Dodd v. Cabela's, Inc. et al

Filing 16

ORDER denying 8 Motion to Transfer; denying 12 Motion for Joinder. Signed by Chief Judge Dana L. Christensen on 11/26/2014. (dle)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
DYLAN DODD,

CV 14–181–M–DLC
Plaintiff,

vs.

ORDER

CABELA’S, INC., CABELA’S
WHOLESALE, INC. and TLD
INDUSTRIES, LLC,
Defendants.
Defendants Cabela’s Inc., Cabela’s Wholesale, Inc., and TLD Industries,
LLC jointly move to transfer this case to the Northern Division of the United
States District Court for the District of Idaho. Plaintiff Dylan Dodd opposes the
motion. For the reasons stated below, the Court denies the motion.
Factual and Procedural Background
Plaintiff filed this negligence and strict products liability action against
Defendants on June 10, 2014. The product at issue in this action is “Rimfire
Exploding Targets” (“the product”). Defendant TLD advertises, sells, and
distributes the product. Defendant Cabela’s Wholesale, Inc. sells the product at its
retail stores, including its stores in Montana and Post Falls, Idaho.

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Plaintiff is a resident of Hayden Lake, Idaho. Factually, Plaintiff alleges
that on December 22, 2012, Karalynn Dodd and Amanda Lewis, both eighteen,
purchased the product from a Cabela’s store in Post Falls, Idaho and later gave the
product to Plaintiff. Plaintiff alleges that the Cabela’s employee negligently sold
the product to Karalynn Dodd and Amanda Lewis because the employee did not
verify the girls’ ages. Plaintiff further alleges that on December 28, 2012, he and
four companions used the product at a firing range in Hayden, Idaho and that he
was injured when the product detonated after he poured it on a fire requiring
emergency medical care and surgery in Coeur d’Alene, Idaho. As a legal theory,
Plaintiff alleges that Defendants failed to adequately warn about the dangers
associated with the product.
Defendants filed a motion requesting transfer under Title 28 U.S.C.
§ 1404(a) on July 8, 2014, asserting that the action is appropriately venued in the
Northern Division of the United States District Court for the District of Idaho.
Discussion
The Court may transfer a civil case to a district where it could have been
brought “[f]or the convenience of parties and witnesses, [and] in the interest of
justice.” 28 U.S.C. § 1404(a). It is undisputed that this action could have been
brought in the District of Idaho. The question is whether this action should be
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transferred based on an assessment of the relevant factors. This involves a factspecific inquiry. Anderson v. Thompson, 634 F. Supp. 1201, 1204 (D. Mont.
1986)
Title 28 U.S.C. § 1404(a) directs courts to analyze the convenience of the
parties and witnesses and the interests of justice when deciding whether to transfer
an action. Of these factors, the convenience of the parties and witnesses are
generally “subordinate to the interests of justice.” Anderson, 634 F. Supp. at 1204.
Beyond the three factors specified in the statute, courts have looked to several
other factors, including:
1. the plaintiff’s choice of forum,
2. the ability of the two forums to compel non-party witnesses to
testify,
3. the respective parties’ relative contacts with the forums,
4. the court’s familiarity with the governing law,
5. the relative congestion in the two forums,
6. ease of access to sources of proof, and
7. whether there is a “local interest” in the action.
Hillerich & Bradsby Co. v. ACE American Ins. Co., 2012 WL 2359488 at *1 (D.
Mont. June 20, 2012) (citations omitted). The relative weight assigned to each

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factor “involves subtle considerations and is best left to the discretion of the trial
judge.” Commodity Futures Trading Commn. v. Savage, 611 F.2d 270, 279 (9th
Cir. 1979). As the moving party, Defendants bear the “burden of making a ‘strong
showing’ that the factors weigh in favor” of transfer. Hillerich, 2012 WL
2359488 at *1 (citing Anderson, 634 F. Supp. at 1204).
I. Plaintiff’s choice of forum
Although “substantial deference” is normally given to the plaintiff’s choice
of forum, “less deference” is given when the plaintiff is foreign. RD Rod, LLC v.
Mont. Classic Cars, LLC, 2012 WL 6632185 at *4 (D. Mont. 2012). Defendants,
however, “must make a strong showing of inconvenience to warrant upsetting the
plaintiff’s choice of forum.” Decker Coal Co. v. Commw. Edison Co., 805 F.2d
834, 843 (9th Cir. 1986).
Plaintiff chose to file this action in the District of Montana. Thus,
Defendants must make “a strong showing of inconvenience to warrant upsetting
the plaintiff’s choice of forum.” Id.
II. The convenience of witnesses
Several potential witnesses reside in Idaho, including: Plaintiff; some of
Plaintiff’s family members; Amanda Lewis; some of Plaintiff’s medical providers;
and law enforcement personnel who responded to the incident. Defendants assert
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that these potential witnesses’ residence in Idaho makes Montana an inconvenient
forum and warrants transfer. However, the fact that Defendants may “call
witnesses who reside in a transferee district is not sufficient to warrant transfer,
unless the party [seeking transfer] makes a sufficient showing that the witnesses
will not attend, or will be severely inconvenienced if litigation proceeds in the
transferor forum.” Anderson, 634 F. Supp. at 1207.
The Court cannot conclude that holding trial in this forum would “severely
inconvenience” these witnesses because Defendants have not made a showing that
these witnesses will not attend or will be severely inconvenienced. On the
contrary, Plaintiff’s family members plan on attending the trial. Moreover, if other
witnesses, such as Amanda Lewis or Plaintiff’s medical providers, are actually
needed for trial, it would not appear to be severely inconvenient for them to attend
due to the relative proximity of this forum to Idaho.1
Furthermore, the focus of this inquiry is not on the number and location of
witnesses, but the “materiality and importance of the anticipated witnesses.”
Brunner v. Bawcom, 2010 WL 3724436 at *8 (D. Mont. Sept. 15, 2010). The
materiality and importance of the testimony of the witnesses identified by

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The proximity of the Missoula Division to Northern Idaho is actually closer than the
Missoula Division is to much of the State of Montana.
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Defendants it is not readily apparent to the Court, and Defendants fail to
demonstrate the materiality and importance of these witnesses.
Finally, venue should not be transferred “when the transfer would merely
shift the inconvenience from the defendant to the plaintiff.” Hillerich, 2012 WL
2359488 at *2 (citing Decker Coal Co., 805 F.2d at 843). Plaintiff identifies three
witnesses to the incident who are residents of Montana and one witness to the
incident who is a resident of North Dakota. Transferring this action to the District
of Idaho would impermissibly shift the relative inconvenience to Plaintiff.
III. The ability of the two forums to compel nonparty witnesses to testify
Under Rule 45(c)(1) of the Federal Rules of Civil Procedure, a nonparty
witness outside the state in which the Court sits, and not within 100 miles of the
Court, may not be compelled to attend a hearing or trial. If a party is unable to
utilize compulsory process, the Court must assess “the nature and materiality of
the testimony of those unwilling witnesses falling outside the subpoena power of
the transferor forum.” Anderson, 634 F. Supp. at 1207.
Defendants correctly assert that there are potentially witnesses living in
Idaho who could not be compelled to attend trial in Missoula, Montana.2

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Both parties discuss the materiality of the four witnesses to the incident. The Court
notes that these four witnesses reside outside of Idaho, and thus, could not be compelled to attend
trial in the District of Idaho.
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Defendants, however, have not shown that any witnesses are unwilling to attend
trial in this forum. Moreover, Defendants have left the Court to speculate about
the nature and materiality of the testimony of these witnesses. In this products
liability and negligence case, the Court deciphers little materiality to the testimony
of the witnesses identified by Defendants, such as the law enforcement personnel
who responded to the incident. The Court, therefore, gives little weight to
Defendants’ claims of potential unavailability.3
IV. The respective parties’ contacts with the forums
It is undisputed that Defendants do business within the District of Montana,
and thus have contacts with this forum. It is also undisputed that Plaintiff has no
significant contacts with Montana. This factor thus tips in neither party’s favor.
V. Familiarity with governing law
Idaho negligence and products liability law applies to this action. But while
it is typically advantageous to have questions of substantive law “decided in a
federal court sitting in the state whose substantive law governs,” Anderson, 634 F.
Supp. at 1205, Defendants make no showing that the governing substantive law of

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The presentation of witness testimony can be accomplished in multiple ways, including
videotaped perpetuation depositions, or live video-conference testimony with the witness in a
remote location. The Court is not opposed to any of these alternative methods and frequently
receives trial testimony in this manner utilizing existing courtroom technology.
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Montana is significantly different. “The weight to be afforded this factor is
necessarily dependent upon the complexity and/or unsettled nature of the state law
issues presented. If the substantive law of the two states pertinent to the legal
issues presented is not significantly different, this factor should be accorded little
weight.” Id.
Plaintiff asserts the two forums’ substantive law are substantially similar
and Defendants do not dispute this. Defendants thus fail to demonstrate that
transfer is warranted based on this Court’s lack of familiarity with the governing
law.
VI. The relative congestion in the two forums
The docket congestion in both the transferor and transferee forums is “one
of the practical factors a court may consider in a discretionary transfer motion.”
Hillerich, 2012 WL 2359488 at *3. The Court accords this factor great weight
because it is pertinent to the interests of justice. See Parsons v. Chesapeake & O.
Ry. Co., 375 U.S. 71, 73 (1963).
Courts may look to statistics on the relative congestion in the two forums
when analyzing this factor. Hillerich, 2012 WL 2359488 at *3. Statistics from
the Administrative Office of the United States Courts show that there are 498
pending cases per judgeship in the District of Idaho with an average time
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necessary to resolve a case of 11.9 months. Administrative Office of the United
States Courts, Federal Court Management Statistics, Idaho Judicial Caseload
Profile (June 2014) (available at http://www.uscourts.gov/viewer.aspx?doc=/
uscourts/Statistics/FederalCourtManagementStatistics/2014/district-fcms-profilesjune-2014.pdf&page=71). In the District of Montana, there are 312 pending cases
per judgeship with an average time necessary to resolve a case of 9.2 months.
Administrative Office of the United States Courts, Federal Court Management
Statistics, Montana Judicial Caseload Profile (June 2014) (available at
http://www.uscourts.gov/viewer.aspx?doc=/uscourts/Statistics/FederalCourtMana
gementStatistics/2014/district-fcms-profiles-june-2014.pdf&page=72). Montana
has three active Article III Judges. Idaho has one. This factor thus weighs
strongly against transfer.
VII. Ease of access to sources of proof
Defendants assert that all the record evidence, from both the store at issue
and Plaintiff’s medical providers, is in Idaho. As other courts have noted,
however, technology, has eased access to documentary sources of proof. See e.g.
Metz v. United States Life Insurance Co., 674 F.Supp.2d 1141, 1149 (C.D. Cal.
2009). Moreover, Defendants do not contend that accessing relevant documentary
records would cause them hardship and Defendants have not shown that there is
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immovable evidence located at the scene of the incident in Idaho that would
require inspection by the Court or jury. Defendants have thus failed to
demonstrate that transfer is warranted based on difficulties in accessing sources of
proof.
VIII. “Local interest” in either of the forums
Here, both forums have a local interest in the action. Plaintiff is an Idaho
resident, the product was purchased in Idaho, and the accident occurred in Idaho.
On the other hand, the product at issue is sold at the Cabela’s retail stores in
Missoula and Kalispell, Montana. Therefore, Montana consumers have a valid
interest in the resolution of this action. Again, Defendants fail to demonstrate that
this forum does not have an interest in this action.
Conclusion
Ultimately, Defendants have failed to make a “strong showing” that the
relevant factors weigh in favor of a transfer sufficient to upset Plaintiff’s choice of
forum. The Court gives considerable weight to the relative lack of congestion in
the District of Montana which serves the interests of justice. Defendants’ motion
to transfer venue under Title 28 U.S.C. § 1404(a) is therefore denied.

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IT IS ORDERED that Defendants’ motions to transfer (Docs. 8 & 12) are
DENIED.
DATED this 26th day of November 2014.

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