United States District Court, D. Nebraska
JUDITH L. BLESSING, Individually and as a Representative of the Estate of Gary L. Blessing, Deceased; Plaintiff,
UNION PACIFIC RAILROAD COMPANY, Defendant.
MEMORANDUM AND ORDER
CHERYL R. ZWART, Magistrate Judge.
The defendant Union Pacific Railroad Company has moved to transfer venue to the United States District Court for the Northern District of Iowa, Sioux City Division. (Filing No. 14). The railroad argues a Sioux City trial location would be the most convenient for the parties and witnesses and would better serve the interests of justice. See 28 U.S.C. § 1404 (a). For the following reasons, the motion to transfer is granted.
STATEMENT OF FACTS
The plaintiff, decedent Gary L. Blessing, was from Sioux City, Iowa. (Filing No. 16-2, at CM/ECF p. 2). His wife and personal representative lives in Sioux City, Iowa.
Blessing served in the Iowa National Guard from 1955 to 1956, and worked in Sioux City, Iowa for Midwest Poultry from 1956 to 1959; Rosenthal Fruit Company from 1959 to 1963; Pittsburgh paint from 1963 to 1965, and Pepsi-Cola from 1965 to 1967. (Filing No. 16-2, at CM/ECF p. 3). Blessing began his railroad career for Union Pacific and its predecessor in 1967, working as a switchman and an engineer until 2000. Switchman duties were performed near Sioux City, Iowa. (Filing No. 24-5, p. 7). As an engineer, Blessing travelled to locations in Nebraska, including South Sioux City, Fremont, and Omaha, Nebraska, (Filing No. 18, at CM/ECF p. 5), and to St. James, Minnesota and Council Bluffs, Iowa, (Filing No. 24-3, pp. 4-7). Throughout his entire railroad career, Blessing was assigned to the Sioux City Division and his home terminal was located in Sioux City, Iowa. (Filing No. 16-2, at CM/ECF p. 2; Filing No. 24-3, pp. 5-6; Filing No. 24-6, at CM/ECF p. 3).
Blessing was allegedly exposed to asbestos during the 33-year course of his railroad employment. He alleges he was diagnosed by his physicians in Sioux City, Iowa with adenocarcinoma of the lung in February of 2011, and after re-reading his chest x-rays, Dr. Mark S. Klepper, a physician from Woodway, Texas, diagnosed interstitial lung disease compatible with asbestosis on August 15, 2012. (Filing No. 18, at CM/ECF p. 4-5). Blessing received treatment for his cancer at St. Luke's Hospital in Sioux City, Iowa.
Union Pacific's national headquarters is located in Omaha, Nebraska, and the plaintiff intends to call Union Pacific management officials from Omaha as witnesses on issues related to the railroad's industrial hygiene, abatement, and remediation programs related to employee asbestos exposure. (Filing No. 18, at CM/ECF pp. 8-11). It does not appear these witnesses' experience focused specifically on potential sources of asbestos exposure by persons working in facilities located in Sioux City, Iowa. See Filing No. 18-5. The plaintiff has identified only Conrad Lindquist, who resides in Dakota Dunes, South Dakota, as a railroad coworker witness. (Filing No. 24-5, at CM/ECF p. 2). Dakota Dunes is more than 100 miles from Omaha, Nebraska.
Without question, Nebraska is a proper venue for trying this case. 45 U.S.C.A. § 56. But so is Sioux City, Iowa. The question before the court on the defendant's motion to transfer is whether Omaha or Sioux City is the most convenient forum for the parties, witnesses, and which location best serves the interests of justice. Under section 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 might have been brought." 28 U.S.C.A. § 1404(a). "Congress cited a FELA case as an example of the need for such a provision, and courts have consistently held that § 1404(a) applies to all actions, not just those listed in the general venue provisions." Robertson v. Kiamichi Railroad Co., L.L.C. , 42 F.Supp.2d 651, 654 (E.D. Tex.1999).
When considering a motion to transfer under § 1404(a), the court must balance both the parties' private interests and the interests of the public. The private interests include:
(1) the convenience of the parties, (2) the convenience of the witnesses - including the willingness of witnesses to appear, the ability to subpoena witnesses, and the adequacy of deposition testimony, (3) the accessibility to records and documents, [and] (4) the location where the conduct complained of occurred....
Terra Int'l, 119 F.3d at 696.
Public interests, designed to address § 1404(a)'s "interest of justice" factor, include: 1) judicial economy, 2) the plaintiff's choice of forum; 3) the comparative costs of litigating in each forum, 4) each party's ability to enforce a judgment, 5) obstacles to a fair trial, 6) conflict of law issues, 7) and the advantages of having a local court determine questions of local law. See Terra Int'l, 119 F.3d at 699 (citations omitted). In addition to the general factors set forth in section 1404(a), the court conducts a "case by case evaluation of the particular circumstances at hand and consider all relevant factors." Terra Int'l., Inc. v. Mississippi Chemical Corp. , 119 ...