Finkle et al v. Regency CSP Ventures Limited Partnership et al

Filing 33

MEMORANDUM OPINION AND ORDER denying 25 Motion to Change Venue. Signed by U. S. District Judge Lawrence L. Piersol on 10/15/13. (DJP)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

FILED
OCT 15 2013

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CIV 13-4019

GRACI FINKLE and PHILIP FINKLE,
Plaintiffs,

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MEMORANDUM OPINION
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AND ORDER RE: MOTION
REGENCY CSP VENTURES LIMITED
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FOR CHANGE OF VENUE
PARTNERSHIP; and REGENCY INNS
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MANAGEMENT INC., d/b/a Buffalo
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Jeep Safari,
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Defendants.
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vs.

Plaintiffs, Graci Finkle and Philip Finkle, residents of the state of South Carolina, brought
this diversity negligence action based on an August 6, 2012 accident on Wildlife Loop Road in
Custer State Park, Custer County, South Dakota. Philip Finkle was operating a 1996
Harley-Davidson motorcycle and Graci Finkle was his passenger when Philip Finkle had to attempt
to avoid running into a jeep tour vehicle, owned and operated by Defendants, which vehicle was
stopped on the road. Defendants have alleged contributory negligence, assumption ofthe risk, fault
of others, and have alleged a counterclaim against Philip Finkle. Pending before this Court is
Defendants' change of venue motion (Doc. 25), requesting to transfer this case to the Western
Division of the District of South Dakota. Plaintiffs are resisting this motion and the matter has been
fully briefed.
DISCUSSION
Defendants brought this motion under 28 U.S.C. § 1404(a). 28 U.S.C. § 1404(a) provides:
"For the convenience ofparties and witnesses, in the interest ofjustice, a district court may transfer
any civil action to any other district or division where it might have been brought or to any district
or division to which all parties have consented." In addition, 28 U.S.C. § 1404(b) provides in
relevant 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."
Under 28 U.S.C. § 1404(a), a heavy burden rests with the movant to demonstrate that a case
should be transferred, and the movant must demonstrate that the relevant factors weigh strongly in
his or her favor. Austin v. Nestle USA, Inc., 677 F.Supp.2d 1134,1137 (D. Minn. 2009). The burden
is not as heavy, however, when a movant requests an intradistrict transfer pursuant to 28 U.S.C. §
1404(b). These transfers are subject to the same analysis as under 28 U.S.C. § 1404(a), but a less
rigorous standard is utilized. See Archambault v. United States, 2012 WL 6569343 at *2 (D.S.D.
Dec. 17,2012). The Eighth Circuit has noted three factors courts must consider in deciding whether
to transfer a case: "(1) the convenience of the parties, (2) the convenience of the witnesses, and (3)
the interests of justice." Terra Int'l, Inc. v. Mississippi Chern. Corp., 119 F.3d 688, 691 (8th
Cir.1997). A district court ruling on a motion to transfer must also conduct "a case-by-case
evaluation of the particular circumstances at hand and a consideration of all relevant factors." Id.
Many of the interests ofjustice considerations, such as conflict of law issues, are not material to an
intradistrict transfer.
The convenience ofwitnesses is "[p]robably the most important factor" to be considered on
a motion for change of venue. See Charles A. Wright, Arthur R. Miller & Edward H. Cooper,
Federal Practice and Procedure: Jurisdiction § 3851 at 264 (1976). The convenience of witnesses
who are employees of a corporate party is still considered but is less significant than that of
non-party witnesses. Dakota Truck Underwriters v. Annett Holdings, Inc., 2006 WL 3391107 at *2
(D.S.D. Nov. 22, 2006). "In general, federal courts give considerable deference to a plaintiffs choice
of forum ...."

Terra Int'!, Inc. v. Mississippi Chern. Corp., 119 F.3d at 695. The general

presumption in favor of a plaintiffs choice of forum, is afforded significantly less deference,
however, when the plaintiffs do not reside in the selected forum, or the transaction or underlying
facts did not occur in the chosen forum. Nelson v. Soo Line R.R. Co., 58 F.Supp.2d 1023, 1027 (D.
Minn. 1999).
Defendants contend that because the accident at issue occurred near Custer, South Dakota,
and because this case has no substantial relationship to the Southern Division ofthe District of South
Dakota, a change ofvenue to the Western Division is appropriate. They point out that both Plaintiffs

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live outside ofSouth Dakota and will have to travel to South Dakota regardless of in which division
the case is venued. Although Defendants concede that their principal places of business are both in
Sioux Falls, they point out that the business activities ofRegency CSP Ventures Limited Partnership
primarily take place in Custer. They emphasize that the jeep tour for which the employee ofRegency
was working at the time of the accident in this case is operated out of Custer State Park, which is
located in the Western Division. The Defendants further emphasize that the only Regency employee
with first-hand knowledge ofthe accident resides in the Western Division. Defendants contend that
many of the fact witnesses are state employees in Custer State Park and may of the medical
personnel witnesses would work in the Western Division. In addition, Defendants point out that
Trooper Shann Barrick from the South Dakota Highway Patrol, who investigated the accident, is
from Custer County. In addition, Defendants maintain that the out-of-state nonparty witnesses are
outside the court's subpoena power.
Plaintiffs contend that the key witnesses in this case are those that were involved in the
collision and witnessed the same, and that the driver of the Jeep is the only key witness that resides
in the Western Division of South Dakota. Plaintiffs contend the other witnesses referenced by
Defendants have only second-hand information. Plaintiffs assert that Defendants' human resources
director, who is in charge of safety resides in the Southern Division. The passengers in the Jeep are
from Minnesota and the other witnesses to the accident are from Virginia and Missouri. Plaintiffs
also point out they have continued the medical treatment oftheir injuries in South Carolina and that
the surgeon who performed an emergency double fusion on Plaintiff Graci Finkle's neck has moved
out of South Dakota.

It is unclear from the record how many, ifany, ofthe witnesses outside the court's subpoena
power will appear voluntarily. Because this is an intradistrict request for transfer, the difference in
distance from one location to the other is not extraordinary. Defendants' arguments that the Western
Division is more conducive to a jury viewing and that "a jury selected from the Southern Division
is less likely to be familiar with the nature and customs of this particular stretch of road" where the
accident occurred are not persuasive to the Court. Jury viewings are highly discretionary with the
trial court and often disallowed because they are inconvenient, time-consuming and cumulative of
photographic evidence and trial testimony. See United States v. Scroggins, 648 F.3d 873, 874-875

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(8th Cir. 2011). In addition, members of a jury should consider only the evidence presented at trial,
and not rely on their perceived familiarity with the location of the accident. After considering all of
the relevant factors and the arguments of the parties, the Court has determined that under the facts
of this case, the Plaintiffs' choice of forum should not be altered. Accordingly,

IT IS ORDERED that Defendants' Motion for Change of Venue (Doc. 25) is denied.

Dated this

l§l' of October, 2013.
day

ence L. Piersol
nited States District Judge
ATTEST:
JOSEPH HAAS, 9\ERK

BY:

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