United States District Court, D. Nebraska
Michael D. Nelson United States Magistrate Judge.
matter is before the Court on the Defendants' Motion to
Change Designation of Place of Trial (Filing No. 23)
asking that the Court move the place of trial from Lincoln,
Nebraska, to North Platte, Nebraska. Plaintiff opposes the
motion. (Filing No. 30). For the following reasons,
the Court will deny the motion.
filed this action against Defendants seeking damages for
permanent injuries she sustained when a Whalen bar stool slid
out beneath her as she was attempting to sit in it at her
home in Minden, Nebraska. Defendants, Whalen LLC and Whalen
Furniture Manufacturing, Inc., both California businesses
with their principal place of businesses in San Diego,
California, designed, manufactured, and distributed the
stools. (Filing No. 13). Defendants now move the
Court to change the place of trial from Lincoln to North
deciding the place of trial, “a judge considers the
convenience of the litigants, witnesses, and
attorneys.” NECivR 40.1(b)(1). The party
seeking to change the place of trial within this district
bears the burden of establishing that the transfer should be
granted. See NECivR 40.1(b). “The plaintiff's
choice of forum is given great weight and should not be
disturbed unless the movant makes a clear showing that the
balance of interests weighs in favor of the movant.”
Pals v. Weekly, No. 8:17CV27, 2017 WL 1906609, at *1
(D. Neb. May 8, 2017) (Bazis, M.J.)(quoting Aumann
Auctions, Inc. v. Phillips, No. 8:07CV431, 2008 WL
687056, *2 (D. Neb. Mar. 10, 2008) (Thalken, M.J.). “A
transfer should not be granted if the effect is to merely
shift the inconvenience from one party to the other.”
request that the Court move trial to North Platte from
Lincoln because potential witnesses are located closer to
North Platte than Lincoln. (Filing No. 24 at p. 2).
Specifically, Plaintiff's residence and the site of the
injury in Minden is approximately 117 miles southeast of
North Platte, whereas Lincoln is 133 miles from Minden.
(Filing No. 25). Defendants also assert that
Plaintiff's treating physicians are located in Kearney,
which is 97 miles southeast of North Platte and 130 miles
from Lincoln. Defendants further anticipate that most of the
“before and after lay witnesses” regarding
Plaintiff's physical condition would be located in
Trenton, Nebraska, which is 88 miles south of North Platte
but 225 miles west of Lincoln. Defense counsel is located in
North Platte. (Filing No. 25). Finally, Defendants
assert, without evidence, that Lincoln will have more
expensive meals, hotels, and parking than North Platte.
(Filing No. 24 at p. 3).
review of Plaintiff's opposition to Defendants'
motion, the Court is convinced that the convenience of
witnesses and the parties weighs in favor of trial in
Lincoln, not North Platte. First, as Plaintiff points out,
neither Plaintiff nor the Defendants reside in either North
Platte or Lincoln, so the parties will have to travel for
trial regardless of where it is held. Plaintiff resides in
Minden, which is only 16 miles further away from Lincoln than
North Platte, and Plaintiff is the party who chose Lincoln as
the place of trial. Additionally, even though Defendants are
the parties moving to change the place of trial to North
Platte, Plaintiff nevertheless notes that the Defendants are
located in San Diego, California, and it will be easier for
them to travel to Lincoln than to North Platte.
non-party witnesses' convenience further weighs in favor
of Lincoln. Plaintiff submitted her affidavit stating that
she has lived in Minden since October 2010 and has not lived
in Trenton, Nebraska, since 1983. (Filing No. 31-4 at p.
2). As such, Defendants' assertion that potential
“before and after lay witnesses” may be located
in Trenton is unlikely speculation. Moreover, Plaintiff has
retained an expert from Overland Park, Kansas, which is
significantly closer to Lincoln (203 miles) than North Platte
(427 miles). (Filing No. 31-3). Additionally,
Plaintiff purchased the stools at issue from Nebraska
Furniture Mart (“NFM”) in Omaha, Nebraska, and
the stools were delivered by NFM; therefore, some witnesses
will be located in Omaha, which is 59 miles from Lincoln but
280 miles from North Platte. Finally, although Plaintiff
received some medical care in Kearney, the majority of her
treatment and care took place in Minden, which as discussed
above is only 16 miles further from Lincoln than North
Platte. (Filing No. 31-4).
although “the convenience of counsel is afforded less
weight than the convenience of the parties and witnesses when
deciding a motion to change the trial location, ”
Shaddick v. W. Heritage Credit Union, 2016 WL
308792, at *1 (D. Neb. Jan. 25, 2016), this factor does not
weigh in favor of moving trial to North Platte.
Plaintiff's counsel is in Lincoln and Defense counsel is
in North Platte; therefore, the Court agrees with Plaintiff
that changing the place of trial from Lincoln to North Platte
would merely shift the burden of travel and inconvenience
from Defendants' counsel to Plaintiff's counsel,
while gaining no advantage for the litigants or witnesses.
consideration of the above, the Court finds that Defendants
have not met their burden to show that the convenience of the
litigants, witnesses, and attorneys weighs in favor of moving
the place of trial to North Platte. Accordingly, IT
IS ORDERED that Defendants' ...