Machnik v. Jewell et al

Filing 35

ORDER denying Pltf's 29 Motion to Change Venue. Rather than strike Pltf's motion without prejudice, the Court elects to SEAL Pltf's 29 Motion for Change Venue and RESTRICT access to the Parties. Signed by Magistrate Judge Dennis Howell on 12/07/2017. (Pro se litigant served by US Mail.) (ejb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:16 cv 104

PATRICIA BLOKER MACHNIK,

)
)
Plaintiff,
)
)
v.
)
)
UNITED STATES OF AMERICA,
)
)
Defendant.
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___________________________________ )

ORDER

Pending before the Court is Plaintiffs’ Motion to Change Venue [# 29]. On
April 19, 2016, Plaintiff filed her Complaint in the Western District of North
Carolina. On October 23, 2017, Plaintiff filed her Motion to Change Venue. On
November 6, 2017, the Government filed is Response in Opposition to Plaintiff’s
Motion [# 30].
The applicable law regarding Plaintiff’s underlying lawsuit is the Federal Tort
Claims Act, 28 U.S.C. §§ 1346(b)(1), 2671-2680. Regarding appropriate venue, 28
U.S.C. § 1402(b) governs and states that claims “may be prosecuted only in the
judicial district where the plaintiff resides or wherein the act or omission complained
of occurred.” 28 U.S.C. § 1402(b). Title 28 U.S.C. § 1404(a), allows district courts
to transfer cases for convenience of the parties and witnesses, and in the interest of

justice, to any other jurisdiction where it might have been brought. See Van Dusen
v. Barrack, 376 U.S. 612, 617 (1964). The decision to transfer under § 1404(a) “rests
in the discretion of the District Judge.” Akers v. Norfolk & Western Railway Co.,
378 F.2d 78, 80 (4th Cir. 1967). The Fourth Circuit has, however, “recognize[d] the
primary right of the plaintiff to choose his forum, a selection not easily to be
overthrown.” Akers, 378 F.2d at 80; see Datasouth Computer Corp. v. Three
Dimensional Tech., Inc., 719 F. Supp. 446, 450–51 (W.D.N.C. 1989).
Plaintiff initially filed her Complaint in the Western District of North Carolina.
In her Motion to Change Venue, Plaintiff asks that the Court transfer the case to the
Middle District of Florida, where Plaintiff resides. Plaintiff states that a subsequent
trip to Asheville, North Carolina, will result in a financial hardship.
On November 1, 2017, discovery concluded in this case. On December 1,
2017, dispositive motions were due. The trial is scheduled for the first session
beginning on or after May 14, 2018.
Legal Standard. In determining a § 1404(a) motion to change venue, the
Court applies a multi-factor test:
(1) plaintiff's initial choice of the forum; (2) the relative ease of access to
sources of proof; (3) availability of compulsory process for attendance of
unwilling, and the costs of obtaining attendance of willing, witnesses; (4)
possibility of view of premises, if view would be appropriate to the action;
(5) enforceability of a judgment if one is obtained; (6) relative advantages
and obstacles to a fair trial; (7) all other practical problems that make a trial
easy, expeditious, and inexpensive; (8) administrative difficulties of court
congestion; (9) local interests in having localized controversies settled at

home; (10) the appropriateness in having the trial of a diversity case in a
forum that is at home with the state law that must govern the action; and
(11) avoidance of unnecessary problems with conflict of laws.

Datasouth Computer Corp. v. Three Dimensional Technologies, Inc., 719 F. Supp.
446, 450–51 (W.D.N.C. 1989).
Findings. Regarding Factor 1, Plaintiff initally chose to pursue litigation in
the Western District of North Carolina. After one and a half years, and only nine
days before the close of discovery, Plaintiff asked the Court to transfer venue.
Plaintiff cites financial hardship as her primary reason. Plaintiff cites no reason for
why this transfer request was not submitted earlier.
The Court finds that ease of access to sources of proof to be greater in North
Carolina than in Florida. The Government plans to argue that N.C.G.S. § 38A-1, et
seq., applies in this case. The ease of obtaining proof that the state statute applies or
does not apply is greater in North Carolina. Additonally, the alleged negligence
occurred in North Carolina. Thus, access to the site of the negligence is easier in
North Carolina.
Plaintiff has not stated if her intended witnesses, either willing or compulsory,
would be impacted by the venue change. The Government has retained an expert
who resides in Greensboro, North Carolina. Additionally, the Governerment plans
to call several Department of Interior witnesses. Finally, the Government plans to
call a witness to testify regarding North Carolina premises liabilty law.

The

Government states that venue change at this point in the litigation would cause cost
and delay regarding witnesses.
While not argued for by either party, view of premises in this case might be
necessary in this case as Plaintiff alleges that the Government was negligent in its
maintencne of a walkway. The alleged negligence orrcured in the Western District
of North Carolina.
Enforceabilty of a judgment obtained and opportunity for a fair trial will carry
little weight in this analysis. If Plaintiff obtained a judgment from the Western
District of North Carolina or the Middle District of Florida, either judgment would
be equally enforceable. Futher, the Court finds that the Parties would obtain a fair
trial in either district court.
Regarding practicality, the Parties have prepared up to this point for trial in the
Western District of North Carolina. The Government has already retained a local
expert. And at trial, the the Government plans to argue that North Carolina state law
applies. It appears that transfering the case to Florida would create a time delay and
potentially complicate the case.
Administrative difficulites of court congestion will carry little weight in this
analysis. Neither side has argued this point and the Court finds no reason that the
Middle District of Florida of the Western District of North Carolina would not be
able to handle this case due to court congestion.

The Court finds that there is local interest in North Carolina to have this matter
settled in the Western District of North Carolina. The lawsuit implicates substantive
state law and federal lands located in North Carolina.
While this is not a diversity jurisdiction case, the Court acknowledges that
North Carolina state substantive law, incorporated by the Federal Tort Claims Act, is
involved in this case. The Western District of North Carolna would be more familiar
than the Middle District of Florida in applying North Carolina tort law.
The Court finds that the Western District of North Carolina and the Middle
District of Florida could equally apply general conflict of law principles.
Analysis. After considering the eleven factors, the Cout does not find venue
change appropriate at this point in the case. While Plaintiff desires to litigate her case
where she resides, this determination could and should have been made earlier in the
case. The Government has already retained local witnesses. Further, the lawsuit
implicates North Carolina substantive law. The Court also is concerned about undue
delay and cost in transferring the case at this stage of litigation. Plaintiff’s venue
choice does remain a heavily weighted factor, however, it does not outweigh the
remaining factors.
Therefore, the Court DENIES Plaintiff’s Motion to Change Venue [# 29].
FURTHER, Plaintiff’s Motion to Change Venue attempts to make a record of
the proceedings that took place at the mediator in this matter. LCvR 16.3(C)(1)

provides regarding mediation: “No Record Made. There shall be no record made of
any proceedings under these rules.” Plaintiff has been made aware of this rule
previously [# 28].
Rather than strike Plaintiff’s motion without prejudice, the Court elects to
SEAL Plaintiff’s Motion for Change Venue [# 29] and RESTRICT access to the
Parties.
Signed: December 7, 2017

SEALED DOCUMENT with access to All Parties/Defendants.