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Tuholski v. Delavan Rescue Squad, Inc.

United States District Court, Seventh Circuit

November 13, 2013

JOSEPH TUHOLSKI, individually and as Independent Administrator of the Estate of DENNIS TUHOLSKI, Plaintiff,
v.
DELAVAN RESCUE SQUAD, INC., a corporation, and the WALWORTH COUNTY SHERIFF'S DEPARTMENT, Defendants.

MEMORANDUM OPINION AND ORDER

MARVIN E. ASPEN, District Judge.

Plaintiff Joseph Tuholski ("Tuholski") filed a complaint alleging survival, negligence, and wrongful death against Defendants Delavan Rescue Squad, Inc. ("Delavan") and Walworth Country Sheriff's Department ("Walworth"), after his brother died from an asthma attack. Walworth removed the case to the Northern District of Illinois from the Circuit Court of Cook County. On April 9, 2013, Walworth filed a motion to transfer venue to Wisconsin pursuant to 28 U.S.C. § 1404(a). For the reasons discussed below, we grant Walworth's motion to transfer this action to the U.S. District Court for the Eastern District of Wisconsin.

BACKGROUND

On July 22, 2012, Delavan, an ambulance service, responded to a 911 call after Dennis Tuholski experienced an asthma attack. (2nd Am. Compl. ¶¶ 20-31.) Later that day, Dennis died in the hospital. ( Id. ¶ 31.) Tuholski, individually and on behalf of Dennis' estate, brought suit in the Circuit Court of Cook County on January 4, 2013 against Walworth and Delavan. The second amended complaint includes three counts, alleging wrongful death, negligence, and survival. Walworth removed to the Northern District of Illinois, and we now confirm that there is diversity between the parties such that we have subject matter jurisdiction.[1] We turn to consider Walworth's motion to transfer venue to the Eastern District of Wisconsin, filed on April 9, 2013.

ANALYSIS

Pursuant to 28 U.S.C. § 1404(a), for the convenience of the parties and witnesses and in the interest of justice, a court may transfer any civil matter to another district where venue is proper. The moving party must show that: (1) venue is proper in the district where the action was originally filed; (2) venue would be proper in the transferee court; and (3) the transfer will serve the convenience of the parties and witnesses as well as the interests of justice. See Morton Grove Pharm., Inc. v. Nat'l Pediculosis Ass'n, 525 F.Supp.2d 1039, 1044 (N.D. Ill. 2007). As the party seeking transfer in the present case, Walworth has the burden to show that the Eastern District of Wisconsin is "clearly more convenient" than the Northern District of Illinois. Heller Fin. Inc. v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1293 (7th Cir. 1989); Lewis v. Grote Indus., Inc., 841 F.Supp.2d 1049, 1053 (N.D. Ill. 2012).

Tuholski acknowledges that venue is proper in both the Eastern District of Wisconsin and the Northern District of Illinois. (Resp. Mot. Trans. at 1.) Walworth, in its amended motion for removal, reserved the right to challenge personal jurisdiction. (Am. Notice Rem. at 4.) However, Walworth urges that transfer may still occur. (Reply Mot. Trans. at 2.) "Under 1404(a) as under 1406(a), the transferring court need not have personal jurisdiction over the defendants." Cote v. Wadel, 796 F.2d 981, 985 (7th Cir. 1986); Cont'l Cas. Co. v. Staffing Concepts, Inc., 06 C 5473, 2009 WL 3055374, at *2 (N.D. Ill. Sept. 18, 2009.) Since Walworth concedes this point, we address whether transfer will serve the convenience of parties and witnesses as well as the interests of justice.

The Seventh Circuit has stated that the transfer decision requires "flexible and individualized analysis" based on the circumstances of a particular case. Research Automation, Inc. v. Schrader-Bridgeport Int'l, Inc., 626 F.3d 973, 978 (7th Cir. 2010); Body Sci. LLC v. Boston Scientific Corp., 846 F.Supp.2d 980, 997 (N.D. Ill. 2012). The district court is given wide discretion in weighing the factors involved in each case. Lewis, 841 F.Supp.2d 1049, at 1053 (citing Heller Fin., 883 F.2d at 1293).

I. Convenience (or Private) Factors

In deciding whether transfer would promote convenience, courts consider such private interest factors as: "(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 parties; and (5) the convenience of witnesses." Morton Grove Pharms., 525 F.Supp.2d at 1044 (citing Schwartz v. Nat'l Van Lines, Inc., 317 F.Supp.2d 829, 835 (N.D. Ill. 2004)); see also Amoco Oil Co. v. Mobil Oil Corp., 90 F.Supp.2d 958, 960 (N.D. Ill. 2000). We evaluate each factor in turn.

A. Plaintiff's Choice of Forum & the Situs of Material Events

The plaintiff's choice of forum "should rarely be disturbed." In re Nat'l Presto Indus., Inc., 347 F.3d 662, 664 (7th Cir. 2003) (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843 (1947)); Amoco Oil Co. v. Mobil Oil Corp., 90 F.Supp.2d 958, 960 (N.D. Ill. 2000). Courts in this district have held, however, that if the "events giving rise to the cause of action did not take place in the plaintiff's selected forum, the plaintiff's preference has minimal value.'" Dunn v. Soo Line R. Co., 864 F.Supp. 64, 65 (N.D. Ill. 1994) (quoting Robinson v. Town of Madison, 752 F.Supp. 842, 847 (N.D. Ill. 1990)); see also Metzger v. SleeceCo, Inc., 09 C 6071, 2010 WL 563073, at *2 (N.D. Ill. Feb. 12, 2010). The events giving rise to the present action indisputably took place entirely in Wisconsin. Accordingly, Tuholski's choice of the Northern District of Illinois as the forum for this action has minimal weight in our analysis, while the situs of material events factor weighs heavily in favor of transfer.

B. Access to Sources of Proof

The next convenience factor concerns the relative ease of access to evidence. Tuholski argues that evidence in Wisconsin, "most likely limited to medical records or policies and procedures, " can be transported electronically. (Resp. Mot. Trans. at 3.) Tuholski thus contends that transfer "will not ease any party's access to evidence." ( Id. ) As ...


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