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Renee Lempke, Individually and As the Executrix of the Estate of v. General Electric

August 25, 2011

RENEE LEMPKE, INDIVIDUALLY AND AS THE EXECUTRIX OF THE ESTATE OF ROBERT LEMPKE, DECEASED PLAINTIFF,
v.
GENERAL ELECTRIC, CO., ET AL., DEFENDANTS.
RENEE LEMPKE, INDIVIDUALLY AND AS THE EXECUTRIX OF THE ESTATE OF ROBERT LEMPKE, DECEASED PLAINTIFF,
v.
A.B. CHANCE CO., ET AL., DEFENDANTS.



MEMORANDUM

These diversity actions arise from the electrocution death of Robert Lempke. The defendants have now moved, pursuant to 28 U.S.C. § 1404(a), to transfer the venue of this action to the Western District of Pennsylvania, where Mr. Lempke's death occurred. For the following reasons, defendants' motions will be granted.

I. Background

On September 16, 2008, Mr. Lempke, a utility worker, suffered catastrophic injuries and death after contacting a downed power-line conductor during a relief effort to restore power in western Pennsylvania. Thereafter, plaintiff Renee Lempke, Robert's widow, acting individually and as the executrix of Robert's estate, initiated four actions in the Philadelphia Court of Common Pleas. Two of those actions were removed to this court on diversity grounds. On June 15, 2011, this court denied plaintiff's motion to remand the two removed actions to state court. See No. 10-5380, Docket No. 67; No. 10-5426, Docket No. 60.*fn1 The two other actions were consolidated by the Philadelphia Court of Common Pleas and remain pending as of the date of this memorandum. See id. at 5. On May 24, 2011, the Court of Common Pleas denied a motion by the state court defendants to transfer venue based on forum non conveniens. See Lempke v. Massing, No. 1524, Case ID 100901524 (Philadelphia Cnty. Court of Common Pleas).

Plaintiff's complaint in civil action No. 10-5380 asserts claims against A.B. Chance Company ("Hubbell"*fn2 ); Cooper Bussmann, LLC; Cooper Bussman, Inc.; Cooper Industries, Inc.; Cooper Power Systems, Inc. (collectively, "the Cooper defendants"), alleging that the were manufacturers of components including fuses and re-closers that failed to properly interrupt current flow and protect Mr. Lempke on September 16, 2008. See No. 10-5380, Docket No. 12, Mem. at 2.*fn3 Plaintiff's complaint in civil action No. 10-5426 alleges that General Electric Company ("General Electric"), GE Industrial Systems/Solutions a/k/a GE Electrical Distributions & Control ("GE Industrial Solutions"*fn4 ), and Schweitzer Engineering Laboratories ("Schweitzer") were manufacturers of circuit breakers and a relay related to the power line that Mr. Lempke contacted, and that the circuit breakers and relay failed to properly interrupt current flow and protect Mr. Lempke.

Plaintiff Renee Lempke is a resident of Columbia, New Jersey, as was Mr. Lempke prior to his death. The defendants are domiciled in New York (General Electric Company), Iowa (GE Industrial Solutions), Washington (Schweitzer), Connecticut (Hubbell), and Wisconsin (the Cooper defendants). See No. 10-5380, Docket No. 46, Mem. at 2.*fn5 Mr. Lempke's death occurred in Delaware Township, Mercer County,

Pennsylvania, which is located in the Western District of Pennsylvania.

Defendants General Electric Company, GE Industrial Solutions, and Hubbell filed motions on March 4, 2011 to transfer these actions to the Western District pursuant to 28 U.S.C. § 1404(a). See No. 10-5380, Docket No. 46; No. 10-5426, Docket No. 35. All of the other defendants in these actions have consented to the transfer motions. Plaintiff opposes defendants' motions.

II. Analysis

A. Section 1404(a) Standard If plaintiff had begun these diversity actions in federal court, venue in this district would have been improper, because none of the defendants reside in Pennsylvania, and none of the alleged acts or omissions giving rise to Mr. Lempke's death occurred in this district, while a "substantial part of the events or omissions giving rise to the claim occurred" in the Western District. See 28 U.S.C. § 1391(a) (providing that diversity actions may generally "be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought.") However, these actions began in state court and were removed to this court by the defendants. Under 28 U.S.C. § 1441, an action brought in state court over which the federal district courts have subject matter jurisdiction may be removed to "the district and division embracing the place where such action is pending." As a result, venue in this district, which encompasses the Philadelphia Court of Common Pleas, is proper. See Polizzi v. Cowles Magazines, Inc., 345 U.S. 663, 665-66 (1953); 14C Charles Alan Wright et al., Federal Practice & Procedure § 3732 (4th ed. 2009) (noting that the general venue statutes, including 28 U.S.C. § 1391, "do not apply to cases that have been initiated in a state court and removed to a federal court").

Even though venue is proper in this district, these actions may still be transferred to another venue pursuant to 28 U.S.C. § 1404(a), which provides that "[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 might have been brought." See Jumara v. State Farm Ins. Co., 55 F.3d 873, 878 (3d Cir. 1995) ("Section 1404(a) provides for the transfer of a case where both the original and the requested venue are proper.").

Section 1404(a) vests "discretion in the district court to adjudicate motions for transfer according to an 'individualized, case-by-case consideration of convenience and fairness.'" Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (quoting Van Dusen v. Barrack, 376 U.S. 612, 616 (1964)); see also White v. ABCO Eng'g Corp., 199 F.3d 140, 143 (3d Cir. 1999). In ruling on § 1404(a) motions, "courts have not limited their consideration to the three enumerated factors in § 1404(a) (convenience of parties, convenience of witnesses, or interests of justice)" but have instead "'consider[ed] all relevant factors to determine whether on balance the litigation would more conveniently proceed and the interests of justice be better served by transfer to a different forum.'" Jumara, 55 F.3d at 879 (quoting 15 Charles A. Wright et al., Federal Practice & Procedure § 3848 (2d ed. 1986)). Although there is no definitive list of the factors that must be considered, courts commonly consider a range of both private and public interests protected by § 1404(a). Id.

Such private interests include (1) the plaintiff's forum preference as manifested in the original choice; (2) the defendant's preference; (3) whether the claim arose elsewhere;

(4) the convenience of the parties as indicated by their relative physical and financial condition; (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 location of books and records (similarly limited to the extent that the files could not be produced in the alternative forum). See id. (citations omitted); TriState HVAC Equip., LLP v. Big Belly Solar, Inc., 752 F. Supp. 2d 517, 537-38 (E.D. Pa. 2010).

Public interests that may be relevant to the ยง 1404(a) determination include (7) the enforceability of the judgment, (8) practical considerations that could make the trial easy, expeditious, or inexpensive, (9) the relative administrative difficulty in the two fora resulting from court congestion, (10) the local interest in deciding local controversies at home, (11) the public policies of the fora, and (12) the familiarity of the trial judge with the ...


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