United States District Court, W.D. Arkansas, Fayetteville Division
RACHEL R. PETTY PLAINTIFF
CANCER TREATMENT CENTERS OF AMERICA PROFESSIONAL CORPORATION OF OKLAHOMA, INC.; and SOUTHWESTERN REGIONAL MEDICAL CENTER, INC. DEFENDANTS
MEMORANDUM OPINION AND ORDER
TIMOTHY L. BROOKS, DISTRICT JUDGE.
before the Court is a Motion to Transfer Venue (Doc. 10)
submitted by Defendants Cancer Treatment Centers of America
Professional Corporation of Oklahoma, Inc. ("CTCA")
and Southwestern Regional Medical Center, Inc.
("Southwestern"). Plaintiff Rachel R. Petty
("Petty") has filed a response in opposition (Doc.
11). The Court heard oral arguments during a case management
conference held on August 24, 2017. For the reasons given
below, Defendants' Motion to Transfer is
a resident of Springdale, Arkansas, was diagnosed with
Non-Hodgkin's Lymphoma in 2008. After undergoing
successful treatment and being in remission for approximately
seven years, Petty learned that her cancer had returned. Her
oncologist recommended that she undergo a stem cell
transplant. Around that time, Petty saw a television
commercial produced by Defendant CTCA advertising its cancer
treatment facility in Tulsa, Oklahoma. After conducting
research on the CTCA, speaking with CTCA employees on the
telephone, receiving additional information from CTCA, and
being notified of her insurance company's agreement to
treat CTCA as an in-network provider, Petty decided to seek
treatment from the CTCA in Tulsa.
treatment at CTCA consisted of two distinct phases and
repeated travel from Arkansas to Tulsa. In phase one, which
occurred between April and June of 2015, she received
treatment with "RICE" to shrink a tumor in her neck.
Upon successfully completing that phase, Petty returned to
CTCA in Tulsa to begin the 'Autologous Transplant for
Non-Hodgkin's Lymphoma', a separate six-step process.
during phase two that Petty allegedly suffered the injuries
central to her Complaint. In step one of phase two, Petty had
a catheter surgically implanted. The following day, she
reportedly developed itching, pain, and soreness in the
location where the surgical dressing had been placed,
problems that were allegedly due to the use of a latex-based
dressing that Petty was allergic to. Two days after the
catheter was placed, Petty was notified that an additional
surgery was necessary because the catheter that had been used
was of a different type than was required for bone marrow
transplants. Petty underwent a second surgery on July 23,
2015, to remove the first catheter and replace it with the
correct catheter. Petty alleges that Defendants
surreptitiously billed for these procedures in order to
maximize their charges. Following the completion of the
corrective surgery, Petty received mobilization-based
treatment with Cytoxan as part of step two of the transplant
this treatment, Petty began step three, which involved the
removal of stem cells using an apheresis machine. The first
day of that process, which began on September 8, 2015, was
without incident. However, the following day's
continuation of the apheresis process had to be aborted when
CTCA's machine failed. A day later, CTCA officials
determined that they could continue the apheresis process by
using personnel and equipment from the Oklahoma Blood
Institute ("OBI"). After successfully removing
Petty's harvested stem cells, OBI personnel bagged and
labeled the cells and tendered them to CTCA's stem cell
coordinator, Yana Zhang, for storage at the CTCA facility.
the freezer at CTCA used to store Petty's stem cells
malfunctioned. CTCA, again relying upon the OBI, requested a
courier come to the CTCA facility in Tulsa, collect the two
bags of stem cells, and transport them to the OBI facility in
Oklahoma City for storage. Sometime that same day, when the
courier arrived back at the OBI facility in Oklahoma City,
the vessel that was supposed to be holding Petty's stem
cells was opened and it was discovered that one of the bags
had no information identifying either the contents of the bag
or from whom the contents had been taken. Five days later,
Petty's attending physician at CTCA called her to report
this and, understandably upset, Petty allegedly told the
physician that she would need time to think about her
options. In the wake of these events, Petty decided to forego
additional treatment at the CTCA and opted instead to finish
her stem cell transplant procedure at the University of
Kansas Medical facility in Kansas City, Kansas. Petty alleges
that Defendants subsequently requested she pay,
out-of-pocket, around $109, 000 for costs not covered by her
26, 2017, Petty filed her initial complaint in the Circuit
Court of Benton County, Arkansas, asserting causes of action
including gross medical negligence, fraud, violation of the
Arkansas Deceptive Trade Practices Act, violation of
Oklahoma's Consumer Protection Act, and outrage.
Defendants removed the action to this Court (Doc. 1) and
subsequently filed the present Motion to Transfer (Doc. 10).
change of venue statute, 28 U.S.C. § 1404(a), provides
that "for the convenience of parties and witnesses, in
the interest of justice, a district court may transfer any
civil action to any other district where it might have been
brought." Although the statute provides three general
categories of factors courts must consider when evaluating a
motion to transfer, Terra Int'l v. Miss. Chem.
Corp., 119 F.3d 688, 691 (8th Cir. 1997), the Eighth
Circuit has declined to offer an exhaustive list, In re
Apple, Inc., 602 F.3d 909, 912 (8th Cir. 2010). Rather,
district courts have discretion under section 1404(a)
"to adjudicate motions for transfer according to an
individualized, case-by-case consideration of convenience and
fairness." Stewart Org., Inc. v. Ricoh Corp.,
487 U.S. 22, 29 (1988). Moreover, because "federal
courts give considerable deference to a plaintiffs choice of
forum ... the party seeking a transfer under section 1404(a)
typically bears the burden of proving that a transfer is
warranted." Terra Int'l, 119 F.3d at 695.
considering the factors central to any 1404(a) analysis, this
Court must first determine that the Northern District of
Oklahoma, the requested transferee venue, is a district where
the action could originally have been brought. 28 U.S.C.
§ 1404(a). Under the general venue statute, 28 U.S.C.
§ 1391(b), venue is proper in, among other places, a
"judicial district where any defendant resides, if all
defendants are residents of the State in which the district
is located." 28 U.S.C. § 1391(b)(1). The two
Defendants in the present case are both Oklahoma corporations
and, under the venue statute, are considered residents of any
judicial district in which they are subject to a court's
personal jurisdiction. 28 U.S.C. § 1391(c)(2). Because
both Southwestern and CTCA are Oklahoma corporations located
in Tulsa, Oklahoma, which is within the boundaries of the
Northern District of Oklahoma, they are each subject to
personal jurisdiction in that District. As a result, this
action could initially have been brought there.
this threshold inquiry has been satisfied, the Court must
next determine whether transfer is warranted "for the
convenience of parties and witnesses, in the interest of
justice." 28 U.S.C. § 1404(a). The Court will
separate its analysis into a "convenience" section
and an "interest of justice" section.
noted above, courts have considered a host of relevant
factors that directly bear upon the convenience of litigating
in a particular court. These factors include: 1) the
convenience of the parties, 2) the convenience of the
witnesses-including the willingness of witnesses to appear,
the ability to subpoena witnesses, and the adequacy of
deposition testimony, 3) the accessibility to records and
documents, 4) the location where the conduct complained of
occurred, and 5) the applicability of each forum state's
substantive law. Terra Int'l, 119 F.3d at 696.
Of the convenience factors, many courts consider the
convenience of witnesses to be the most important.
See 15 Charles Alan Wright, Arthur R. Miller, &
Edward H. Cooper, Fed. Practice and Procedure §
3851 n.1 (4th ed. 2017) (listing cases). The Court will
consider each factor in turn.
Convenience of the Parties
the convenience of the parties is neutral with respect to
transfer. While it would, of course, be more convenient for
the named Defendants to litigate this case in the Northern
District of Oklahoma, as that is where they are located, it
would likely be at least as-if not more-inconvenient for
Petty to litigate in Oklahoma. In considering this factor,
courts must remember that "merely shifting the
inconvenience from one side to the other... is not a
permissible justification for a change of ...