United States District Court, S.D. West Virginia, Charleston Division
KIRSTEN PATTERSON, Executrix of the Estate of Mary Cae Henderson, Plaintiff,
THOMAS J. CARPENTER, Defendant.
MEMORANDUM OPINION AND ORDER
E. JOHNSTON, CHIEF JUDGE.
before the Court is Defendant's Motion to Transfer Venue.
(ECF No. 14.) For the reasons discussed more fully below, the
Court DENIES the motion. (ECF No. 14.)
brings this action on behalf of her deceased mother, Mary Cae
Henderson, alleging that her mother died as a result of
Defendant's negligence in treating her while she was at
Thomas Memorial Hospital in Charleston, West Virginia.
(See ECF No. 1-1 (Compl.).) Plaintiff is a resident
of Parker, Colorado, and Defendant is a resident of Largo,
Florida. (See Id. at 2, ¶¶ 2-3.)
filed this action in this District on March 19, 2019,
alleging a single count against Defendant for medical
malpractice. (See Id. at 3-4.) On June 3, 2019,
Defendant filed the present motion to transfer this case to
the United States District Court for the Middle District of
Florida. (ECF No. 14.) Plaintiff timely responded to the
motion, (ECF No. 16), and Defendant timely replied, (ECF No.
20.) As such, the motion is fully briefed and ripe for
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.” 28 U.S.C. § 1404(a). Such a
transfer, however, is dependent upon the “weighing . .
. [of] a number of case-specific factors.” Stewart
Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988). The
Fourth Circuit has established four factors that a district
court should consider in deciding motions to transfer under
§ 1404(a): “(1) the weight accorded to
plaintiff's choice of venue; (2) witness convenience and
access; (3) convenience of the parties; and (4) the interest
of justice.” Trs. of the Plumbers & Pipefitters
Nat'l Pension Fund v. Plumbing Servs., Inc., 791
F.3d 436, 444 (4th Cir. 2015).
prior to the Fourth Circuit's decision in
Trustees, this Court has considered a slightly more
detailed list of factors such as the following: “(1)
ease of access to sources of proof; (2) the convenience of
compulsory process; . . . (5) the possibility of a view; (6)
the interest in having local controversies decided at home;
and (7) the interests of justice.” AFA Enters.,
Inc. v. Am. States Ins. Co., 842 F.Supp. 902, 909 (S.D.
W.Va. 1994); see also Heuvel v. Navy Fed. Credit
Union, No. 3:16-cv-1839, 2016 WL 7155769, at *2 n.3
(S.D. W.Va. Dec. 7, 2016).
is well settled that the decision whether to transfer a
matter to another district is committed to the sound
discretion of the district court.” AFA Enters.,
Inc. v, 842 F.Supp. at 908 (citations omitted).
“The party seeking transfer carries the burden of
showing that the current venue is inconvenient.”
See Leonard v. Mylan, Inc., 718 F.Supp.2d 741, 745
(S.D. W.Va. 2010) (citing N.Y. Marine & Gen. Ins. Co.
v. Lafarge N. Am., Inc., 599 F.3d 102, 113‒14 (2d
preliminary matter, although the Parties do not dispute it,
the Court notes that this action could have been brought in
the Middle District of Florida as that is where Defendant
resides. See 21 U.S.C. § 1391(b)(1) (“A
civil action may be brought in (1) a judicial district in
which any defendant resides . . . .”).
to the above factors, first, although Plaintiff is not from
this District, her choice of forum still weighs against
transfer. It is undisputed that all of the events that gave
rise to this action took place in this District. Further,
Plaintiff brings this action on behalf of the estate of her
late mother who resided in this District. Accordingly,
Plaintiff's choice of forum is not completely irrelevant
such that it does not deserve the great deference generally
afforded a plaintiff's forum choice. See Teva Pharm
USA, Inc. v. Mylan Pharm., Inc., No. 1:17-cv-7, 2017 WL
958324, at *6 (N.D. W.Va. Mar. 10, 2017) (finding that an out
of state plaintiff's forum choice was still entitled to
great weight where the plaintiff sued in the forum where the
“nucleus of operative facts” took place). Cf.
Shrewsbury v. Am. Red Cross Mid. Atl. Region, No.
2:18-cv-00531, 2018 WL 2392546, at *3 (S.D. W.Va. May 25,
2018) (giving little weight to plaintiff's forum choice
where plaintiff did not reside and none of the underlying
events occurred in the chosen forum).
as to convenience of witnesses, Defendant asserts that the
only identified witnesses in this action reside outside of
the District, and thus transferring venue to the Middle
District of Florida would not cause any additional
inconvenience. (See ECF No. 14 at 3-4.) However,
Defendant has not met his burden of showing that this venue
is inconvenient for the witnesses. See Samsung Elec. Co,
Ltd., v. Rambus, Inc., 386 F.Supp.2d 708, 718 (E.D. Va.
2008) (“[t]he party asserting witness inconvenience has
the burden to proffer, by affidavit or otherwise, sufficient
details respecting the witnesses and their potential
testimony to enable the court to assess the materiality of
evidence and the degree of inconvenience.”). This
District is closer for Plaintiff's expert witness, who
resides in Maryland, than the Middle District of Florida.
Further, the Court would be remiss to ignore that potential
witnesses such as supervisors, co-workers, and other
physicians who worked with Defendant at the hospital where
Plaintiff's mother was treated likely still remain in
this District. See, e.g., Holley v. CSX Transp.,
Inc., No. 3:08-cv-0065, 2008 WL 4091037, at *1 (S.D.
W.Va. Aug. 28, 2008) (finding that the convenience of
unidentified, potential liability witnesses weighed against
transfer). Defendant states that he will minimize the need of
these witnesses to appear in person; however, should their
attendance be necessary, there will be a burden for these
witnesses to travel outside of this District. Thus, this
factor weighs against transfer.
as to ease of access to sources of proof, Defendant concedes
that a substantial part, if not all, of the relevant evidence
in this matter is located in this District. (See ECF
No. 14 at 3-4.) Defendant attempts to circumvent this fact by
asserting that this information can be transmitted
electronically. However, even if true, this simply makes
neither venue more convenient than the other. Further, if any
source of proof is unable to be transmitted electronically,