Smith v. Ellis et al

Filing 58

ORDER granting 39 Motion to Change Place of Trial to the North Platte Division; granting 32 Motion to Change Place of Trial to the North Platte Division. Ordered by Magistrate Judge F. A. Gossett. (CLS, )

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IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF NEBRASKA J .L .S ., A Minor, by and through DEB S M I T H , her Mother and natural g u a r d ia n , P l a i n t i f f, vs. K E N N E T H W. ELLIS, et al., D e f e n d a n t s. ) ) ) ) ) ) ) ) ) ) ) 8 :0 8 C V 3 0 6 8 ORDER T h is matter is before the court on motions (Docs. 32 & 39) filed by defendants E s k ild s e n and Farrell requesting that trial be held in North Platte rather than Omaha. C o u n s e l for defendants Ellis and Community Hospital Association has no objection. A lth o u g h the parties' revised Rule 26(f) report (Doc. 46) indicates that the plaintiff objects, th e plaintiff did not file any response to the motions. See NECivR 40.1(b). In general, the party seeking transfer bears the burden of establishing that the transfer s h o u ld be granted. Terra Int'l, Inc. v. Mississippi Chem. Corp., 119 F.3d 688, 695 (8th Cir.), c e rt. denied, 522 U.S. 1029 (1997); Nelson v. Bekins Van Lines Co., 747 F. Supp. 532, 535 (D . Minn. 1990). The movant must make a clear showing that the balance of interest weighs i n favor of the movant. See General Comm. of Adjustment v. Burlington N. R.R., 895 F. S u p p . 249, 252 (E.D. Mo. 1995); BASF Corp. v. Symington, 50 F.3d 555, 557 (8th Cir. 1 9 9 5 ). A transfer should not be granted if the effect is to merely shift the inconvenience f ro m one party to the other. Nelson, 747 F. Supp. at 535 (citing Van Dusen v. Barrack, 376 U .S . 612, 646 (1964)); General Comm. of Adjustment, 895 F. Supp. at 252; see generally F e re n s v. John Deere Co., 494 U.S. 516, 522-23 (1990). Pursuant to NECivR 40.1(b), the c o u rt must consider the convenience of the litigants, witnesses, and counsel when deciding th e place of trial. T ra d itio n a lly, this court has resolved these disputes by conducting a weighing of the in te re sts similar to that performed by a court in consideration of a motion for change of v e n u e pursuant to 28 U.S.C. 1404(a). Convenience of litigants and witnesses are generally c o n sid e re d to be the most critical factors, while the convenience of counsel, though a factor to be considered, is seldom of controlling weight. Cf. Standard Office Systems v. Ricoh C o r p ., 742 F. Supp. 534, 537 (W.D. Ark. 1990). In this case, the plaintiff was treated at the Community Hospital in McCook, N e b ra sk a , following an accident on her family's farm in Cheyenne County, Kansas. Plaintiff a n d her parents reside in Bird City, Kansas. Plaintiff received medical treatment in Cheyenne C o u n ty, Kansas as well as in McCook. The defendants have demonstrated that trial in North Platte rather than Omaha presents greater flexibility, convenience, and cost-effectiveness, due to the location and travel requirements of all parties' anticipated witnesses. The plaintiff has n o t presented any evidence or argument to the contrary. T h e court finds that the defendants have shown their inconvenience in holding the trial in Omaha strongly outweighs the inconvenience the plaintiff would suffer if trial is held in N o rth Platte. I T IS ORDERED that the defendants Motions (Docs. 32 & 39) for trial in North P latte are granted. The Clerk shall amend the records of the court to reflect the change in p lac e of trial. D A T E D October 14, 2008. B Y THE COURT: s / F.A. Gossett U n ite d States Magistrate Judge -2-

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