Martinez v. Schmitz Farms, Inc. et al

Filing 35

MEMORANDUM AND ORDER - The defendants' motion to transfer this case to the North Platte trial docket, (filing no. 28 ), is granted, and the jury trial of this case is set to commence before the undersigned magistrate judge on February 21, 20 12 at 09:00 AM in the North Platte Courtroom, Federal Building, 300 E. 3rd Street, North Platte, Nebraska. The plaintiff's objection to the defendants' motion, (filing no. 33 ), is denied. Ordered by Magistrate Judge Cheryl R. Zwart. (JAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DAVID MARTINEZ JR.,
Plaintiff,
v.
SCHMITZ FARMS, INC., a Nebraska
Corporation, and CRAIG SCHMITZ,
Defendants.

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4:11CV3075

MEMORANDUM AND ORDER

The defendants have moved to transfer this case to the North Platte trial docket. (Filing
No. 28). The plaintiff objects, claiming the defendants’ motion is untimely, and that Lincoln
is a more convenient trial location for the litigants, witnesses, and attorneys. (Filing No. 33).

The plaintiff’s timeliness claim is based on Nebraska Civil Rule 40.1. The plaintiff
claims the defendants were required to request a North Platte trial location at the time of filing
their answer, and having failed to do so, their current request is untimely.

The plaintiff has never requested a trial location; the Lincoln trial location was assigned
by the clerk of this court when the complaint was filed. Under Rule 40.1, the defendant “may
file a written request for trial at Omaha, Lincoln, or North Platte” when the first pleading is
filed. NECivR 40.1. But it is unclear whether the defendant must request a different trial
location in its first pleading to preserve its right to later move to transfer the case, and it is also
unclear whether the defendant must request a different trial location when the current trial
location was selected by the court, not the plaintiff. Under Rule 40.1(b)(1), “conflicting
requests” are resolved by considering the convenience of the litigants, witnesses, and attorneys,
but the pleadings in this case contain no trial location requests. Based on the circumstances

presented, the court cannot interpret Nebraska Civil Rule 40.1 as a basis for denying the
defendants’ motion as untimely.

“Conflicting requests” for trial location were first presented when the defendants filed
their motion to change the court-assigned location, and the plaintiff filed its opposition to the
motion. The court will consider the merits of the defendants’ motion under the standards set
forth in Rule 40.1(b)(1).

Based on the evidence of record:
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The plaintiff claims he was injured when struck by an auger while removing
corn from a grain silo on the defendants’ premises.

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The plaintiff resides in or near Delta, Colorado.

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The defendants are located and reside near Riverdale, Nebraska.

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The plaintiff has disclosed 20 physicians or medical facilities from which
potential witnesses may be called to support his claim; only three of which are
located outside the Kearney, Nebraska area or Colorado.

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With the exception of one Colorado witness, the plaintiff’s non-party, nonmedical witnesses are all from the Kearney and Riverdale, Nebraska area.

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The defendant's potential witnesses are all located in the Riverdale or Kearney,
Nebraska area or in Colorado.

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The medical and non-medical witnesses from Colorado are located in the Grand
Junction or Delta, Colorado area.

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Plaintiff’s counsel is from Grand Junction, Colorado; Defense counsel is from
North Platte, Nebraska.

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Grand Junction is 224 miles closer to North Platte than to Lincoln.

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Kearney and Riverdale, Nebraska are approximately 40 miles closer to North
Platte than to Lincoln, Nebraska.
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If the plaintiff, his counsel, and the Colorado witnesses drive to the Denver
airport and fly to the trial location, the plane ticket to North Platte will likely
cost $100 less than the ticket to Lincoln.

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If the plaintiff, his counsel, and the Colorado witnesses fly from Grand Junction
to the trial location, the plane ticket to North Platte will likely cost $236 more
than the ticket to Lincoln.

Based on the record, it appears the nonexpert liability witnesses are from the Riverdale
and Kearney, Nebraska area.

Regarding the medical witnesses, the court notes treating

physicians typically testify by deposition, rather than live at trial; particularly when the trial is
held a substantial distance from the physician’s office location.

After considering the evidence of record, the court finds that on balance, North Platte
is a more convenient trial location for the parties, their counsel, and the witnesses.

Accordingly,
IT IS ORDERED:
1)

The defendants’ motion to transfer this case to the North Platte trial docket,
(filing no. 28), is granted, and the jury trial of this case is set to commence
before the undersigned magistrate judge on February 21, 2012 at 09:00 AM in
the North Platte Courtroom, Federal Building, 300 E. 3rd Street, North Platte,
Nebraska.

2)

The plaintiff’s objection to the defendants’ motion, (filing no. 33), is denied.

DATED this 14th day of November, 2011.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

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