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Conrad v. Transit Authority of Northern Kentucky

United States District Court, E.D. Kentucky, Northern Division, Covington

December 13, 2019

HEATHER CONRAD PLAINTIFF
v.
TRANSIT AUTHORITY OF NORTHERN KENTUCKY, et al. DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          DAVID L. BUNNING UNITED STATES DISTRICT JUDGE.

         This 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.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On the 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).

         Conrad 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.

         II. ANALYSIS

         A. Motion to Change Venue

         Defendants 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).

         1. Applicable Law and Standard of Review

         Defendants 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).

         Section 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 Section 1404(a):

(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 circumstances.[1]

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).

         The 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.

         2. Factors Weighing in Favor and Against Transfer

         The 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.

         a. Convenience of Witnesses

         Defendants 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.

         Here, 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 Ohio.

         When 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.

         b. Location of Relevant Documents and Relative Ease of Access to Sources of Proof

         Defendants 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.[2] 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.

         c. Convenience of the Parties

         Defendants 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[3] 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 witnesses. Id.

         Courts 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.

         Additionally, 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 neutral.[4]

         d. Locus of the Operative Facts

         Defendants 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 ΒΆΒΆ 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 ...


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