McAdams et al v. Gilsdorf et al

Filing 25

ORDER denying 14 Motion to Change Venue. Ordered by Magistrate Judge Cheryl R. Zwart. (BHC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ROBIN L. MCADAMS, Administratrix
)
of the Estate of Stephen C. McAdams,
)
and WANZEK CONSTRUCTION, INC., )
)
Plaintiffs,
)
)
v.
)
)
MYRLE D. GILSDORF, and
)
ANDREWS VAN LINES, INC.,
)
)
Defendants.
)
)

4:11CV3117

MEMORANDUM AND ORDER

This matter is before the court on the defendants’ motion to transfer venue, (filing no.
14). For the reasons set forth below, the motion will be denied.

This dispute arises out of an accident in which Stephen C. McAdams was allegedly
struck and killed by a vehicle driven by Defendant Myrle D. Gilsforf (“Gilsdorf”) on behalf
of Defendant Andrews Van Lines, Inc. (“Andrews”). The accident occurred at a private
construction site near Kimball, South Dakota in Brule County. The site was allegedly in the
control of Plaintiff Wanzek Construction, Inc. (“Wanzek”), a North Dakota Corporation.
Andrews is a Nebraska corporation. Gilsdorf is a resident of Nebraska and has a commercial
driver’s license (“CDL”) issued by the state of Nebraska. The plaintiff is from Pennsylvania,
where McAdams resided and his estate is being administrated.

The defendants have moved to transfer this case to the United States District Court for
the District of South Dakota, Southern Division under 28 U.S.C. § 1404(a). Section 1404(a)
provides: “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.” In addition to these three general factors, courts will conduct a “case by case

evaluation of the particular circumstances at hand and consider all relevant factors.” Terra
Int’l., Inc. v. Mississippi Chemical Corp., 119 F.3d 688, 691 (8th Cir. 1997). “[F]ederal
courts give considerable deference to a plaintiff’s choice of forum and thus the party seeking
transfer . . . typically bears the burden of proving that a transfer is warranted.” Id. at 695.

In this case, although the action could have been filed in South Dakota, the plaintiffs
elected to file suit in Nebraska1 , the residence of the defendants. The defendants argue this
choice is not entitled to much, if any, deference. I disagree. The defendants cite from In re
Apple, Inc., 602 F.3d, 909 (8th Cir.), to support their contention the plaintiffs’ choice of
forum should have little weight. In re Apple, Inc. involved a Taiwanese corporation suing
a California corporation in the Western District of Arkansas, a venue which had no
connection whatsoever to the suit. Id. at 913. In this case, Andrews is incorporated in
Nebraska and Gilsdorf is a resident of Nebraska. Thus, this case is easily distinguishable
from In re Apple, Inc.

The defendants’ argument that Nebraska is not a convenient venue for them is
unpersuasive. Andrews was incorporated and operates in Nebraska. A citizen of Nebraska
could expect that any suits filed against it would be filed in Nebraska, and potential litigants
suing Andrews are entitled to use the Nebraska courts for suits against Nebraska residents.

The defendants also argue that it will be more convenient for the witnesses if the venue
if transferred to the District of South Dakota, Southern Division. The defendant notes that
1

The parties have both argued this motion as if the trial is scheduled for Omaha. It is not.

The plaintiff did not specifically request Omaha as the place of trial and pursuant to NECivR 40.1(c),
the case was assigned to Lincoln. This order frames the issue as transfer from the District of Nebraska
(and not necessarily a specific trial location within it) to the District of South Dakota, Southern
Division.

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the law enforcement officers who investigated the scene of the accident and the emergency
response team are all located in South Dakota.

However, any potential argument of

inconvenience is mitigated somewhat by the fact that at least two of the law enforcement
officers have agreed that they are willing to appear at trial in Nebraska and would not
consider it a burden to do so.2 Filing Nos. 22-4 & 22-7. The other most vital witnesses, the
ones who witnessed the accident, are apparently spread throughout the country and thus
neither venue has a particular advantage over the other.

The courts have provided a non-exclusive list of other factors a court may consider
when addressing motions to change venue. These factors include: 1) judicial economy, 2)
plaintiff’s choice of forum; 3) the comparative costs of litigating in each forum, 4) each
party’s ability to enforce a judgment, 5) obstacles to a fair trial, 6) conflict of laws issues, 7)
and the advantages of having a local court determine questions of local law. See Terra Int’l,
119 F.3d at 969 (citations omitted). The defendants have not pointed to any of the above
factors weighing so heavily in their favor as to overcome the presumption in favor of the
plaintiffs’ choice of venue.

The parties only discuss a few of the above mentioned factors, but neither side is
especially persuasive.3 For instance each party has valid arguments regarding the advantages
of local courts determining matters of local law. That the accident occurred in South Dakota
2

It is true both affidavits specify the officers are willing to appear in Omaha, Nebraska. As

noted above, is case is assigned to Lincoln. It seems unlikely that the law enforcement officers would
be willing to travel to Omaha, but not Lincoln, if the trial remains in Lincoln.
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The parties spend much time discussing the location of documents and other evidence. Both

parties fail to acknowledge that volumes of documents can be transferred through cyperspace with a
mere click of a button. Thus, the physical location of police reports and business documents is of very
little import.

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favors a transfer of venue; however, Nebraska courts undoubtedly have some interest in the
conduct of its citizens, corporations, and drivers with Nebraska-issued CDLs. Thus, this
factor is essentially a wash.

The parties also each briefly discuss conflict of laws issues. But even if the defendants
are correct and South Dakota law applies, the Nebraska federal court is capable of researching
and correctly applying South Dakota tort law. In addition, as the plaintiffs argue, it is not
clear that the law of other jurisdictions will not also be implicated. If a court must look to the
laws outside of Nebraska or South Dakota, neither venue will have an advantage.

The plaintiffs’ choice of venue is entitled to deference, and the defendant has not
persuaded me that the District of South Dakota is a more appropriate venue for this case.

Accordingly,

IT IS ORDERED that the defendants’ motion to transfer venue, (filing no. 14) is
denied.

DATED this 6th day of December, 2011.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge
*This opinion may contain hyperlinks to other documents or Web sites. The U.S.
District Court for the District of Nebraska does not endorse, recommend, approve, or
guarantee any third parties or the services or products they provide on their Web sites.
Likewise, the court has no agreements with any of these third parties or their Web sites. The
court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the
fact that a hyperlink ceases to work or directs the user to some other site does not affect the
opinion of the court.
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