United States District Court, E.D. Kentucky, Northern Division, Covington
MEMORANDUM OPINION AND ORDER
L. BUNNING UNITED STATES DISTRICT JUDGE.
matter is before the Court on four pending Motions-Defendants
Transit Authority of Northern Kentucky and Anthony
Trotta's Motion for Transfer of Venue to the Southern
District of Ohio (Doc. # 14), Motion for Choice of Law (Doc.
# 15), and First Motion for Partial Judgment on the Pleadings
(Doc # 16), as well as Plaintiff's Motion for Leave to
File an Amended Complaint (Doc. # 23). All Motions have been
fully briefed and are ripe for the Court's review. (Docs.
# 24, 25, 27, 28, 29, 30, 31, and 33). The Court having
reviewed the pending Motions and for the reasons set forth
below, the Motion for Transfer of Venue to the Southern
District of Ohio is denied, the Motion
requesting that the Court apply Ohio law is
granted, and the Motion for Leave to File an
Amended Complaint is denied. The Court will
defer ruling on the First Motion for Partial
Judgment on the Pleadings.
FACTUAL AND PROCEDURAL BACKGROUND
morning of May 15, 2018, Plaintiff Heather Conrad
(“Conrad”), a resident of Ohio, was walking to
work in downtown Cincinnati. (Doc. # 1 at ¶ 10). As she
walked across a crosswalk at the intersection of Fourth and
Walnut Streets, a Transit Authority of Northern Kentucky
(“TANK”) bus driven by Defendant Anthony Trotta
(“Trotta”) struck her. Id. at ¶ 11.
Specifically, Conrad alleges that the left corner of the bus
struck her and knocked her down. Id. at ¶ 15.
The bus then ran over her, dragged her twenty-three feet, and
trapped her underneath. Id. at ¶¶ 15-17.
Several bystanders aided Conrad at the scene until the
Cincinnati Police and Fire Departments arrived. Id.
at ¶ 18. Employees of the Cincinnati Police and Fire
Departments treated her on the scene, and she later underwent
extensive medical treatment in Ohio. (Doc. # 14-1 at 2).
Conrad claims that she sustained permanent physical and
emotional injuries due to this incident, including extensive
left leg degloving, right ankle laceration, left hemothorax,
left lung contusion, left rib fractures, scalp hematoma,
depressed mood, panic attacks, nightmares, and other
emotional injuries. (Doc. # 1 at ¶¶ 20, 25).
subsequently filed suit against TANK, Trotta, and her
insurer, Humana Health Plan Inc. (“Humana”), on
February 27, 2019. (Doc. # 1). Her Complaint includes six
causes of action-(1) a negligence claim against Trotta, (2) a
vicarious-liability claim against TANK, (3) a negligence
claim against TANK, (4) a punitive-damages claim against
Trotta and TANK, (5) a personal-injury-protection claim
against TANK, and (6) a subrogation claim against Humana.
Id. Humana filed its Answer on April 16, 2019, (Doc.
# 7), and TANK and Trotta filed their Joint Answer and
Affirmative Defenses on April 26, 2019. (Doc. # 12). On the
same day, TANK and Trotta jointly filed a Motion for Transfer
of Venue to the Southern District of Ohio (Doc. # 14), a
Motion for Choice of Law (Doc. # 15), and a First Motion for
Partial Judgment on the Pleadings (Doc. # 16). Additionally,
Conrad filed a Motion for Leave to File an Amended Complaint
(Doc. # 23) on May 13, 2019. The Court will consider each
motion in turn.
Motion to Change Venue
TANK and Trotta first move to transfer this case to the
Southern District of Ohio. (Doc. # 14 at 1). Defendants argue
they could better litigate this case in Ohio, as Kentucky has
no connections to the matter in controversy and Ohio would
prove more convenient for the parties and witnesses.
Id. Plaintiff opposes transfer. (Doc. # 24).
Applicable Law and Standard of Review
seek to transfer this case to the Southern District of Ohio
pursuant to 28 U.S.C. § 1404(a), which provides the
following: “[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.” Under
this statute, a district court has “broad discretion to
grant or deny a motion to transfer” a case. Phelps
v. McClellan, 30 F.3d 658, 663 (6th Cir. 1994) (quoting
Coté v. Wadel, 796 F.2d 981, 985 (7th Cir.
1986)); see also Reese v. CNH Am. LLC, 574 F.3d 315,
320 (6th Cir. 2009). When determining whether a case should
be transferred, courts must “construe the well-pleaded
allegations in the [c]omplaint as true.” Bell v.
Jefferson, No. 5:18-cv-032-CHB, 2019 WL 4017241, at *9
(E.D. Ky. Aug. 26, 2019).
1404(a) gives district courts discretion to decide motions to
transfer on an “individualized, case-by-case
consideration of convenience and fairness.” Stewart
Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988)
(quoting Van Dusen v. Barrack, 376 U.S. 612, 622
(1964)). Section 1404(a) exists to save time, energy, and
money and to serve the interests of the parties, witnesses,
and public. Van Dusen, 376 U.S. at 616; Kroger
v. Bridgewater, No. 3:11-cv-21-DCR, 2011 WL 3513410, at
*2 (E.D. Ky. Aug. 11, 2011). In determining whether to
transfer a case, courts must consider both private interests,
such as the inconvenience to witnesses and parties, alongside
public interests, including the fairness of the judicial
system. See Moses v. Bus. Card. Express, Inc., 929
F.2d 1131, 1137 (6th Cir. 1991). In weighing these
considerations, courts in this District employ the following
nine factors in determining whether to transfer venue under
(1) the convenience of witnesses; (2) the location of
relevant documents and relative ease of access to sources of
proof; (3) the convenience of the parties; (4) the locus of
the operative facts; (5) the availability of process to
compel the attendance of unwilling witnesses; (6) the
relative means of the parties; (7) the forum's
familiarity with the governing law; (8) the weight accorded
the plaintiff's choice of forum; and (9) trial efficiency
and the interests of justice, based on the totality of the
Cowden v. Parker Assocs., Inc., No. 5:09-cv-323-KKC,
2010 WL 715850, at *2 (E.D. Ky. Feb. 22, 2010) (quoting
Perceptron, Inc. v. Silicon Video, Inc., 423
F.Supp.2d 722, 729 (E.D. Mich. 2006)); see also
Bell, 2019 WL 4017241, at *8; Thompson Thrift
Constr., Inc. v. Hyman Plumbing Co., No. 5:13-cv-50-DCR,
2013 WL 3566353, at *2 (E.D. Ky. July 11, 2013).
party moving for transfer carries the burden of showing that
factors strongly support transfer. Roehl
Transp., Inc. v. Kirby, No. 3:15-cv-58-GFVT, 2015 WL
7188474, at *1 (E.D. Ky. Nov. 13, 2015). It is not enough for
the moving party to show that the alternative forum is
equally convenient. Van Dusen, 376 U.S. at 645. This
is because the plaintiff's choice of forum “should
rarely be disturbed.” Dowling v.
Richardson-Merrell, Inc., 727 F.2d 608, 612 (6th Cir.
1984) (quoting Gulf Oil Co. v. Gilbert, 330 U.S.
501, 508 (1947)); see also Cowden, 2010 WL 715850,
at *2 (finding plaintiff's choice of forum entitled to
“considerable weight”). Additionally, the moving
party cannot use the motion to transfer venue as a means of
transferring inconvenience from the defendant to the
plaintiff. Cowden, 2010 WL 715850, at *2.
Factors Weighing in Favor and Against Transfer
factors weighing in favor of transfer to Ohio include the
locus of operative facts and the forum's familiarity with
the governing law. The Plaintiff's choice of forum is an
insignificant factor. The remaining factors-convenience of
non-party witnesses, the location of relevant documents and
relative ease of access to sources of proof, convenience of
the parties, the availability of process to compel unwilling
witnesses, the relative means of the parties, and trial
efficiency and the interests of justice-are all neutral. The
Court will address each factor in turn.
Convenience of Witnesses
characterize all witnesses as residing in Ohio and argue that
because of this, Ohio would be “much more
convenient.” (Doc. # 14 at 4). The convenience of
witnesses acts as “one of the most important
factors” in deciding whether to transfer under §
1404(a). Valvoline Instant Oil Change Franchising, Inc.
v. RFG Oil, Inc., No. 5:12-cv-39-KSF, 2012 WL 3613300,
at *7 (E.D. Ky. Aug. 22, 2012) (quoting Thomas v. Home
Depot, U.S.A. Inc., 131 F.Supp.2d 934, 937 (E.D. Mich.
2001)); see also Glob. Fitness Holdings, LLC v. Fed.
Recovery Acceptance, Inc., No. 5:12-cv-314-KKC, 2013 WL
1187009, at *4 (E.D. Ky. Mar. 20, 2013) (citations omitted).
In James N. Gray Co., a sister court in this
District found this factor weighed only slightly in favor of
transfer out of Kentucky when most witnesses lived in another
state, but some witnesses resided in Kentucky. James N.
Gray Co. v. Airtek Sys., Inc., No. 5:05-cv-399-JBC, 2006
WL 196968, at *3 (E.D. Ky. Jan. 24, 2006). That court made
this determination after explaining that it was impossible to
know which witnesses would need to appear at trial at that
early of a stage in litigation, and therefore it was
difficult for that court to gage the venue's convenience
for the witnesses. Id.
Defendants allege all witnesses reside in Ohio. (Doc. # 14 at
1). Plaintiff, however, counters that some witnesses,
including (1) a passenger on the bus who was allegedly
speaking to the bus driver at the time of the accident and
(2) employees of TANK, reside in Kentucky. (Doc. # 24 at 5).
The situation here is similar to that in James N. Gray
Co. because while most witnesses live in Ohio, more than
one potential witness resides in the forum state of Kentucky.
Following the reasoning of James N. Gray Co., this
factor would appear to weigh slightly in favor of transfer to
the potential courthouses are close together, however, courts
have found this factor to be neutral. See Diversified
Metal Distribs., LLC v. AK Steel Corp., No.
3:06-cv-55-KKC, 2007 WL 403870, at *3 (E.D. Ky. Feb. 1, 2007)
(finding this factor to be neutral when witnesses for either
party would have to travel a short distance from Ohio to
Kentucky). Therefore, this factor is neutral here
because the Southern District of Ohio is just across the Ohio
River from this Court. The Court is simply not convinced that
trying the case in an Ohio courthouse that sits two miles
from this courthouse is anything more than marginally more
convenient for the Ohio witnesses in this case. Accordingly,
this factor is neutral.
Location of Relevant Documents and Relative Ease of Access to
Sources of Proof
argue this factor moderately weighs in favor of transfer and
assert that the relevant documents and evidence, such as
police records, and other items that discovery will reveal,
are in Ohio. (Doc. # 14 at 6). Although the location of
“documentary evidence” is a factor to consider
when deciding transfer, Cowden, 2010 WL 715850, at
*4, courts often do not give it much weight because the
parties can transfer documents and other records
electronically, see, e.g., Glob. Fitness
Holdings, LLC, 2013 WL 1187009, at *4 (“The advent
of electronic discovery has reduced the importance of the
actual location of documentary evidence . . . .”). For
example, another court in this District found this factor to
be neutral when the case does not involve an accident scene
or damaged property, and the parties could transmit the
documents electronically. See Valvoline,
2012 WL 3613300, at *11. Here, the documents, such as police
records, recordings of the accident, and medical information,
can all be transmitted electronically. In this case,
there is an accident scene, but this Court is just across the
river from downtown Cincinnati, where the accident took
place. This makes both forums almost equally convenient for
viewing the accident scene. As a result, this factor is also
neutral in determining transfer.
Convenience of the Parties
admit that both forums are equally convenient to the parties
but nevertheless argue for transfer, asserting that Kentucky
lacks any connection to the accident. Id. When
considering this factor, the Court examines how convenient
the chosen forum is for the Plaintiff and the Defendants.
Courts often consider the physical distance between the two
forums (and two courthouses) when assessing how burdensome it
would be for each party to travel to the chosen or proposed
forum. See, e.g., Valvoline, 2012 WL
3613300, at *7. For example, a sister court transferred a
case to California due to one witness's physical
limitations, which made traveling from California to Kentucky
problematic. See Id. The witness residing in
California had experienced a “major spinal cord injury
which left him permanently paralyzed below his shoulders as a
quadriplegic.” Id. Traveling posed several
difficulties for the witness, as he required an overnight
medical assistant to travel, and travel increased his
likelihood of contracting an illness. Id.
Ultimately, the court granted the motion to transfer the case
to California, as it was more convenient for the parties and
also transfer cases, however, when the two venues are in
close proximity. See, e.g., Kroger, 2011 WL
3513410 at *3. In Kroger, the plaintiff lived sixty
miles from each courthouse, and the court transferred the
case to the court closest to the scene of the accident.
Id. The two-mile distance between the two
courthouses in this case, however, pales in comparison to the
distances in Valvoline or Kroger, and there
are no extraordinary circumstances that show it would be
difficult for any party to travel to Kentucky or Ohio.
when assessing this factor, courts do not allow transfer of a
case in a situation where it would shift the inconvenience
from the defendant to the plaintiff. Cowden, 2010 WL
715850, at *2. Nothing suggests that it would be inconvenient
for either party to litigate in either forum. In fact,
Defendants admit as much. (Doc. # 14 at 6). Thus, given the
short distance between courthouses and Defendants'
admission that both forums are “arguably equally
convenient, ” (Doc. # 14 at 6), this factor is also
Locus of the Operative Facts
argue this factor “weighs heavily” in favor of
transfer because “all facts supporting Plaintiff's
Complaint took place” in Ohio. (Doc. # 14 at 5-6). When
deciding whether this factor favors transfer, courts
determine in which state the operative facts took place.
Bell, 2019 WL 4017241, at *9. In assessing whether
transfer is preferrable, courts may favor the forum where
most facts took place, but a showing that all facts took
place in that forum is not necessary for a case to be
transferred there. See Glob. Fitness Holdings, LLC,
2013 WL 1187009, at *4 (finding this factor favored transfer
to Utah when many of the events took place in Utah but some
events occurred in Kentucky). Here, the parties agree that
the accident occurred in the Southern District of Ohio.
(Docs. # 1 at ¶¶ 10-11 and 28 at 7). Additionally,
Plaintiff received assistance from first responders in Ohio
and underwent medical treatment in Ohio. (Doc. # 14-1 at 2).
Although the bus route started ...