Busch et al v. Allstate Insurance Company of Illinois
Filing
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ORDER AND OPINION DENYING DEFENDANT'S MOTION TO TRANSFER VENUE entered by Judge Ortrie Smith. Re: Doc. 17 (Kanies, Renea)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION
JEFFREY BUSCH, et al.,
Plaintiffs,
vs.
ALLSTATE INSURANCE COMPANY,
Defendant.
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Case No. 12-3490-CV-S-ODS
ORDER AND OPINION DENYING DEFENDANT’S MOTION TO TRANSFER VENUE
Pending is Defendant’s Motion to Transfer Venue to the Eastern District of
Missouri. (Doc. # 17). The Motion is denied.
I. BACKGROUND
On March 1, 2013, Defendant filed a Motion to Transfer Venue. (Doc. # 17).
Defendant seeks to transfer this case to the United States District Court for the Eastern
District of Missouri (“Eastern District”), Eastern Division, for consolidation with Murrell v.
Allstate Insurance Company, Case No. 4:12-cv-01707-JAR, which is currently pending
in that venue. This Court previously entered an Order and Opinion Granting in Part and
Denying in Part Defendant’s Motion to Dismiss (Doc. # 31) that gives a more detailed
background of this case. Accordingly, the Court will only discuss additional facts that
are relevant to the Murrell action and the pending motion to transfer.
A. The Instant Action
On November 16, 2013, Plaintiffs filed a three-count Complaint in the United
States District Court for the Western District of Missouri (“Western District”). Plaintiffs’
claims arise out of the termination of their employment from Allstate Insurance
Company. Plaintiffs Busch, Bauer, and Priaulx worked either in the field, or at one of
Allstate’s drive-in facilities in St. Louis, Missouri. Plaintiff Wangerin’s job required him to
be in the field, and his office was located in St. Louis, Missouri. Plaintiffs Carter and
Vandiver worked in or around Springfield, Missouri. See Suggestions in Support (Doc.
# 18), at 2; Suggestions in Opposition (Doc. # 25), at 4; Declaration of Meg Duffy (Doc.
# 18.1), ¶ 5. Plaintiffs were terminated for “falsification of records” in January 2012.
Plaintiffs bring causes of action for (1) wrongful termination in violation of public policy;
(2) defamation; and (3) intentional infliction of emotional distress.1
B. The Murrell Action
Wayne Murrell (“Murrell”) was employed by Allstate as an adjuster and was
terminated in January 2012 for “falsification of records.” On August 1, 2012, two
months before Plaintiffs filed the instant action, Murrell—a former Allstate employee—
filed an action against Allstate in the Circuit Court of St. Charles County, Missouri. On
September 20, 2012, Allstate removed the Murrell action to the Eastern District. In his
original complaint, Murrell alleged two counts against Allstate, including unpaid overtime
and violations of the Missouri Human Rights Act. On February 19, 2013, Murrell filed
his First Amended Complaint adding counts for wrongful termination in violation of
public policy, defamation, and violations of the Fair Labor Standards Act.
II. DISCUSSION
Defendant moves to transfer this case to the Eastern District for convenience
pursuant to 28 U.S.C. § 1404(a).2 “For 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.” 28 U.S.C. § 1404(a). Thus, in determining
whether transfer is appropriate, two elements must be considered in this case: (1)
whether the action could have been brought in the Eastern District; and (2) whether the
convenience of the parties and the witnesses, as well as the interests of justice, favor
1
On May 2, 2013, the Court granted Defendant’s Motion to Dismiss Plaintiffs’ claim for
intentional infliction of emotional distress. (See Doc. # 31).
2
Defendant has not argued that venue is improper under 28 U.S.C. § 1391.
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transfer to the Eastern District. See Terra Intern., Inc. v. Mississippi Chemical Corp.,
119 F.3d 688, 691 (8th Cir. 1997). A court’s evaluation should not be limited to these
factors because determinations require a case-by-case evaluation. See id. “The
decision to transfer a case lies within the discretion of the trial court and unless the
balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely
be disturbed.” St. Louis Federal Sav. And Loan Ass’n v. Silverado Banking, Sav. and
Loan Ass’n, 626 F.Supp. 379, 383 (E.D. Mo. 1986). In this case, Plaintiffs could have
originally brought this action in the Eastern District—a judicial district in which a
substantial part of the events giving rise to the claim occurred. See 28 U.S.C. §
1391(b). Four Plaintiffs either worked in the field, or at a drive-in facility or office in St.
Louis. Accordingly, the first element required for transfer is satisfied.
Turning to the second element, the plaintiff’s choice of forum should be given
great weight, “particularly where the plaintiff is a resident of the judicial district where the
suit is brought.” Employers Reinsurance Corp. v. Massachusetts Mut. Life Ins. Co., No.
06-0188-CV-W-FJG, 2006 WL 1235957, at *1 (W.D. Mo. May 4, 2006) (citing Houk v.
Kimberly Clark Corp., 613 F. Supp. 923, 927 (W.D. Mo. 1985)). Here, two Plaintiffs
reside in the Western District and worked primarily in and around Springfield, Missouri.
The other four Plaintiffs have clearly acquiesced to bringing the suit in the Western
District. Further, Defendant has demonstrated through its own conduct of transacting
business and employing individuals in the Western District that this judicial district is not
inconvenient. The inconvenience Defendant may experience litigating in the Western
District does not justify transfer. See Terra Intern., 119 F.3d at 696-97 (“Merely shifting
the inconvenience from one side to the other . . . obviously is not a permissible
justification for a change of venue.”).
Nor does the convenience of witnesses favor transferring this case to the Eastern
District. Defendant states that the anticipated witnesses reside near St. Louis and
transfer to the Eastern District would prevent them from having to travel to Springfield.
Suggestions in Support (Doc. # 18), at 8; Declaration of Meg Duffy (Doc. # 18.1), ¶ 7.
However, these “witnesses” Defendant points to are the Plaintiffs in this case. “Section
1404(a) clearly delineates between the convenience of ‘parties’ (which of course are
also likely to be witnesses) and ‘witnesses.’” Leverage Leasing Co. v. Lincoln Ins. Co.,
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No. 91-cv-558-w-2, 1991 WL 626752, at *2 (W.D. Mo. Sept. 27, 1991). “‘[W]itnesses
refers to non-parties or independent persons and not the parties or their agents or
representatives.” Id. The only other witness Defendant identifies is Mr. Murrell, who
resides within 35 miles of St. Louis.3 Mr. Murrell’s inconvenience is slight given the
proximity between St. Louis and Springfield.
Finally, Defendant argues that transferring this case to the Eastern District for
consolidation with the Murrell action would eliminate the need for duplicative discovery
efforts and avoid the possibility of inconsistent rulings by different courts on the same
issues. In response, Plaintiffs contend that the additional allegations raised in the
Murrell action “would undoubtedly increase costs and the length of trial and require
factual and potentially expert testimony wholly unrelated to the claims of all six Plaintiffs
and applicable only to the allegations of Mr. Murrell, the only plaintiff in his lawsuit.”
Suggestions in Opposition, at 8. Plaintiffs point to Criswell v. City of O’Fallen, Mo., No.
4:06-cv-01565-ERW, 2007 WL 2669114, at *1-2 (E.D. Mo. Sept. 6 2007), where a
defendant sought to consolidate two cases with employees alleging wrongful
termination in violation of public policy. Id. Both cases involved similar factual
allegations as well as the same witnesses and discovery information. Id. Despite the
similarities, the court denied defendants’ motion to consolidate because of “serious
concerns” relating to unfair prejudice and jury confusion. Id. Here, transferring the case
to the Eastern District for potential consolidation raises similar concerns. Although
some claims in this case are similar to the claims in the Murrell action, Mr. Murrell’s age
discrimination and overtime pay suit are not similar to Plaintiffs’ claims. The risks of
unfair prejudice and jury confusion outweigh transferring this case to the Eastern
district. Thus, this Court declines to transfer this case to the Eastern District.
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Defendant also highlights Plaintiffs’ failure to identify any witness for which the Western
District would be more convenient, but Defendant bears the burden of proving that
transfer is warranted. See Terra Intern., Inc., 119 F.3d at 695.
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III. CONCLUSION
Defendant has failed to demonstrate that transfer to the Eastern District is
warranted. Accordingly, Defendant’s Motion is denied.
IT IS SO ORDERED.
/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT
DATE: May 2, 2013
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