Woods et al v. United States of America et al

Filing 62

MEMORANDUM OPINION AND ORDER by District Judge Judith C. Herrera denying 22 Defendant's Motion to Dismiss, or in the alternative, for Transfer of Venue to the Western District of Texas and 33 Defendant's Motion for Leave to File an Amended Answer. (baw)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO

ALBERT WOODS and NARDA WOODS,
Plaintiffs,
v.

No. 2:16-CV-1041-JCH/SMV

UNITED STATES OF AMERICA,
JAMES WELLS, M.D. and JOSHUA
CERNA, P.A.,
Defendants.
MEMORANDUM OPINION AND ORDER
Two motions are pending in this medical malpractice lawsuit. On March 24, 2017,
Defendant the United States of America filed a Motion to Dismiss, or in the alternative, for
Transfer of Venue (ECF No. 22), seeking transfer of this case to the Western District of Texas,
El Paso division, because it believes that the operative facts underlying this lawsuit originated
there. On April 25, 2017, the United States filed a Motion for Leave to Amend (ECF No. 33) its
original answer to raise improper venue as an affirmative defense. The Court, having considered
the motions, briefs, pleadings, and applicable law, concludes that both motions should be denied.
I.

FACTUAL BACKGROUND
On September 20, 2013 Plaintiff Albert Woods sought medical care at the William

Beaumont Army Medical Center (“Beaumont”) in El Paso, Texas to treat a painful blood clot
that formed in his leg. See Comp. ¶ 4, ECF. No. 1. Beaumont, which is owned and operated by
the United States, placed Mr. Woods on an anti-coagulant, and admitted him overnight. Id. ¶¶ 34. The following morning, Beaumont staff discharged Mr. Woods, prescribed him an anticoagulant, and told him he could return to his home in Alamogordo, New Mexico. Id. ¶ 5. By the

time Mr. Woods reached Alamogordo, the pain in his leg had intensified. Id. Concerned, Mr.
Woods’ wife, Plaintiff Narda Woods, called Mr. Woods’ treating physician at Beaumont, Dr.
Johanna Hollweg, and told her that her husband’s pain had worsened. Id.; Def.’s Ex. A, ECF No.
22-1. Dr. Hollweg advised Mrs. Woods to use alternating hot and cold packs to alleviate the
pain, and told her that she would call Plaintiffs the next morning. See Comp. ¶ 5.
That morning, Mr. Wood’s leg grew three times its size and a fluid seeped through the
skin on his leg. Id. ¶ 6. Mrs. Woods once more telephoned Dr. Hollweg and reported the
alarming change in her husband’s leg. Id. Dr. Hollweg told the Plaintiffs to go to the emergency
room at the Gerald Champion Regional Medical Center (“Gerald Champion”) in Alamogordo.
Id. Plaintiffs followed Dr. Hollweg’s advice and went to Gerald Champion the same day. Id. ¶ 7.
Defendant James Wells was the supervising emergency physician at Gerald Champion,
and was responsible for overseeing and reviewing the medical care provided by his staff,
including that of his physician’s assistant, Defendant Joshua Cerna. Id. Mr. Cerna evaluated Mr.
Woods upon arrival. Id. Uncertain about what caused Mr. Woods’ medical condition, Mr. Cerna
told the Plaintiffs to return home and go to back Beaumont the following day. Id. Mr. Cerna
never contacted Mr. Woods’ physician at Beaumont to assess Mr. Woods’ condition, nor did Mr.
Cerna consult with his supervisor, Dr. Wells. Id. ¶¶ 7, 14. Likewise, Dr. Wells never evaluated
Mr. Woods, and never spoke to either Mr. Cerna or staff at Beaumont about Mr. Woods. Id.
The following day, Plaintiffs returned to Beaumont. Id. ¶ 8. Staff there immediately
admitted Mr. Woods, recognizing that he was at risk of losing his leg because of compartment
syndrome. Id. Compartment syndrome is a condition in which increased bleeding accumulates in
groups of muscles, impeding blood flow to and from tissues. Id. Increased bleeding, which is a
side effect of anti-coagulant medication, may have formed a blood clot in Mr. Woods’ leg, which

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in turn caused compartment syndrome. Id. Beaumont staff responded by performing emergency
surgery on Mr. Woods’ leg to decompress the muscles. Id. Although staff saved his leg, Mr.
Woods suffered from complications of compartment syndrome, including sepsis and renal
failure, and various other complications which still trouble him today. Id. ¶ 10.
II.

PROCEDURAL BACKGROUND
On September 20, 2016 Plaintiffs filed suit against Defendants under the Federal Tort

Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680, which subjects the United States to liability for
the tortious conduct of its employees; and, in accordance with 28 U.S.C. § 1346(b)(1), under the
common law of New Mexico for negligence stemming from the Defendants’ alleged failure to
adhere to the standard of care observed by physicians. See Comp. ¶¶ 1, 11-14.
On March 6, 2017 the United States filed its answer (“Answer”), its first responsive
pleading in this case. In its Answer, the United States did not challenge venue in the District of
New Mexico. Nor did the United States amend its Answer as of right within 21 days of filing it
to include a challenge to venue. In a post-answer motion, the United States, for the first time,
filed a Motion to Dismiss for Improper Venue, or in the Alternative, for Transfer of Venue to the
Western District of Texas. Dr. Wells and Mr. Cerna – who are represented by separate counsel in
this matter - took no position on the United States’ Motion. See ECF No. 32. Then, about one
month after answering the Complaint, the United States filed a Motion for Leave to Amend its
Answer, seeking the Court’s leave to affirmatively plead a challenge to venue in this District.
Plaintiffs oppose this Motion. See ECF No. 40.
On July 7, 2017 Plaintiffs and the United States agreed to dismiss with prejudice all of
Mrs. Woods’ claims against the United States. Thus, Mrs. Woods asserts claims only against Dr.

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Wells and Mr. Cerna; Mr. Woods, meanwhile, maintains all of his claims against each
Defendant.
III.

MOTION FOR LEAVE TO AMEND ANSWER
The United States contends that its Answer did, in fact, assert the defense of improper

venue, even if it expressly omitted it as an affirmative defense. According to the United States,
its Answer challenged venue in three ways. First, it “denied that jurisdiction is appropriate in this
Court and that New Mexico law applies, which implicates the venue question.”  Second, it
challenged each of the statutory bases for venue by denying the Complaint’s allegations that
Plaintiffs are New Mexico residents and that the tort occurred here. And third, it argues that its
27th affirmative defense, which states that “Defendant … has, or may have additional [unknown]
affirmative defenses” that “Defendant specifically preserves … as they are ascertained through
discovery” enables the United States to now raise the defense.
Even though the United States contends that its Answer properly asserted a challenge to
venue, the United States nonetheless requests leave to amend its Answer to affirmatively plead
such a challenge. The Court will next examine this request.
A. STANDARD
Fed. R. Civ. P. 15(a)(2) provides for liberal amendment of pleadings, instructing courts to
“freely give leave” to amend “when justice so requires.” “The grant of leave to amend the
pleadings pursuant to Rule 15(a) is within the discretion of the trial court.” Minter vs. Prime
Equipment Co., 451 F.3d. 1196, 1204 (10th Cir. 2006). Subsection 15(a)(2) provides that after a
party has amended a pleading once as a matter of course or the time for amendments of that type
has expired, a party may amend only by obtaining leave of court or if the adverse party consents.
Leave should be “freely give[n] … when justice so requires,” but leave need not be granted on “a

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showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, …
or futility of amendment.” Duncan v. Manager, Dept. of Safety, City and Cnty. of Denver, 397
F.3d 1300, 1315 (10th Cir. 2005).
B. ANALYSIS
The United States seeks leave to amend its Answer to add a challenge to venue in the
affirmative defense section of its Answer. The United States says that the amendment is not
motivated by bad faith or to gain a strategic advantage, but simply to lay venue where it belongs,
in the Western District of Texas. The Plaintiffs ask the Court to deny the Motion for Leave to
Amend, believing that it would result in undue prejudice to them, although Plaintiffs fail to
develop this argument.
The Court holds that Rule 15(a)(2)’s liberal thrust does not allow the United States to
escape the consequences of its failure to plead a waivable defense by amending its Answer.
Although Rule 15(a)(2) provides for liberal amendment of pleadings, the plain language of Rule
12(h) establishes that this amendment procedure is unavailable to raise the defense of improper
venue under Rule 12(b)(3). See Fed. R. Civ. P. 12(h)(1)(b)(2) (“A party waives any defense
listed in Rule 12(b)(2)-(5) by … failing to … include it in a responsive pleading or in an
amendment allowed by Rule 15(a)(1) as a matter of course.”); Am. Fid. Assur. Co. v. Bank of
N.Y. Mellon, 810 F.3d 1234, 1237 (10th Cir. 2016) (“[Rule] 12(h)(1) provides that a party waives
the defenses listed in Rule 12(b)(2)–(5) … by failing to assert them in a responsive pleading or
an earlier motion.”). Rule 12(h)(1) “severely restricts” amending an answer under Rule 15(a)(2)
to salvage a waived defense under Rule 12(b)(2)-(5). See 5C CHARLES ALAN WRIGHT
FEDERAL PRACTICE

AND

PROCEDURE § 1391 (3d ed. 2004). “[A]ccording to the language of

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ET AL.,

subdivisions (h)(1), this may be done only by an amendment to the answer permitted as a matter
of course under the first sentence of Rule 15(a)[.]” Id.
As an alternative ground for denying the United States’ Motion for Leave to Amend, the
Court notes that adding the proffered amendment would be futile. If leave were granted, then the
Court would ask whether a newly included Rule 12(b)(3) defense would be legally sufficient. It
would not. In resolving a Rule 12(b)(3) motion, “[a]ll well-pleaded allegations in the complaint
bearing on the venue question generally are taken as true, unless contradicted by the defendant’s
affidavits. A district court may examine facts outside the complaint to determine whether its
venue is proper. And … the court must draw all reasonable inferences and resolve all factual
conflicts in favor of the plaintiff.” Hancock v. Tel. and Tel. Co., Inc., 701 F.3d 1248, 1261 (10th
Cir. 2012). Venue for an FTCA action may be brought only “in the judicial district where the
plaintiff resides or wherein the act or omission complained of occurred.” 28 U.S.C. 1402(b). The
plaintiff bears the burden of proving proper venue. Hancock, 701 F.3d at 1260-61.
Assuming that “[a]ll well-pleaded allegations in the complaint bearing on the venue
question … are taken as true,” Hancock, 701 F.3d at 1261, Plaintiffs’ Complaint satisfies the first
prong of the venue statute, as it states Plaintiffs are New Mexico residents. Indeed, the United
States’ own exhibit, an administrative claim form – a precursor to filing a claim under the FTCA
– affirms that Plaintiffs are residents of Alamogordo. See Def.’s Ex. A, ECF No. 22-1. Cf. Pierce
vs. Shorty Small’s of Branson Inc., 137 F.3d 1190, 1192 (10th Cir. 1998) (affirming dismissal
where defendant’s affidavits clearly showed that plaintiff’s choice of venue was improper).
Because Plaintiffs’ Complaint made a prima facie showing they are New Mexico
residents such that venue in this District is proper, and because the United States’ proffered

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amendment would not overcome this result, the Court denies leave to amend to add an objection
to venue.
IV.

TRANSFER OF VENUE
A. STANDARD
“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). A court should decide motions to transfer on an
individualized, case-by-case basis. Chrysler Credit Corp. v. Country Chrysler, Inc., 928 F.2d
1509, 1516 (10th Cir. 1991). “The party moving to transfer a case pursuant to § 1404(a) bears
the burden of establishing that the existing forum is inconvenient.” Id. at 1515. In considering a
motion to transfer, the court should consider the following discretionary factors:
the plaintiff's choice of forum; the accessibility of witnesses and other sources of
proof, including the availability of compulsory process to insure attendance of
witnesses; the cost of making the necessary proof; questions as to the
enforceability of a judgment if one is obtained; relative advantages and obstacles
to a fair trial; difficulties that may arise from congested dockets; the possibility of
the existence of questions arising in the area of conflict of laws; the advantage of
having a local court determine questions of local law; and[] all other
considerations of a practical nature that make a trial easy, expeditious and
economical.
Employers Mut. Cas. Co. v. Bartile Roofs, Inc., 618 F.3d 1153, 1167 (10th Cir. 2010) (quoting
Chrysler Credit Corp., 928 F.2d at 1516). “Merely shifting the inconvenience from one side to
the other, however, obviously is not a permissible justification for a change of venue.” Id.
(quoting Scheidt v. Klein, 956 F.2d 963, 965 (10th Cir. 1992)). Unless the balance of interests “is
strongly in favor of the movant the plaintiff’s choice of forum should rarely be disturbed.”
Scheidt, 956 F.2d at 965. “Courts in this circuit have recognized that when reviewing a motion to
transfer, ‘a court may consider evidence outside of the pleadings but must draw all reasonable
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inferences and resolve factual conflicts in favor of the non-moving party.’” Thompson v. Titus
Transp., LP, No. 11–CV–1338–EFM–KMH, 2012 WL 5933075, at *3 (D. Kan. Nov. 27, 2012).
B.

ANALYSIS

i.

The Government did not address whether the transferee district would have
personal jurisdiction over all defendants

In order for the court in the transferee district to be one in which the case may have been
brought, the transferee court must have subject matter jurisdiction, must have personal
jurisdiction over the parties, and venue must be proper. See Hoffman v. Blaski, 363 U.S. 335, 344
(1960) (noting that where action might have been brought depends on whether transferee court
has proper venue and personal jurisdiction over parties); Chrysler Credit Corp., 928 F.2d at 1515
(Ҥ 1404(a) does not allow a court to transfer a suit to a district which lacks personal jurisdiction
over the defendants, even if they consent to suit there.”). In other words, venue must be proper in
the transferee district and the transferee court must have jurisdiction over all the defendants. See
Grynberg v. Ivanhoe Energy, Inc., 490 Fed.Appx. 86, 106 (10th Cir. 2012).
The Court is unable to fully examine the threshold question of whether this case might
have been brought in the transferee district because neither party addressed whether that district
would have personal jurisdiction over each Defendant. For example, the United States wholly
failed to address whether Dr. Wells and Mr. Cerna – the treating medical personnel in
Alamogordo – have any contacts with the State of Texas. The United States made no
representation whatsoever that Dr. Wells and Mr. Cerna “purposefully availed” themselves of the
transferee district such that a court there could exercise personal jurisdiction over them. Its
failure to address this issue is fatal to its Motion for Transfer of Venue. It was the United States’
burden, as the moving party, to prove that the transferee district would have personal jurisdiction
over each defendant. See Lutron Electronics vs. Creston Electronics, No. 2:09–cv–00707–DB–
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BCW, WL 1529249, at *2, (D. Utah April 14, 2010) (denying defendant’s motion to transfer
venue because moving defendant could not show that transferee court had personal jurisdiction
over all defendants).
The United States so far has not carried its burden to show that this case might have been
brought in the Western District of Texas. The Court will next examine whether the United States
can carry its additional burden to demonstrate that this District is an inconvenient forum.
ii.

The balance of interests weighs against transfer

Section 1404(a) “permits a ‘flexible and individualized analysis,’ and affords district
courts the opportunity to look beyond a narrow or rigid set of considerations in their
determinations.” United States ex rel., Brown Minneapolis Tank Co. v. Kinley Constr. Co., 816
F. Supp. 2d 1139, 1149 (D.N.M. 2011) (citing Chrysler Credit Corp., 928 F.2d at 1516). The
Court considers relevant the following factors.
A. Plaintiffs’ Choice of Forum
This element weighs against transfer. “Unless the balance is strongly in the favor of the
movant, the plaintiff’s choice of forum should rarely be disturbed.” Scheidt, 956 F.2d at 965.
This factor weighs most heavily against transfer when a plaintiff files suit in its home forum. See
Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 430 (2007). But “where the
facts giving rise the lawsuit have no material relation or significant connection to the plaintiff’s
chosen forum,” courts assign this factor “little weight.” Employers Mut. Cas. Co., 618 F.3d at
1168. In this case, the movant must show that a “single, alternative venue” would be more
appropriate than the plaintiff’s chosen venue. Id. at 1168.
The Court recognizes that Plaintiffs’ choice of venue is this District is given deference
because Plaintiffs are residents here. The United States tries to overcome this deference by

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arguing that New Mexico lacks a significant connection to the operative facts underlying
Plaintiffs’ lawsuit. The United States notes that the alleged negligence began at Beaumont, in
Texas, and continued throughout Mr. Wood’s two visits there. Key witnesses, including about 12
medical personnel at Beaumont who treated Mr. Woods, are in Texas. So are records related to
Mr. Woods’ treatment there. The United States argues that Mr. Woods’ single visit to Gerald
Champion in Alamogordo pales in comparison to where more of the facts underlying this lawsuit
are located, in Texas.
The Court agrees with the United States that much of its likely evidence may be centered
in Texas, but this alone does not merit transfer. “[T]he inquiry at this stage is not whether some
other forum has a greater material relation or significant connection – it is whether this particular
forum has at least some material relation or significant connection to the facts giving rise to the
lawsuit.” F.H.G. Corporation v. Green Wave Inc., No. 1:16:-cv-00164-JNP, 2017 WL 2728412,
at *5 (D. Utah June 06, 2017) (emphasis in original). Given that Mr. Woods went to Gerald
Champion at Dr. Hollweg’s direction to treat the effects of the alleged medical malpractice
originating in Texas, the Court cannot say that New Mexico lacks at least some material relation
to the facts of this case. See id. Because Plaintiffs reside in this District and because this District
bears some material relation to the facts of this case, the Court finds that this factor weighs
against transfer.
B. Accessibility of Witnesses and Sources of Proof
This element weights against transfer. “The convenience of witnesses is the most
important factor in deciding a motion under § 1404(a).” Emp’rs Mut. Cas. Co., 618 F.3d at 1169.
In order to establish that the inconvenience to material witnesses weighs in favor of transfer, “the
movant must (1) identify the witnesses and their locations; (2) indicate the quality or materiality

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of their testimony and (3) show that any such witnesses [are] unwilling to come to trial, that
deposition testimony would be unsatisfactory, or that the use of compulsory process would be
necessary.” Id.
The United States has carried its initial burden to identify the name and residency of at
least 12 witnesses, all current or former employees at Beaumont who live or are believed to live
in El Paso. The United States has not, however, carried its extra burden to “indicate the …
materiality of their testimony.” Id. The United States merely indicated its witnesses’ names and
purported residency, and stated that their lives would be interrupted by having to travel to New
Mexico for trial. This is insufficient. See id.(“If the moving party merely has made a general
allegation that necessary witnesses are located in the transferee forum, … the application for
transferring the case should be denied.”). The Court will not order a change in forum simply
because a great number of witnesses are located elsewhere. See id. (“The materiality of the
prospective witnesses[’] testimony, and not merely the number of prospective witnesses, will
determine the extent to which their convenience will be weighed.”).
Nor has the United States represented that “any such witnesses [are] unwilling to come to
trial, that deposition testimony would be unsatisfactory, or that the use of compulsory process
would be necessary.” Id. The United States made no representation that reliance on deposition
testimony for its witnesses would be prejudicial to its case. The United States also does not
indicate that compulsory process would be necessary. Besides, where the United States’
witnesses are its own employees and ostensibly within its control, the issue of compulsory
process is less significant. See Lewis v. Grote Indus. Inc., 841 F. Supp. 2d 1049, 1054 (N.D. Ill.
2012) (“[C]ourts are less concerned about the burden that appearing at trial might impose on
witnesses who are employees of parties because it is presumed such witnesses will appear

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voluntarily.”). Thus, because the United States has not identified that the inconvenience to
witnesses requires a transfer, the Court finds that this element weighs against transfer.
C. Cost of Making Necessary Proof
This element weighs against transfer. “Merely shifting the inconvenience from one side
to the other … is not a permissible justification for a change of venue.” Scheidt, 956 F.2d at 966.
“[I]n any case, there will be some witnesses who are inconveniently located.” Cmty. Television
of Utah, LLC v Aereo, Inc., 997 F. Supp. 1191, 1207 (D. Utah Feb. 19, 2014). The United States
argues that litigating this case would be more economical in El Paso because all of its principal
witnesses and documents are there. As explained above, the United States has not provided the
Court with any evidence that its likely witnesses or other evidence are so crucial to necessitate a
change in forum. When, as here, “the record contains no evidence concerning the potential costs
of litigating the case in” Texas, the Court holds that this element weighs against transfer. Emp’rs
Mut. Cas. Co., 618 F.3d at 1169.
D. Difficulties that May Arise from Congested Dockets
The difficulties of court congestion weigh against transfer. “When evaluating the
administrative difficulties of court congestion, the most relevant statistics are the median time
from filing to disposition, median time from filing to trial, pending cases per judge, and average
weighted filings per judge.” Id. Based on all but one of these statistics (median time from filing
to disposition), the District of New Mexico has a less congested docket than the Western District
of Texas. See Table N/A – U.S. District Courts – Combined Civil and Criminal Federal Court
Management Statistics (June 30, 2016), http://www.uscourts.gov/statistics/table/na/federal-courtmanagement-statistics/2016/06/30-1.
E. Conflict of Laws

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The conflict of law factor is neutral because both a New Mexico and Texas federal court
would apply the same law. The Complaint alleges a federal cause of action brought under the
FTCA. Under the FTCA, the applicable law is that of the state where the negligence occurs,
including that state’s conflict of laws rules. See Richards v. U.S., 369 U.S. 1 (1962). Whether this
case is litigated in New Mexico or Texas, either federal district court would be competent to
apply state conflict of laws rules. See Emp’rs Mut. Cas. Co., 618 F.3d at 1169 (stating that
“federal judges are qualified to apply state law.”).
iii.

Conclusion

The United States has failed to show that transfer of venue is strong enough in its favor to
necessitate a transfer. Although the United States has shown that litigating this case in El Paso
would be more convenient for its witnesses, it has failed to specify the materiality of its
witnesses’ testimony or explain why they their testimony is crucial enough to necessitate a
change in forum to accommodate them. When, at this stage, the Court must ask whether there is
some material connection between New Mexico and the underlying facts of the lawsuit, the
Court is persuaded that Mr. Wood’s medical treatment in Alamogordo – prompted by Beaumont
employees’ alleged negligence in Texas – supplies that connection.
V.

MOTION TO DISMISS FOR IMPROPER VENUE
A. ANALYSIS
As discussed above The United States did not file a Rule 12(b)(3) motion before filing its

Answer, did not include improper venue as a defense in the Answer, and did not amend the
Answer to include the defense within 21 days as a matter of right. The United States waived its
objection to venue, therefore the Court denies its Motion to Dismiss for Improper Venue.

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IT IS THEREFORE ORDERED that
1. Defendant’s Motion to Dismiss, or in the alternative, for Transfer of Venue to the
Western District of Texas (ECF No. 22) is DENIED.
2. Defendant’s Motion for Leave to File an Amended Answer (ECF No. 33) is
DENIED.

___________________________
United States District Judge

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