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Gunder v. CSX Transportation

July 8, 2009


The opinion of the court was delivered by: Joyner, J.


This dispute has been brought before the Court on motion of Defendants to transfer venue from the Eastern District of Pennsylvania to the Northern District of Ohio, Toledo Division pursuant to 28 U.S.C. §1404 (a). For the reasons articulated below, Defendants' Motion to Transfer Venue (Doc. No. 11) shall be GRANTED.


Plaintiff has filed suit against his employers, CSX Transportation, Consolidated Rail Corporation, and Norfolk Southern Railway Company, under the Federal Employees' Liability Act ("FELA"), 45 U.S.C. §§51-60, the Federal Safety Appliance Act, 45 U.S.C. §§1-16, and the Locomotive Inspection Act, 45 U.S.C. §§22-34*fn1 . Plaintiff alleges that he was "exposed to excessive and harmful cumulative trauma to his arms and shoulders" while performing his work. Compl. 3. Plaintiff claims that his injuries were caused by the negligence, carelessness, and recklessness of Defendants. Arguing the doctrine of forum non conveniens, Defendants have filed a Motion to Transfer Venue to the Northern District of Ohio, Toledo Division.


Under 28 U.S.C. §1404(a), "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 may have been brought." As further circumscribed in 45 U.S.C. §56, FELA's venue provision, such "an action may be brought in a district court of the United States, in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing such action." Neither party disputes that venue would be proper in the Northern District of Ohio, Toledo Division.*fn2

Once it has been established that another forum would be proper, the defendant bears the burden of showing, on the balance of identified public and private factors, that considerations weigh "strongly" in favor of transfer. Gulf Oil v. Gilbert, 55 U.S. 501, 508, 67 S.Ct. 839, 843 (1947). The complete list of private factors set out by Gulf Oil were further articulated by the Third Circuit in Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995), and include,

[T]he plaintiff's forum preference; defendant's preference; whether the claim arose elsewhere; the convenience of the parties as indicated by their relative physical and financial conditions; the convenience of the witnesses, but only to the extent that the witnesses may actually be unavailable for trial in one of the fora; and the locations of the books and records.

Named public factors include,

Enforceability of judgment; practical considerations that could make the trial easy, expeditious or inexpensive; the relative administrative difficulty in the two fora resulting from court congestion; the local interest in deciding local controversies at home; the public policies of the fora; and the familiarity of trial judges with the state law for diversity cases. Id.

Within this framework, courts have given great deference to the plaintiff's choice of forum. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255, 102 S.Ct. 252 (1981); Kielczynski v. Consolidated Rail Corp., 837 F. Supp. 687, 689 (E.D. Pa. 1993). Notably, however, when a plaintiff has not brought suit in his home forum and the cause of action did not occur in the forum, as alleged here, the choice is given less weight. Piper Aircraft Co., 454 U.S. at 255-56; Kielczynski, 837 F. Supp. at 689. When the plaintiff is not a resident of the chosen forum, he must make a "strong showing of convenience" in order for his choice to be given deference. Windt v. Qwest Communications Intern., Inc., 529 F.3d 183 (3d Cir. 2008). Additionally, "the convenience of counsel is not a factor to be considered" in deciding a motion to transfer. Solomon v. Continental Am. Life Ins. Co., 472 F.2d 1043, 1047 (3d Cir. 1973). Conversely, in cases brought under FELA, the plaintiff's choice of forum has been held in particularly high regard and has been called a "substantial right". Boyd v. Grand Trunk Western R.R. Co., 338 U.S. 263, 266, 70 S.Ct. 26 (1959) (per curiam). Additionally, in cases involving FELA, courts have held that the plaintiff's choice of forum requires notable deference, notwithstanding plaintiff's residence or the location of the underlying actions in the case. Szabo v. CSX Transportation, Inc., 2006 U.S. Dist. LEXIS 3862, 2006 WL 263625, at *4 (E.D. Pa. Feb. 1, 2006); Luther v. Consolidated Rail Corp., 1999 U.S. Dist. LEXIS 8119, 1999 WL 387075, at *2 (E.D. Pa. May 25, 1999). Hence, on balance, the plaintiff's choice of forum continues to hold substantial weight and the defendant must demonstrate "a clear case of convenience, definitely and unequivocally" to be granted transfer. Richards v. Consolidated Rail Corp., 1994 U.S. Dist. LEXIS 14985, 1994 WL 586009, at *2 (E.D. Pa. Oct. 18, 1994) (quoting Hohler v. Pa. R.R., 140 F.Supp. 487, 489 (E.D. Pa. 1956)).


Private Factors

Among the private factors, the three most important in this case are the convenience of the parties, the convenience of the witnesses, and whether the claim arose elsewhere. This Court finds that all three of these factors are in favor of granting the transfer. The proposed transfer forum is more convenient for Defendants because while they are all headquartered in this district, Plaintiff's employment for Defendants was based out of Toledo, Ohio. The three employees that Defendants have identified as potential witnesses all reside in Michigan or Ohio. It is clearly more convenient, in ...

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