United States District Court, Western District of Pennsylvania
April 12, 2001
MICHAEL QUEZADA, PLAINTIFF,
DARDEN RESTAURANTS, INC., ET AL., DEFENDANTS.
The opinion of the court was delivered by: Lancaster, District Judge.
This is an action in personal injury. Plaintiff, Michael
Quezada, alleges that he slipped and fell on an accumulation of
grease leaking from a faulty grease trap in the parking lot of
the Olive Garden Restaurant located in Huntington Beach,
California. Plaintiff seeks money damages. Defendant has moved to
transfer the action from this court to the United States District
Court for the Southern District of California. For the reasons
set forth below, the motion will be denied.
Title 28 U.S.C. § 1404(a) empowers the court to transfer an
action if such transfer is in the interest of justice. It
provides: "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
In determining whether a transfer is appropriate under section
1404(a), courts must evaluate the following factors: 1) relative
ease of access to sources of proof; 2) availability of compulsory
process for attendance of unwilling witnesses; 3) cost of
attendance at trial by willing witnesses; 4) the possibility of
view of the premises, if appropriate; 5) all other practical
problems that make trial of a case easy, expeditious, and
inexpensive; and 6) "public interest" factors, including the
relative congestion of court dockets, and the advantage of having
local issues of law and fact determined by local courts and
juries. Rowles v. Hammermill Paper Co., Inc., 689 F. Supp. 494,
495 (E.D.Pa. 1988).
In weighing these factors, the court should not grant a motion
to transfer unless the moving party can demonstrate that the
balance of interests strongly favors a change in venue. Gulf Oil
v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055
(1947). In this regard, the court's discretion is broad. See
Plum Tree, Inc. v. Stockment, 488 F.2d 754, 756 (3d Cir. 1973).
Finally, plaintiff's choice of forum is a "paramount
consideration in any determination of a transfer request, and
choice . . . should not be lightly disturbed." Shutte v. Armco
Steel Corp., 431 F.2d 22, 25 (3d Cir. 1970).
In support of the request for transfer, defendant contends that
the key witnesses are located in California, and that the
operative facts occurred in California. Additionally, defendant
intends to file a complaint for indemnity or contribution against
a third party, Burrows Industries, Inc., who it contends may be
solely or jointly liable to the plaintiff for this incident, but
is not subject to personal jurisdiction in Pennsylvania. These
are, of course, factors the court must consider. See Lesser &
Kaplin, P.C. v. American Insurance Co., 723 F. Supp. 1099, 1103
Defendant has made no showing, however, that a trial on the
matter will require numerous witnesses, or that any witness is
unwilling to travel to Pennsylvania, or that the use of
video-taped depositions will be inadequate. See Glassel v.
Allegheny Int'l Credit Corp., 111 B.R. 495, 499-500 (W.D.Pa.
1990). Nor is the court persuaded by defendants' request to join
Burrows as a third-party defendant. Joint tortfeasors are not
indispensable parties. Fed. R.Civ.P. 19 Advisory Committee notes.
And, if liability is determined, any claim that defendant may
have for indemnity or contribution against Burrows can be filed
in California when defendant satisfies the judgement. Preferred
Risk Mut. Ins. Co. v. Reiswig, 21 Cal.4th 208, 87 Cal.Rptr.2d 187,
980 P.2d 895, 898 (Ca. 1999) ("The equitable indemnity cause
of action does not accrue until the person pays the injured third
party's claim."); FNB Mortgage Corp. v. Pacific Gen. Group,
76 Cal.App.4th 1116, 90 Cal.Rptr.2d 841, 849 (1999) (stating same
Finally, the court is not persuaded that the inconvenience
defendant will have to bear if the matter is tried in this court
is greater than that plaintiff will have to bear if it were
transferred to California.
In light of the strong presumption of maintaining venue in
accordance with plaintiff's choice, see Shutte, 431 F.2d at 25,
the motion is denied. The appropriate order follows.
AND NOW, this 12th day of April, 2001, upon consideration of
defendants' motion to transfer [document # 7] IT IS HEREBY
ORDERED that the motion is denied. This matter is referred to the
court's voluntary arbitration program under Local Rule 16.2.
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