Blessing et al v. Union Pacific Railroad Company

Filing 25

MEMORANDUM AND ORDER - Defendants motions to transfer venue, (filing no. 7 ), and to sever the case, (filing no. 9 ), are denied without prejudice. Ordered by Magistrate Judge Cheryl R. Zwart. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
GARY L. BLESSING, CONRAD E.
LINDQUIST,
8:12CV251
Plaintiffs,
vs.

MEMORANDUM AND ORDER

UNION PACIFIC RAILROAD
COMPANY,
Defendant.
This matter is before the court on Defendant Union Pacific Railroad Company’s
motion to change venue, (filing no. 7), and its motion to sever, (filing no. 9). For the
reasons set forth below, the defendant’s motions will be denied without prejudice to refiling after the evidence and arguments of counsel are more fully developed.

BACKGROUND
Plaintiffs Gary L. Blessing (“Blessing”) and Conrad E. Lindquist (“Lindquist”)
have brought suit against Union Pacific under the Federal Employers Liability Act and
the Locomotive Boiler Inspection Act. Blessing, an Iowa resident, and Lindquist, a
South Dakota resident, elected to file suit in the United States District Court for the
District of Nebraska – the site of Union Pacific’s national headquarters.

Blessing was employed with Union Pacific as a Trainman and Locomotive
Engineer from approximately 1967 to 2000.

Lindquist was employed in various

capacities, including as a Locomotive Engineer, from approximately 1968 to 2008.
Plaintiffs allege that “throughout their careers with [Union Pacific], Plaintiffs worked
together and performed the same or similar job duties as crewman on board locomotives,
primarily out of Sioux City, Iowa.” Filing No. 1, ¶8.

Plaintiffs further allege they

suffered injuries due to their exposure to asbestos and/or asbestos-containing products
while employed by Union Pacific. Filing No. 1, ¶25.

Defendant has filed motions seeking to change the venue of this case to the
Northern District of Iowa, Sioux City Division and to sever the claims of the plaintiffs.
Each motion will be addressed in turn below.

ANALYSIS

Motion to Transfer Venue.

Under the facts presented, the authority to transfer this case to another federal
district is governed by 28 U.S.C. § 1404(a). Section 1404(a) states: “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 . . . .” 28 U.S.C.
§ 1404(a).

The court must conduct “a case-by-case evaluation of the particular

circumstances at hand and [consider] all relevant factors.”

Terra Inter., Inc. v.

Mississippi Chemical Corp., 119 F.3d 688, 691 (8th Cir. 1997). Judicial decisions have
further identified a non-exclusive list of factors a court typically considers when
addressing § 1404 motions, including 1) judicial economy, 2) the 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. Id. Federal courts
also 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.

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Here, Plaintiffs elected to file suit in the District of Nebraska. This was a proper
choice of venue under the Federal Employers’ Liability Act.

See 45 U.S.C. § 56.

However, despite the fact Defendant’s home office is located in the District of Nebraska,
it alleges “[t]here exists no connection to the District of Nebraska in terms of Plaintiffs or
their controversy with Union Pacific” and argues trial in Iowa would be more convenient
for the anticipated witnesses and the plaintiffs. After weighing the potential risks and
benefits of their trial location options, Plaintiffs chose to file their case in the District of
Nebraska. This choice is entitled to deference

At this point in the litigation, the Defendant can make no more than general
statements about who might be called as a witness and the record contains no information
regarding where any experts, co-workers or treating physicians may reside. Moreover,
the fact that each of the plaintiffs worked for Union Pacific for a substantial number of
years and apparently performed work in a number of locations makes it even more
difficult to predict whether former co-workers or treating physicians reside beyond this
court’s subpoena jurisdiction.

Under the facts presented, Union Pacific has not met its burden of establishing the
Northern District of Iowa as a more appropriate venue for this case. Accordingly,
Defendant’s motion to transfer venue is denied without prejudice.

Motion to Sever.
Defendant has also filed a motion to sever Plaintiffs’ claims or, in the alternative,
to order separate trials for the plaintiffs. The joinder of parties to a law suit is governed
by Rules 20 and 21 of the Federal Rules of Civil Procedure. Rule 20 provides that
plaintiffs may join in a single action if “they assert any right to relief . . . with respect to
or arising out of the same transaction, occurrence, or series of transactions or

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occurrences; and any question of law or fact common to all plaintiffs will arise in the
action.” Fed. R. Civ. P. 20 (a)(1)(A & B).

Rule 21 provides that a court “may at any

time, on just terms, add or drop a party . . . . or sever any claim against a party.” Fed. R.
Civ. P. 21. Likewise, Rule 42(b) states that a court may order separate trials “to avoid
prejudice, or to expedite or economize.” It is the defendant’s burden to convince the
court that claims should not be tried together. See, e.g., Athey v. Farmers Ins. Exchange,
234 F.3d 357, 362 (8th Cir. 2000)(placing the burden on the defendant to show it would
experience prejudice if claims were not bifurcated).
“In ascertaining whether a particular factual situation constitutes a single
transaction or occurrence for purposes of Rule 20, a case by case approach is generally
pursued.” Mosley v. General Motors Corp., 497 F.2d 1330, 1333 (8th Cir. 1974).
‘Transaction’ is a word of flexible meaning. It may comprehend a series of
many occurrences, depending not so much upon the immediateness of their
connection as upon their logical relationship. Moore v. New York Cotton
Exchange, 270 U.S. 593, 610, 46 S.Ct. 367, 371, 70 L.Ed. 750 (1926).
Accordingly, all ‘logically related’ events entitling a person to institute a
legal action against another generally are regarded as comprising a
transaction or occurrence. 7 C. Wright, Federal Practice and Procedure §
1653 at 270 (1972). The analogous interpretation of the terms as used in
Rule 20 would permit all reasonably related claims for relief by or against
different parties to be tried in a single proceeding. Absolute identity of all
events is unnecessary.
Id.
Defendant argues it will experience prejudice if the plaintiffs’ claims remain
joined and are tried together. Defendant alleges the Plaintiffs “have different work
histories, and their allegations of asbestos exposure will involve investigation and
evidence of conditions unique to their individual work environments, training,
instructions, and duties.” Filing No. 10, CM/ECF p. 7.
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Defendant also argues the

Plaintiffs’ job responsibilities “likely varied” and “[i]nvestigation and evidence regarding
their claims will likely involve the testimony of different coworkers.” Id. Defendant
further suggests that Plaintiffs’ unique medical histories and family histories will
differentiate their respective cases from one another.

Thus, Defendant asserts, the

distinction between the claims will likely lead to “jury confusion” and “irreparable
prejudice to the Defendant.

Plaintiffs argue that their cases are properly joined because they arise out of the
same set of facts and circumstances. See, e.g., Langrell v. Union Pacific R. Co., case no.
5:12cv00084, 2012 WL 3041312 (E.D. Ark., July 25, 2012)(finding commons questions
of law and facts for plaintiffs bringing asbestos-related claims against Union Pacific
where the plaintiffs engaged in similar jobs with the railroad during a similar period of
time). Both plaintiffs assert their injuries are the result of Defendant’s negligence
including “continuing to purchase and/or use asbestos-containing products for decades
after the dangers of such products were known and by failing to follow its own policies
and/or procedures, including its own Asbestos Protection Policy, dated January 1, 1985.”
Filing No. 15, CM/ECF p. 4. Plaintiffs assert they were employed on Defendant’s
locomotives during overlapping time periods and “worked primarily out of the same
railyard.” Id. at CM/ECF p. 5.

Undoubtedly much of the discovery regarding railyard

practices, Union Pacific policies regarding asbestos exposure, and the plaintiffs’ duties
will be common to both plaintiffs and applicable to their cases.
Based on Plaintiffs’ representations, the court finds that for discovery purposes,
their claims are sufficiently related to one another and arise out of similar transactions or
circumstances.

Defendant’s arguments are primarily based on possible differences

between the plaintiffs. These differences may well become more defined as the case
progresses; but at this time, the defendant has not provided sufficient evidence to meet its
burden that severance or separate trials is warranted.

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As with its motion to change venue, the defendant may be able to support its
motion to sever after it obtains or develops discovery. Therefore, Defendant’s motion to
sever will be denied at this time, but without prejudice to re-filing at a later date.

IT IS ORDERED, Defendants motions to transfer venue, (filing no. 7), and to
sever the case, (filing no. 9), are denied without prejudice.

Dated this 5th day of October, 2012.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

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