United States District Court, W.D. Arkansas, Fayetteville Division
MEMORANDUM OPINION AND ORDER
TIMOTHY L. BROOKS UNITED STATES DISTRICT JUDGE.
pending before the Court are the Motion to Transfer (Doc. 12)
and Brief in Support (Doc. 13) filed by Defendant Wal-Mart
Stores East, L.P., a Subsidiary of Wal-Mart Stores, Inc.,
d/b/a Wal-Mart's ("Walmart"); Plaintiff
Hartzell Hayes's Response in Opposition (Doc. 15)-which
was filed six days out of time but was nonetheless
considered; and Walmart's Reply (Doc. 18). On December
18, 2017, the Court held a hearing on the Motion, and counsel
for the parties presented oral argument. The Court granted
the Motion from the bench. In the following Order, the
reasons for the Court's decision are explained in greater
detail. To the extent anything in this Order conflicts with
statements made from the bench, this Order will control.
case arises out of an incident that occurred on July 2, 2014,
at a Walmart store located in Moultrie, Georgia. Mr. Hayes, a
customer of Walmart, was riding in an electric shopping cart,
attempting to navigate through an area of the store that was
under construction. His electric cart struck a rotisserie
"hot case" that he contends was "negligently
placed, " see Doc. 1, p. 2, and he suffered an
injury to his knee. The Complaint claims that Walmart had
knowledge of the dangerous condition of the hot case, yet did
nothing to ameliorate the potential danger to customers
shopping in the area. Mr. Hayes seeks $95, 000 from Walmart
to compensate him for his medical bills, loss of earnings,
and pain and suffering.
Mr. Hayes filed the Complaint in this Court, he asserted as
the basis for federal jurisdiction the fact that the parties
are completely diverse and the amount in controversy exceeds
$75, 000. Mr. Hayes maintains that he is a citizen of
Georgia, and that Walmart is a citizen of Arkansas,
headquartered in Bentonville. On November 10, 2017, Walmart
filed a Motion to Transfer the case to the Middle District of
Georgia, citing the transfer statute at 28 U.S.C. §
1404(a), and arguing that the convenience of the parties and
witnesses and the interest of justice all weigh in favor of
transfer. Mr. Hayes opposes transfer, though he concedes that
all the incidents set forth in his Complaint took place in
Georgia, and that he, his medical providers, and all relevant
witnesses reside in Georgia. Although he claims that he is
willing to travel to Arkansas to litigate this case whenever
his physical presence here is necessary, he points out that
he thinks Walmart, a large and successful company, will be
capable of shouldering all costs involved with transporting
witnesses to this jurisdiction. Furthermore, he believes that
these witnesses will not be required to travel to Arkansas in
the end, as their deposition testimony may simply be read
into the record-or, if recorded, played for the jury.
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 that 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 possess the 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
plaintiff's 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.
threshold matter, the Court, must satisfy itself that the
Middle District of Georgia, the requested transferee venue,
is a district where this action originally could have been
brought. 28 U.S.C. § 1404(a). Under the general venue
statute, 28 U.S.C. § 1391(b)(2), venue is proper in,
among other places, "a judicial district in which a
substantial part of the events or omissions giving rise to
the claim occurred." Since the injury in question took
place in a Walmart store located in the Middle District of
Georgia, venue is proper there.
that 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.
consider several 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!l (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. Walmart is headquartered in Arkansas, yet it
advocates in favor of transfer to Georgia because it argues
that, on balance, it would suffer greater inconvenience if it
were denied the opportunity to subpoena witnesses located in
Georgia who are outside the subpoena power of the Court. Mr.
Hayes states that he is willing to travel to Arkansas,
despite the fact that he lives in Georgia. The Court doubts
it is ...