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AMERICAN FAMILY INSURANCE v. WAL-MART STORES

April 16, 2003

AMERICAN FAMILY INSURANCE A/S/O DAMON & CRYSTAL SUDDARTH, PLAINTIFF,
v.
WAL-MART STORES, INC., (HEREIN WRONGFULLY SUED AS "SAM'S CLUB" A/K/A WAL-MART, INC., DEFENDANT.



The opinion of the court was delivered by: John W. Darrah, United States District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff, American Family Insurance ("American Family"), filed suit against Defendant, Wal-Mart, Incorporated ("Wal-Mart"), alleging a strict products liability and negligence claim. Currently before the Court is Wal-Mart's Motion to Transfer Venue to the Central District of Illinois.

BACKGROUND

A reading of American Family's Amended Complaint supports the following summary of the parties' conduct.

On September 27, 1997, American Family insured Damon and Crystal Suddarth's (the "Suddarth") premises located in Decatur, Illinois. Said insurance policy included property loss and repair, and provided that American Family would be subrogated to the rights of the insured.

On September 27, 1997, the Suddarths were the owners of the Decatur property and a chest freezer which was designed, manufactured, distributed, and sold by Wal-Mart. As a result of the chest freezer's dangerous and defective condition, the Suddarths' Decatur property was damaged by a fire.

ANALYSIS

In general, "[f]or the convenience of the 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). A transfer is proper if: (1) venue is proper in both the transferee and transferor courts; (2) it is for the convenience of the parties or witnesses; and (3) it is in the interest of justice. Law Bulletin Publishing Co., v. LRP Publications, Inc., 992 F. Supp. 1014, 1017 (N.D. Ill. 1998) (Law Bulletin). District courts have broad discretion to grant or deny motions to transfer, and the burden is on the moving party to establish that the transfer is warranted. Heller Financial, Inc. v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1293 (7th Cir. 1989) (Heller).

Both parties concede that venue is proper in both the United States District Court for the Northern District of Illinois ("Northern District") and the United States District Court for the Central District of Illinois ("Central District").

When evaluating the relative convenience of the parties and witnesses, the court considers: (i) the plaintiffs initial forum choice, (ii) the convenience of witnesses, (iii) the relative ease of access to other evidence, (iv) the situs of material events, and (v) the relative convenience of the parties in litigating in the respective forums. Amoco Oil Co. v. Mobil Oil Corp., 90 F. Supp.2d 958, 960 (N.D. Ill. 2000) (Amoco); Georgouses v. Natec Resources, Inc., 963 F. Supp. 728, 730 (N.D. Ill. 1997) (Georgouses).

The plaintiffs initial choice of forum is usually afforded substantial deference, particularly when it is the plaintiffs home forum. Kamel v. Hill-Rom Company, Inc., 108 F.3d 799, 802 (7th Cir. 1997). However, there are other factors to consider; and the weight given to the plaintiffs choice can vary, depending on the circumstances of each individual case. Georgouses, 963 F. Supp. at 730; Law Bulletin, 992 F. Supp. at 1017. For example, where the plaintiffs choice of forum is not the site of material events, plaintiffs choice of forum is entitled less deference. See Heller Fin., Inc. v. Riverdale Auto Parts, Inc., 713 F. Supp. 1125, 1129 (N.D. Ill. 1989).

In the instant case, Plaintiff chose to bring suit in the Northern District of Illinois. Plaintiff is a Wisconsin insurance company with its principal place of business in Madison, Wisconsin. Defendant is a foreign corporation. The situs of the material events — the fire and subsequent fire investigation — all took place in Decatur, Illinois, which is in the Central District. Because deference is granted to the Plaintiffs initial forum choice, this factor weighs in favor of denying Defendant's motion to transfer. However, because none of the parties reside in the Northern District and the situs of material events took place outside the Plaintiffs choice of venue, Plaintiffs choice of forum is given less deference.

The convenience of the witnesses who will testify at trial is one of the most important factors when deciding on an appropriate forum. Law Bulletin, 992 F. Supp at 1018. However, the defendant will not be granted a transfer merely by presenting a long list of witnesses and claiming their inconvenience. Law Bulletin, 992 F. Supp. at 1018. Courts go beyond simply looking at the number of witnesses and weighing the quality and nature of their proposed testimony. Law Bulletin, 992 F. Supp. at 1018. The defendant is obligated to specify particular witnesses to be called and explain the nature of their testimony. Heller, 883 F.2d at 1293. In order to overcome the deference to the plaintiffs forum choice on the issue of witness convenience, the defendant must show that the testimony of these particular witnesses is necessary to his case. General Portland Cement Co. v. Perry, 204 F.2d 316, 319 (7th Cir. 1953) (General Portland). As a practical matter, it is usually assumed that witnesses within the control of the parties will appear voluntarily. Therefore, more attention should be given to the location of the non-party witnesses and those witnesses not within the control of the parties. Spherion Corp. v. Cincinnati Financial Corp., 183 F. Supp.2d 1052, 1058 (N.D. Ill. 2002) (Spherion).

Here, Plaintiff has identified thirteen witnesses in its Rule 26 disclosures of the thirteen witnesses, one, the Plaintiffs cause and origin expert, is located in the Northern District. All of the witnesses, with the exception of one witness from Indiana, are located in the Central District, primarily in Decatur, Illinois. The Central District witnesses ...


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