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Frye v. Indiana Concrete Sawing and Drilling, Inc.

United States District Court, S.D. Indiana, Indianapolis Division

July 1, 2015

DAVID FRYE TRUSTEE, INDIANA LABORERS WELFARE, PENSION AND TRAINING FUNDS, Plaintiffs,
v.
INDIANA CONCRETE SAWING AND DRILLING, INC., Defendant.

ORDER ON MOTION TO CHANGE VENUE

MARK J. DINSMORE, Magistrate Judge.

This matter comes before the Court on Defendant's Motion for Change of Venue. [Dkt. 13.] For the reasons set forth below, the Court DENIES Defendant's motion.

I. Background

On February 2, 2015, David Frye ("Plaintiff") sued Indiana Concrete Sawing and Drilling, Inc. ("Defendant"), alleging that Defendant had violated the Employee Retirement Income Security Act of 1974 ("ERISA"). [Dkt. 1.] Plaintiff alleged that Defendant 1) had committed to making contributions to the Indiana Laborers Welfare Pension and Training Funds ("the Funds") and 2) had committed to allowing the Funds to examine Defendants' payroll books and records, but that Defendant had failed comply with these obligations. [ Id. ¶¶ 6-10.] Plaintiff also alleged that the Funds maintain their office and principal place of business in Terra Haute, Indiana-i.e., within the Southern District of Indiana-and that Defendant is a corporation with its principal place of business in Fort Wayne, Indiana-i.e., within the Northern District of Indiana. [ Id. ¶¶ 2-3.]

On April 21, 2015, Defendant moved the Court to transfer this case to the Northern District of Indiana, Fort Wayne Division. [Dkt. 13.] Defendant initially argued that venue in this Court was improper under 28 U.S.C. § 1391, [ see id. ], such that transfer was mandatory. See 28 U.S.C. 1406(a) ("The district court of a district in which is filed a case laying venue in the wrong division or district shall... transfer such case to any district or division in which it could have been brought."). In response, Plaintiff observed that, regardless of Defendant's argument, venue is proper in this Court under ERISA's specific venue provision. [ See Dkt. 16 at 2 (citing 29 U.S.C. § 1132(e)(2) ("Where an action under this subchapter is brought in a district court of the United States, it may be brought in the district where the plan is administered[.]")).] Defendant conceded as much in reply, [ see Dkt. 17 at 2], but Defendant then argued that the Court should nonetheless transfer this case pursuant to 28 U.S.C. § 1404(a). [ See id. ] That subsection gives the Court discretion to transfer a case, and Defendant asked the Court to exercise this discretion because it would allegedly be more convenient to litigate this case in the Northern District of Indiana. [ See id. at 2-6.]

Defendant raised this argument for the first time in its reply brief, and the Court observed that such arguments are typically waived. [Dkt. 20 (citing Rives v. Whiteside Sch. Dist. No. 115, 575 F.Appx. 678, 680 (7th Cir. 2014)).] The Court, however, also observed that it may sua sponte consider whether transfer under 28 U.S.C. § 1404(a) is appropriate, and so rather than ignore Defendant's arguments, the Court ordered the parties to submit supplemental briefing on the issue. [ Id. ] The parties have now done so, and the Court now addresses their arguments.

II Discussion

A district court may transfer a civil action to any other judicial district in which the action could have been brought, provided that such transfer is "in the interest of justice" or will promote "the convenience of parties and witnesses." 28 U.S.C. § 1404(a). The parties in this case agree that this action could have been brought in either the Northern or Southern District of Indiana, [ see Dkt. 21 at 2; Dkt. 22 at 1], and the only question is thus whether transfer to the Northern District will promote the interests of justice and the convenience of the parties and witnesses. This determination requires a "flexible and individualized analysis" that accounts for "all factors relevant to convenience and/or the interests of justice." Research Automation, Inc. v. Schrader-Bridgeport Int'l, Inc., 626 F.3d 973, 978 (7th Cir. 2010) (quoting Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988)). Specific factors to consider in the "convenience" analysis include "the availability of and access to witnesses;" "each party's access to and distance from resources in each forum;" and "the location of material events and the relative ease of access to sources of proof." Id. Specific factors to consider in the "interest of justice" analysis include "docket congestion and likely speed to trial;" "each court's relative familiarity with the relevant law;" the "desirability of resolving controversies in each locale;" and the "relationship of each community to the controversy." Id. The Court should balance each of these factors, but the Court will typically not disturb the plaintiff's choice of forum unless that balance "is strongly in favor of the defendant[.]" In re Nat'l Presto Indus., Inc., 347 F.3d 662, 663 (7th Cir. 2003) (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947)).

A. Convenience

The parties first dispute whether the Northern or Southern District would be more convenient for their officers and representatives. Defendant notes that it has offices only in the Northern District of Indiana and does business only in the Northern District of Indiana, [Dkt. 22 at 4], with the implication that it would be more convenient for it to defend this case in Fort Wayne. [ See id. ] Plaintiff, however, has offices only in Terra Haute, [Dkt. 21 at 5], such that a transfer to Fort Wayne would necessarily make it more difficult for Plaintiff to pursue its cause of action. In light of this geographical arrangement, it appears that transferring this case to Fort Wayne would simply shift the inconvenience from Defendant to Plaintiff.

The goal of transfer, however, should be to eliminate-not merely shift-any inconvenience to the parties. See, e.g., Key Electronics, Inc. v. Earth Walk Commc'ns, Inc., No. 4:13-CV-00098-SEB-DML, 2014 WL 2711838, at *8 (S.D. Ind. June 16, 2014) (citing In re Nat'l Presto Indus., Inc.., 347 F.3d 662, 665 (7th Cir.2003)) ("[T]he effect of a transfer cannot be merely to shift the inconveniences from one party to the other."); see also, e.g., Gilman v. Walters, No. 1:12-CV-0128-SEB-TAB, 2012 WL 3229283, at *3 (S.D. Ind. Aug. 6, 2012) (citation omitted) ("[W]e must ensure that the effect of this transfer is not a mere shift of inconveniences among parties.'"). Hence, even if a transfer of this case would be convenient for Defendant, the fact that such convenience would come only at Plaintiff's expense militates in favor of denying Defendant's motion.

The parties then dispute the convenience of litigating this case for their likely witnesses. Plaintiff asserts that its likely witnesses reside predominantly in Terra Haute, such that litigating this case in Indianapolis would be more convenient than litigating this case in Fort Wayne. [Dkt. 21 at 6; see also Dkt. 21-1 (Aff. of Tim Patrick).] Defendant asserts that its likely witnesses "are believed to reside in the Northern District [of Indiana] or are Michigan residents, " such that they may more easily travel to Fort Wayne than to Indianapolis. [Dkt. 22 at 3; see also Dkt. 22-1 (Supplemental Aff. of Thomas K. Lowry).]

As an initial matter, the Court finds it speculative for Defendant to assert that litigating in Fort Wayne would be more convenient than litigating in Indianapolis: if Defendant's witnesses plan to fly from Michigan to Indiana, then it may in fact be more convenient for them to fly to Indianapolis than to Fort Wayne. In addition, depending on where in the Northern District of Indiana Defendant's witnesses reside, Defendant's witnesses may actually live closer to Indianapolis than Fort Wayne. Thus, Defendant's current representations do not establish that its witnesses would in fact find it more convenient to litigate in the Northern District than the Southern District.

Next, even assuming that it is more convenient for some of Defendant's witnesses to litigate this case in the Northern District of Indiana, this does not end the analysis: Just as it is inappropriate to transfer a case if doing so would merely shift the inconvenience from one party to another, it is inappropriate to do so if transfer would merely shift inconvenience from one witness to another. See, e.g., Transnord, Inc. v. Saenz, No. 87 C 9356, 1988 WL 31455, at *2 (N.D. Ill. Mar. 25, 1988) ("A plaintiff's choice of forum should not be disturbed where transfer merely shifts, rather than eliminates, inconvenience to the parties or witnesses."). Here, a transfer from Indianapolis to Fort Wayne could make it easier for some of Defendant's witnesses to appear at trial, but at the same time, such a transfer would ...


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