Doe v. Andrews et al

Filing 51

MEMORANDUM OPINION OF THE COURT. Signed by District Judge Aleta A. Trauger on 1/5/2016. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(jw)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
JANE DOE,
Plaintiff,
v.

JOSEPH MCGREGOR ANDREWS; THE
PI KAPPA ALPHA INTERNATIONAL
FRATERNITY, INC.; THE DELTA
EPSILON CHAPTER OF PI KAPPA ALPHA
INTERNATIONAL FRATERNITY, INC.;
and DELTA EPSILON HOUSE
CORPORATION,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

Civil No. 3:15-cv-1127
Judge Aleta A. Trauger

MEMORANDUM
One of the defendants, Joseph McGregor Andrews, has filed a Motion to Transfer Venue
(Docket No. 31), to which the plaintiff, Jane Doe, has filed a Response in Opposition (Docket
No. 37), and the remaining defendants – Pi Kappa Alpha International Fraternity, Inc. (“PIKE
Fraternity”), the Delta Epsilon Chapter of PIKE Fraternity (“Delta Chapter”), and Delta Epsilon
House Corporation (“Delta House Corp.”) (collectively, the “Fraternity Defendants”) – have
filed a Response in Support (Docket No. 39). For the following reasons, the motion will be
denied.
BACKGROUND AND PROCEDURAL HISTORY
On October 27, 2015, the plaintiff – proceeding pursuant to a Protective Order under the
pseudonym of Jane Doe – filed a Complaint against Mr. Andrews and the Fraternity Defendants.
(Docket No. 1.) The Complaint is primarily based on the allegation that, in April 2015,
Mr. Andrews – a member of PIKE Fraternity – assaulted the plaintiff while she was a guest at a
1

party hosted at a house owned by the Delta House Corp. and leased to the Delta Chapter (the
“Fraternity House”). Specifically, the Complaint alleges that Mr. Andrews and other fraternity
members forced the plaintiff to ingest alcohol during the party and then, at the instigation of
other PIKE Fraternity members, Mr. Andrews assaulted the plaintiff in a bathroom of the
Fraternity House. (Id. ¶¶ 8–24.)
The Complaint brings the following claims against Mr. Andrews: (1) that he falsely
imprisoned the plaintiff through the use of drugs and/or alcohol; (2) that he assaulted, battered,
and sexually assaulted the plaintiff; and (3) that he recklessly or intentionally inflicted emotional
distress on her. (Id. ¶¶ 59–77.) The Complaint also brings claims for negligence and gross
negligence against the Fraternity Defendants, alleging that: (1) they breached their duty to
exercise reasonable care for the plaintiff’s safety as an invitee at a social function, and (2) their
alleged misconduct, as described in the Complaint, was done with utter unconcern for the safety
of others or with conscious indifference for the consequences. (Id. ¶ 38–58.) The Complaint
requests actual and compensatory damages totaling at least one million dollars, uncapped
exemplary and punitive damages, costs, and pre- and post-judgment interest. (Id. at p. 15.)
On November 23, 2015, Mr. Andrews filed the pending Motion to Transfer Venue under
28 U.S.C. § 1404(a), seeking transfer of this case to the Eastern District of Tennessee, where the
Fraternity House is located and where Mr. Andrews attended school at the University of
Tennessee, Chattanooga (“UTC”). (Docket No. 31.) In the Motion, Mr. Andrews argues that
transfer is appropriate under 28 U.S.C. § 1404(a) because the alleged sexual assault occurred in
Chattanooga, it would be practically and financially inconvenient for witnesses who are students
at UTC to attend proceedings in the Middle District of Tennessee, and it is financially
inconvenient for Mr. Andrews to prepare a defense in the Middle District when the allegations

2

and principal actions took place in the Eastern District of Tennessee. (Id. at pp. 1–2.) The
Motion does not, however, identify any specific witnesses who would be inconvenienced by this
forum, nor is it accompanied by any supporting exhibits or affidavits.
On December 1, 2015, the plaintiff filed a Response in Opposition to Mr. Andrews’
Motion to Transfer Venue, arguing that none of the rationales advanced by Mr. Andrews justifies
transfer to the Eastern District. (Docket No. 37.) Specifically, the plaintiff argues that Mr.
Andrews has not met his burden of proving that transfer is warranted, because he provides no
evidence that (1) specific, material witnesses will be inconvenienced by the plaintiff’s choice of
forum, or (2) he is sufficiently financially disadvantaged by having to prepare a defense in
Nashville that a transfer to Chattanooga is justified. (Id. at pp. 2–3.)
On December 2, 2015, the Fraternity Defendants filed a Response in Support of
Mr. Andrews’ Motion to Transfer Venue. (Docket No. 39.) In their Response, the Fraternity
Defendants argue that convenience to both the parties and to non-party witnesses would be
greatly increased with a transfer to the Eastern District and that the plaintiff’s choice of forum is
not entitled to deference because she does not reside in the Middle District. (Id. at pp. 2–3.)
Like Mr. Andrews’ Motion, however, the Fraternity Defendants’ Response does not identify any
specific witnesses who would be inconvenienced by this forum, nor is it accompanied by any
supporting exhibits or affidavits.
On December 4, 2015, the Fraternity Defendants answered the Complaint. (Docket Nos.
40–43.) On the same day, Mr. Andrews filed an Answer that includes a Counter-Complaint
against the plaintiff for libel and slander and intentional infliction of emotional distress. (Docket
No. 40.) The plaintiff filed a Motion to Dismiss Mr. Andrews’ Defenses and Counterclaims on
December 16, 2015 (Docket No. 44), and Mr. Andrews filed a First Amended Counter-

3

Complaint a week later (Docket No. 46). The plaintiff then filed a Motion to Dismiss the First
Amended Counter-Complaint (Docket No. 47), but the briefing on this Motion is not yet
complete. The court does not consider either of the plaintiff’s pending motions in the instant
opinion.
THE PARTIES
The PIKE Fraternity, a Tennessee corporation headquartered in Memphis, is a fraternity
that has over 220 chapters and thousands of members throughout the United States and Canada.
(Docket No. 43 ¶ 4.) The Delta Chapter is a chapter of PIKE Fraternity and an unincorporated
association that operates in Chattanooga, Tennessee. (Docket No. 41 ¶ 5.) The Delta House
Corp. is a Tennessee corporation with its principal place of business in Chattanooga, Tennessee.
(Docket No. 42 ¶ 6.) The Delta Chapter is located in and operates out of the Fraternity House,
which is owned by Delta House Corp. and leased to the Delta Chapter. (Id. ¶ 12.) Mr. Andrews
was a member of Delta Chapter and a student at UTC at the time of the incident giving rise to
this action, and he is currently a resident of the Middle District of Tennessee. (Docket No. 40
¶ 2.) The plaintiff attends a university in Alabama and is a resident of the State of Texas.
(Docket No. 1 ¶¶ 1, 14.)
ANALYSIS
Under 28 U.S.C. § 1404(a), “[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 or to any district or division to which all parties have
consented.” With this statute, “Congress intended to give district courts the discretion to transfer
cases on an individual basis by considering convenience and fairness.” Kerobo v. Sw. Clean
Fuels, Corp., 285 F.3d 531, 537 (6th Cir. 2002).

4

In ruling on a motion to transfer venue under § 1404(a), a district court should consider
case-specific factors, such as “the private interests of the parties, including their convenience and
the convenience of potential witnesses, as well as other public-interest concerns, such as
systemic integrity and fairness, which come under the rubric of ‘interests of justice.’” Moore v.
Rohm & Haas Co., 446 F.3d 643, 647 n.1 (6th Cir. 2006) (quoting Moses v. Bus. Card Express,
Inc., 929 F.2d 1131, 1136–37 (6th Cir. 1991)); accord Kerobo, 285 F.3d at 537. The Sixth
Circuit has suggested that relevant factors to consider include: (1) the convenience of the parties
and witnesses; (2) the accessibility of evidence; (3) the availability of process to make reluctant
witnesses testify; (4) the costs of obtaining willing witnesses; (5) the practical problems of trying
the case most expeditiously and inexpensively; and (6) the interests of justice. Reese v. CNH
Am. LLC, 574 F.3d 315, 320 (6th Cir. 2009).
The moving party bears the burden of establishing that these factors weigh in favor of
transferring venue. See, e.g., Picker Int'l, Inc. v. Travelers Indem. Co., 35 F. Supp. 2d 570, 573
(N.D. Ohio 1998); Blane v. Am. Inventors Corp., 934 F. Supp. 903, 907 (M.D. Tenn. 1996).
Ordinarily, “unless the balance is strongly in favor of the defendant, the plaintiff’s choice of
forum should rarely be disturbed.” Reese, 574 F.3d at 320 (quoting Dowling v. RichardsonMerrell, Inc., 727 F.2d 608, 612 (6th Cir. 1984)). As the Fraternity Defendants have noted,
however, “when a given action has a limited connection with the forum and is not the plaintiff’s
residence, the plaintiff’s choice is to be afforded less weight than would otherwise be the case.”
Am. Guar. & Liab. Ins. Co. v. Crosby Trucking Serv., Inc., No. 3:13-cv-00147, 2013 WL
3878953, at *3 (M.D. Tenn. July 26, 2013) (citing Lisenbee v. FedEx Corp., 579 F. Supp. 2d
993, 1007 (M.D. Tenn. 2008)). The weight given to the plaintiff’s choice of forum decreases
even further where events giving rise to the lawsuit occurred outside the chosen forum. Id. Jane

5

Doe does not reside in the Middle District of Tennessee, and the events giving rise to this lawsuit
occurred in the Eastern District. Her choice of forum, therefore, is afforded less weight than we
would ordinarily give to a plaintiff’s decision.
This is not to say, however, that the plaintiff’s choice of forum is given no weight. The
absence of a high level of deference to the plaintiff’s choice of forum does not, on its own, defeat
that choice, and the defendants still bear the burden of demonstrating that the private and public
interest concerns outlined above weigh in favor of transfer. See Ajose v. Interline Brands, Inc.,
No. 3:14-cv-1707, 2015 WL 5773080, at *3 (M.D. Tenn. Sept. 30, 2015) (“Perhaps Defendant’s
most compelling argument is that the Plaintiffs’ forum choice should not receive deference
because Plaintiffs have no ties to the Middle District of Tennessee. . . . Yet the absence of
deference does not alone defeat the Plaintiffs’ forum choice; Defendant still bears the burden on
a Section 1404(a) motion . . . .”).
The defendants have failed to demonstrate that the factors outlined by the Sixth Circuit
weigh in favor of transferring this action to the Eastern District of Tennessee. First, the
defendants have not shown that the convenience of the parties justifies the transfer.
Mr. Andrews states that, despite being a resident of the Middle District of Tennessee, it is
financially inconvenient for him to prepare a defense here because “the allegations and principal
actions took place in the Eastern District.” (Docket No. 31, at p. 2.) While it is true that “the
location of the events that gave rise to the dispute” is a relevant factor to consider in evaluating
the convenience of the parties, Sovik v. Ducks Unlimited, Inc., No. 3:11-cv-0018, 2011 WL
1397970, at *5 (M.D. Tenn. Apr. 13, 2011), Mr. Andrews has not explained how litigating this
case in the district in which he resides poses an undue financial burden on him; nor has he
submitted any evidence demonstrating that it does. The Fraternity Defendants argue that a

6

transfer to the Eastern District would “greatly increase[]” their convenience, relying on the fact
that Delta Chapter operates and Delta House Corp. has a principal place of business in
Chattanooga. (Docket No. 39, pp. 1–2.) Additionally, PIKE Fraternity argues that, even though
it is headquartered in Memphis, it “needs to travel to Chattanooga to visit the site” and, therefore,
“sees no need in extra travel to Nashville.” (Id.) Beyond noting where they are respectively
located and where the events that gave rise to this dispute are located, the Fraternity Defendants
make no argument and offer no evidence demonstrating that litigating this case in Nashville
poses an undue financial burden on them or that a trial would be easier or more economical for
all parties in Chattanooga. See Nollner v. S. Baptist Convention, Inc., No. 3:14-cv-1065, 2014
WL 3749522, at *7 (M.D. Tenn. July 30, 2014) (“Merely shifting the inconvenience from one
party to another does not meet Defendant’s burden; to succeed in a motion to transfer . . . the
movant must show that the forum to which he desires to transfer the litigation is the more
convenient one vis a vis the Plaintiff’s initial choice.” (internal quotation marks omitted)
(quoting B.E. Tech., LLC v. Facebook, Inc., 957 F. Supp. 2d 926, 930–31 (W.D. Tenn. 2013))).
The defendants, therefore, have failed to establish that the convenience of the parties weighs in
favor of transferring this case to the Eastern District of Tennessee.
Second, the defendants argue that the suit should be transferred to the Eastern District for
the convenience of non-party witnesses. Indeed, the convenience of non-party witnesses (as
opposed to parties or party witnesses) “is one of the most important factors in the transfer
analysis.” Smith v. Kyphon, 578 F. Supp. 2d 954, 963 (M.D. Tenn. 2008); accord Zimmer
Enters., Inc. v. Atlandia Imps., Inc., 478 F. Supp. 2d 983, 991 (S.D. Ohio 2007) (“[T]he
convenience of [party] employees will not generally be given the same consideration as is given
to other witnesses.”). The defendants argue that, because the incident giving rise to this action

7

occurred at a social event at the Fraternity House in Chattanooga, many of the potential
witnesses in this suit are UTC students, who would be inconvenienced if they had to testify or
participate in proceedings in Nashville. (Docket No. 31, pp. 1–2; Docket No. 39, p. 2.) This
argument fails for two reasons. First, the defendants do not identify any specific, material
witness who they claim will be inconvenienced, even though “the party seeking the transfer must
clearly specify the essential witnesses to be called and must make a general statement of what
their testimony will cover.” Smith, 578 F. Supp. 2d at 963. The Fraternity Defendants argue that
it is “too early in this litigation to clearly specify the essential witnesses and outline their general
statements” (Docket No. 39, p. 2), but the fact that the defendants cannot clearly identify every
essential witness and outline his or her testimony does not excuse the defendants from meeting
their burden to identify at least some non-party witness who would be inconvenienced by this
forum.1 Moreover, the defendants offer no evidence supporting their argument that many of the
essential witnesses in this case are currently students at UTC and, therefore, would be
inconvenienced by travel to Nashville. The defendants have failed to establish that the people
who witnessed the events before and after the alleged assault: (1) were at the party because they
were students at UTC and not because they, like the plaintiff, were invited from another school,
(2) resided at the time, or currently reside, in Chattanooga, (3) are still students at UTC and have
not moved away from Chattanooga since April 2015, or (4) are not, like Mr. Andrews, subject to
subpoena in the Middle District. By relying only on generalizations about the witnesses they

1

The Fraternity Defendants’ claim that they cannot identify an essential witness at this
point in the litigation is particularly weak, given that: (1) even though the Complaint was not
filed until October 27, 2015, the underlying events occurred eight months ago and have
apparently been investigated by the school and the police in the intervening period; and (2) the
Complaint discusses certain individuals whose identities the defendants could have discovered
(or at least argued that they were attempting to discover).
8

expect will be involved in the case, the defendants have failed to establish that the convenience
of any specific non-party witness weighs in favor of transferring this case to the Eastern District
of Tennessee.
The defendants do not advance arguments regarding any other interest, private or public,
that would warrant transferring this suit to the Eastern District of Tennessee, and the court is not
aware of any reason other than those discussed in the parties’ briefings. The court concludes,
therefore, that the defendants have failed to establish that the concerns that they do advance – the
location of the underlying events, the convenience of the parties, and the convenience of nonparty witnesses – on the whole outweigh the plaintiff’s choice of forum. The defendants have
failed to meet their burden of demonstrating that transfer of venue is appropriate in this case.
CONCLUSION
For the reasons discussed herein, Mr. Andrews’ Motion to Transfer Venue (Docket No.
31) will be denied.
An appropriate order will enter.
______________________________
ALETA A. TRAUGER
United States District Judge

9