United States District Court, D. Nebraska
SUSANNE R. HURD, Plaintiff,
UNITED STATES POSTAL SERVICE, and MEGAN J. BRENNAN, Postmaster General, Defendants.
MEMORANDUM AND ORDER
Smith Camp Senior United States District Judge.
the Court are the Findings and Recommendation of Magistrate
Judge Susan M. Bazis, ECF No. 42 recommending that
Defendants' Motion to Transfer, ECF No. 19, be granted.
Plaintiff Susanne Hurd filed an Objection, ECF No. 43, and an
Objection and Opposition, ECF No. 45. Under 28 U.S.C. §
636(b)(1), the Court has conducted a de novo review of the
record and adopts the Findings and Recommendation in their
December 11, 2018, Hurd filed a Complaint in the District
Court of Scotts Bluff County, Nebraska. She alleges that she
was terminated from her employment with the United States
Post Office in Evans, Colorado, in violation of the Family
Medical Leave Act (“FMLA”), 29 U.S.C. §
2601. She also alleges her due process rights were violated.
After denial of Hurd's Motion to Remand, Defendants filed
a Motion to Transfer asking that the case be transferred to
the District of Colorado pursuant to 28 U.S.C. §
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. § 1404(a). In reviewing
a motion to transfer, courts consider “the convenience
of the parties, the convenience of the witnesses, the
interests of justice, and any other relevant factors when
comparing alternative venues.” Terra Intern, Inc.
v. Mississippi Chemical Corp., 119 F.3d 688, 696 (8th
Cir. 1997). Courts should also consider “judicial
economy, the plaintiff's choice of forum, the comparative
costs to the parties of litigating in each forum, each
party's ability to enforce a judgment, obstacles to a
fair trial, conflict of law issues, and the advantages of
having a local court determine questions of local law.”
Reinke Mfg. Co., Inc. v. M&S Irrigation Service,
Inc., No. 4:11CV3193, 2012 WL 37513, at *2 (D. Neb. Jan.
9, 2012) (citation omitted).
Court recognizes that federal courts generally give
considerable deference to a plaintiff's choice of forum.
See Terra, 119 F.3d at 695. However, “the
general practice of according deference is based on an
assumption that the plaintiff's choice will be a
convenient one.” Chimney Rock Public Power Dist. v.
Tri-State Generation and Transmission Ass'n, Inc.,
No. 7:09-CV-5008, 2010 WL 3328262, at *5 (D. Neb. July 13,
2010). A plaintiff's choice of forum is afforded less
weight when the events “giving rise to the lawsuit took
place in a forum other than that chosen by the
plaintiff.” Wilson v. United States, No.
4:05CV562, 2006 WL 3431895, at *4 (E.D. Ark. Nov. 28, 2006).
does not contest Defendants' assertion that had the case
initially been filed in federal court, it would have been
proper for the case to have been filed in the District of
Colorado. Hurd instead argues that Colorado is not a
out of the eight witnesses identified by Defendants are in
Colorado, the other is in Missouri. Defendants contend that,
although Hurd's personnel file can be accessed
electronically, there are some paper documents regarding
Hurd's employment located in Evans. Evans is
approximately 50 miles from Denver, Colorado, where a
courthouse for the District of Colorado is located. Evans is
approximately 500 miles from this Court's Omaha,
Nebraska, courthouse and 230 miles from North Platte,
Nebraska- where this Court conducts trials. Thus, transfer to
the District of Colorado is overall more convenient for
Defendant and Defendant's witnesses.
alleges that, because she resides in Scottsbluff, she will be
required to travel to and stay in Denver if trial is held
there, just as she would have to travel to and stay in Omaha
if the case were heard in Omaha.Hurd alleges that her
medical-related witnesses are in Scottsbluff and the transfer
will create an undue hardship for them in their practices.
Hurd also alleges that Debbie Wademan who allegedly demoted
Hurd to a carrier position in 2011 due to Hurd's
pregnancy, and in 2017 billed Hurd for a reward she received
as a clerk, lives in Mitchell, Nebraska.
trial in Denver instead of Omaha is more convenient for Hurd
and her witnesses, and attending trial in Denver instead of
North Platte would result in less than 50 miles of additional
roundtrip travel for them. Thus, any inconvenience to Hurd or her
witnesses is minimal. Considering the totality of the
circumstances, including the fact that the acts underlying
this dispute arose out of Hurd's employment and
termination in Colorado, the Court finds that transfer to the
District of Colorado is appropriate and adopts the magistrate
judge's recommendation. Accordingly, IT IS ORDERED:
Magistrate Judge's Findings and Recommendations, ECF No.
42, are adopted in their entirety;
Defendant's Motion to Transfer, ECF No. 19, is granted;
Plaintiff's Objections to the Findings and
Recommendations, ECF ...