Logsdon v. BNSF Railway Company et al

Filing 40

MEMORANDUM AND ORDER regarding MOTION to Change Place of Trial 34 filed by Andrew Callahan, BNSF Railway Company. Defendants' motion to change the location of trial to Lincoln, Nebraska, (Filing No. 34), is granted, and this case is transferred to the Lincoln trial docket. Counsel for the parties shall confer and, on or before September 3, 2015, they shall jointly file a Form 35 (Rule 26 (f)) Report. Ordered by Magistrate Judge Cheryl R. Zwart. (SLP)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
STEVEN C. LOGSDON,
Plaintiff,

8:15CV232

vs.
MEMORANDUM AND ORDER
BNSF RAILWAY COMPANY, a
corporation; and ANDREW CALLAHAN,
an individual;
Defendants.
The defendants moved to dismiss the plaintiff’s complaint, (Filing No. 11), and to
change the location of trial to Lincoln, Nebraska. (Filing No. 34). The defendants’
motion to dismiss has been denied. Their motion to change the trial location is fully
submitted and opposed by the plaintiff. For the reasons discussed below, the motion will
be granted and this case will be transferred to the Lincoln trial docket.

ANALYSIS
The plaintiff’s complaint was initially filed in the United States District Court for
the District of Colorado.

(Filing No. 1).

Over Plaintiff’s objection, the case was

transferred to the United States District Court for the District of Nebraska on June 24,
2015, (Filing No. 25), and was assigned to Omaha by the Clerk of this court. The
defendants moved to transfer the case to the Lincoln trial docket for “the convenience of
the litigants, witnesses, and attorneys. . . .”(NECivR 40.1(b)(1)). The plaintiff argues
Omaha is the more convenient trial location.

In support of its motion, the railroad explains that Defendant Callahan resides in
Denver, but travels frequently for his employment and is currently involved in a 25-week
implementation project for BNSF in Lincoln. (Filing No. 13-1, at CM/ECF p. 2). The

plaintiff and the lay witnesses for both parties are located in western Nebraska, which is
closer to Lincoln than to Omaha. Plaintiff’s medical providers and attorney are located in
Colorado, which is closer to Lincoln than Omaha.

In support of an Omaha trial location, the plaintiff argues there are more flights
and less expensive direct flights between Denver and Omaha than between Denver and
Lincoln. But if the number of routes and cost of airfares was afforded significant
consideration, as between Lincoln and Omaha, cases would be subject to re-location to
Omaha from Lincoln whenever a witness or party would likely be flying to Nebraska to
attend the trial. That is, with Lincoln and Omaha less than 60 miles apart, a party could
always argue that any highway travel inconvenience for Nebraska witnesses is
outweighed by the easier air access to Omaha (with its larger airport and more carriers)
for distant parties, witnesses, and attorneys. This interpretation of “convenience of the
litigants, witnesses, and attorneys” would undermine the intent of having three Nebraska
trial locations. The Lincoln and North Platte locations of the Nebraska federal court
serve a substantial portion of Nebraska, with separate jury pools drawn to reflect and
respect the interests of Nebraska citizens beyond the Omaha area and its jury pool.
Omaha’s larger airport should not be a deciding factor in determining where Nebraska’s
federal cases will be tried.
Lincoln’s airport is highly accessible from the Lincoln federal courthouse, and is
served by both Delta and United Airlines, with direct flights between Lincoln and
Denver. The plaintiff, his counsel, his medical providers, and the Nebraska witnesses are
closer to Lincoln than Omaha; Defendant Callahan is currently working in Lincoln; the
defendant railroad and its counsel are located in Lincoln; and Plaintiff’s counsel and
medical providers can fly directly from Denver to Lincoln. Or they can drive to Lincoln.
Or they can fly to Omaha and from there, drive 60 miles to Lincoln. The choice is theirs.

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On balance, the court finds Lincoln is the more convenient trial location for this
case.

Accordingly,

IT IS ORDERED:
1)

Defendants motion to change the location of trial to Lincoln, Nebraska,
(Filing No. 34), is granted, and this case is transferred to the Lincoln trial
docket.

2)

Counsel for the parties shall confer and, on or before September 3, 2015,
they shall jointly file a Form 35 (Rule 26 (f)) Report, a copy of which can
be found at http://www.ned.uscourts.gov/forms in Word and WordPerfect
format.

3)

If one or more of the parties believes a planning conference is needed to
complete the Rule 26(f) Report, or if the parties cannot agree on one or
more of the deadlines identified or case progression issues raised in the
Rule 26(f) Report, on or before August 27, 2015, a party shall contact my
chambers at [phone], or by email addressed to
[e-mail], to arrange a conference call.

August 13, 2015.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

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