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Bullard v. Burlington Northern Santa Fe Ry Co.

August 29, 2008

VIRDA BELL BULLARD ET AL., PLAINTIFFS,
v.
BURLINGTON NORTHERN SANTA FE RY. CO., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Matthew F. Kennelly, District Judge

MEMORANDUM OPINION AND ORDER

Before the Court are three motions: defendants' motion to transfer venue to the Western District of Texas pursuant to 28 U.S.C. § 1404(a), plaintiffs' motion to strike certain portions of defendants' reply in support of their motion to transfer venue, and plaintiffs' motion to dismiss without prejudice the claims of fifty-three plaintiffs. For the reasons stated below, the Court grants defendants' motion to transfer venue, terminates as moot plaintiffs' motion to strike, and denies plaintiffs' motion to dismiss without prejudice.

Background

Plaintiffs Virda Bell Bullard and 143 other individuals filed suit on October 31, 2007 in the Circuit Court of Cook County against defendants Burlington Northern Santa Fe Railway Company ("BNSF"), Koppers Industries, Inc., Monsanto Company, The Dow Chemical Company, and Vulcan Materials Company. Plaintiffs are all current or former residents of Somerville, Texas. They have asserted common law tort claims arising "out of the operations and activities of the Defendants with regard to the use and lack of containment of toxic chemicals used at [a wood treatment] facility" in Somerville. Compl. ¶ 3.1. Plaintiffs also allege that "[u]pon information and belief, many if not all of the chemicals used in the plant were manufactured, mixed and/or consolidated at the Koppers Creosote facility in Cook County, Illinois." Id. Plaintiffs further allege that BNSF and Koppers operated the Somerville plant from 1905 to the present. Plaintiffs' claims against Monsanto, Dow and Vulcan derive from their role as manufacturers and alleged suppliers of chemicals to the Koppers plants in Cook County and Somerville.

Defendants removed the case on December 6, 2007, asserting that this Court had jurisdiction over it as a "mass action" pursuant to the Class Action Fairness Act of 2005, 28 U.S.C. §§ 1332(d) & 1453. The following week, defendants answered plaintiffs' complaint and moved the Court to transfer venue to the U.S. District Court for the Western District of Texas pursuant to 28 U.S.C. § 1404(a).

On January 4, 2008, plaintiffs moved to remand the case to the Circuit Court of Cook County and to dismiss without prejudice 53 plaintiffs. On April 10, 2008, the Court denied plaintiffs' motion to remand and deferred ruling on the motion to dismiss, allowing plaintiffs to reconsider their motion in light of the Court's decision on their motion to remand. Bullard v. Burlington Northern Santa Fe Ry Co., 556 F. Supp. 2d 858, 859 (N.D. Ill. 2008), aff'd, - F.3d -, 2008 WL 2941359, at *1 (7th Cir. Aug. 1, 2008). Plaintiffs subsequently renewed their motion to voluntarily dismiss certain plaintiffs and moved to strike the exhibits attached to defendants' reply in support of their motion to transfer venue.

Discussion

A. Defendants' Motion to Transfer Venue

Section 1404(a) provides that a district court in which venue is proper may transfer a civil case to any other district in which the case could have been brought if doing so serves "the convenience of parties and witnesses" and is "in the interest of justice." 28 U.S.C. § 1404(a). The moving party has the burden of demonstrating "that the transferee forum is clearly more convenient." Coffey v. Van Dorn Iron Works, 796 F.2d 217, 219-20 (7th Cir. 1986). The Court considers the criteria set forth in section 1404(a) "in light of all the factors of the case," an inquiry that "necessarily involves a large degree of subtlety and latitude," including how much weight to give each of the statutory criteria. Id. at 219 (citing Christopher v. Am. News Co., 176 F.2d 11 (7th Cir. 1949)). The parties agree, at least for the purposes of this motion, that venue is proper in either this district or the Western District of Texas.

1. Private Factors: Convenience of the Parties and Witnesses

When evaluating the convenience of the parties and witnesses, the Court considers the following private interests: "(1) the plaintiff's choice of forum; (2) the situs of material events; (3) the relative ease of access to sources of proof; (4) the convenience of the witnesses; and (5) the convenience [to] the parties of litigating in the respective forums." See, e.g., Morton Grove Pharms., Inc. v. Nat'l Pediculosis Ass'n, Inc., 525 F. Supp. 2d 1039, 1044 (N.D. Ill. 2007). The relative weight a court must give each factor in the § 1404(a) analysis is not fixed. See Coffey, 796 F.2d at 220 n.3.

Defendants contend that the Western District of Texas is a more convenient forum than the Northern District of Illinois because plaintiffs' claims arise out of events that occurred in Somerville; defendants and nearly all plaintiffs reside outside Illinois; most of the witnesses reside in the Western District of Texas; and most of the key litigation documents are located in that district.

a. Plaintiff's Choice of Forum

Courts generally give deference to the plaintiff's choice of forum. See, e.g., College Craft Cos., Ltd. v. Perry, 889 F. Supp. 1052, 1054 (N.D. Ill. 1995). This is especially true when the plaintiff resides in the chosen district. See FDIC v. Citizens Bank & Trust Co., 592 F.2d 364, 368 (7th Cir. 1979). Conversely, when the plaintiff does not reside in the forum it selected, courts give the plaintiff's choice less weight and merely consider it as one factor among others. See, e.g., Doage v. Bd. of Regents, 950 F. Supp. 258, 259-60 (N.D. Ill. 1997).

Plaintiffs place great emphasis on the fact that Ms. Bullard has lived in Chicago for 46 years. See Pl. Resp., Ex. 9 ¶ 2. But they say nothing at all about the residences of the other 143 plaintiffs. In fact, defendants point out, seventy-seven of the plaintiffs are identified as "citizens of Texas" in other litigation in which they have intervened. See Def. Reply at 4; id. Ex. F at ¶ 2.1. And witness disclosures in a related action in Tarrant County, Texas, identify 105 of these plaintiffs as current Texas residents. Def. Reply at 4; id. Ex. G. Because only one plaintiff, Ms. Bullard, actually resides in this district-and most seem to reside in Texas-plaintiffs' preference carries minimal weight.

Defendants also argue that plaintiffs' choice of forum should not receive deference because "the material facts occurred in Somerville, Texas and not in Cook County." Def. Mot. at 12. Courts discount a plaintiff's choice of forum when the forum "has no significant connection to the situs of material events." Morton Grove Pharms., 525 F. Supp. 2d at 1044.The Court considers this argument in its analysis of the next factor.

b. Situs of Material Events

The material events in this case took place in Texas. Plaintiffs' complaint alleges that plaintiffs' claims arise out of "the operations and activities of the Defendants with regard to the use and lack of containment of toxic chemicals used at the [Somerville] facility." Compl. ¶ 3.1. Plaintiffs acknowledge, in their response to defendants' motion, that their alleged exposure to defendants' chemicals occurred in Somerville. They nevertheless assert that certain of their claims and defendants' defenses arise out of conduct that occurred in Illinois. Specifically, they contend that their claims for negligence, trespass, and strict liability (Counts 1, 2 and 4) arise from Koppers' and BNSF's use of chemicals that plaintiffs allege Monsanto, Dow, and Vulcan shipped in defective condition to Koppers' Stickney plant in Cook County; Koppers' Cook County-based manufacture and shipment to Somerville of creosote and other chemicals; policy decisions allegedly made in Cook County by Santa Fe Pacific Corporation ("ATSF"), BNSF's predecessor in interest*fn1 ; the alleged failure of Monsanto, Dow, and Vulcan to manufacture and deliver the chemicals to Koppers' plant in Cook County with adequate testing, warnings, or instructions; Monsanto's (or a predecessor's) manufacture in Sauget, Illinois of a brand of ...


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