Abramov v. Otis Elevator Co et al
Filing
47
MEMORANDUM OPINION AND ORDER granting 38 Motion to Dismiss/Lack of Jurisdiction filed by Desert Palace Inc, Caesars Entertainment Corporation; declining to reach 35 Motion for Summary Judgment filed by Desert Palace Inc.; and granting 8 Motion to Transfer filed by Otis Elevator Co. Plaintiff's action against Desert Palace Inc. is dismissed without prejudice by Fed. R. Civ. P. 54(b) final judgment filed today. Plaintiff's action against Otis Elevator Co. is transferred to the District of Nevada. The clerk of court shall effect the transfer according to the usual procedure. (Ordered by Chief Judge Sidney A Fitzwater on 10/25/2011) (Chief Judge Sidney A Fitzwater) [Transferred from Texas Northern on 10/25/2011.]
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
GENA M. ABRAMOV,
Plaintiff,
VS.
OTIS ELEVATOR COMPANY, et al.,
Defendants.
§
§
§
§ Civil Action No. 3:11-CV-440-D
§
§
§
§
§
MEMORANDUM OPINION
AND ORDER
In this removed diversity case, the court must decide whether it can exercise general
personal jurisdiction over one defendant and whether to transfer the case for the convenience
of the parties and witnesses and in the interest of justice under 28 U.S.C. § 1404(a). For the
reasons that follow, the court grants one defendant’s motion to dismiss for lack of in
personam jurisdiction and grants the other defendant’s motion to transfer the case to the
District of Nevada.
I
This is an action by plaintiff Gena M. Abramov (“Abramov”) against defendants
Desert Palace Inc. (“Desert Palace”), d/b/a Caesars Palace Hotel & Casino (“Caesars
Palace”), and Otis Elevator Company (“Otis”) arising from a trip and fall at Caesars Palace
in Paradise, Nevada.1 According to Abramov, she tripped and fell, injuring her right knee,
1
Abramov originally filed suit in Texas state court against Otis, Caesars Palace Realty
Corp. (“Caesars Realty”), and Caesars Entertainment Corporation (“Caesars Entertainment”).
Defendants jointly removed the case to this court based on diversity jurisdiction. Abramov
when she entered an elevator that was not level with the ground. She alleges that Caesars
Palace and Otis are liable on claims for negligence (including gross negligence), and she sues
to recover, inter alia, exemplary or punitive damages.
Abramov is a Texas citizen. Desert Palace is a Nevada corporation with its principal
place of business in Nevada, and it owns and operates Caesars Palace. Otis is a New Jersey
corporation with its principal place of business in Connecticut, and Abramov alleges that it
owned and serviced the elevator in question.
Desert Palace moves under Fed. R. Civ. P. 12(b)(2) to dismiss the action against it for
lack of in personam jurisdiction.2 In its motion, Desert Palace adopted the arguments and
authorities that former defendants Caesars Palace Realty Corp. and Caesars Entertainment
Corporation presented in their motion and supplemental motion to dismiss. In response to
Desert Palace’s motion, Abramov requested limited discovery on the issue of general
jurisdiction. The court granted the motion and permitted Abramov to conduct this discovery
and file a supplemental response brief no later than August 26, 2011. Because the time for
Abramov to file the supplemental response brief has elapsed, the motion is ripe for decision.
Otis does not challenge the court’s exercise of in personam jurisdiction over it. Otis
moves, as does Desert Palace in the alternative, to transfer this case to the District of Nevada
later filed a first amended complaint substituting Desert Palace in place of Caesars Realty
and Caesars Entertainment
2
Desert Palace also moves for summary judgment based on the statute of limitations.
The court does not reach this motion.
-2-
under 28 U.S.C. § 1404(a) for the convenience of the parties and witnesses and in the interest
of justice.
II
The court turns first to Desert Palace’s motion to dismiss.
A
“When a nonresident defendant presents a motion to dismiss for lack of personal
jurisdiction, the plaintiff bears the burden of establishing the district court’s jurisdiction over
the nonresident.”
Stuart v. Spademan, 772 F.2d 1185, 1192 (5th Cir. 1985).
The
determination whether a federal district court has personal jurisdiction over a nonresident
defendant is bipartite. The court first decides whether the long-arm statute of the state in
which it sits confers personal jurisdiction over the defendant. Mink v. AAAA Dev. LLC, 190
F.3d 333, 335 (5th Cir. 1999). If it does, the court then resolves whether the exercise of
jurisdiction is consistent with due process under the United States Constitution. Id. Because
the Texas long-arm statute extends to the limits of due process, the court need only consider
whether exercising jurisdiction over Desert Palace would be consistent with the Due Process
Clause of the Fourteenth Amendment. See id.
The Due Process Clause of the Fourteenth Amendment permits a court to exercise
personal jurisdiction over a nonresident defendant when:
-3-
(1) that defendant has purposefully availed himself of the
benefits and protections of the forum state by establishing
“minimum contacts” with the forum state; and (2) the exercise
of jurisdiction over that defendant does not offend “traditional
notions of fair play and substantial justice.” To comport with
due process, the defendant's conduct in connection with the
forum state must be such that he “should reasonably anticipate
being haled into court” in the forum state.
Latshaw v. Johnston, 167 F.3d 208, 211 (5th Cir. 1999) (footnotes omitted). A defendant has
minimum contacts with the forum if its contacts support either general or specific
jurisdiction. Mink, 190 F.3d at 336. In this case, Abramov does not assert that specific
jurisdiction exists over Desert Palace. The court will therefore determine only whether
Abramov has established that the court has general jurisdiction. General jurisdiction exists
“when a defendant’s contacts with the forum state are unrelated to the cause of action but are
‘continuous and systematic.’” Id. It is difficult to establish continuous and systematic
contacts because this requires “extensive contacts between a defendant and a forum,” and
even repeated contacts may not be enough. Johnston v. Multidata Sys. Int’l, 523 F.3d 602,
609 (5th Cir. 2008).
To determine whether exercising jurisdiction would satisfy traditional notions of fair
play and substantial justice, the court examines “(1) the defendant’s burden; (2) the forum
state’s interests; (3) the plaintiff’s interest in convenient and effective relief; (4) the judicial
system’s interest in efficient resolution of controversies; and (5) the shared interest of the
several states in furthering fundamental substantive social policies.” Berry v. Lee, 428
F.Supp.2d 546, 557 (N.D. Tex. 2006) (Fitzwater, J.) (quoting WRR Indus., Inc. v. Prologis,
-4-
2006 WL 247894, at *4 (N.D. Tex. Feb. 2, 2006) (Lindsay, J.)).
When, as here, the court considers a motion to dismiss for lack of personal jurisdiction
without holding an evidentiary hearing, the plaintiff need only present a prima facie case that
personal jurisdiction is proper. Latshaw, 167 F.3d at 211. For purposes of determining
whether a prima facie case for personal jurisdiction exists, the court must accept as true all
uncontroverted allegations in the plaintiff’s complaint and resolve in the plaintiff’s favor all
conflicts between the facts contained in the parties’ affidavits. Id. Although this standard
is liberal, it “does not require the court to credit conclusory allegations, even if
uncontroverted.” Panda Brandywine Corp. v. Potomac Elec. Power Co., 253 F.3d 865, 869
(5th Cir. 2001) (per curiam).
B
Abramov has failed to make a prima facie showing that the court can exercise general
jurisdiction over Desert Palace. Regarding personal jurisdiction over Desert Palace,
Abramov merely alleges in her first amended complaint (“complaint”) that Desert Palace is
a Nevada corporation that has been served through its Nevada registered agent. And
although the court permitted Abramov to conduct jurisdictional discovery for purposes of
establishing that Desert Palace had engaged in pervasive, systematic, and continuous local
advertising,3 she did not submit any such discovery. “[V]ague and overgeneralized assertions
3
Abramov relied on the following cases from the Eastern District of Texas: Morgan
v. Coushatta Tribe of Indians of Louisiana, 214 F.R.D. 202, 206 (E.D. Tex. 2001), and
Gorman v. Grand Casino of Louisiana, Inc.-Coushatta, 1 F.Supp.2d 656, 659 (E.D. Tex.
1998).
-5-
that give no indication as to the extent, duration, or frequency of contacts are insufficient to
support general jurisdiction.” Johnston, 523 F.3d at 610.
Moreover, Desert Palace has presented uncontradicted evidence that supports a
contrary finding.4 Michael Grey, Vice President of Finance, avers that Desert Palace does
not, inter alia, own or operate a business, have or rent property, employ, or have a business
operating as Desert Palace’s alter ego in Texas. Bonnie Gilmour, Vice President of
Marketing for Caesars Entertainment for the Las Vegas region, lists the Desert Palace
national marketing initiatives that were intended to attract customers from all states to the
Nevada resort. Her evidence does not support Abramov’s suggestion that Desert Palace
engages in local advertising in the state of Texas.
Because Abramov has not established that Desert Palace has sufficient minimum
contacts with Texas to support the exercise of general personal jurisdiction, the court need
not consider whether exercising jurisdiction over Desert Palace would offend “traditional
notions of fair play and substantial justice.” Latshaw, 167 F.3d at 211.
Desert Palace’s motion to dismiss is granted, and Abramov’s suit against Desert
Palace is dismissed without prejudice by Rule 54(b) judgment filed today.
4
Although Abramov objects to the qualifications of Desert Palace’s affiants and argues
that the affidavits do not negate the existence of personal jurisdiction, she neither contradicts
the affidavits nor offers evidence of her own. Accordingly, the court need not resolve in her
favor any conflicts between the parties’ affidavits.
-6-
III
The court turns next to Otis’ motion to transfer the action to the District of Nevada.5
A
Section 1404(a) provides that, “[f]or 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.” Id. “The decision to transfer is made to prevent waste
of time, energy, and money and to protect litigants, witnesses, and the public against
unnecessary inconvenience and expense.” Bank One, N.A. v. Euro-Alamo Invs., Inc., 211
F.Supp.2d 808, 811 (N.D. Tex. 2002) (Fitzwater, J.). “The court cannot transfer a case where
the result is merely to shift the inconvenience of the venue from one party to the other.”
Pinnacle Label, Inc. v. Spinnaker Coating, LLC, 2009 WL 3805798, at *7 (N.D. Tex. Nov.
12, 2009) (Fitzwater, C.J.) (citing Fowler v. Broussard, 2001 WL 184237, at *6 (N.D. Tex.
Jan. 22, 2001) (Fitzwater, J.)). Moreover,
5
Because the court has dismissed Abramov’s suit against Desert Palace, it will not
consider the arguments that Desert Palace presented in support of its alternative motion to
transfer. See, e.g., In re Volkswagen AG, 371 F.3d 201, 204 (5th Cir. 2004) (per curiam)
(holding that the term “parties” in § 1404(a) “contemplate[s] consideration of the parties . .
. in all claims and controversies properly joined in a proceeding”); Sivertson v. Clinton, 2011
WL 4100958, at *6 n.6 (N.D. Tex. 2011 Sept. 14, 2011) (Fitzwater, C.J.) (declining to
consider convenience of potential party and his witnesses because potential party had not yet
been joined).
-7-
[t]he plaintiff’s choice of venue is . . . entitled to deference, and
therefore the party seeking transfer has the burden to show good
cause for the transfer. The burden on the movant is
“significant,” and for a transfer to be granted, the transferee
venue must be “clearly more convenient than the venue chosen
by the plaintiff.”
Id. at *8 (alterations in original). “When the movant demonstrates that the transferee venue
is clearly more convenient, . . . it has shown good cause and the district court should
therefore grant the transfer.” In re Volkswagen of Am., Inc., 545 F.3d 304, 315 (5th Cir.
2008) (en banc) (“Volkswagen II”).
The court must decide as a preliminary question “whether the judicial district to which
transfer is sought would have been a district in which the claim could have been filed.” In
re Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004) (per curiam) (“Volkswagen I”) (citing
In re Horseshoe Entm’t, 337 F.3d 429, 433 (5th Cir. 2003) (per curiam)); see also
Volkswagen II, 545 F.3d at 312 (“The preliminary question under § 1404(a) is whether a civil
action ‘might have been brought’ in the destination venue.”). In deciding whether to transfer
the case, the court then evaluates “a number of private and public interest factors, none of
which are given dispositive weight.” Volkswagen I, 371 F.3d at 203 (citing Action Indus.,
Inc. v. U.S. Fid. & Guar. Co., 358 F.3d 337, 340 (5th Cir. 2004)).
The private concerns include: (1) the relative ease of access to
sources of proof; (2) the availability of compulsory process to
secure the attendance of witnesses; (3) the cost of attendance for
willing witnesses; and (4) all other practical problems that make
trial of a case easy, expeditious and inexpensive. The public
concerns include: (1) the administrative difficulties flowing
from court congestion; (2) the local interest in having localized
interests decided at home; (3) the familiarity of the forum with
-8-
the law that will govern the case; and (4) the avoidance of
unnecessary problems of conflict of laws [or] the application of
foreign law.
Id. (citations omitted). “Although [these] factors are appropriate for most transfer cases, they
are not necessarily exhaustive or exclusive.” Volkswagen II, 545 F.3d at 315. Otis must
establish “good cause” for transferring the case, meaning that, “in order to support its claim
for a transfer, [it] must satisfy the statutory requirements and clearly demonstrate that a
transfer is ‘[f]or the convenience of parties and witnesses, in the interest of justice.’” Id.
(brackets in original) (quoting § 1404(a)).
B
The court addresses first whether the judicial district to which transfer is
sought—here, the District of Nevada—is a district in which this suit could have been filed.
The court holds, and the parties do not dispute, that Abramov could have brought this action
in the District of Nevada. Venue for diversity cases is governed by 28 U.S.C. § 1391(a),
which provides, in relevant part, that venue is proper in “a judicial district in which a
substantial part of the events or omissions giving rise to the claim occurred.” Because the
events giving rise to Abramov’s claim occurred in Nevada, the District of Nevada is a proper
venue.
-9-
C
The court next considers the private interest factors.
1
The first private interest factor examines the relative ease of access to sources of
proof. “The Fifth Circuit [has] held that despite technological advances that [have] made the
physical location of documents less significant, the location of sources of proof remains a
meaningful factor in the transfer analysis.” AT & T Intellectual Prop. I, L.P. v. Airbiquity
Inc., 2009 WL 774350, at *2 (N.D. Tex. Mar. 24, 2009) (Lynn, J.); see also Volkswagen II,
545 F.3d at 316 (“[T]he sources of proof requirement is a meaningful factor in the
analysis.”).
Otis asserts that the elevator in question is located in Nevada and notes that the
parties’ attorneys and experts will need to inspect the elevator. Otis also refers to records
regarding the installation, inspection, and maintenance of the elevator that are maintained at
Otis’ office in Nevada. Abramov responds that these records can just as easily be transported
to Texas on discs or in boxes.
Abramov relies on medical records located in Texas. Otis argues that it will be easier
to transport these records to Nevada because knee injuries normally generate a relatively
small amount of records, and it is customary for law firms to use medical record services to
obtain and send medical records.6
6
Otis also asserts that, other than Abramov, all other witnesses are located in Nevada,
including, employees, any non-party witnesses, and immediate medical providers, if any.
- 10 -
Because the relevant documents are located in both Texas and Nevada and it will be
necessary for one party to transport documents regardless which venue is selected, the court
does not perceive an advantage in either forum. See, e.g., Metromedia Steakhouses Co. v.
BMJ Foods P.R., Inc., 2008 WL 794533, at *3 (N.D. Tex. Mar. 26, 2008) (Fitzwater, C.J.)
(concluding that factor was neutral because documents were located in both venues).
To the extent that Otis is arguing that trial in the venue where the elevator is located
will allow the trier of fact to examine the elevator, Otis must demonstrate why a premises
view is necessary. See Ternium Int’l U.S.A. Corp. v. Consol. Sys., Inc., 2009 WL 464953,
at *3 (N.D. Tex. Feb. 24, 2009) (Fish, J.) (holding that movant failed to provide any
explanation of why site visit or physical examination of evidence was necessary).7 “[I]t is
not clear in these days of advanced technology why a physical viewing of the [premises]
The court deems this argument to be more pertinent to its consideration of the second and
third private interest factors.
The parties disagree about the “primary issue” in this case. Abramov contends that
the primary issue is the nature and extent of her injuries and damages, and that the case
should be litigated in this forum because the court is located near this proof. Otis contests
Abramov’s characterization of the primary issue, contending that this assumes Otis’ liability;
it avers that the primary issue centers on the condition and maintenance of the elevator, and
that the pertinent proof is located in Nevada. In evaluating these competing arguments, the
court will examine the difficulty in transporting both types of evidence.
7
An older test for deciding a motion to transfer under § 1404(a) included as a factor
“the accessibility of the premises to jury view.” Baxa Corp. v. ForHealth Techs., Inc., 2006
WL 680503, at *1 (N.D. Tex. Mar. 15, 2006) (Fitzwater, J.) (listing possibility of premises
view as factor in deciding whether to transfer case). Although this factor is not explicitly
part of the current test, it can still be considered in appropriate cases because the factors of
the current test, while “appropriate for most transfer cases,” are “not necessarily exhaustive
or exclusive.” Volkswagen II, 545 F.3d at 315.
- 11 -
would be necessary,” and Otis does not assert any grounds to show it will be necessary. See
Snaza v. Howard Johnson Franchise Sys., Inc., 2008 WL 5383155, at *13 (N.D. Tex. Dec.
24, 2008) (O’Connor, J.) (deciding motion to dismiss for forum non conveniens).
The court therefore finds that the first factor is neutral.
2
The second private interest factor concerns the availability of compulsory process over
witnesses. The court concludes that this factor is neutral because, although both parties list
intended witnesses, there is nothing to suggest that either side’s witnesses would be unwilling
to testify. See, e.g., Sivertson v. Clinton, 2011 WL 4100958, at *5 (N.D. Tex. Sept. 14, 2011)
(Fitzwater, C.J.) (concluding that second private interest factor was neutral because
defendant failed to identify witnesses for whom compulsory process would be needed). In
reciting its list of intended witnesses, Otis fails to specify whether compulsory process will
be necessary to secure their attendance.
Although Abramov argues that it will be
burdensome and expensive for her healthcare witnesses to testify in Nevada, she does not
show that they are unwilling to testify there.8
8
If Abramov is concerned about the burden and expense of securing the testimony of
these witnesses, she can consider calling them by deposition. See, e.g., Am. Gen. Life Ins.
Co. v. Rasche, 273 F.R.D. 391, 398 (S.D. Tex. 2011) (noting in motion to transfer analysis
that evidence from non-party witnesses could be obtained by deposition); Fancher v. S.
Towing Co., 2010 WL 3982242, at *3 (E.D. La. Oct. 8, 2010) (noting, as a reason for only
slightly weighing factor in favor of transfer, that “trials do often involve physician testimony
via deposition”).
- 12 -
3
The third private interest factor examines the difficulty and cost for willing witnesses
to attend court proceedings. The availability and convenience of witnesses is the most
significant factor in deciding a § 1404(a) motion to transfer. See, e.g., Sw. Airlines Co. Profit
Sharing 401(k) Comm. v. UBS Global Asset Mgmt. (Ams.), Inc., 2007 WL 268808, at *3
(N.D. Tex. Jan. 29, 2007) (Fitzwater, J.).
Otis contends that it is “[a] fair conclusion . . . that any employees, including former
employees, . . . non-party witnesses, witnesses connected to Otis, witnesses to the incident
in question, and witnesses that may have knowledge of immediate health care provided to
[Abramov]” are located in Nevada.9 D. Br. 6. Otis also lists a number of employees whom
it intends to call as witnesses. According to Otis,
Defendants will need testimony from the Otis employees who
installed the elevator to rebut the Plaintiff’s negligence in
installation claim; the route mechanic to describe the routine
maintenance as well as repairs made to the elevator; the
mechanic who investigated the incident [to] provide his account
of the mechanical state the elevator was in at the time he arrived
after the incident; a person from each Defendant with
knowledge of the contracts related to the elevator [to] testify to
the terms and responsibilities of each party under the contract;
the property manager [to] offer testimony relevant to
Defendant[’]s failure to post warnings and properly maintain the
elevator; security guards at the property [to] provide information
pertaining to any similar instances . . . of the elevator
malfunctioning; other employees [who] may have knowledge of
the incident or the functioning of the elevator in general.
9
Although Otis makes these arguments when addressing the second private interest
factor, the court deems it relevant to the third private interest factor.
- 13 -
Ds. Reply Br. 4-5. In other words, Otis essentially relies on two types of witnesses: general
categories of witnesses, such as “non-party witnesses” or “witnesses to the incident,” and
employees identified by job title.
Abramov argues that it will be difficult to secure the attendance of her Texas-based
healthcare providers even though she will be paying for their travel, because travel to Nevada
is inconvenient and they will be outside the subpoena range of the Nevada court. Otis
responds that Abramov can easily obtain their testimony by videotaped deposition, and that
their testimony is more amenable to presentation by deposition since it will likely stay the
same, whereas the testimony of the experts and other witnesses will likely evolve until trial.
The court concludes that this factor neutral. Otis has not met its burden of showing
that the difficulty and cost of witness attendance weighs in favor of transfer. As for its
general categories of witnesses, Otis has failed to “specify clearly . . . the key witnesses to
be called and their location and [to] make a general statement of what their testimony will
cover.” Sivertson, 2011 WL 4100958, at *6 (alteration in original) (quoting 15 Charles A.
Wright, et al., Federal Practice and Procedure § 3851, at 221-22 (3d ed. 2007)); see also
Magana v. Toyota Motor Corp., 2010 WL 5108850, at *2 (N.D. Tex. Dec. 6, 2010) (Boyle,
J.) (finding that defendant failed to satisfy its burden under this factor by not providing the
name, address, or proposed testimony of a single witness). Otis does not identify the names
of the witnesses or provide a general statement as to their testimony. See Metromedia
Steakhouses, 2008 WL 794533, at *3 (concluding that defendants did not meet their burden
under this factor by asserting that “nonparty witnesses reside in [transferee district]” because,
- 14 -
inter alia, it did not identify them). Although it may be a “fair conclusion” that these
witnesses reside in Nevada, this conclusory assertion is insufficient. See id. (stating, as
another reason for rejecting defendants’ assertion of “nonparty witnesses resid[ing] in
[transferee district],” that defendant did not offer evidence of their location). Otis’ reliance
on its intended employee witnesses is also misplaced because it is well-established that the
convenience of nonparty witnesses is accorded greater weight than the convenience of party
witnesses. See, e.g., Santellano v. The City of Goldthwaite, 2011 WL 1429080, at *2 (N.D.
Tex. Apr. 14, 2011) (Fitzwater, C.J.). Otis’ motion is also too vague regarding the names,
locations, and descriptions of their anticipated testimony.
See, e.g., Kimberly-Clark
Worldwide, Inc. v. First Quality Baby Prods., LLC, 2009 WL 2634860, at *5-6 (N.D. Tex.
Aug. 26, 2009) (Fitzwater, C.J.) (rejecting defendants’ assertions that they intended to call,
for example, “[a]ll of the people involved in the design . . . of . . . product [in dispute],”
because it did not identify witnesses by name and address).
In asserting the convenience of her healthcare providers residing in Texas, Abramov
does not specify their names and a general description of their testimony. Although
Abramov does not bear the burden of proof, the absence of such specificity precludes the
court from finding that this factor weighs in her favor rather than that it is merely neutral.
- 15 -
4
The fourth private interest factor considers the practical problems that make trial easy,
expeditious, and inexpensive. The court finds this factor to be neutral.
Otis and Abramov discuss the location of counsel and the ease of acquiring new
counsel in Nevada, but the location of counsel is not relevant to the court’s transfer
determination. See, e.g., Santellano, 2011 WL 1429080, at *2 n.3, and *3. The parties
recount their arguments concerning ease of access to sources of proof, which has already
been considered in analyzing the first private interest factor. It is also undisputed that
transfer would not cause significant delay or prejudice.
D
The court now turns to the public interest factors.
1
The first public interest factor evaluates the comparative administrative difficulties
due to court congestion in the potential venues. The court finds that this factor is neutral
because neither party has presented arguments or evidence that pertain to this factor. See,
e.g., Sivertson, 2011 WL 4100958, at *7 (declining to examine first public interest factor
because parties did not present arguments or evidence).
2
The second public interest factor concerns the local interest in having localized
interests decided at home. Otis argues that Nevada has a significant interest because all of
the alleged events occurred in Nevada, and it maintains its principal place of business in
- 16 -
Nevada. Abramov responds that this factor should be considered neutral because the
accident affected only her, and she resides in Texas.
The court holds that this factor strongly favors transferring the case. Abramov’s suit
is based on conduct that occurred wholly within Nevada, and it is well-established that “[t]his
factor generally favors the venue where the acts giving rise to the lawsuit occurred.” See
Metromedia Steakhouses, 2008 WL 794533, at *3. Nevada residents have the most
significant interest in regulating the conduct of a company that provides elevator service in
their state to invitees of a commercial establishment. Morever, Abramov is seeking
exemplary or punitive damages. Under Nevada law,10 punitive damages “are designed to
punish and deter a defendant’s culpable conduct and act as a means for the community to
express outrage and distaste for such conduct.”
Countrywide Home Loans, Inc. v.
Thitchener, 192 P.3d 243, 252 (Nev. 2008) (en banc) (emphasis added). The relevant
community in this case is composed of Nevada residents, not residents of the state from
which the plaintiff hails. And even if a Texas court has some interest in protecting Texas
residents from suffering personal injuries when visiting other states, the residents of the state
where the incident occurred—particularly in a premises-type case—have the most significant
interest.
10
As the court notes infra at § III(D)(3), Nevada law will likely govern this lawsuit.
- 17 -
3
The third public interest factor examines the familiarity of the forum with the law that
will govern the case. The parties recognize that because this court’s jurisdiction is based on
diversity of citizenship, the forum state’s choice of law rules apply. See, e.g., Klaxon Co. v.
Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941) (holding that federal court exercising
diversity jurisdiction applies the choice of law rules of forum state). Under Texas choice of
law rules, the law of the state with the most significant relationship to the controversy
governs in a tort action. See, e.g., Gutierrez v. Collins, 583 S.W.2d 312, 318 (Tex. 1979).
Therefore, the parties do not dispute the likelihood that Nevada law will govern this suit.
Otis argues that it will be inconvenient for this court to apply Nevada’s unique rules
and regulations regarding elevators. Abramov contends that there is nothing novel about this
personal injury suit and that courts often apply the law of other states. Although this court
is capable of applying Nevada law, a court sitting in Nevada has greater familiarity with
Nevada law. See, e.g., Metromedia Steakhouses, 2008 WL 794533, at *4 (concluding that
although court can apply Puerto Rico law, court in Puerto Rico would be more familiar with
the law). Accordingly, the court holds that this factor weighs in favor of transfer.
4
The fourth public interest factor concerns the avoidance of unnecessary problems of
conflict of laws. The court concludes that this factor is neutral; neither party suggests any
problems concerning the conflict of laws between Texas and Nevada. See, e.g., Travelers
Cas. & Sur. Co. of Am. v. Univ. Facilities, Inc., 2011 WL 197897, at *7 (E.D. La. Jan. 20,
- 18 -
2011) (concluding that this factor did not weigh in favor of transfer because there was no
indication of conflict between Alabama and Louisiana law).
E
Considering the private and public interest factors in toto, the court holds that Otis has
met its burden of clearly demonstrating that this case should be transferred for the
convenience of parties and witnesses and in the interest of justice. Essentially, this is a case
in which the private interest factors are neutral but two public interest factors point strongly
to the District of Nevada as the forum in which the case should be litigated. This is a
personal injury action that asserts premises-type claims arising from an incident involving
an elevator located in Nevada. The lawsuit will likely be governed by Nevada law. And
because Abramov seeks punitive damages, a jury from the community will have the
responsibility of deciding (assuming Otis and/or Desert Palace11 is liable) whether and in
what amount punitive damages should be awarded to “express outrage and distaste for such
conduct.” Nevada’s local interest in deciding this case is far greater than is any interest that
Texas has. And while Abramov received medical care in her home state of Texas, this case
is about an incident that occurred in Nevada and is otherwise centered there.
Accordingly, the court grants Otis’ motion to transfer venue under § 1404(a).
11
Although the court is dismissing Abramov’s action against Desert Palace, the
dismissal is without prejudice, and she can still bring suit against Desert Palace in a forum
where the court can exercise in personam jurisdiction over Desert Palace, provided her suit
is not time-barred.
- 19 -
*
*
*
For the reasons explained, the court grants Desert Palace’s May 12, 2011 motion to
dismiss for lack of personal jurisdiction and dismisses the action against Desert Palace
without prejudice by Rule 54(b) judgment filed today. The court grants Otis’ March 11,
2011 motion to transfer venue. Abramov’s action against Otis is transferred to the District
of Nevada. The clerk of court is directed to effect the transfer according to the usual
procedure.
SO ORDERED.
October 25, 2011.
_________________________________
SIDNEY A. FITZWATER
CHIEF JUDGE
- 20 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?