Cottier v. Schaeffer et al

Filing 78

ORDER granting 57 Motion to Change Venue. Case transfered to the United States District Court for the District of South Dakota, Southern Division. Signed by U. S. District Judge Jeffrey L. Viken on 8/10/11. (SB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
JAMES A. COTTIER,
Plaintiff,
vs.
STEVE SCHAEFFER, Detective;
BRUCE MILLIKAN, Detective;
TERRY PERSING, Detective;
MCCLARY, Detective; RUMPZA,
Detective; BUREAU, Detective;
JOSEPH NEILES, Circuit Judge;
LAWRENCE LONG, South Dakota
Attorney General; DAVID NELSON,
States Attorney; JAMES L. IOSTY,
Deputy States Attorney; DUSTIN
W. DEBOER, Deputy States
Attorney; TIM REISCH, South
Dakota Secretary of Corrections;
DOUGLAS WEBER, Warden;
OWEN SPURRELL, Associate
Warden; DARIN YOUNG, Associate
Warden; DARYL SLYKHUIS,
Deputy Warden; and Unknown
South Dakota Department of
Corrections Administration, all in
their individual and official
capacities,
Defendants.

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CIV. 11-5026-JLV

ORDER GRANTING
DEFENDANTS’ MOTION
FOR CHANGE OF VENUE

On March 31, 2011, plaintiff James A. Cottier filed a complaint against
defendants pursuant to 42 U.S.C. § 1983, alleging various violations of his
constitutional rights. (Docket 1). Service of process was executed on all
defendants except Tim Reisch and Lawrence Long. On June 17, 2011,

defendants Steve Schaeffer, Bruce Millikan, Terry Persing, Detective McClary,
Detective Rumpza, Detective Bureau, David Nelson, James L. Iosty, and Dustin
DeBoer moved to transfer the case to the United States District Court for the
District of South Dakota, Southern Division. (Docket 57). Defendants Joseph
Neiles, Douglas Weber, Owen Spurrell, Darin Young, and Daryl Slykhuis joined
in the motion. (Dockets 60 & 64). Counsel for Tim Reisch indicated Mr. Reisch
would join in the motion if and when he is served. (Docket 64).
Upon motion of any party, the court has the discretion to transfer any
civil action “from the division in which pending to any other division in the
same district.” 28 U.S.C. § 1404(b). “Intradistrict transfers pursuant to 28
U.S.C. § 1404(b)1 are discretionary transfers subject to the same analysis as
under 28 U.S.C. § 1404(a)2 but are judged by a less rigorous standard.”
Edwards v. Sanyo Mfg. Corp., No. 3:05CV00293-WRW, 2007 WL 641412 at *1
1

Section 1404(b) of Title 28 of the United States Code states in pertinent

part:
Upon motion, consent or stipulation of all parties, any action, suit or
proceeding of a civil nature or any motion or hearing thereof, may be
transferred, in the discretion of the court, from the division in which
pending to any other division in the same district.
28 U.S.C. § 1404(b).
2

Section 1404(a) of Title 28 of the United States Code 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).
2

(E.D. Ark. Feb. 27, 2007); see also Johnson v. Burlington-Northern, Inc., 480
F. Supp. 259, 260 (D. Mo. 1979) (noting discretionary transfers under
§ 1404(b) are subject to fewer guidelines than transfers under § 1404(a)).
Accordingly, the court must consider the convenience of the parties, the
convenience of the witnesses, and the interests of justice. Sanders v. Lee
County School Dist. No. 1, No. 3:08CV00172 JLH, 2008 WL 5423267 at *1
(E.D. Ark. Dec. 23, 2008) (citing Terra Int’l v. Miss. Chem. Corp., 119 F.3d 688,
691 (8th Cir. 1997)). In evaluating these factors, the court may consider “(1)
the accessibility to records and documents; (2) the location where the conduct
complained of occurred; (3) judicial economy; (4) the plaintiff’s choice of forum;
[and] (5) the comparative costs to the parties of litigating in each forum.” Id.
(citing Terra Int’l, 119 F.3d at 696). The burden is on the moving party to
demonstrate transfer is appropriate. Edwards, 2007 WL 641412 at *1.
Defendants have satisfied the less rigorous standard applicable to
transfers under § 1404(b). It is clear from the face of the complaint Mr. Cottier
could have brought the action in the Southern Division of this district.
Mr. Cottier is an inmate of the South Dakota State Penitentiary located in
Minnehaha County, Sioux Falls, South Dakota. All of the served defendants
are or were employees of one or more agency located in Minnehaha County.
The events giving rise to the complaint occurred in Minnehaha County. It is
clear the witnesses and evidence necessary to resolve Mr. Cottier’s complaint
are located in Minnehaha County. If this matter proceeds to trial, transfer to
the division in which the witnesses reside would result in lower costs for
obtaining the witnesses’ appearances at trial.
3

Mr. Cottier alleges, although defendants “are entitled to [a] change of
venue[,]” a transfer of this case to the Southern Division “will result in a unfair
hearing because Defendants’ special relations to the City of Sioux Falls, S.D.”
(Docket 74). Mr. Cottier is concerned a transfer “will violate his right to
exercise due process and equal protection of law.” Id. The court finds
Mr. Cottier’s arguments and concerns are unavailing and unwarranted. The
federal district court in the Southern Division operates completely
independently from the South Dakota state courts, state agencies and the
municipality of Sioux Falls. The federal district court in the Southern Division
routinely presides over cases involving state actors. There is no risk of unfair
prejudice to Mr. Cottier if he pursues his claims in the Southern Division. In
considering the convenience of the witnesses, the convenience of the parties,
and the interests of justice, the court finds transfer pursuant to § 1404(b) is
appropriate. Good cause appearing, it is hereby
ORDERED that defendants’ motion for change of venue (Docket 57) is
granted. The court transfers the above-captioned case to the United States
District Court for the District of South Dakota, Southern Division.
Dated August 10, 2011.
BY THE COURT:
/s/ Jeffrey L. Viken__________________________
JEFFREY L. VIKEN
UNITED STATES DISTRICT JUDGE

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