1)
should be denied, as plaintiff adequately alleges the requisite jurisdictional facts, which the Court
accepts as true on this facial challenge. See Titus, 4 F.3d at 593 & n.1.

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III. Motion to Dismiss for Failure to State a Claim Upon Which Relief Can be Granted
HWI also moves to dismiss for failure to state a claim upon which relief can be granted under
Rule 12(b)(6), on the basis that plaintiff has sued the wrong defendant. Technically, under Rule
12(b), Fed. R. Civ. P., a motion to dismiss for failure to state a claim upon which relief can be
granted must be “made before pleading if a responsive pleading is allowed.” As stated above, HWI
filed its answer before filing the instant motion. Rule 12(h)(2)(B) provides, however, that a defense
of failure to state a claim upon which relief can be granted may be raised in a motion for judgment
on the pleadings under Rule 12(c). The Court will therefore construe HWI’s motion to dismiss as
a motion under Rule 12(c). See Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990).
A motion under Rule 12(c) is determined by the same standards that are applied to a motion under
Rule 12(b)(6). Ginsburg v. InBev NV/SA, 623 F.3d 1229, 1233 n.3 (8th Cir. 2010).
“A grant of judgment on the pleadings is appropriate where no material issue of fact remains
to be resolved and the movant is entitled to judgment as a matter of law.” Clemons v. Crawford, 585
F.3d 1119, 1124 (8th Cir. 2009) (internal quotation marks and quoted case omitted). “Well-pleaded
facts, not legal theories or conclusions, determine the adequacy of the complaint.” Id. (brackets and
quoted case omitted). “The facts alleged in the complaint must be enough to raise a right to relief
above the speculative level.” Id. (internal quotation marks and quoted case omitted). The Court
must “accept as true all factual allegations set out in the complaint” and “construe the complaint in
the light most favorable to the plaintiff, drawing all inferences in his favor.” Wishnatsky v. Rovner,
433 F.3d 608, 610 (8th Cir. 2006). “A plaintiff need only allege facts that permit the reasonable
inference that the defendant is liable, even if the complaint ‘strikes a savvy judge that actual proof
of the facts alleged is improbable’ and recovery ‘very remote and unlikely.’” Hamilton v. Palm, 621

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F.3d 816, 819 (8th Cir. 2010) (quoting Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir.
2009)).
In considering a Rule 12(c) motion, the Court may consider the pleadings themselves,
materials embraced by the pleadings, exhibits attached to the pleadings, and matters of public record.
Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999). A motion for judgment on
the pleadings pursuant to Fed. R. Civ. P. 12(c) must be treated as a motion for summary judgment
when matters outside the pleadings are presented and not excluded by the trial court. Rule 12(d),
Fed. R. Civ. P. “Matters outside the pleadings” include any written evidence “in support of or in
opposition to the pleading that provide[s] some substantiation for and does not merely reiterate what
is said in the pleadings.” McAuley v. Federal Ins. Co., 500 F.3d 784, 787 (8th Cir. 2007) (quoted
case omitted). Where the court does not exclude the matters outside the pleadings and treats the
motion as one for summary judgment, it must provide the parties with notice and an opportunity to
provide further materials. See Country Club Estates, L.L.C. v. Town of Loma Linda, 213 F.3d 1001,
1005 (8th Cir. 2000) (discussing Rule 12(b)(6) motion).
HWI submitted the Affidavit of Frank Bruner (the “Bruner Affidavit”) in support of its
motion to dismiss. The Bruner Affidavit asserts facts contesting plaintiff’s allegations that HWI is
the owner or operator of, or has a duty to maintain, the Hilton Madison hotel at which plaintiff
alleges he fell and was injured. HWI argues that based on the content of the Bruner Affidavit, it is
not the owner of the hotel where plaintiff fell and is not responsible for its day-to-day activities, and
therefore the Complaint cannot allege facts that state a plausible claim for relief. The Bruner
Affidavit submitted by HWI is a matter outside of the pleadings. Based on the early timing of
HWI’s motion for judgment on the pleading and because the affidavit raises issues that require

7

discovery, the Court will decline to treat the motion as one for summary judgment and will exclude
the Bruner Affidavit from consideration.2
HWI’s argument in support of judgment on the pleadings is based entirely on the contents
of the excluded Bruner Affidavit. As a result, HWI fails to meet its burden to establish that the
Complaint does not “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that
is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 570 (2007)). HWI’s motion to dismiss under Rule 12(b)(6), construed
as a motion for judgment on the pleadings under Rule 12(c), should therefore be denied.
IV. Motion to Dismiss for Improper Venue
HWI moves to dismiss this action for improper venue under Rule 12(b)(3), arguing that
venue is proper only in a judicial district where a substantial portion of the activities giving rise to
the claim occurred under 28 U.S.C. § 1391(b)(2), and that none of the activities giving rise to
plaintiff’s claim occurred in this district.3
“Rule 12(b)(3) of the Federal Rules of Civil Procedure provides that a party may move to
dismiss an action when the action is not filed in the proper venue.” Sudden Valley Supply LLC v.
Ziegmann, 2013 WL 2099440, at *4 (E.D. Mo. May 14, 2013). “Where no evidentiary hearing is
held, the plaintiff need only make a prima facie showing of venue.” 2 James Wm. Moore, et al.,
Moore’s Federal Practice § 12.32[4] (3d ed. 2013); see also Aggarao v. MOL Ship Mgmt. Co., Ltd.,
675 F.3d 355, 366 (4th Cir. 2012). “The moving party has the burden of establishing that venue is
improper.” 2 Moore’s Federal Practice § 12.32[4] (cited case omitted).

2

HWI could have filed a motion for summary judgment asserting that it is not the owner or
operator of and not responsible for maintenance at the Hilton Madison hotel, but did not do so.
3

The defense of improper venue was raised in HWI’s answer, so it is not waived.
8

The general venue statute, 28 U.S.C. § 1391(b), provides that a civil action may be brought
in:
(1) a judicial district in which any defendant resides, if all defendants are residents
of the State in which the district is located;
(2) a judicial district in which a substantial part of the events or omissions giving rise
to the claim occurred, or a substantial part of property that is the subject of the action
is situated; or
(3) if there is no district in which an action may otherwise be brought as provided in
this section, any judicial district in which any defendant is subject to the court’s
personal jurisdiction with respect to such action.
28 U.S.C. § 1391(b).
HWI’s argument ignores the first subsection of § 1391(b), which also permits venue in “a
judicial district in which any defendant resides, if all defendants are residents of the State in which
the district is located.” Because HWI is the only defendant, “all” defendants necessarily reside in
the same state. Venue is therefore proper if HWI “resides” here. A corporate defendant “resides”
in “any judicial district in which such defendant is subject to the court’s personal jurisdiction with
respect to the civil action in question[.]” 28 U.S.C. § 1391(c)(2). The venue statute thus uses
personal jurisdiction as a proxy for residence. 14D Charles Alan Wright, et al., Federal Practice and
Procedure § 3811.1 (3d ed. 2007). The Eighth Circuit has stated, “If personal jurisdiction exists at
the commencement of the action, then venue is proper under 28 U.S.C. § 1391(b).” Dakota Indus.,
Inc. v. Dakota Sportswear, Inc., 946 F.2d 1384, 1392 (8th Cir. 1991) (discussing prior version of
§ 1391).
Consequently, to determine whether HWI “resides” in this district, the proper inquiry would
be whether HWI is subject to personal jurisdiction in the Eastern District of Missouri with respect
to this action. There is no dispute, however, that HWI is subject to personal jurisdiction here. Lack
of personal jurisdiction is a personal defense that is waived unless timely asserted. Carlson v.
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Hyundai Motor Co., 164 F.3d 1160, 1163 (8th Cir. 1999). To preserve an objection to personal
jurisdiction, a defendant must either assert the defense in its answer or in a pre-answer Rule 12
motion. Fed. R. Civ. P. 12(h)(1)(A). Failure to include an objection to personal jurisdiction in
either the defendant’s answer or a previous Rule 12 motion waives the underlying defense. Id.; see
Alger v. Hayes, 452 F.2d 841, 844 (8th Cir. 1972) (“it is a well settled rule that if the defense [of
lack of personal jurisdiction] is neither raised by motion before answer nor stated in the answer, it
cannot be raised for the first time by motion after the answer.”).
HWI waived the defense of lack of personal jurisdiction by failing to raise it as an
affirmative defense in its answer. Because HWI waived any objection to this Court’s exercise of
personal jurisdiction, this forum is also a proper venue. See Eagle’s Flight of Am., Inc. v. Play N
Trade Franchise, 2011 WL 31726, at *3 (D. Minn. Jan. 5, 2011) (citing cases); Dakota Indus., 946
F.2d at 1392 (venue is proper where personal jurisdiction exists). As another district court has
cogently observed, “It would defy logic to deem [HWI] subject to this Court’s personal jurisdiction,
due to waiver, yet dismiss the [plaintiff’s] claims against it for improper venue, due to lack of
residency or, in other words, for want of personal jurisdiction.” Centreville ALF, Inc. v. Balanced
Care Corp., 197 F.Supp.2d 1039, 1048 (S.D. Ohio 2002). See also Carlson, 164 F.3d at 1163 (party
may submit to district court’s jurisdiction by appearance). Accordingly, venue is proper here under
28 U.S.C. § 1391(b)(1) and HWI’s motion to dismiss for improper venue under Rule 12(b)(3) should
be denied.
V. Alternative Motion to Transfer Venue
The Court now turns to HWI’s alternative motion to transfer venue of this case to the
Western District of Wisconsin pursuant to 28 U.S.C. § 1404(a). A defendant’s waiver of its personal
jurisdiction argument does not foreclose a motion to transfer venue under § 1404(a). Lawson Screen
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Prods., Inc. v. Nor-Cote Int’l, Inc., 2010 WL 4780469, at *1 n.1 (E.D. Mo. Nov. 17, 2010) (citing
cases).
Section 1404(a) permits the transfer of cases from an initial forum choice that is legally
proper to another forum “solely to promote litigation convenience and efficiency.” Eggleton v.
Plasser & Theurer Export Von Bahnbaumaschinen Gesellschaft, MBH, 495 F.3d 582, 589 n.3 (8th
Cir. 2007). Because “federal courts give considerable deference to a plaintiff’s choice of forum,”
however, the “party seeking a transfer under § 1404(a) typically bears the burden of proving that a
transfer is warranted.” Terra Int’l, Inc. v. Mississippi Chem. Corp., 119 F.3d 688, 695 (8th Cir.
1997).
The threshold inquiry in ruling on a motion under § 1404(a) is whether a case “might have
been brought” in the proposed transferee district. See Van Dusen v. Barrack, 376 U.S. 612, 616
(1964). Then, in determining whether to transfer the action, a court must consider the three general
categories of factors stated in § 1404(a): (1) The convenience of the parties, (2) the convenience of
the witnesses, and (3) whether the transfer would be in the interest of justice. Terra Int’l, 119 F.3d
at 691. “Courts have not, however, limited a district court’s evaluation of a transfer motion to these
enumerated factors. Instead, courts have recognized that such determinations require a case-by-case
evaluation of the particular circumstances at hand and a consideration of all relevant factors.” Id.
With respect to the “convenience” categories, the Eighth Circuit has stated it is appropriate
for a court to consider:
(1) the convenience of the parties, (2) the convenience of the witnesses–including the
willingness of witnesses to appear, the ability to subpoena witnesses, and the
adequacy of deposition testimony, (3) the accessibility to records and documents, (4)
the location where the conduct complained of occurred, and (5) the application of
each forum state’s substantive law.
Id. at 696. As for the “interests of justice” category, a court may consider:
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(1) judicial economy, (2) the plaintiff’s choice of forum, (3) the comparative costs
to the parties of litigating in each forum, (4) each party’s ability to enforce a
judgment, (5) obstacles to a fair trial, (6) conflict of law issues, and (7) the
advantages of having a local court determine questions of local law.
Id.
HWI argues that transfer is appropriate to the Western District of Wisconsin because this
case could have been brought in that district, as plaintiff’s alleged injury occurred there. HWI
argues that convenience of the parties favors transfer, because the proper defendant and all of its
relevant documents and representatives are located in Wisconsin; and that the convenience of the
witnesses also favors transfer. HWI asserts that production of witnesses, including Hilton Madison
employees, will be more costly in Missouri than in Wisconsin. HWI concedes that it is unclear what
witnesses from the Hilton Madison may testify, but argues that plaintiff alleges the incident occurred
in Wisconsin and “without a doubt, evidence and witnesses pertinent to this litigation are located
in Wisconsin.” Def.’s Mem. Supp. at 12. HWI asserts that the interests of justice favor transfer of
the case, because although a presumption in favor of the plaintiff’s forum choice usually exists, the
plaintiff’s choice is afforded significantly less deference when the plaintiff does not reside and the
underlying events did not occur in the chosen forum, citing Dube v. Wyeth LLC, 2013 WL 1163498,
at *2 (E.D. Mo. Mar. 20, 2013). Thus, HWI concludes plaintiff’s choice of forum is entitled to little
deference.4
Plaintiff responds that the convenience of the parties does not favor transfer, as he resides
in Missouri and his expense to travel to Wisconsin would be “tremendous,” while HWI is a large
corporation with “tremendous financial assets,” for which the expense would be of little concern.

4

Puzzlingly, HWI fails to recognize that the Complaint alleges plaintiff is, in fact, both a
resident and citizen of Missouri.
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Pl.’s Response at 5. Plaintiff also states that because both parties have Missouri counsel, it would
be convenient for both parties if the case were to remain in this district. Plaintiff asserts that the
convenience of the witnesses factor favors retaining the case in this district, as all of his treating
physicians are located in Missouri and it would be costly and difficult to have them produced in
Wisconsin. Plaintiff also asserts that HWI is likely to have only “a couple witnesses and therefore
the cost would be lower for them.” Pl.’s Resp. at 6. Finally, plaintiff contends that the interests of
justice favor keeping the case here, as he resides in Missouri and his witnesses and medical records
are here, and he would incur great expense in travel and production of witnesses if the case were
transferred.
In its Reply, HWI reiterates that plaintiff’s choice of forum is entitled to significantly less
deference when the plaintiff does not reside and the underlying events did not occur in the chosen
forum, again failing to recognize that plaintiff resides in Missouri. HWI also notes, more aptly, that
plaintiff’s claim will be subject to the laws of the State of Wisconsin, as that is where his fall and
injuries allegedly occurred.
With respect to the threshold inquiry on a motion to transfer venue, the Court finds that this
case could have been brought in the Western District of Wisconsin. That district is the forum where
plaintiff’s injury is alleged to have occurred, and therefore a substantial part of the events or
omissions giving rise to the claim occurred there. See 28 U.S.C. § 1391(b)(2). The Court now
examines the relevant factors under § 1404(a).
The first factor, convenience of the parties, weighs against transfer. Plaintiff is a Missouri
citizen and resident, and therefore Missouri is a more convenient forum for him. HWI argues that
Wisconsin is a more convenient forum for the correct defendant, but does not argue that Wisconsin

13

is more convenient for itself. The Court notes that HWI is a Delaware corporation with its principal
place of business in Virginia.
The second factor, convenience of the witnesses, is considered the most important and is
entitled to the most weight in the analysis. See Anheuser-Busch, Inc. v. City Merchandise, 176
F.Supp.2d 951, 959 (E.D. Mo. 2001). In examining this factor, it is appropriate to consider the
materiality and importance of the anticipated witnesses’ testimony and their accessibility and
convenience to the forum. See Reid-Walen v. Hansen, 933 F.2d 1390, 1396 (8th Cir. 1991). The
Court finds this factor weighs in favor of transfer, because it is reasonable to assume that important
occurrence witnesses will reside in Wisconsin.5 These witnesses will testify about material issues
relevant to liability, such as the routine or regular maintenance of the Hilton Madison premises,
specific maintenance or lack thereof on the day in question, weather and site conditions existing at
the time of plaintiff’s alleged fall, and the hotel’s notice with respect to those conditions or prior
incidents. There may also be eyewitnesses to plaintiff’s fall. It would necessarily be more
convenient for the occurrence witnesses if the litigation were to take place in Wisconsin. In
addition, the occurrence witnesses would be beyond the reach of this Court’s subpoena power. See
Rule 45(c)(1)(A) (establishing 100-mile limit for subpoenas); see also Gulf Oil Corp. v. Gilbert, 330
U.S. 501, 508 (1947) (“Important considerations are the relative ease of access to sources of proof;
availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance
of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and
all other practical problems that make trial of a case easy, expeditious and inexpensive.”). Further,

5

It is possible there may be occurrence witnesses who were guests of the hotel and do not
reside in Wisconsin, but neither party has identified or discussed such potential witnesses.
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the hotel’s records will be located in Wisconsin, as well as any incident reports, police reports, and
medical or hospital records concerning the immediate aftermath of plaintiff’s fall.
This district would be a more convenient forum for plaintiff’s physician witnesses, and his
medical records are located here, but the physicians’ testimony presumably will concern plaintiff’s
injuries as opposed to the occurrence. It is also likely that the testimony of plaintiff’s physicians
could be effectively presented in Wisconsin through depositions or video depositions without the
expense of producing them there for live testimony. With the ability to send records electronically,
increased costs relating to production of plaintiff’s medical records in Wisconsin, as opposed to
Missouri, should be minimal.
The final factor, the interests of justice, also weighs in favor of transfer to Wisconsin. The
Court considers plaintiff’s choice of forum under this factor and affords it deference, and also
considers the expense to plaintiff, as an individual, of pursuing his case in Wisconsin. Significant
counterbalancing considerations under this factor, however, are the conflict of law analysis and the
benefit of having a local court determine questions of local law, which also affects judicial economy.
The Court applies Missouri choice of law rules to determine which state’s law should govern,
because federal courts sitting in diversity apply the forum state’s choice of law principles. See
American Guarantee and Liab. Ins. Co. v. United States Fid. & Guar. Co., 668 F.3d 991, 996 (8th
Cir. 2012). “Missouri follows the ‘most significant relationship’ test from the Restatement (Second)
of Conflicts of Laws § 145 [(1971)] for resolving choice-of-law questions in tort actions.” Id. (cited
case omitted). “Under Section 145, the factors to be considered are: (1) the place where the injury
occurred, (2) the place where the conduct causing the injury occurred, (3) the domicil, residence,
nationality, place of incorporation and place of business of the parties, and (4) the place where the
relationship, if any, between the parties is centered.” Id.
15

Under the most significant relationship test, “the identity of the state having the most
significant relationship will depend upon the nature of the cause of action and upon the particular
legal issue in dispute.” Dorman v. Emerson Elec. Co., 23 F.3d 1354, 1358 (8th Cir. 1994). “Section
146 of the Restatement establishes the precise rule with respect to conflicts issues arising out of
personal injury actions:”
In an action for a personal injury, the local law of the state where the injury occurred
determines the rights and liabilities of the parties, unless, with respect to the
particular issue, some other state has a more significant relationship . . . to the
occurrence and the parties, in which event the local law of the other state will be
applied.
Dorman, id. (quoting Restatement § 146). “This formulation essentially establishes a presumption
that the state with the most significant relationship is the state where the injury occurred[.]” Id. “In
cases in which the injury and the conduct causing the injury occur in the same state, the Restatement
principles are easy to apply.” Id. (citing Restatement § 146 cmt. d (“noting that, subject only to rare
exceptions, the local law of the state where the conduct and the injury occurred will be applied.”)).
In the instant case, the conduct and the injury both occurred in Wisconsin. Therefore, under
Missouri choice of law rules and Restatement §§ 145 and 146, Wisconsin has the most significant
relationship to the accident and the parties, and its substantive law must be applied in this case.6 The
Supreme Court stated, “There is an appropriateness . . . in having the trial of a diversity case in a
forum that is at home with the state law that must govern the case[.]” Gulf Oil, 330 U.S. at 509.

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Wisconsin law would apply following transfer as well. “[I]f a district court in one state
transfers an otherwise properly filed case to a district court in another state solely ‘[f]or the
convenience of parties and witnesses,’ 28 U.S.C. § 1404(a), the transferee court applies the
choice-of-law rules of the state in which the transferor court sits.” Eggleton v. Plasser & Theurer
Export Von Bahnbaumaschinen Gesellschaft, MBH, 495 F.3d 582, 585-86 (8th Cir. 2007) (citing
Ferens v. John Deere Co., 494 U.S. 516, 531 (1990)).
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This factor therefore favors transfer. See In re Apple, 602 F.3d 909, 915 (8th Cir. 2010) (per
curiam).
Upon consideration of the appropriate factors, the Court finds that HWI has met its burden
to prove that transfer of this case is warranted, based on the convenience of witnesses and the
interests of justice. HWI’s alternative motion to transfer this case to the Western District of
Wisconsin pursuant to 28 U.S.C. § 1404(a) should therefore be granted.
VI. Conclusion
For the foregoing reasons, the Court concludes that defendant HWI’s motion to dismiss for
lack of subject matter jurisdiction pursuant to Rule 12(b)(1), motion to dismiss for failure to state
a claim upon which relief can be granted pursuant to Rule 12(b)(6) construed as a motion for
judgment on the pleadings, and motion to dismiss for improper venue pursuant to Rule 12(b)(3),
should be denied. The Court further concludes that HWI’s alternative motion to transfer venue
pursuant to 28 U.S.C. § 1404(a) should be granted, and this case transferred to the U. S. District
Court for the Western District of Wisconsin.
Accordingly,
IT IS HEREBY ORDERED that defendant Hilton Worldwide, Inc.’s motion to dismiss
Plaintiff’s First Amended Complaint, construed in part as a motion for judgment on the pleadings,
is DENIED. [Doc. 17]
IT IS FURTHER ORDERED that Hilton Worldwide, Inc.’s alternative motion to transfer
venue of this case to the United States District Court for the Western District of Wisconsin pursuant
to 28 U.S.C. § 1404(a) is GRANTED. [Doc. 17]

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An appropriate order of transfer will accompany this Memorandum and Order.

__________________________________
CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE

Dated this 6th day of March, 2014.

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