United States District Court, S.D. Georgia, Savannah Division
ROBERT PAYNE, GLORIA J. PAYNE, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
REPORT AND RECOMMENDATION
CHRISTOPHER L. RAY UNITED STATES MAGISTRATE JUDGE
result of an allegedly botched surgery at the Veterans
Affairs Medical Center (VAMC) in Beckley, West Virginia,
plaintiff Robert Payne experiences significant and permanent
pain and disability in his right wrist. Doc. 1 at
¶¶ 6, 11, 12, 14, 24, 25. Because he and his wife
are residents of this district, they filed suit against the
Government here. Defendant now moves to transfer the action
to the Southern District of West Virginia. Doc. 15.
however, is not easily obtained. First, the party seeking
transfer has the burden of establishing that transfer is
warranted. In re Ricoh Corp., 870 F.2d 570, 573
(11th Cir. 1989). Second, a “‘plaintiff's
choice of forum should not be disturbed unless it is clearly
outweighed by other considerations,' and a transfer that
would only shift inconvenience from the defendant to the
plaintiff does not outweigh the plaintiff's choice for
Section 1404(a) purposes.” S.E.C. v. Lauer,
478 Fed.Appx. 550, 554 (11th Cir. 2012) (quoting Robinson
v. Giarmarco & Bill, P.C., 74 F.3d 253, 260 (11th
Cir. 1996)). Third, the district court has broad discretion
when deciding whether to transfer a case. England v. ITT
Thompson Indus., Inc., 856 F.2d 1518, 1520 (11th Cir.
Section 1404(a), “a district court may transfer any
civil action to any other district or division where it might
have been brought” if transfer is based upon the
convenience of the parties, the convenience of the witnesses,
or the interest of justice. 28 U.S.C. § 1404(a). Section
1404 thus requires courts to answer two questions. The first:
Could the action have been brought in the proposed transferee
court? Mason v. Smithkline Beecham Clinical Labs.,
146 F.Supp.2d 1355, 1359 (S.D. Fla. 2001). The second: Do the
§ 1404 factors - (1) the convenience of the parties; (2)
the convenience of witnesses; and (3) the interests of
justice - warrant transfer? Id.
the parties agree that the action could have been brought in
West Virginia. That is, after all, where the surgery
occurred. Moreover, nearly all the witnesses - the surgeon
himself and the medical staff who treated Payne - all reside
in West Virginia and still work at the Beckley VAMC.
See doc. 15, Exh. A. Indeed, travel to the Southern
District of Georgia for depositions and trial would be a
burden for these witnesses, and any unwilling to do so are
under no obligation to respond to this district's
deposition subpoenas. See Fed. R. Civ. P.
45(c)(1)(a); see also Manuel, 430 F.3d at 1135 n. 1.
Plaintiffs respond that their forum choice should be honored
“absent compelling circumstances.” Doc. 17 at 5.
They point out that Payne's ongoing care is occurring
here, where they reside, and that there is unlikely to be any
serious dispute as to the operative facts requiring
geographically-specific discovery. Id. at 6. Despite
plaintiffs' confidence, the Government has not conceded
any of the alleged facts. See Id. Compare doc. 1 at
2-3, ¶¶ 11, 20 (Complaint allegations asserting
that bone was “inadvertently” removed),
with doc. 20 at 3, 5, ¶¶ 11, 20 (Answer
denying allegations based on lack of sufficient information).
Even if the facts are ultimately conceded, argument on the
doctor's negligence is the province of experts, who will
be found as easily in this district as another. Id.
evaluating the convenience of witnesses factor, courts
consider the “relative abilities of the forum and the
proposed transferee district to secure the live testimony of
important witnesses at trial, ” the cost of willing
witnesses to attend trial, and the cost of employee witnesses
to attend trial. 15 Charles Alan Wright, Arthur R. Miller,
et al., Fed. Prac. & Proc. § 3851 (4th ed.
2018). A court's evaluation, however, should be
“qualitative, not quantitative.” Id.
Thus, “one important or material witness may outweigh a
great number of less important witnesses.” Id.
And there is no dispute that the one key witness, Dr. Carson,
resides in West Virginia alongside the other eleven medical
staff that appear to have been involved in Payne's care.
Doc. 15, Exh. A.
while this forum is not any more inconvenient for defendant,
it is substantially more inconvenient for witnesses.
And the “amorphous and subjective” interest of
justice prong does not militate against transfer. See In
re Morgan Stanley, 417 Fed.Appx. 947, 949 (Fed. Cir.
2011), cited in Augusta Nat'l, Inc. v. Green Jacket
Auctions, Inc., 2018 WL 797434 at *6 (S.D. Ga. Feb. 8,
2018) (factors which are helpful when determining whether
transfer is “in the interest of justice” include:
(1) where the litigant is more likely to receive a speedy
trial; (2) whether transfer will allow consolidation of
litigation; (3) the relative familiarity with the relevant
law; (4) the relationship of each community to the
controversy; (5) comparative costs to each party of
litigating in each forum; and (6) any obstacles to a fair
trial). The Court agrees with plaintiffs that it is competent
to apply West Virginia law, but that factor alone does not
trump the convenience of witnesses.
party makes any real argument that plaintiff would be
substantially inconvenienced by a transfer. Rather,
plaintiffs emphasize the financial burden they would bear if
the matter were transferred. But it is unclear, given their
limited assertion, what the real impact would be.
See doc. 17 at 11 (asserting, without further
explanation, that transfer “would . . . create a heavy
financial burden on Mr. Payne.”). Plaintiffs only
explain that Payne is “retired” and thus unable
to afford the costs of litigation in a foreign district,
while simultaneously arguing that the case is a
straightforward medical negligence action with only one key
witness likely to be called (and that one in West Virginia).
And, it must be remembered, “[t]he convenience of
witnesses, particularly nonparty witnesses important to the
resolution of the case, may be the single most important
factor to consider on a motion to transfer under §
1404 (a).” Green Jacket Auction, 2018 WL
797434 at *5 (emphasis added).
decision is, at bottom, a discretionary one. And while
plaintiffs understandably want their case to remain local, it
is unclear that the hardship they will face matches, much
less outweighs, the convenience of nonparty
witnesses. After all, their counsel is not local (based in
the Eastern District of Virginia and Northern District of
Georgia). Whatever fees are required for depositions or
hearings would certainly be incurred regardless of the venue.
Both parties seem confident that the entire case will be
resolved on paper. Doc. 17 at 12 (plaintiffs' declaration
that “[t]his is a case that should have been resolved
administratively”); doc. 20 at 3 (defendant's
Answer that “the medical records speak for
themselves.”). Since so much of plaintiffs' case
hinges on the records that they themselves concede will be
easily produced and reviewed in this district or any other,
doc. 17 at 9-10, certainly their costs in litigating the case
in West Virginia will not be so much greater than their costs
of litigating it here. Filing fees for summary judgment and
any other motion are, after all, standard across the various
the balance of considerations weighs in favor of transfer.
Defendant's motion (doc. 15) should be
GRANTED. Given the resolution of that
motion, defendant's unopposed motion to stay pending
decision on the motion to transfer (doc. 16) is
DENIED, in part. All deadlines are, however,
STAYED pending the District Judge's
review of this Report and Recommendation
R&R is submitted to the district judge assigned to this
action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this
Court's Local Rule 72.3. Within 14 days of service, any
party may file written objections to this R&R with the
Court and serve a copy on all parties. The document should be
captioned “Objections to Magistrate Judge's Report
and Recommendations.” Any request for additional time
to file objections should be filed with the Clerk for
consideration by the assigned district judge.
the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district
judge. The district judge will review the magistrate
judge's findings and recommendations pursuant to 28
U.S.C. § 636(b)(1)(C). The parties are advised that
failure to timely file objections will result in the waiver
of rights on appeal. 11th Cir. R. 3-1; see Symonett v.
V.A. Leasing Corp., 648 Fed.Appx. 787, 790 (11th Cir.
2016); Mitchell v. United States, 612 Fed.Appx. 542,
545 (11th Cir. 2015).
ORDERED AND ...