Chimney Rock Public Power District et al v. Tri-State Generation and Transmission Association, Inc. et al

Filing 84

ORDER the findings and recommendation of the magistrate judge are approved and adopted; plaintiffs' objection to the findings and recommendation of the magistrate judge is overruled; this case is transferred to the District of Colorado as ordered by Senior Judge Lyle E. Strom. (SED)

-FG3 Chimney Rock Public Power District et al v. Tri-State Generation a...n Association, Inc. et al

Doc. 84

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA CHIMNEY ROCK PUBLIC POWER DISTRICT, MIDWEST ELECTRIC COOPERATIVE CORPORATION, NORTHWEST RURAL PUBLIC POWER DISTRICT, PANHANDLE RURAL ELECTRIC MEMBERSHIP ASSOCIATION and ROOSEVELT PUBLIC POWER DISTRICT, ) ) ) ) ) ) ) ) ) Plaintiffs, ) ) v. ) ) TRI-STATE GENERATION AND ) TRANSMISSION ASSOCIATION, ) INC., HAROLD "HUB" THOMPSON, ) BRIAN SCHLAGEL, JAMES "JIMMY" ) BASON, JACK HAMMOND, TOM ) HOLGERSON, THAINE MICHIE, ) CHARLES "JIM" SOEHNER, ) ) Defendants. ) ______________________________)

7:09CV5008

ORDER

This matter is before the Court on the findings and recommendation of the magistrate judge (Filing No. 77), recommending the motions to transfer venue (Filing Nos. 34 and 40) of defendants Tri-State Generation and Transmission Association, Inc. and Harold Thompson be granted. Plaintiffs

filed timely objections to the magistrate judge's findings and recommendation (Filing No. 82). Having reviewed the findings and

recommendation, the Court finds they should be approved and adopted. The Court reviews the magistrate judge's findings on non-dispositive motions under a "clearly erroneous or contrary to law" standard. See Fed. R. Civ. P. 72(a).

Dockets.Justia.com

"For 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." 28 U.S.C. § 1404(a). The statutory language provides

three general categories of factors that courts must consider when deciding a motion to transfer: "(1) the convenience of the parties, (2) the convenience of the witnesses, and (3) the interests of justice." Cir. 1997). See Terra Int'l, 119 F.3d 688, 691 (8th

"Courts have not, however, limited a district

court's evaluation of a transfer motion to these enumerated factors. Instead, courts have recognized that such

determinations require a case-by-case evaluation of the particular circumstances at hand and a consideration of all relevant factors." Id.

In general, the party seeking transfer bears the burden of establishing that the transfer should be granted. See Id. at

695; Nelson v. Bekins Van Lines Co., 747 F.Supp. 532, 535 (D. Minn. 1990). 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 interest weighs in favor of the movant. BASF Corp. v. Symington, 50 F.3d 555, 557 (8th Cir.

1995); 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 inconvenience from one party to the other. Nelson, 747 F. Supp at 535 (citing Van Dusen v.

Barrack, 376 U.S. 612, 646 (1964)); Gen. Comm. of Adjustment, 895 F. Supp. at 252; see generally Ferens v. John Deere Co., 494 U.S.

516, 522-23 (1990).

In order to prevail in this case, defendants

must show their inconvenience strongly outweighs the inconvenience plaintiffs would suffer if venue were in Colorado. See Nelson, 747 F. Supp. at 535. In the findings and recommendation (Filing No. 77), the magistrate judge correctly analyzed the relevant facts under the proper standards for transfer of venue. IT IS ORDERED: 1) The findings and recommendation of the magistrate judge are approved and adopted. 2) Plaintiffs' objection to the findings and recommendation of the magistrate judge is overruled. 3) This case is transferred to the District of Colorado. DATED this 19th day of August, 2010. BY THE COURT: /s/ Lyle E. Strom ____________________________ LYLE E. STROM, Senior Judge United States District Court Accordingly,