United States District Court, Western District of Virginia, Harrisonburg Division
KEITH S. SLAYDON Plaintiff,
WATER COUNTRY USA, SEAWORLD ENTERTAINMENT, BLACKSTONE GROUP LP Defendants.
REPORT & RECOMMENDATION
Joel C. Hoppe United States Magistrate Judge
This matter is before the Court on Defendant SeaWorld Parks & Entertainment, LLC’s (“SeaWorld”) Motion to Transfer. ECF No. 20. Plaintiff Keith S. Slaydon seeks recovery for personal injuries allegedly caused by SeaWorld’s negligent operation of a ride at its theme park, Water Country USA. SeaWorld moves to transfer the action to the Eastern District of Virginia pursuant to 28 U.S.C. § 1404(a). For the reasons set forth below, I recommend that this Court GRANT the motion and TRANSFER this case to the Eastern District of Virginia, Newport News Division.
I. Factual and Procedural Background
Plaintiff alleges injuries sustained while aboard the Aquazoid water ride at the Water Country USA theme park in Williamsburg, Virginia in early September 2011. Compl., ECF No. 1-1. He asserts that SeaWorld negligently failed to establish good safety policies or properly train its employees. Id. On August 30, 2013, Slaydon, filing pro se, sued “Water Country USA, ” “SeaWorld Entertainment, ” and “Blackstone Group LP” in the Circuit Court of Rockingham County, seeking $3 million in damages for injuries suffered in the accident. (Id.) Slaydon is a resident of Harrisonburg, Virginia. Id.
SeaWorld removed the case to this Court, ECF No. 1, filed its Answer, ECF No. 2, and moved to dismiss for improper venue, ECF No. 5. Because of insufficient jurisdictional allegations in the notice of removal, this Court ordered the parties to show cause why the case should not be remanded to state court. ECF No. 11. SeaWorld adequately responded to the order, demonstrating that subject matter jurisdiction exists. ECF No. 12. On July 18, 2014, the presiding district judge adopted a Report and Recommendation and denied Defendant’s Motion to Dismiss. ECF Nos. 13, 19.
On July 25, 2014, SeaWorld filed the present motion, requesting transfer under 28 U.S.C. § 1404 to the Eastern District of Virginia, Newport News Division. ECF No. 20. In support of its motion, SeaWorld asserts that all witnesses it would call at trial live in or near York County, Virginia, where the alleged incident giving rise to the cause of action occurred. Def.’s Br. in Supp. 3, ECF No. 21. York County is within the Newport News Division. SeaWorld’s witnesses include current and former employees, “managers . . ., investigators, ride attendees . . ., maintenance personnel, trainers, in-park supervisors, and health service professionals.” Id. at 3– 4. Furthermore, SeaWorld asserts that a site visit could be appropriate and the park and ride itself are in York County, along with “many of the plans and materials related to the premises.” Id. at 4.
On July 28, 2014, I held a telephone status conference with the parties. Slaydon said he was considering hiring an attorney. To date, no attorney has appeared on Slaydon’s behalf.
On August 15, 2014, Slaydon filed pro se a brief in opposition to Defendant’s motion to transfer. ECF No. 26. He points out that SeaWorld failed to provide names and addresses to support its contention that its potential witnesses reside near York County and further posits that many of Seaworld’s witnesses are “college aged and could reside anywhere.” Pl. Br. in Opp. 2. He also argues that many of his own “[d]octors and rehabilitation specialists will have a hardship traveling so far away from their office, ” though he also does not provide names or addresses for those witnesses. Id. Finally, he contends that remote viewing would allow inspection of the ride or any other necessary facilities. Id.
II. Legal Standard
Pursuant to 28 U.S.C. § 1404, “[f]or the convenience of parties and witnesses, in the interests of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” 28 U.S.C. § 1404(a). The statute rests “discretion in the district court to adjudicate motions for transfer according to an individualized, case-by-case consideration of convenience and fairness.” Steward Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (internal quotation marks omitted). The court “may consider evidence outside the pleadings, but must view all facts in the light most favorable to the party opposing transfer.” Nuvotronics, LLC v. Luxtera, Inc., No. 7:13cv478, 2014 WL 1329445, at *1 n.1 (W.D. Va. Apr. 1, 2014) (internal quotation marks omitted). In deciding whether to exercise this discretion, courts typically consider a number of factors, including: “(1) plaintiff’s choice of forum, (2) convenience of the parties, (3) witness convenience and access, and (4) the interest of justice.” Id. at *3. “The movant bears the burden of showing that transfer is proper.” JTH Tax, Inc. v. Lee, 482 F.Supp.2d 731, 736 (E.D. Va. 2007).
For the following reasons, I respectfully recommend that this case be transferred to the Eastern District of Virginia, Newport News Division.
A. Transferee Forum’s Initial Eligibility
Under 1404(a), a court may only transfer venue to a district where the plaintiff could have initially filed the action. 28 U.S.C. § 1404(a). Venue is always proper in a district where “a substantial part of the events or omissions giving rise to the claim occurred.” 28 U.S.C. § 1391(b)(2). The injury underlying this suit and the alleged negligence that caused the injury occurred in Williamsburg, Virginia, within the Eastern ...