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Popp v. Lakeshore Foods Corp.

United States District Court, W.D. Michigan, Southern Division

March 13, 2018

DAWN EILEEN POPP, Plaintiff,
v.
LAKESHORE FOODS CORP., d/b/a Barney's Market, Defendant.

          OPINION

          HON. JANET T. NEFF JUDGE

         Plaintiff filed this employment discrimination case against Defendant alleging claims based on her demotion and pay cut. Pending before the Court is Defendant's Motion to Transfer Venue (ECF No. 13), pursuant to 28 U.S.C. §§ 1404 and 1406, to the Northern District of Indiana, South Bend Division. Plaintiff has filed a Response and brief in opposition (ECF Nos. 16, 17).[1]Have fully considered the parties' submissions and the case circumstances, the Court concludes the Motion is properly granted.

         I. BACKGROUND

         Plaintiff is an employee of Defendant, owner-operator of a number of grocery stores in La Porte County, Indiana, and one store in New Buffalo, Michigan, known as Barney's Market.[2] When Plaintiff began her employment with Defendant, she worked in one of Defendant's Indiana grocery stores and thereafter worked at Defendant's various store locations. At the time of her alleged demotion on September 7, 2016, Plaintiff was employed at the New Buffalo, Michigan store.

         Plaintiff filed this case in the Western District of Michigan in August 2017. Plaintiff alleges that Defendant's decision to demote and transfer her from her position at the New Buffalo store to Defendant's Michigan City, Indiana grocery store was unlawfully based on her age and/or gender in violation of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and the Equal Pay Act.

         Defendants filed a Motion to Transfer Venue and a Motion to Strike Plaintiffs Response to the motion to transfer. Plaintiffs counsel has now filed an unopposed Motion to Withdraw as Attorney (ECF No. 25). This Opinion resolves the first two pending motions; however, the Court takes no action on Plaintiffs counsel's motion to withdraw, having decided that this case is properly transferred to the Northern District of Indiana federal district court.

         II. ANALYSIS

         Pursuant to 28 U.S.C. § 1404(a), the Court may transfer a civil action to another district:

For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented.

         "District courts have wide discretion to transfer an action under 28 U.S.C. § 1404(a) in order to prevent waste of time, energy and money, and to protect litigants, witnesses and the public against unnecessary inconvenience and expense." Helder v. Hitachi Power Tools, Ltd., 764 F.Supp. 93, 95-96 (E.D. Mich. 1991); see also Reese v. CNH Am. LLC, 574 F.3d 315, 320 (6th Cir. 2009).

         “[I]n ruling on a motion to transfer under § 1404(a), a district court should consider the private interests of the parties, including their convenience and the convenience of potential witnesses, as well as other public-interest concerns, such as systemic integrity and fairness, which come under the rubric of 'interests of justice.'" Moore v. Rohm & Haas Co., 446 F.3d 643, 647 n.l (6th Cir. 2006) (quoting Moses v. Bus. Card Exp., Inc., 929 F.2d 1131, 1137 (6th Cir. 1991) (quotations omitted)). Thus, the court should evaluate case-specific factors affecting both private and public interests, including:

(1) the convenience of witnesses; (2) the location of relevant documents and relative ease of access to sources of proof; (3) the convenience of the parties; (4) the locus of the operative facts; (5) the availability of process to compel the attendance of unwilling witnesses; (6) the relative means of the parties; (7) the forum's familiarity with the governing law; (8) the weight accorded the plaintiffs choice of forum; and (9) trial efficiency and the interests of justice, based on the totality of the circumstances.

Perceptron, Inc. v. Silicon Video, Inc., 423 F.Supp.2d 722, 729 (E.D. Mich. 2006); see also Steelcase, Inc. v. Smart Techs., Inc., 336 F.Supp.2d 714, 719 (W.D. Mich. 2004).

         “[T]he moving party bears the burden of proving why a court should transfer the action." Smart Techs., 336 F.Supp.2d at 719. This burden is a heavy one and requires that the moving party show that the factors weigh strongly in favor of transfer. Id.

         Defendant argues that a review of the enumerated factors readily establishes that a transfer of venue in this case is not only appropriate, but also the fair result. The Court agrees that the factors and case circumstances weigh heavily in favor of transfer. Plaintiffs arguments to the contrary are unavailing. Defendant has provided a comprehensive review of the factors, with supporting authority. The Court sets forth the key considerations.

         Factor 1 - Convenience of the Witnesses

         Defendant submits that of the factors to be considered in this change of venue motion, the convenience of the witnesses is the one that should be given the most weight. (ECF No. 13 at PagelD.70-71, citing, e.g., Pilates Inc. v. Pilates Inst, 891 F.Supp. 175, 183 (S.D.NY 1995) ("Courts generally view the convenience of the witnesses as the single most important factor in the balance.")). Defendant notes that, here, Plaintiffs complaint lists and identifies 29 potential witnesses. Of those witnesses only four (Plaintiff, Kelly Kliss, Mitchell Smith, and Jeremy Baker) live in the State of Michigan, and none of those four, including Plaintiff, lives within 100 miles of the Federal Courthouse in Grand Rapids, Michigan. Conversely, all four of those Michigan residents live less than 37 miles from the Federal Courthouse in South Bend, Indiana. As to those witnesses, traveling 74 miles in a round trip from home to the Federal Courthouse is certainly much more convenient than having to travel 220 miles to attend court in Grand Rapids.

         Additionally, the same holds true for the 24 potential witnesses identified in Plaintiffs complaintwhoareresidentsof Indiana(ECFNo.l3atPageID.71, citing James Ziska Decl., Ex. A, Spreadsheet, ECF No. 13-2). None of the 24 Indiana residents lives within 100 miles of the Federal Courthouse in Grand Rapids, Michigan, and all live within less than 62 miles from the Federal Courthouse in South Bend, Indiana, with 20 of those 24 persons living less than 50 miles from the Federal Courthouse in South Bend, Indiana. Finally, as far as Defendant's witnesses are concerned, Defendant is not currently aware of any witnesses it might call who are not included among the 29 potential witnesses identified by Plaintiff in her complaint.

         Plaintiff responds that the recitation of various persons identified in the pleadings is not determinative for purposes of a change in venue, and thus the party boasting a large list of prospective witnesses does not thereby prevail for a change of venue (ECF No. 16 at PageID.90, citing Fed. Elec. Prods. Co. v. Frank Adam Elec. Co., 100 F.Supp. 8, 12 (S.D.N.Y. 1951) ("District Judges must be able to slice through the mass of affidavits presented and identify key witnesses in determining the most convenient forum")).[3] Plaintiff contends that this factor should be based on the actual anticipated testimony of these witnesses and the materiality; thus, it is premature to evaluate the convenience of witnesses when the identities of all key witnesses and their testimony is not fully known. See Id. at 12; see also Thomas v. Home Depot, U.S.A., Inc., 131 F.Supp.2d 934, 937 (E.D. Mich. 2001) "([T]he parties should provide each witness's name and an outline of what material testimony that witness would provide.").

         In any event, Plaintiff states that two witnesses, Kelly Kliss and Vickie Matz, female employees over age 55 who were also demoted, both live in Michigan, and Plaintiff will not require that witnesses travel to Kalamazoo or Grand Rapids, Michigan for depositions (ECF No. 16 at PageID.91-92). Further, approximately ninety-five percent of all cases settle before trial or are disposed of in part/whole at the summary judgment stage (id. at PageID.91). And if the parties settle at mediation, the motion to transfer venue is moot (id. at PageID.92). Plaintiff requests that if the Court finds that venue should ...


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