Wang v. Nebraska Public Power District

Filing 34

ORDER - The plaintiff's Motion for Request of the Place for Trial (Filing No. 28 ) is denied. Trial in this matter will be held in Lincoln, Nebraska. Ordered by Magistrate Judge Thomas D. Thalken. (Copy mailed to pro se party)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

NIT WANG,
Plaintiff,

4:13CV3161

vs.

ORDER

NEBRASKA PUBLIC POWER
DISTRICT (NPPD),
Defendant.

This matter is before the court on the plaintiff’s Motion for Request of the Place
for Trial (Filing No. 28). The plaintiff filed an affidavit (Filing No. 29) in support of his
motion. The plaintiff seeks to have the trial of this matter held in Omaha, Nebraska.
The defendant opposes having the trial held in Omaha, rather than in the location it was
originally filed, Lincoln, Nebraska. The defendant filed a brief (Filing No. 33) and an
affidavit (Filing No. 32) in opposition to the plaintiff’s motion.

BACKGROUND
This case arises from the plaintiff’s employment with the defendant from May 17,
2004, until his resignation on September 14, 2012. See Filing No. 1 - Complaint. The
plaintiff alleges he was subjected to racial harassment by co-workers and discrimination
and retaliation when the defendant failed to promote him because he complained about
the harassment. Id. The plaintiff alleges he is a black male from Sudan. Id. After an
initial review, the court allowed the plaintiff to proceed on discrimination and retaliation
claims, pursuant to Title VII of the Civil Rights Act, 42 U.S.C. § 2000e. See Filing No. 6.
The plaintiff filed this action in the United States District Court for the District of
Nebraska, Lincoln Division.

See Filing No. 1.

For this reason, the matter was

designated for trial in Lincoln, Nebraska. See NECivR 40.1(c). Prior to filing an answer,
the defendant filed a request for place of trial in Lincoln. See Filing No. 11.
On April 11, 2014, the plaintiff filed the instant motion to change the place of trial
to Omaha, Nebraska. See Filing No. 28. The plaintiff states he now wants to have trial
in Omaha due to his change of circumstances. The plaintiff states Omaha is a more

convenient location for him for financial reasons because he has family in the Omaha
area and he no longer lives near Lincoln, Nebraska. Id.; Filing No. 29. The plaintiff
states there are witnesses who will fly from outside the state and would also be able to
stay with his family in Omaha. Id. The plaintiff argues he will receive emotional and
other support from his family in Omaha. Id. By contrast, the plaintiff contends trial in
Lincoln would create an undue financial hardship. Id. The plaintiff provides a witness
list including eight individuals:

three from outside of Nebraska, two from Omaha,

Nebraska, one from Grand Island, Nebraska, and two from Aurora, Nebraska. Id. Ex.
D.
The defendant contends trial is more convenient for it and the relevant witnesses
in this case in Lincoln, Nebraska. See Filing No. 33. The defendant states the plaintiff
previously worked at the defendant’s Doniphan, Nebraska, location, which is 93 miles
from Lincoln, Nebraska, and 144 miles from Omaha. Id.; Filing No. 32. The defendant
states it is likely to call twelve witnesses from Doniphan, Nebraska, and other witnesses
from Grand Island, York, and Columbus, which are relatively closer to Lincoln than
Omaha. Id. The defendant argues the witnesses listed by the plaintiff do not have
relevant evidence for trial because they never worked for the defendant. Id. Finally, the
defendant argues the plaintiff overstates the financial burdens of trying the matter in
Lincoln because during the trial the plaintiff could still drive to Lincoln and stay with his
family in Omaha.

ANALYSIS
In deciding the place of trial, “a judge considers the convenience of 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
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factor to be considered, is seldom of controlling weight. Standard Office Sys. v. Ricoh
Corp., 742 F. Supp. 534, 537 (W.D. Ark. 1990). 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 that the transfer should be granted. See NECivR 40.1(b); compare
Terra Int’l, Inc. v. Mississippi Chem. Corp., 119 F.3d 688, 695 (8th Cir. 1997)
(movant bears burden under section 1404(a)). A change in the forum should not be
disturbed unless the movant makes a clear showing that the balance of interests weighs
in favor of the movant. See BASF Corp. v. Symington, 50 F.3d 555, 557 (8th Cir.
1994); Gen. Comm. of Adjustment v. Burlington N.R.R., 895 F. Supp. 249, 252 (E.D.
Mo. 1995).

A transfer should not be granted if the effect is to merely shift the

inconvenience from one party to the other. Nelson v. Bekins Van Lines Co., 747 F.
Supp. 532, 535 (D. Minn. 1990) (citing Van Dusen v. Barrack, 376 U.S. 612, 646
(1964)); see also Ferens v. John Deere Co., 494 U.S. 516, 522-23 (1990).
The plaintiff initially chose Lincoln, Nebraska, as the location of trial. However,
the plaintiff seeks to move trial to Omaha, Nebraska, due to a change in his
circumstances. The convenience to the plaintiff, who is proceeding pro se, and a few
out-of-state witnesses does not support holding trial in Omaha, Nebraska.

For the

defendant and a vast majority of potential witnesses, Lincoln appears to be a more
convenient location for trial. Further, there has been no showing that any witness would
suffer particular burden by having to travel to Lincoln or commute daily to Lincoln for
trial. Additionally, any parties or witnesses residing outside of Nebraska may just as
conveniently travel to Lincoln as to Omaha, Nebraska. The relative convenience of trial
to the witnesses near Lincoln outweighs the convenience to the plaintiff in having trial in
Omaha. After reviewing the materials submitted by the parties at this time, the court
finds that, upon consideration of all factors pursuant to NECivR 40.1(b)(1), the place of
trial should be Lincoln, Nebraska. Upon consideration,
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IT IS ORDERED:
1.

The plaintiff’s Motion for Request of the Place for Trial (Filing No. 28) is

denied.
2.

Trial in this matter will be held in Lincoln, Nebraska.

Dated this 2nd day of May, 2014.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

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