Flores v. Tyson Foods, Inc.

Filing 174

ORDER - IT IS ORDERED: Tyson's Motion for Determination of Place of Trial (Filing No. 160 ) is granted. Flores' Motion in Opposition to Change Place of Trial (Filing No. 171 ) is denied. The Clerk of Court shall amend the docket shee t to reflect the place of trial is North Platte, Nebraska. The Final Pretrial Conference remains scheduled for April 28, 2014, at 9:00 a.m. in Courtroom 7, Roman L. Hruska United States Courthouse, 111 South 18th Plaza, Omaha, Nebraska. Trial is rescheduled for June 2, 2014, in North Platte, Nebraska, before the Honorable Joseph F. Bataillon and jury. Pursuant to NECivR 72.2 any objection to this Order shall be filed with the Clerk of the Court within fourteen (14) days after being serve d with a copy of this Order. Failure to timely object may constitute a waiver of any objection. The brief in support of any objection shall be filed at the time of filing such objection. Failure to file a brief in support of any objection may be deemed an abandonment of the objection. Ordered by Magistrate Judge Thomas D. Thalken. (Copy mailed to pro se party)(TCL )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

JUANA S. FLORES,
Plaintiff,

4:12CV3089

vs.
ORDER
TYSON FOODS, INC.,
Defendant.
This matter is before the court on the defendant’s, Tyson Foods, Inc. (Tyson),
Motion to Change Place of Trial (Filing No. 160). Tyson filed a brief (Filing No. 161) and
index of evidence (Filing No. 162) in support of the motion. The plaintiff, Juana Flores
(Flores), filed a motion (Filing No. 171)1 and brief (Filing No. 172) in opposition. Tyson
filed a brief (Filing No. 173) in reply.

BACKGROUND
This case arises from Flores’ allegations her supervisor at Tyson’s meat packing
plant in Lexington, Nebraska, discriminated against Flores.

See Filing No. 1 -

Complaint. Flores also alleges Tyson violated Flores’ civil rights. Id. On May 4, 2012,
Flores filed her complaint with a jury demand but without requesting a location for trial.
Id.

However, under the “Statement of Venue” section of Flores’ Complaint, Flores

alleges “[e]verything that happened, happened in Lexington, Nebraska. Tyson has a
meat packing plant there.”

Id. at 4.

Flores states she is a resident of Lexington,

Nebraska. Id. at 1. On June 28, 2012, Tyson filed an answer generally denying Flores’
allegations. See Filing No. 11 - Answer. Tyson did not request a location for trial. Id.
In an Amended Order Setting Schedule for Progression of Case and a Second
Amended Order Setting Schedule for Progression of Case, the court designated
Omaha, Nebraska, for the place of trial. See Filing Nos. 121 and 152. On November
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Flores’ “Motion” in response to Tyson’s Motion is unnecessary and in violation of the local rules.
The Civil Rules of the United States District Court for the District of Nebraska provide: “The party
opposing a motion shall not file an ‘answer,’ ‘opposition,’ ‘objection,’ or ‘response,’ or any similarly titled
responsive pleading. Rather, the party must file a brief that concisely states the reasons for opposing the
motion and cites to supporting authority.” NECivR 7.1(b)(1)(A). Nevertheless, the court will consider
Flores’ “Motion” in conjunction with her brief in opposition to Tyson’s Motion.

21, 2013, Tyson filed the instant Motion to Change Place of Trial seeking to move trial
to North Platte, Nebraska. See Filing No. 160 - Motion.
Tyson argues North Platte is the most convenient location for trial because
Flores and Tyson’s employees and representatives reside closer to North Platte than to
Omaha.

See Filing No. 161 - Brief p. 4.

Tyson notes fourteen of the eighteen

witnesses Flores identified are current or former employees of Tyson’s Lexington,
Nebraska, plant and reside in or near Lexington, which is one hour east of North Platte.
Id. at 3, 5 (citing Filing No. 94 - Flores’ Witness List). Additionally, Tyson states Flores’
two expert witnesses and Flores herself are located in Lexington and Cozad,
Nebraska.2 See Filing No. 161 - Brief p. 5 (citing Filing No. 94 - Flores’ Witness List).
Tyson states the only individuals involved in this case who do not reside in or near
Lexington, are Tyson’s Omaha-based counsel and expert witness. See Filing No. 161 Brief p. 5-6. Tyson represents Tyson’s counsel and expert witness do not object to
traveling to North Platte for trial. Id.; Filing No. 162-1 - Vela Aff. ¶ 3.
Flores argues the court should deny Tyson’s request to change the place of trial
because Tyson has businesses in Omaha, Nebraska, and Tyson’s expert and counsel
reside in Omaha.

See Filing No. 171 - Motion in Opposition.

Flores states her

witnesses, including her expert witnesses, have agreed to travel to Omaha for trial. Id.
Additionally, Flores argues Tyson’s witnesses have either testified voluntarily at
depositions or have been compelled to testify. Id.3 Lastly, Flores contends she filed the
case in Lincoln because she wanted trial in Lincoln; however, she also states she
“wishes to go to trial in Omaha.” See Filing No. 172 - Response p. 1.
In reply, Tyson argues Flores’ choice of filing location, Lincoln, would have been
relevant had Flores requested trial in Lincoln in her Complaint. See Filing No. 173 Reply p. 1. Tyson contends the court should not give any significance to Flores’ choice
to file in Lincoln. Id. at 2. Tyson argues Flores has not rebutted Tyson’s arguments in
favor of moving trial to North Platte and Flores has not shown trial in Omaha is more
convenient than trial in North Platte. Id. Tyson reasserts witnesses would only be
2

Cozad, Nebraska, is approximately 45 minutes east of North Platte.
The court notes all of the subpoenas Flores sent to individuals to testify at a deposition set
Dawson County Courthouse in Lexington, Nebraska, as the place of deposition. See Filing No. 140.
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sacrificing two hours of travel time to a North Platte trial versus six hours of travel time
and potentially an overnight stay for a trial in Omaha. Id.

ANALYSIS
In deciding the place of trial, “a judge considers the convenience of the litigants,
witnesses, and attorneys.” NECivR 40.1(b)(1). Such consideration involves weighing
the interests similar to that performed by a court in consideration of a motion for change
of venue pursuant to 28 U.S.C. § 1404(a), which provides for transfers from one district
to another or from one division within a district to another. See 28 U.S.C. § 1404(a).
Section 1404(a) provides that the convenience of the parties and of witnesses, as well
as the interest of justice, must be considered in transferring a case to another district.
Id. Under section 1404(a), the convenience of litigants and witnesses are generally
considered to be the most critical factors, while the convenience of counsel, though a
factor to be considered, is seldom of controlling weight.

See Lyngholm v. FedEx

Ground Package Sys., Inc., 827 F. Supp. 2d 912 (S.D. Iowa 2011). The court’s local
rules contain no provision similar to the provision contained in section 1404(a) regarding
consideration of the “interest of justice.”

Compare 28 U.S.C. § 1404(a) (requiring

courts to consider convenience of witnesses and parties along with the “interest of
justice”), with NECivR 40.1(b)(1) (instructing judges to consider the convenience of the
parties, witnesses, and counsel).
The party seeking to change the place of trial within this district bears the burden
of establishing the transfer should be granted. See NECivR 40.1(b); see also In re
Apple, Inc., 602 F.3d 909, 913 (8th Cir. 2010) (movant bears burden under section
1404(a)).

The plaintiff’s choice of forum is given great weight and should not be

disturbed unless the movant makes a clear showing that the balance of interests weighs
in favor of the movant. See In re Apple, Inc., 602 F.3d at 913; see also BASF Corp.
v. Symington, 50 F.3d 555, 557 (8th Cir. 1994). A transfer should not be granted if the
effect is to merely shift the inconvenience from one party to the other. See DataCard
Corp. v. Softek, Inc., 645 F. Supp. 2d 722, 732 (D. Minn. 2007) (citing Van Dusen v.
Barrack, 376 U.S. 612, 646 (1964)).

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Neither Flores nor Tyson designated a location for trial. Flores argues she filed
this matter in Lincoln because she wanted trial in Lincoln; however, Flores conversely
argues she wants to keep Omaha as the place of trial. All but one of Flores’ witnesses
resides in or near Lexington.4 Lexington is approximately 64.8 miles, or one hour, from
North Platte and is approximately 218 miles, or three hours and nine minutes, from
Omaha. For the parties and potential witnesses, North Platte appears to be the most
convenient location for trial.

Although holding trial in North Platte requires Tyson’s

counsel and expert to travel, Flores and her witnesses would only have to travel
approximately 64 miles to North Platte compared to 218 miles to Omaha.

The

inconvenience to Tyson’s counsel and expert witness is outweighed by the convenience
of the other witnesses. The court will not require eighteen individuals to travel more
than three times the distance solely because Tyson’s counsel and expert reside in
Omaha. Holding trial in Omaha would subject witnesses to greater travel expenses and
time away from home and work.
Additionally, although Flores states all witnesses are willing to travel to Omaha,
Flores also seems to argue the witnesses could be compelled to testify at trial similar to
compelling witnesses to attend depositions.

The court reminds Flores there are

limitations to subpoenaing witnesses for trial. See Fed. R. Civ. P. 45(c). Unless Fed. R.
Civ. P. 45(c)(1)(B) applies, witnesses cannot be compelled to testify at trial more than
100 miles from the witnesses’ residence or place of employment.

See id.

After

reviewing the materials submitted by the parties, the court finds, upon consideration of
all factors pursuant to NECivR 40.1(b), Tyson has carried its burden and the place of
trial should be North Platte, Nebraska. Accordingly,

IT IS ORDERED:
1.

Tyson’s Motion for Determination of Place of Trial (Filing No. 160) is

granted.

4

In Flores’ witness list, there are eighteen witnesses named. See Filing No. 94 - Flores’ Witness
List. Flores, who names herself as one of those eighteen, lives in Lexington. Additionally, Flores’ experts
live in Lexington and Cozad. Tyson represents fourteen of the remaining fifteen fact witnesses reside in
or near Lexington. See Filing No. 161 - Brief p. 5 (citing Filing No. 94 - Flores’ Witness List). Tyson and
Flores did not indicate where the fifteenth fact witness resides.
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2.

Flores’ Motion in Opposition to Change Place of Trial (Filing No. 171) is

denied.
3.

The Clerk of Court shall amend the docket sheet to reflect the place of trial

is North Platte, Nebraska.
4.

The Final Pretrial Conference remains scheduled for April 28, 2014, at

9:00 a.m. in Courtroom 7, Roman L. Hruska United States Courthouse, 111 South 18th
Plaza, Omaha, Nebraska.
5.

Trial is rescheduled for June 2, 2014, in North Platte, Nebraska, before

the Honorable Joseph F. Bataillon and jury.

ADMONITION
Pursuant to NECivR 72.2 any objection to this Order shall be filed with the Clerk
of the Court within fourteen (14) days after being served with a copy of this Order.
Failure to timely object may constitute a waiver of any objection. The brief in support of
any objection shall be filed at the time of filing such objection. Failure to file a brief in
support of any objection may be deemed an abandonment of the objection.

Dated this 20th day of December, 2013.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

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