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Glenn Osborne v. Norfolk Southern Corp.

July 25, 2011


The opinion of the court was delivered by: Robert F. Kelly, Sr. J.


Presently before this Court is a Motion to Dismiss for Improper Venue filed by Defendants Norfolk Southern Corporation and Norfolk Southern Railway Company (collectively, "Norfolk") seeking to dismiss Plaintiff Glenn Osborne's ("Osborne") Complaint pursuant to Federal Rule of Civil Procedure 12(b)(3).*fn1 For the following reasons, the Motion will be denied.


Osborne commenced this action pursuant to the Federal Employer's Liability Act ("FELA"), 45 U.S.C. § 51, et seq, alleging injuries sustained on or about December 5, 2009, while in the course and scope of his employment. Osborne claims that he was injured while applying a de-icing solution to Canal Drawbridge located in Middletown, Delaware. Osborne originally brought this action in the Common Pleas Court of Philadelphia on September 22, 2010. Norfolk filed a motion to dismiss in that court which was granted with leave to re-file. On March 30, 2011, Osborne re-filed a Complaint in this district. Norfolk subsequently filed the instant Motion to Dismiss for Improper Venue seeking to have this matter transferred to the District of Delaware.*fn2

Osborne is a citizen of Maryland, and Norfolk asserts that its principal place of business is Norfolk, Virginia. Osborne claims that Norfolk conducts a high volume of business in Philadelphia, runs numerous trains in and out of Philadelphia, maintains hundreds of miles of tracks throughout Philadelphia County, and thus, has substantial contacts to the Eastern District of Pennsylvania.

Norfolk asserts that after the alleged incident, Osborne was transported to Union Hospital in Elkton, Maryland, and that he had follow-up care with health care providers in Elkton as well. In arguing for a transfer, Norfolk maintains that it does not have its principal place of business in this district, the incident in question occurred in Newcastle County, Delaware, and that although it "does operate on a limited basis in Philadelphia, Osborne was not employed in any activities that would have brought him into contact with the Commonwealth of Pennsylvania" at the time of his alleged injuries. (Defs.' Mot. Dismiss at 3.) Norfolk, thus, asserts that "there is, and always has been, an alternative district 'in which the action may otherwise' have been brought, the District of Delaware." (Id.)


1. Improper Venue

Under 28 U.S.C. § 1404(a), "[F]or 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." This provision for transferring venue is layered on top of 45 U.S.C. § 56, FELA's venue provision, which provides that "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 District of Delaware.

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 (1947). These "private factors" were further articulated by the Third Circuit in Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995). They include: (1) [t]he plaintiff's forum preference; (2) defendant's preference; (3) whether the claim arose elsewhere; (4) the convenience of the parties as indicated by their relative physical and financial conditions; (5) 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 (6) the locations of the books and records.

The Jumara court also listed the following public factors: (1) [e]nforceability of judgment; (2) practical considerations that could make the trial easy, expeditious or inexpensive;

(3) the relative administrative difficulty in the two fora resulting from court congestion; (4) the local interest in deciding local controversies at home; (5) the public policies of the fora; and (6) the familiarity of trial judges with the state law for diversity cases. 55 F.3d at 879.

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 (1981). 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. Id. at 255-56. 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, 190 (3d Cir. 2008). 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 (1959). Further, in cases involving FELA, courts have held that the plaintiff's choice of forum requires notable deference, notwithstanding the plaintiff's residence or the location of the underlying actions in the case. Brenner v. Consolidated Rail Corp., No. 09-1574, 2009 WL 2710241 at, *2 (E.D. Pa. Aug. 26, 2009); Szabo v. CSX Transp. Inc., No. 05-4390, 2006 WL 263625, at *4 (E.D. Pa. Feb.1, 2006); Luther v. Consolidated Rail Corp., No. 99-1464, 1999 WL 387075, at *2 (E.D. Pa. May 25, 1999). ...

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