United States District Court, D. Nebraska
R. Zwart, United States Magistrate Judge
complaint requests trial in Omaha. (Filing No. 1, at CM/ECF
p. 11). Defendant's answer requests trial in North
Platte. (Filing No. 12, at CM/ECF p. 6). The court requested
evidence and briefing to determine the appropriate trial
location. (Filing No. 13). For the reasons discussed below,
this case will be tried in North Platte, Nebraska.
the court's local rules, when deciding the place of trial
the judge shall consider “the convenience of litigants,
witnesses, and attorneys, ” NECivR. 40.1(b)(1), with
the convenience of the litigants and witnesses generally
afforded greater weight than the convenience of counsel.
Bank of Beaver City v. Southwest Feeders, L.L.C.,
No. 4:10CV3209, 2011 WL 116863, at *1 (D. Neb. Jan. 13,
claims alleged in Plaintiff's complaint and
Defendant's counterclaim arise from a Management
Agreement between Sodexo, a New York Corporation
headquartered in Maryland which performs services throughout
Nebraska, and Regional West Medical Center, which is located
in Scottsbluff, Nebraska. Under the Agreement, Sodexo was
obligated to perform housekeeping and facilities services at
Regional West. Sodexo alleges Regional West failed to pay for
services rendered under the contract; Regional West alleges
Sodexo failed to adequately perform those services. As such,
both parties will need to call witnesses who can explain
whether Sodexo performed the contract, the quality of the
services rendered, the payments made, and if any payments
were withheld, why and in what amount.
West has identified 21 trial witnesses living in Scottsbluff,
Nebraska, noting that additional witnesses from the
Scottsbluff area may be needed. (Filing No. 19-1).
Sodexo's key witnesses reside in locations across the
United States, with two witnesses from Omaha, Nebraska. The
court questions whether Sodexo's listing is complete:
Sodexo must prove it fully performed services at the Regional
West facility, yet Sodexo lists no witnesses living in or
near Scottsbluff, Nebraska. The parties' Nebraska counsel
are from Omaha, Nebraska, and Sodexo has additional counsel
from Boston, Massachusetts who appears pro hac vice.
considered the factors outlined in NECivR. 40.1(b)(1), the
court finds that aside from the parties' counsel, this
case has very little connection with Omaha. Sodexo argues
Omaha is nonetheless the appropriate trial location under
this court's local rules. In support of that argument, it
advocates that Omaha is Plaintiff's choice of forum and
with Sodexo's witnesses traveling to this district from
around the country, access to Omaha by air is greater and
thus more convenient for Sodexo's witnesses. I reject
Plaintiff's choice of forum, the court notes that both
parties are plaintiffs as to some of the claims at issue;
Sodexo is the plaintiff as to claims alleged in its complaint
and Regional West is the plaintiff as to claims alleged in
its counterclaim. Moreover, as Regional West correctly notes,
the undersigned magistrate judge has never afforded deference
to Plaintiff's choice of forum is when applying NECivR.
40.1(b)(1). Plaintiff's choice of forum is a factor
considered when deciding the proper venue for the
lawsuit. Sodexo and Regional West agree that District of
Nebraska is the proper venue. See 28 U.S.C.A. §
107 (“Nebraska constitutes one judicial
district.”). NECivR. 40.1(b)(1) is not a venue rule.
Rather, it governs this court's review of conflicting
trial location requests within the Nebraska venue. Rule
40.1(b) does not mention Plaintiff's choice of forum as
factor the court considers when making that decision. The
trial location for litigation in the District of Nebraska
does not and should not rest on who filed the lawsuit first.
Rather, this court applies the factors outlined in NECivR.
those factors, Sodexo claims Omaha has more commercial
airline flights and is therefore a more convenient forum for
its nationwide witnesses. It further argues the Regional West
witnesses will have to drive 175 miles to reach North Platte,
and therefore will incur an overnight stay irrespective of
where this case is tried.
not convinced Scottsbluff witnesses will not drive 350 miles
round trip in one day to appear at trial. The magistrate
judges and bankruptcy judge for the District of Nebraska will
drive 450 (from Lincoln) or 560 (from Omaha) miles round trip
in one day for hearings and settlement conferences in North
Platte. Moreover, driving from Scottsbluff to Omaha is 900
miles round trip, the alternative being to fly to Omaha on a
United Airlines flight connecting through Denver.
through Denver, Sodexo's witnesses can reach both North
Platte and Scottsbluff by air. Undoubtedly, Omaha has more
available flights and more airline choices, but North Platte
is accessible by air. Access to more flight options is not
synonymous with “more convenient.” If it were,
Omaha would be deemed the most convenient forum in nearly all
cases between a Nebraska citizen and a non-Nebraska citizen
whose witnesses reside outside of Nebraska. Such an
interpretation of NECivR. 40.1(b)(1) is inconsistent with
affording reasonable access to the courts for all parties
litigating in the District of Nebraska.
witnesses may choose to fly into North Platte. However, they
may also choose to: (a) fly into Omaha, and then rent a car
and drive the 280 miles of interstate to North Platte; (b)
fly into Denver (which has far more flight options than
Omaha), and then rent a car and drive 260 miles to North
Platte; or, (c) fly into Lincoln, and then rent a car and
drive 225 miles to North Platte.
considered the convenience of litigants, witnesses, and
counsel as supported by the evidence of record, the court
finds that, on balance, North Platte ...