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Gary Schmaltz, As Guardian and Conservator of Peter A. Schmaltz v. Western Horizons Living Centers

March 12, 2012

GARY SCHMALTZ, AS GUARDIAN AND CONSERVATOR OF PETER A. SCHMALTZ, PLAINTIFF,
v.
WESTERN HORIZONS LIVING CENTERS, D/B/A WESTERN HORIZONS CARE CENTER, DEFENDANT.



The opinion of the court was delivered by: Veronica L. Duffy United States Magistrate Judge

ORDER DENYING DEFENDANT'S SECOND MOTION FOR CHANGE OF VENUE [Docket 59]

INTRODUCTION

Pending before the court is a renewed motion to transfer venue filed by defendant Western Horizons Living Centers, d/b/a Western Horizons Care Center ("WHLC"). [Docket 59]. WHLC moves the court to transfer the above-captioned case to the United States District Court for the District of North Dakota, Southwestern Division, pursuant to 28 U.S.C. § 1404(a). Plaintiff Gary Schmaltz, as guardian for his father, Peter Schmaltz, resists the motion. The district court, the Honorable Jeffrey L. Viken, referred the motion to this magistrate judge for resolution, pursuant to 28 U.S.C. § 636(b)(1)(A).

FACTS

Gary Schmaltz brought suit on behalf of his father, Peter Schmaltz, against Western Horizons Living Center, d/b/a Western Horizons Care Center ("WHLC"), for injuries sustained by Peter Schmaltz while he was a resident of the Western Horizons Care Center, a nursing home operated by WHLC in Hettinger, North Dakota. Jurisdiction is founded on the diverse citizenship of the parties and an amount in controversy greater than $75,000. See 28 U.S.C. § 1332. The action arose as a result of incidents alleged to have occurred at the Western Horizons Care Center on September 11, 2009. For a more complete recitation of the facts alleged, the court refers the reader to its opinion addressing Gary Schmaltz's motion to amend his complaint, which opinion is filed this same day and incorporated herein by reference.

WHLC first submitted a motion to change venue to the Southwestern Division of the United States District Court for the District of North Dakota on September 7, 2010. See Docket No. 17. This court, in it's order on WHLC's motion, determined that the court had proper personal jurisdiction over WHLC, that complete diversity existed among the parties, and that this action could have been venued originally in either the District of North Dakota or the District of South Dakota. See Docket No. 28. The court also determined that transfer of venue was not warranted under 28 U.S.C. § 1404(a) because WHLC had not presented significant enough factors to tip the balance in favor of transfer. Id. Specifically, the court noted that WHLC had not demonstrated definitively where its witnesses were located and whether or not those witnesses were within this court's subpoena power. Id. Therefore, this court denied WHLC's motion to transfer without prejudice and noted that WHLC could renew their motion for transfer of venue upon a showing of changed circumstances. Id.

WHLC has now renewed their motion for a transfer of venue to the District of North Dakota. See Docket No. 59. Now that discovery has been conducted, and the places of residence of nonparty witnesses are known, WHLC asserts that key nonparty witnesses are outside this court's subpoena power and that this constitutes a change in circumstances regarding the convenience of witnesses. See Docket No. 60. WHLC asserts that this change in circumstances tips the balance in favor of transferring venue in this case. Id.

The additional information provided by WHLC regarding their motion to transfer venue is as follows. WHLC asserts that Kayla Sorenson and Jessica Doll were the two Certified Nurse Assistants ("CNAs") who assisted Peter Schmaltz to the restroom immediately prior to the incident, and that they are the only persons with direct knowledge of the events leading up to Peter's injury. Docket No. 21, at 3. Ms. Sorenson resides in Hebron, North Dakota. The driving distance from Hebron to Rapid City is over 280 miles. Id. at pages 2-3. WHLC assert that Ms. Sorenson will testify about the events leading up to and immediately after Mr. Schmaltz 's alleged injury, and about WHLC's procedures and policies regarding work performed at WHLC and care plans for residents, specifically with regards to Peter's care plan. Id. at page 3. WHLC also asserts that Ms. Sorenson will testify about proper use of the particular lift used with Peter at the time of his injury and her training as a CNA regarding the proper use of lifts. Id.

WHLC does not have the exact address for Ms. Doll, but notes that Ms. Doll works for Edgewood Vista, a facility in Bismarck, and also continues to work for Dakota Travelers Nurse. Id. at page 3, n. 1. Therefore, WHLC believes that Ms. Doll resides in the Bismarck-Mandan area. Bismarck, North Dakota, is at a driving distance of more than 300 miles from Rapid City. Id.

WHLC also plans to call Justin Decoteau, another CNA employed by Dakota Travel Nurse, to testify at trial. Id. Mr. Decoteau assisted Ms. Sorenson and Roma Schade in addressing Peter's injury immediately after the incident. Mr. Decoteau resides in Dunseith, North Dakota. Id. The driving distance from Dunseith to Rapid City is over 500 miles. Id. at pages 3-4. WHLC anticipates that Mr. Decoteau will testify at trial about his training on the use of lifts to transport residents and whether particular residents should be left alone in a lift, and WHLC's procedures and policies regarding work performed at WHLC and care plans for residents, specifically Peter's care plan. Id. at page 4.

WHLC also plans to have Nicole LaFountain testify at trial. Id.

Ms. LaFountain resides in Belcourt, North Dakota, a distance of more than 500 miles from Rapid City. Id. WHLC believes that Ms. LaFountain will testify about the proper use of a lift, based upon her training, and that resident should never be left alone when using a stand-up lift. Id.

Based on the location of these witnesses, WHLC moves the court to transfer venue from the District of South Dakota to the District of North Dakota. Docket No. 59. The federal court for the Western Division of the District of South Dakota sits in Rapid City, South Dakota. The federal court for the ...


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