Downloaded from CJOnline.com

(1)

1

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

LAURA V. LOPEZ-AGUIRRE, )

Individually, as Administrator of the Estate of ) Julio C. Aguirre, deceased, and as Next Friend ) for her Minor Children Em.A. and El.A., )

) Plaintiff, )

) Case No. 12-CV-02752-JWL-KGG

v. )

) BOARD OF COUNTY COMMISSIONERS, )

SHAWNEE COUNTY, KANSAS, et al., )

) Defendants. )

PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANTS’ JOINT MOTION FOR INTRA-DISTRICT TRANSFER TO TOPEKA

Plaintiff Laura V. Lopez-Aguirre respectfully submits this Memorandum in Opposition to Defendants’ Joint Motion for Intra-District Transfer to Topeka. For the reasons set forth below, the Defendants’ Join Motion should be denied.

INTRODUCTION

Plaintiff designated the place of trial as Kansas City, Kansas. It was also Defendant Corizon Health, Inc.’s choice of forum. (See Defendant Corizon Health, Inc. f/k/a Prison Health Service, Inc.’s Answer to Plaintiffs’ First Amended Complaint, Doc. 32, at 49; Answer of Defendant Corizon Health, Inc. f/k/a Prison Health Services, Inc. to Plaintiffs’ Second Amended Complaint, Doc. 83, at 41). When the parties held their scheduling conference with the court on June 4, 2013, no one objected to Plaintiff’s choice of forum, or even raised it as an issue. Now, Defendants suddenly wish to move the trial just three months before the close of discovery.

Case 2:12-cv-02752-JWL-KGG Document 282 Filed 02/14/14 Page 1 of 7

Downloaded

from

(2)

2

ARGUMENT

This case involves the death of Julio Aguirre, who was detained at the Shawnee County Department of Corrections and died at Overland Park Regional Medical Center in the Kansas City Metropolitan area. Kansas City has been the designated place of trial for this case, which one of the key defendants agreed to. It is with this understanding that Plaintiff has prosecuted this case.

Local Rule 40.2 provides that “[t]he court shall not be bound by the requests for place of trial but may, upon motion by a party, or in its discretion determine the place of trial.” D. Kan. R. 40.2. However, a moving party carries the burden of proving circumstances that necessitate transfer. In analyzing a motion for intra-district transfer, the courts of the District of Kansas generally look to the same factors relevant to motions for change in venue under 28 U.S.C. §1404(a). Llizo v. City of Topeka, Kan., 844 F.Supp.2d 1212, 1214 (2012). “This statute grants a district court broad discretion in deciding a motion to transfer based upon a case-by-case review of convenience and fairness.” Id. The court considers the following factors: (1) 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. Id. The party seeking to transfer has the burden of

proving that the existing forum is inconvenient. Id. (citing Scheidt v. Klein, 956 F.2d 963, 965 (10th Cir. 1992)).

1. Plaintiff’s choice of forum should be given deference.

Plaintiff designated Kansas City, Kansas, as the place for trial. (See Second Amended Complaint, Doc. 76). Although Plaintiff does not live in Kansas City, Kansas, her choice of forum should still be weighed among the other factors, even if the court gives less deference to her choice.

Downloaded

from

(3)

3

See Llizo, 844 F.Supp.2d at 1214. Plaintiff has anticipated Kansas City, Kansas as the place for trial.

2. Kansas City is a convenient forum.

Convenience should not sway this Court to transfer venue from Kansas City to Topeka. When previously considering a motion to transfer from Kansas City to Topeka, in a case brought pursuant to 42 U.S.C. § 1983, this Court acknowledged that while “it might be easier for the parties and witnesses to travel to Topeka for trial…the court is not persuaded that requiring the parties and witnesses to drive an additional sixty miles for trial justifies a change in venue.” Agustonelli v. Springer, No. Civ. A. 03-2025 GTV, 2004 WL 825300, at *8 (April 14, 2004) (finding that although the plaintiff, defendant, and a majority of witnesses were residents of Junction City,

Kansas, and the defendant had developed back problems that created an additional hardship for him, the defendant failed to meet his burden showing that the Kansas City, Kansas, trial location should be disturbed). “Ultimately…the court has to find that Kansas City is substantially inconvenient, not just that [Topeka] is marginally more convenient.” Twigg v. Hawker Beechcraft Corp., No. 08-2632-JWL, 2009 WL 1044942, at *3 (transferring a case from Kansas City to Wichita where the acts complained of occurred in Wichita; all witnesses and parties resided in or around Wichita; neither party’s attorneys were located in Kansas City; and the distance from the plaintiff’s home to Kansas City was approximately 200 miles).

Here, Plaintiff’s deposition took place in Kansas City, a deposition of one of the defendant’s employees has taken place in Kansas City, an expert's deposition has taken place in Kansas City, and multiple additional fact and expert witness depositions are scheduled to take place in Kansas City. The distance from Topeka to Kansas City, Kansas, is only about 60 miles, less than an

hour-Case 2:12-cv-02752-JWL-KGG Document 282 Filed 02/14/14 Page 3 of 7

Downloaded

from

(4)

4

long drive. While many witnesses reside in or around Topeka, there are a number of witnesses who do not reside near Topeka. For example, witnesses in the Kansas City area include those from Osawatomie State Hospital, Miami County EMS, and Overland Park Regional Medical Center. A number of Corizon witnesses do not live in Topeka, either, including Alicia Aguilar, who lives in Kansas City, Missouri, and whose deposition was taken in Kansas City, and Marcia McVay, who lives in Sun City, Arizona, and whose deposition was taken via video conference in the Kansas City Metropolitan area. Any corporate witnesses or representatives from Corizon will have to fly in as well, since Corizon’s Corporate Headquarters is located in Brentwood, Tennessee, and Corizon’s Operational Headquarters is located in St. Louis, Missouri. The closest major airport to Topeka is Kansas City International Airport (KCI).

Additionally, this is an expert-intensive case. None of the Plaintiff’s seven designated expert witnesses live in Topeka; however, one of Plaintiff’s experts lives and works in Kansas City. Another expert lives and works in Springfield, Missouri. The remaining experts will be flying in to KCI from other states. Defendants cannot meet their burden to prove Kansas City is an

inconvenient forum. In fact, requiring these expert witnesses, who have to travel for several hours prior to arriving in Kansas City, to travel an additional 60 miles is far more burdensome than asking the Topeka-area witnesses and parties to drive 60 miles.

Finally, only one of the involved law firms is based solely in Topeka. Counsel for Plaintiff are located in Kansas City, Missouri; counsel for Defendant Corizon Health, Inc. are located in Kansas City, Missouri; and counsel for Defendant Board of County Commissioners, Shawnee County, Kansas, and Richard C. Kline have an office in the Kansas City Metropolitan area.

Counsel for the individual County Defendants, while located in downtown Topeka, are less than an Case 2:12-cv-02752-JWL-KGG Document 282 Filed 02/14/14 Page 4 of 7

Downloaded

from

(5)

5

hour drive from the District Court in Kansas City, Kansas.

3. The witnesses and other proof are just as accessible in Kansas City.

The witnesses and other proof are just as accessible in Kansas City as they are in Topeka, and further, this court has the same power to require compulsory attendance of any witnesses. See Semsroth v. City Of Wichita, KS, CIV.A.06-2376-KHV, 2007 WL 2462178, at *2 (D. Kan. Aug. 29, 2007) (citing Fed. R. Civ. P. 45 (b)(2), (c) and noting the complications presented where witnesses would have to travel more than 100 miles from Wichita to Kansas City). In overruling a similar motion to transfer, this Court has previously commented on how short the distance between Topeka and Kansas City, Kansas, is:

In light of the short distance between Kansas City and Topeka and plaintiff’s preference for Kansas City, defendants’ hardship in litigating in Kansas City is relatively insignificant. Many attorneys and judges, including judges in this Court, commute between Topeka and Kansas City on a daily basis. The administrative difficulties and potential delay that would be created by transfer are considerable.

Zhu v. Countrywide Realty Co., Inc., 160 F. Supp. 2d 1210, 1228-29 (D. Kan. 2001). Given that the fact discovery and even expert discovery is well under way, the administrative cost and delay associated with a transfer outweighs any benefit to Defendants in transferring this case to Topeka.

4. Transfer to Topeka may present prejudice issues.

The other primary factor in this case is the possibility of Plaintiff obtaining a fair trial in Topeka. This case involves the Shawnee County Board of Commissioners, which is composed of publicly elected officials, and has already received publicity in Topeka. The case will certainly receive more publicity closer to trial, and as such, potential prejudice issues should “help tip the scales in favor of leaving the trial in its current location.” Llizo, 844 F.Supp.2d at 1215. More than one news outlet published articles in Topeka and the surrounding area following the filing of this

Downloaded

from

(6)

6

case. (See Exhibit A, “Family of former Shawnee County Jail inmate files wrongful death lawsuit,” The Topeka Capital-Journal (Dec. 13, 2012); Exhibit B, “Death Of Shawnee Co. Inmate Prompts Lawsuit,” WIBW (Dec. 14, 2012)). Although there has been an outpouring of support for the Aguirre family, there were also negative and hostile comments from readers indicating that Plaintiff may encounter obstacles to obtaining a fair trial in Topeka:

My heart goes out to the family but money is not going to change the outcome…I have met some jail employees I don’t particularly care for but don’t think I have met any that go to work on any given day to cause harm to mentally ill people that come into the system.

sue sue sue. Sue the parents who’s [sic] genes made you crazy. EXACTLY WHAT WAS TO BE DONE??????????????????????????????????????

You can’t help everyone and you got to understand that those who are so sick that they can no longer function in society will either be criminal or die.

See Exhibit A. These are Topeka-based news sources, and it is “reasonable to infer…that the individuals making those comments are, more likely than not, individuals with ties to the Topeka area.” Llizo, 844 F.Supp.2d at 1215.

5. Practical considerations.

Finally, this case is well into the discovery phase. Plaintiff has already designated her expert witnesses and produced some of them for deposition. Plaintiff’s experts were designated with the understanding that this case would be tried in Kansas City. Counsel could have requested transfer to Topeka much earlier, for example, during the scheduling conference. They failed to do so. Transferring the case now would not be easy, expeditious, or economical.

Defendants fail to meet their burden to prove that Kansas City—the current forum—is inconvenient. In fact, Kansas City is a convenient forum and a change of forum at this stage in the

Downloaded

from

(7)

7

litigation would be inconvenient and would result in prejudice to Plaintiff. For these reasons, Defendants’ Joint Motion for Intra-District Transfer to Topeka should be denied.

Respectfully submitted,

WAGSTAFF & CARTMELL LLP

/s/ Ashley D. Dopita

Thomas P. Cartmell KS #17020 Thomas J. Preuss KS #21431

Adam S. Davis KS #24263

Ashley D. Dopita KS #24973 Wagstaff & Cartmell, LLP

4740 Grand Avenue #300 Kansas City, MO 64112 Email: [email protected] Email: [email protected] Email: [email protected] Email: [email protected] Tel: (816) 701-1100 Fax: (816) 531-2372

ATTORNEYS FOR PLAINTIFFS

CERTIFICATE OF SERVICE

I hereby certify that on this 14th day of February, 2014, I filed the foregoing using the Court’s CM/ECF filing system, thereby sending notice of said filing to all counsel of record in this case.