United States District Court, D. Colorado
LOREN GIDEONS; ESTATE OF LOWELL HEIZER, deceased, by and through Erica Heizer, personal representative; and ERICA HEIZER, Plaintiffs,
v.
KENNON DECKER; and PAM DECKER, Defendants.
ORDER
WILEY
Y. DANIEL SENIOR UNITED STATES DISTRICT JUDGE
THIS
MATTER comes before the Court on the Defendants' Motion
for Trial in Durango, Colorado (ECF No. 51), filed January
11, 2018. Defendants request that the jury trial in this
matter be held at the federal courthouse in Durango, Colorado
rather than in Denver, Colorado. I. BACKGROUND By
way of background, this matter arises out of an accident that
occurred on or about December 2, 2014 on Highway 550 near
Mile Point 1 in La Plata County, CO. (Gideon's Compl.
¶¶ 1-11). Plaintiff Loren Gideons was driving a
semi tractor-trailer when he collided with a cow that had
entered the westbound section of Highway 550. (Gideons Compl.
¶¶ 1-11). Plaintiff Lowell Heizer, [1] who was also
driving a semi tractor-trailer, subsequently hit Gideons'
truck. The cow involved in the accident was part of a herd
maintained by Defendants Kennon and/or Pamela Decker. (ECF
No. 30 at 7 in 17-cv-00518-WYD-STV).
On
November 28, 2016, Plaintiff Gideons filed a lawsuit arising
out of the accident against Defendants Kennon and Pamela
Decker in the La Plata County, District Court. On February
28, 2017, the Decker Defendants removed the case to federal
court.[2] The case was initially assigned to
Magistrate Judge Varholak, however, when consent to
jurisdiction of a Magistrate Judge was not achieved, on May
24, 2017, the case was transferred to me. (See
docket sheet in 17-cv-00518-WYD-STV).
On June
1, 2017, Plaintiffs Lowell Heizer and Erica Heizer filed a
separate lawsuit arising out of this same accident against
Defendants Kennon and Pamela Decker in the La Plata County
District Court.[3] On June 7, 2017, the Deckers removed this
case to federal court where it was assigned to District Judge
R. Brooke Jackson. (See docket sheet in
17-cv-01379-WYD-STV).
On June
16, 2017, I granted the Decker Defendants' unopposed
motion to consolidate 17-cv-00518-WYD-STV with
17-cv-01379-RBJ pursuant to Fed.R.Civ.P. 42(a) and
D.C.COLO.LCivR 42.1, and 17-cv-01379 was reassigned to me as
reflected in the consolidated case caption above. (ECF No. 24
in 17-cv-00518-WYD-STV).
Following
several voluntary dismissals and stipulations, the current
Plaintiffs are: (1) Loren Gideons; (2) the Estate of Lowell
Heizer; and (3) Erica Heizer. The current Defendants are: (1)
Kennon Decker and (2) Pamela Decker. The Plaintiffs each
assert negligence claims against the Deckers.[4]
II. ANALYSIS
On
January 11, 2018, the Deckers filed the pending motion to
transfer the jury trial to Durango, Colorado. I note that a
trial date has not yet been set, and in fact, on August 16,
2018, the Deckers filed a motion for summary judgment seeking
judgment as a matter of law on all claims. (ECF No. 77 in
17-cv-00518-WYD-STV). Plaintiffs oppose the request to
transfer the trial.
In
support of their motion, the Deckers argue that the Durango
courthouse is “more convenient for witnesses, and the
makeup of the jury pool in Durango is better equipped to
determine facts for this case.” (ECF No. 51 at 1 in
17-cv-00518-WYD-STV). Specifically, the Deckers state that
they have identified seven “will call” witnesses,
including themselves, and four “may call”
witnesses “who are believed to all reside within 100
miles of Durango, Colorado.” (ECF No. 51 at ¶
17-cv-00518-WYD-STV). Moreover, because the subject accident
occurred in La Plata County, just south of Durango, Colorado
on Highway 550, “[s]ources of proof, including original
police documents, the actual scene of the accident, and many
witnesses are located by Durango.” (ECF No. 51 at 7 in
17-cv-00518-WYD-STV). The Deckers go on to assert that since
all out of state witnesses will have to travel to Colorado
for trial, “a trip to Durango [instead of Denver] makes
no significant difference in their ability to bring whatever
sources of proof they will need to testify.” (ECF No.
51 at 7 in 17-cv-00518-WYD-STV). Finally, the Deckers argue
that a jury familiar with the Durango area where the accident
occurred “[is] more invested in a proper and fair
outcome of this case” as opposed to jurors called to
serve in Denver, who would be “thoroughly unconnected
and unfamiliar with the region where an event took place and
would have less of an understanding and interest in the
overall outcome of the case.” (ECF No. 51 at 8 in
17-cv-00518-WYD-STV).
In
response, the Plaintiffs oppose the transfer arguing that it
is much more convenient and inexpensive for the out of state
parties and witnesses to travel to Denver as opposed to
Durango. The Plaintiffs further contend that the other
sources of proof, including evidence of the actual scene of
the accident “can be easily explained, described, shown
through photographs, and addressed at trial in Denver.”
(ECF No. 52 at 6 in 17-cv-00518-WYD-STV).
The
District of Colorado comprises both one judicial district and
one division. Durango is within the same division as Denver,
thus Defendants' motion is governed by 28 U.S.C. §
1404(c), which states that “[a] district court may
order any civil action to be tried at any place within the
division in which it is pending.” Id.
In
considering a motion for an intra-division transfer, courts
in the Tenth Circuit generally look at the following factors
in determining whether a transfer is proper: (1) the
plaintiff's choice of forum, (2) the convenience of the
witnesses, (3) the accessibility of witnesses and other
sources of proof, (4) the possibility of obtaining a fair
trial, and (5) all other practical considerations that make a
trial easy, expeditious, and economical. See Four Corners
Nephrology Assocs., P.C. v. Mercy Medical Center of
Durango, 464 F.Supp.2d 1095, 1098 (D.Colo. 2006).
As to
the first factor, the plaintiff's choice of forum is
given lesser weight when the plaintiff is not a resident of
the forum. Id. Here, Plaintiff Loren Gideons resides
in Sacramento, California and Plaintiff Erica Heizer resides
in Salt Flat, Texas. The underlying controversy is
unconnected to Denver. Thus, I give the Plaintiffs'
choice of forum some weight.
Second,
the Defendants argue that a large majority of the witnesses
either reside closer to Durango, Colorado or out of state,
making it easier for them to travel to a trial in Durango. On
the other hand, Plaintiffs assert that it is much more
convenient for their witnesses to travel into Denver than
Durango, which is a more remote destination. I note that
since this motion to transfer was briefed, two parties have
been dismissed, thus the arguments in connection with those
parties' witnesses are now moot. Further, since
Defendants just filed a motion for summary judgment on
Plaintiffs' claims, which is not fully briefed coupled
with the fact that discovery is not yet complete,
[5] I
cannot ...