United States District Court, N.D. West Virginia
CARL L. SHERRELL, Plaintiff,
FTS INTERNATIONAL, INC. and FTS INTERNATIONAL SERVICES, LLC, Defendants.
ORDER DENYING DEFENDANTS' MOTION TO TRANSFER
PRESTON BAILEY, JUDGE
pending before this Court is the Defendants' Motion to
Transfer Venue [Doc. 6], filed May 29, 2019. This Court has
reviewed the above and is of the opinion that this matter
shall more appropriately be adjudicated in the United States
District Court for the Northern District of West Virginia.
Accordingly, the Motion is hereby DENIED.
April 19, 2019, the plaintiff filed suit in the Circuit Court
of Wetzel County, West Virginia [Doc. 1]. On May 22, 2019,
the defendants removed the above-styled action to the United
States District Court for the Northern District of West
Virginia based upon diversity jurisdiction [id.]. On May 29,
2019, defendants filed the instant Motion to Transfer Venue
[Doc. 6], asking this Court to transfer venue to the United
States District Court for the Western District of
Pennsylvania. In support of their motion, defendants argue
that venue is proper in the Western District of Pennsylvania
and that the interests of convenience and fairness weigh in
favor of transfer.
11, 2019, the plaintiff filed a Response in Opposition [Doc.
7] to the requested transfer. First, the plaintiff argues
that defendants have failed to recognize the significant
deference that is to be accorded a plaintiff's choice of
forum. Second, the plaintiff asserts that the convenience of
trying this case in the Western District of Pennsylvania does
not outweigh that of allowing the matter to remain in the
Northern District of West Virginia. Finally, the plaintiff
contends that the interests of justice support keeping this
case in its present forum.
defendant objects to venue under Rule 12(b)(3), the plaintiff
bears the burden of establishing that venue is proper.
See Plant Genetic Sys., N.V. v. Ciba Seeds, Mycogen Plant
Sci., Inc., 933 F.Supp. 519, 526 (M.D. N.C. 1996)
(citing Bartholomew v. Va. Chiropractors Ass'n,
Inc., 612 F.2d 812, 816 (4th Cir. 1979)). Title 28
U.S.C. § 1404(a) permits this Court to transfer a civil
action to any other district where such action may have been
brought “[f]or the convenience of the parties, in the
interest of justice . . ..” Thus, the threshold
question of a section 1404(a) analysis is whether the
judicial district to which transfer is sought qualifies under
the applicable venue statutes as a judicial district where
the civil action “might have been brought.” If
the Court answers this initial question in the affirmative,
the Court must make an “individualized, case-by-case
consideration of convenience and fairness.” Toney
v. Family Dollar Store, Inc., 273 F.Supp.2d 757, 763
(S.D. W.Va. 2003) (quoting Stewart Org., Inc. v. Ricoh
Corp., 487 U.S. 22, 29 (1988)). In so doing, this Court
has broad discretion. Nichols v. G.D. Searle
& Co., 991 F.2d 1195 (4th Cir. 1993).
clear from the pleadings that a substantial portion of the
alleged events giving rise to the instant action occurred in
Pennsylvania, and the defendants do not contest personal
jurisdiction in this case. Accordingly, this Court has
answered the initial question, whether both judicial
districts are ones in which this civil action might have been
brought, in the affirmative.
overcome the initial threshold discussed above, in which this
Court has determined either of the proposed venues to be
proper, this Court must now embark on its consideration of
the following factors, which, in this Court's discretion,
will help guide it to the more proper venue. Some of the
factors which this Court may consider include: (1) ease of
access to sources of proof; (2) the convenience of parties
and witnesses; (3) the cost of attendance for witnesses; (4)
the availability of compulsory process; (5) the interest in
having localized interests decided at home; and (6) the
interests of justice. Toney v. Family Dollar
Store, 273 F.Supp.2d at 763.
this Court must consider the plaintiff's choice of forum.
“Unless the balancing of these factors weighs strongly
in favor of the defendant, the plaintiff's choice of
forum generally should not be disturbed.” Casana
Furniture Co., Ltd. v. Coaster Co. of America, 2009 WL
783399, *3, *4 (M.D. N.C. Mar. 24, 2009)(Osteen, J.),
Brown v. Flowers, 297 F.Supp.2d 846, 850 (M.D. N.C.
2003); Collins v. Straight, Inc., 748 F.2d 916, 921
(4th Cir. 1984). Moreover, “[w]hile a district court
has discretion to transfer the action to a more appropriate
venue, a court should not transfer venue where doing so would
only shift the inconvenience to another party.”
Casana, 2009 WL 783399, at *4-5.
The Ease of Access to Sources of Proof
this case, sources of proof for the plaintiff's claims
will potentially consist of witness testimony and documentary
evidence. For the reasons that follow, this Court finds that
the Western District of ...