ROBERT OVERFELT, Plaintiff, vs. BNSF RAILWAY COMPANY, Defendant.

 

Case No. 15-1239-EFM/KGG

 

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

 

2016 U.S. Dist. LEXIS 33432

 

 

March 15, 2016, Decided

March 15, 2016, Filed

 

 

COUNSEL:  [*1] For Robert Overfelt, Plaintiff: Andrew D. Schlichter, Nelson G. Wolff, LEAD ATTORNEYS, PRO HAC VICE, Schlichter, Bogard & Denton, LLP, St. Louis, MO; John W. Johnson, LEAD ATTORNEY, Morris, Laing, Evans, Brock & Kennedy, Chtd.–Wichita, Wichita, KS.

 

For BNSF Railway Company, Defendant: Chad M. Knight, LEAD ATTORNEY, PRO HAC VICE, Hall & Evans, LLC – Denver, Denver, CO; Kathryn Alsobrook, LEAD ATTORNEY, Hall & Evans, LLC – KC, Kansas City, MO; Keith Goman, LEAD ATTORNEY, Hall & Evans, LLC – Denver, Denver, CO; Nadia H. Patrick, LEAD ATTORNEY, PRO HAC VICE, Hall & Evans, LLC, Denver, CO.

 

JUDGES: ERIC F. MELGREN, UNITED STATES DISTRICT JUDGE.

 

OPINION BY: ERIC F. MELGREN

 

OPINION

 

MEMORANDUM AND ORDER

Plaintiff Robert Overfelt filed an action under the Federal Employers’ Liability Act (“FELA”), 45 U.S.C. §§ 51-60 et seq., against Defendant BNSF Railway Company (“BNSF”). He claims that as a result of Defendant’s negligence, he was injured on June 11, 2013. Defendant seeks dismissal of the lawsuit asserting that the Court lacks personal jurisdiction over it. The Court finds that the exercise of personal jurisdiction is proper because Defendant had sufficient minimum contacts with Kansas, and the exercise of personal jurisdiction [*2]  is not unreasonable. Thus, the Court denies Defendant’s motion (Doc. 7).

 

1. Factual and Procedural Background1

 

1   The facts are taken from Plaintiff’s Complaint (Doc. 1), as well as from an affidavit (Doc. 12-1) attached to Plaintiff’s Memorandum in Opposition to Defendant’s Motion to Dismiss.

Plaintiff Robert Overfelt is a resident of Wellington, Kansas. He works as a conductor employee for Defendant. Defendant BNSF is organized under the laws of Delaware, and its principal place of business is Fort Worth, Texas. Defendant’s corporate officers and its headquarters are also located in Fort Worth, Texas.

Defendant hired Plaintiff in Kansas, employs him in Kansas, oversees him in Kansas, assigns him work in and from Kansas, and requires him to report to work in Kansas. The substantial majority of Plaintiff’s on-duty time occurs in Kansas. In addition, Plaintiff received training and instruction regarding railroad operations in Kansas, including the methods he used in Texas on the day he was injured.

On June 10, 2013, Plaintiff’s work originated in Kansas, and he reported to work in Kansas. On June 11, Plaintiff was working as a conductor in Defendant’s Amarillo, Texas yard. Plaintiff was thrown [*3]  from a gondola car to the ground and sustained injuries to his neck, back, spine, and left shoulder. Plaintiff traveled back to Kansas and his work ended for the day in Kansas, several hours after he was injured in Texas.

Plaintiff alleges, under FELA, that Defendant failed to provide him with a reasonably safe place to work; failed to provide adequate equipment and assistance to perform his job; failed to provide reasonably safe methods with which to work; failed to adequately supervise or train its employees in the performance of their duties; and failed to maintain, inspect, or repair equipment. Plaintiff seeks damages in excess of $75,000. Defendant seeks dismissal asserting that this Court lacks personal jurisdiction over it.

 

1. Legal Standard

“Under the Fourteenth Amendment, a State may authorize its courts to exercise personal jurisdiction over an out-of-state defendant if the defendant has certain minimum contacts with the State such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.”2 A plaintiff opposing a motion to dismiss based on lack of personal jurisdiction bears the burden of showing that jurisdiction over the defendant is appropriate. [*4] 3 In a pretrial motion to dismiss, when the matter is decided on the basis of affidavits and written materials, the plaintiff is only required to make a prima facie showing that personal jurisdiction is proper to avoid dismissal.4 Once the plaintiff makes a prima facie showing, the defendant “must present a compelling case demonstrating that the presence of some other considerations would render jurisdiction unreasonable.”5

 

2   Am. Fid. Assur. Co. v. Bank of New York Mellon, 810 F.3d 1234, 1237 (10th Cir. 2016) (quotation marks and citation omitted).

3   Kuenzle v. HTM Sport–Und Freizeitgerate AG, 102 F.3d 453, 456 (10th Cir. 1996).

4   Id.

5   OMI Holdings, Inc. v. Royal Ins. Co. of Canada, 149 F.3d 1086, 1091 (10th Cir. 1998) (internal quotation marks and citation omitted). (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985)).

Allegations in a complaint “must be taken as true to the extent they are uncontroverted by the defendant’s affidavits. If the parties present conflicting affidavits, all factual disputes must be resolved in the plaintiff’s favor, and the plaintiff’s prima facie showing is sufficient notwithstanding the contrary presentation by the moving party.”6 “However, only the well pled facts of the plaintiff’s complaint, as distinguished from mere conclusory allegations, must be accepted as true.”7 A plaintiff must support jurisdictional allegations by “competent proof of the supporting facts if the jurisdictional allegations are challenged by an appropriate [*5]  pleading.”8

 

6   Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir. 1995) (internal quotation marks omitted).

7   Id.

8   Id. at 1508 (quoting Pytlik v. Prof’l Res., Ltd., 887 F.2d 1371, 1376 (10th Cir. 1989)).

 

III. Discussion

“Before a federal court can assert personal jurisdiction over a defendant in a federal question case, the court must determine (1) whether the applicable statute potentially confers jurisdiction by authorizing service of process on the defendant and (2) whether the exercise of jurisdiction comports with due process.”9 The act under which Plaintiff brings this action, FELA, does not provide for nationwide service of process. Thus, Plaintiff must show that Defendant is subject to service of process under Kansas’ long-arm statute.10 The Kansas Supreme Court has interpreted Kansas’ long-arm statute to extend jurisdiction to the fullest extent allowed by the Due Process Clause.11 Thus, in this case, the Court need not conduct a statutory analysis apart from the due process analysis.12

 

9   Peay v. Bellsouth Med. Assistance Plan, 205 F.3d 1206, 1209 (10th Cir. 2000) (internal quotation marks and citations omitted).

10   See Fed. R. Civ. P. 4(k)(1)(A).

11   Merriman v. Crompton Corp., 146 P.3d 162, 179, 282 Kan. 433, 459 (Kan. 2006); see also OMI Holdings, 149 F.3d at 1090.

12   OMI Holdings, 149 F.3d at 1090.

The due process analysis involves a two-step inquiry.13 First, the plaintiff must show that the nonresident defendant has “minimum contacts” with the forum state by demonstrating that it purposefully availed itself of the protections or benefits of the state’s laws, such that it should reasonably [*6]  anticipate being haled into court there.14 If the plaintiff successfully establishes such minimum contacts, the burden shifts to the defendant to prove that the exercise of jurisdiction would offend “traditional notions of fair play and substantial justice.”15 The second inquiry is commonly referred to as the “reasonableness” test.

 

13   AST Sports Sci., Inc. v. CLF Distrib. Ltd., 514 F.3d 1054, 1057 (10th Cir. 2008).

14   World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S. Ct. 559, 62 L. Ed. 2d 490 (1980); see also Hanson v. Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228, 2 L. Ed. 2d 1283 (1958) (“[I]t is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.”).

15   Asahi Metal Indus. Co., Ltd. v. Superior Court of California, Solano Cnty., 480 U.S. 102, 113, 107 S. Ct. 1026, 94 L. Ed. 2d 92 (1987) (internal quotation marks and citation omitted); see also AST Sports Sci., Inc., 514 F.3d at 1057.

The Constitutional touchstone of the Due Process Clause is whether the defendant purposefully established minimum contacts in the forum State.16 The minimum contacts requirement assures a reasonable expectation in the out-of-state defendant that it might be brought into court in the forum state.17 This requirement ensures “that a defendant will not be subject to the laws of a jurisdiction solely as a result of random, fortuitous, or attenuated contacts, or of the unilateral activity of another party or a third person.”18 To meet this standard, a plaintiff must show either specific or general [*7]  jurisdiction.19

 

16   Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985).

17   AST Sports Sci., Inc., 514 F.3d at 1057.

18   Id. at 1058 (internal quotation marks and citation omitted).

19   OMI Holdings, Inc., 149 F.3d at 1090-91.

Defendant argues that specific personal jurisdiction does not exist in this case because Plaintiff’s injuries do not arise out of Defendant’s contacts with Kansas. In addition, Defendant contends that general personal jurisdiction does not exist because Defendant is not “at home” in Kansas. The Court will only address whether specific personal jurisdiction exists in this case as it is dispositive.

The Court may exercise specific personal jurisdiction if the defendant “purposefully directed” its activities to the forum state and the plaintiff’s injuries “arises out of” the defendant’s activities in Kansas.20 Whether a plaintiff’s injuries arise out of a defendant’s contacts with the state generally requires “some sort of causal connection between a defendant’s contacts and the suit at issue.”21 In Walden v. Fiore,22 the United States Supreme Court recently addressed the minimum contacts necessary to establish specific jurisdiction. The Supreme Court explained that “[t]he inquiry whether a forum State may assert specific jurisdiction over a nonresident defendant focuses on the relationship among the defendant, the forum, and the litigation.” [*8] 23 The Supreme Court identified two elements to consider when determining whether the defendant’s conduct had a substantial connection with the forum.24 First, “the relationship must arise out of contacts that the defendant himself creates with the forum State.”25 Second, the “minimum contacts” analysis focuses on “the defendant’s contacts with the forum State itself, not the defendant’s contacts with persons who reside there.”26 With regard to this consideration, “although physical presence in the forum is not a prerequisite to jurisdiction, physical entry into the State–either by the defendant in person or through an agent, goods, mail, or some other means–is certainly a relevant contact.”27

 

20   Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1071 (10th Cir. 2008) (citing Burger King, 471 U.S. at 472).

21   Id. at 1078.

22       U.S.    , 134 S. Ct. 1115, 188 L. Ed. 2d 12 (2014).

23   Id. at 1121 (internal quotation marks and citations omitted).

24   Id. at 1121-22.

25   Id. at 1122 (internal quotation marks and citation omitted).

26   Id. (discussing contractual relationships and circulation of magazines in another state).

27   Id. (citations omitted).

In this case, Defendant argues that Plaintiff’s suit is unrelated to Kansas. Plaintiff’s injury took place in Amarillo, Texas, and the railcar on which Plaintiff was working was only operated by Plaintiff in Texas.28 Thus, Defendant asserts that the only affiliation between this lawsuit [*9]  and Kansas is that Plaintiff resides in this state and Defendant conducts railroad operations here. Defendant simply ignores the substantial connections it has with Kansas that are related to Plaintiff’s cause of action.

 

28   Defendant also contends that the railcar was never bound for Kansas but instead originated in California and was bound for Louisiana.

Plaintiff provides evidence, by way of affidavit, that Defendant hired Plaintiff in Kansas, employs him in Kansas, oversees him in Kansas, assigns him work in and from Kansas and requires him to report to work in Kansas. Plaintiff avers that the substantial majority of his on-duty time occurs in Kansas. In addition, Plaintiff received training and instruction regarding railroad operations in Kansas, including the methods he used in Texas on the day he was injured. One of Plaintiff’s theories for his negligence claim asserts that Defendant provided inadequate training and instruction regarding work methods. With regard to the specific incident on June 11, although Plaintiff was hurt in Texas, Plaintiff’s work originated the previous day in Kansas and terminated in Kansas several hours after he was injured in Texas.

As noted above, one of [*10]  the considerations in a specific jurisdiction analysis is whether a defendant himself created the contacts with the forum state. In this case, Defendant itself created the contact with Kansas as it became an employer of an individual in the state of Kansas.29 Specifically, Defendant employs Plaintiff in Kansas and has trained, employed, and directed Plaintiff’s work activities in Kansas since 2004. Furthermore, Defendant has purposefully reached into Kansas by entering into an employment relationship with Plaintiff.30 This simply is not a case of “random, fortuitous, or attenuated contacts, or of the unilateral activity of another party or a third person.”31 Instead, Plaintiff’s injuries arise out of his employment relationship with Defendant and the injuries he sustained during his employment with Defendant and while on the job.

 

29   Defendant employs approximately 3,600 employees in Kansas.

30   The Court also notes that Defendant has offices in Kansas and has a registered agent because it is registered with the Secretary of State in Kansas.

31   Burger King Corp., 471 U.S. at 475.

Defendant attempts to rely upon a case from the District of Kansas, Macedo v. Green Valley Chem. Corp.,32 decided by the undersigned, as analogous to this case. [*11]  Defendant contends that Macedo stands for the proposition that the location of the injury is the focus of the jurisdictional analysis regardless of where the plaintiff lives or works. The facts in Macedo in no way resemble the facts in this case.

 

32   2013 U.S. Dist. LEXIS 59197, 2013 WL 1776666 (D. Kan. Apr. 25, 2013).

In Macedo, the plaintiff worked for a trucking company based in Kansas.33 Another Kansas company needed dry ice and contracted with an Indiana company who then engaged two Iowa companies (the defendants in the case) for the dry ice.34 Because the defendants did not ship any of its products from Iowa and all of its sales were completed in Iowa, the Kansas company who needed the dry ice contracted with Plaintiff’s employer to pick up the dry ice in Nebraska and bring it back to Kansas.35 While Plaintiff was in Iowa picking up the dry ice, he fell on the ice in the defendants’ parking lot.36 Plaintiff then brought suit. He did not bring suit against his Kansas-based employer. Instead, he brought suit against the two companies in Iowa that had no connection to his Kansas-based employer or to Kansas. As the Court noted in Macedo, “Plaintiff’s claims primarily involve allegations that Iowa-based Defendants failed to maintain their Iowa facilities, thereby [*12]  causing Plaintiff to slip and fall in Iowa while loading a shipment of Midwest’s dry ice ultimately destined for Kansas. However, Plaintiff does not demonstrate any nexus between his claims and [defendants] alleged contacts with Kansas.”37 The defendants did not purposefully direct activities toward Kansas, and the plaintiff’s injuries did not arise out of any the defendants’ actions directed toward Kansas.38

 

33   2013 U.S. Dist. LEXIS 59197, [WL] at *1.

34   Id.

35   Id.

36   Id.

37   2013 U.S. Dist. LEXIS 59197, [WL] at *4.

38   Id.

There are stark differences in this case. Defendant purposefully directed activities toward Kansas as it entered into an employment relationship with Plaintiff in Kansas. Defendant supervised and directed Plaintiff’s activities in and from Kansas. Plaintiff’s claim relates to an injury that occurred while he was working for Defendant and at Defendant’s facility. Although the injury occurred in Texas, Plaintiff’s employment with Defendant is in Kansas, and the injury occurred on a job that originated and ended in Kansas. Thus, the nexus between Plaintiff’s claim and Defendant’s contact with Kansas is that Defendant employed Plaintiff in Kansas and Plaintiff was injured on the job due to the alleged negligence of Defendant. In sum, the Court finds that minimum contacts [*13]  exist to satisfy specific personal jurisdiction and the Court need not address whether general jurisdiction exists.

Having established Defendant’s minimum contacts, the Court must determine whether exercising jurisdiction over Defendant would offend “traditional notions of fair play and substantial justice.”39 At this point, the burden shifts to Defendant to “present a compelling case that the presence of some other considerations would render jurisdiction unreasonable.”40 The weight of the burden on Defendant is inversely proportionate to the strength of the minimum contacts.41 The weaker the defendant’s minimum contacts, the less the defendant must show to prove unreasonableness.42 Conversely, the stronger the minimum contacts, the more the defendant must show to prove unreasonableness.43 However, when a non-resident defendant has purposefully directed activities toward the forum state, it must “present a compelling case that the presence of some other considerations would render jurisdiction unreasonable.”44

 

39   World-Wide Volkswagen, 444 U.S. at 292 (citation omitted).

40   Dudnikov, 514 F.3d at 1080 (quoting Pro Axess, Inc. v. Orlux Distrib., Inc., 428 F.3d 1270, 1280 (10th Cir. 2005)).

41   OMI Holdings, Inc., 149 F.3d at 1091-92.

42   Id. at 1092 (quoting Ticketmaster-New York, Inc. v. Alioto, 26 F.3d 201, 210 (1st Cir. 1994)); accord Burger King Corp., 471 U.S. at 477.

43   See id.

44   Burger King Corp., 471 U.S. at 477.

Defendant does not address the reasonableness factor. Thus, Defendant fails to meet its burden that the exercise of personal jurisdiction [*14]  over it would be unreasonable. Accordingly, the Court denies Defendant’s motion to dismiss.

IT IS THEREFORE ORDERED that Defendant’s Motion to Dismiss (Doc. 7) is DENIED.

IT IS FURTHER ORDERED that Plaintiff’s Motion to Strike Defendant’s Reply, or in the alternative, for Leave to File a Surreply (Doc. 15) is DENIED.

IT IS SO ORDERED.

Dated this 15th day of March, 2016.

/s/ Eric F. Melgren

ERIC F. MELGREN

UNITED STATES DISTRICT JUDGE

SIEMENS ENERGY, INC., Plaintiff, v. CSX TRANSPORTATION, INC., Defendant.

 

Civil Action No. RDB-15-1072

 

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

 

2016 U.S. Dist. LEXIS 34337

 

 

March 17, 2016, Decided

March 17, 2016, Filed

 

 

COUNSEL:  [*1] For Siemens Energy Inc., Plaintiff: James O Spiker, IV, LEAD ATTORNEY, Semmes Bowen and Semmes, Baltimore, MD; Iliaura Hands, PRO HAC VICE, Miller and Williamson LLC, New Orlenas, LA; Thomas Vincent McCarron, Semmes Bowen and Semmes PC, Baltimore, MD.

 

For CSX Transportation Inc., Defendant: Philip Tucker Evans, Holland and Knight LLP, Washington, DC.

 

JUDGES: Richard D. Bennett, United States District Judge.

 

OPINION BY: Richard D. Bennett

 

OPINION

 

MEMORANDUM OPINION

Plaintiff Siemens Energy, Inc. (“Plaintiff” or “Siemens”) has brought this action against Defendant CSX Transportation, Inc. (“Defendant” or “CSXT”) pursuant to the Carmack Amendment to the Interstate Commerce Act (“Carmack Amendment”), 49 U.S.C. § 11706.1 Am. Compl., p. 1, ECF No. 10. Plaintiff alleges that two electrical transformers, owned by Siemens, were damaged during interstate carriage by CSXT. Id. at ¶¶ 2-5. Currently pending before this Court is Defendant’s Motion to Dismiss the Amended Complaint and Alternative Motion to Transfer Venue (ECF No. 15). The parties’ submissions have been reviewed, and no hearing is necessary. See Local Rule 105.6 (D. Md. 2014). For the reasons stated herein, Defendant’s Motion to Transfer Venue (ECF No. 15) is GRANTED. Accordingly, this case will be transferred to the United States District Court for the Eastern [*2]  District of Kentucky. All pending arguments for dismissal of this action will remain pending for disposition in the transferee court.

 

1   Originally enacted in 1906, the Carmack Amendment created “a national scheme of carrier liability for goods damaged or lost during interstate shipment under a valid bill of lading.” Shao v. Link Cargo (Taiwan) Ltd., 986 F.2d 700, 704 (4th Cir. 1993). The statute imposes “something close to strict liability” on carriers, 5K Logistics, Inc. v. Daily Express, Inc., 659 F.3d 331, 335 (4th Cir. 2011) (citations omitted), but only for “the actual loss or injury to the property.” 49 U.S.C. § 14706(a)(1).

 

BACKGROUND

 

1. Factual History

In ruling on a motion to dismiss, this Court accepts the factual allegations in the complaint as true and construes those facts in the light most favorable to the plaintiff. See, e.g., Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). The facts of this case, construed in the Plaintiff’s favor, are as follows:

On or about August 23, 2012, “two electrical transformers, S/No.: D417578 and D417579, in good order and condition,” were delivered to Defendant CSX Transportation, Inc. (“CSXT”) at the Port of Baltimore, Maryland for carriage to Gallatin Steel Company (“Gallatin”), a customer of Siemens Energy, Inc. (“Siemens”), in Ghent, Kentucky. Am. Compl. at ¶ 4, ECF No. 10. The carriage of the transformers with CSXT “was arranged by Progressive Rail, Inc. (“Progressive”) [*3]  and was conducted pursuant to Bill of Lading No. 08232012-JPF-1, which was authorized by [CSXT’s] duly authorized representative.” Id. “[T]ransformer No. D417578 . . . was loaded on railcar No. QTTX No. 131202 and transformer No. D147579 on railcar No. QTTX No. 131203.” Id. at ¶ 5. Siemens was, at all material times, the owner of the two electrical transformers. Id. at ¶ 3.

Both transformers were carried to Ghent, Kentucky, but were delivered in damaged condition “as evidenced from the transformers’ impact recorders indicating that the transformers had been subjected to g-forces greater than the maximum allowed for transportation by rail, thereby causing loss to [Siemens].” Id. at ¶ 5. “[A] preliminary on-site internal inspection revealed that at least transformer No. D147578 was severely damaged, while transformer No. D147579 could not be inspected at that time and was set aside for additional inspections and testing at a later time.” Id.

“Due to the severe nature and extent of the damages to transformer No. D147578, the transformer was returned to Siemens’ manufacturing plant in Dresden, Germany where it was opened, inspected, repaired, and subsequently returned to Gallatin. Transformer No. D147579 [*4]  remained in the United States and was thoroughly inspected and tested while in storage in Gallatin[‘s] facility.” Id. at ¶ 6. “Siemens incurred substantial costs in transporting, inspecting, repairing, and storing both transformers,” which it estimates “to be approximately $1,555,824.60 plus prejudgment interest and costs of litigation.” Id. at ¶ 7, 13.

 

1. Procedural History

On April 1, 2015, Progressive filed suit against CSXT in the United States District Court for the Eastern District of Kentucky in connection with the same delivery at issue in this case. See Progressive Rail, Inc. v. CSX Transportation, Inc., No. 3:15-cv-00018 (E.D. Ky. Apr. 1, 2015); Progressive Compl., Def. Ex. B, p. 2-5, ECF No. 15-3.2 Progressive brought suit under the Carmack Amendment, alleging essentially the same facts as Siemens in this case. Id. CSXT filed an Answer and Affirmative Defenses to Progressive’s Complaint on May 22, 2015. Answer, Def. Ex. B, p. 8-14, ECF No. 15-3. That action remains pending, although the proceedings have been stayed pending resolution of the pending motion in this case. The case has been assigned to Judge Gregory Van Tatenhove. Id. at p. 7.

 

2   As will be discussed herein, two cases arising out of the delivery [*5]  at issue in this case have already been filed in the United States District Court for the Eastern District of Kentucky. Plaintiff did not reference either case in the Amended Complaint, but Defendant has appended the court filings in both of those matters to its Motion to Dismiss. See Def. Exs. B & C, ECF Nos. 15-3 & 15-4. In reviewing a motion to transfer, this Court may consider evidence outside the pleadings. Brooks-Williams v. KeyBank, Nat’l Ass’n, No. WDQ-15-559, 2015 U.S. Dist. LEXIS 169188, 2015 WL 9255327, at *1 (D. Md. Dec. 17, 2015) (citing Ancient Sun Nutrition, Inc. v. Oregon Algae, LLC, No. 1:10CV140, 2010 U.S. Dist. LEXIS 102513, 2010 WL 3719503, at *1 (W.D.N.C. Sept. 17, 2010)).

On April 17, 2015, CSXT was again sued in an action involving the same delivery at issue in this case. Kuehne + Nagle, Inc. f/u/b/o Siemens Energy, Inc. v. Rail Retrievers Logistics, LLC, et al., No. 3:15-cv-00023 (E.D. Ky. Apr. 14, 2015). Kuehne + Nagle, Inc., the party that allegedly arranged transportation of the transformers prior to their arrival in Baltimore, Maryland, raised several claims including a Carmack Amendment claim. K+N Compl., Def. Ex. C, ECF No. 15-4. That case was also assigned to Judge Van Tatenhove, but Kuehne + Nagle voluntarily dismissed that suit without prejudice on May 27, 2015.

Siemens brought this action against CSXT on April 14, 2015, [*6]  after Progressive brought its action, but prior to the Kuehne + Nagle lawsuit. Pursuant to the Carmack Amendment to the Interstate Commerce Act (“Carmack Amendment”), 49 U.S.C. § 11706, Siemens claims that the damage to the transformers “was caused by the negligence of CSXT, in failing to properly perform its carrier duties.” Id. at ¶ 8. Siemens contends that, “[p]rior to the commencement of this action,” it “became the owner of the cargo and the successor in title to the rights and interest of the holder of the bill of lading issued by [CSXT], which incorrectly names Progressive Rail, Inc. [‘Progressive”] as the shipper when Siemens is in effect the owner of the cargo and the rightful party to make this claim.” Therefore, CSXT “is responsible as a bailee to [Siemens] for failure to care for [Siemens’] cargo, which was entrusted to its care and for which it had absolute control and custody.” Id. at ¶ 10. Siemens brings this action “on behalf of and of the interest of all parties who may be or may become interested in the cargo . . . .” Id. at ¶ 12.

 

STANDARD OF REVIEW

 

1. Motion to Transfer Venue Under 28 U.S.C. § 1404(a)

28 U.S.C. § 1404(a) provides that “[fJor 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 [*7]  been brought.” 28 U.S.C. § 1404(a). The movant bears the burden of showing that a transfer is in the interest of justice. See Stratagene v. Parsons Behle & Latimer, 315 F. Supp. 2d 765, 771 (D. Md. 2004). A district court has great discretion in determining whether to transfer a case under Section 1404(a). See Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 34, 118 S. Ct. 956, 140 L. Ed. 2d 62 (1998). The decision to transfer an action under Section 1404(a) is made according to an “individualized, case-by-case consideration of convenience and fairness.” Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29, 108 S. Ct. 2239, 101 L. Ed. 2d 22 (1988). However, “unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed.” Collins v. Straight, Inc., 748 F.2d 916, 921 (4th Cir. 1984) (citing Gulf Oil v. Gilbert, 330 U.S. 501, 508, 67 S. Ct. 839, 91 L. Ed. 1055 (1946)).

 

ANALYSIS

In support of its Motion to Dismiss, Defendant contends (1) that Siemens lacks standing to assert a claim under the Carmack Amendment because it is not a party to the bill of lading; (2) that this Court is an improper venue under the Carmack Amendment’s venue provision; and (3) that any claims or allegations of negligence or bailment are preempted by the Carmack Amendment. Mot. to Dismiss, ECF No. 15. Alternatively, Defendant requests that this Court transfer this action to the United States District Court for the Eastern District of Kentucky. Id. For the reasons that follow, this case will be transferred to the United States District Court for the Eastern District of Kentucky. All pending arguments for dismissal of this case will remain pending for disposition in the transferee [*8]  court.

 

1. This Case Could Have Been Brought in the United States District Court for the Eastern District of Kentucky

On a Motion to Transfer, a court must first determine whether the action could have been brought in the transferee district. See Aphena Pharma Sols.-Maryland LLC v. BioZone Labs., Inc., 912 F. Supp. 2d 309, 318 (D. Md. 2012). A federal district court may exercise personal jurisdiction over a nonresident defendant3 “if two conditions [are] satisfied: (1) the exercise of jurisdiction must be authorized under the state’s long-arm statute; and (2) the exercise of jurisdiction must comport with the due process requirements of the Fourteenth Amendment.” Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 396 (4th Cir. 2003) (citing Christian Sci. Bd. of Dirs. of the First Church of Christ v. Nolan, 259 F.3d 209, 215 (4th Cir. 2001)). Here, the parties do not dispute that the United States District Court for the Eastern District of Kentucky may exercise personal jurisdiction over CSXT. See, e.g., Pl. Response, p. 13, ECF No. 19 (This Court and the United States District Court for the Eastern District of Kentucky are “equally appropriate” forums). Kentucky’s long-arm statute provides the following:

 

A court may exercise personal jurisdiction over a person who acts directly or by an agent, as to a claim arising from the person’s:

 

1. Transacting any business in this Commonwealth;
2. Contracting to supply services or goods in this Commonwealth;
3. Causing tortious injury [*9] by an act or omission in this Commonwealth. Ky. Rev. Stat. § 454.210(2)(a)

 

 

 

 

 

 

3   CSXT “is a foreign corporation existing under the laws of the state of Florida with its principle place of business in Jacksonville, Florida.” Am. Compl. at ¶ 3, ECF No. 10.

Here, Plaintiff has alleged that CSXT contracted to transport two electrical transformers to Gallatin in Ghent, Kentucky. The present case arises out of alleged damage to those transformers during their transportation into Kentucky by agents of CSXT because of CSXT’s “fail[ure] to properly perform its carrier duties.” Am. Compl. at ¶ 8, ECF No. 10. This contact also satisfies the due process requirements for personal jurisdiction. See, e.g., Auto Channel, Inc. v. Speedvision Network, LLC, 995 F. Supp. 761, 764 (W.D. Ky. 1997) (“a defendant whose conduct in the forum is covered by the long-arm statute will necessarily have ‘purposefully avail[ed] itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.'” Hanson v. Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228, 2 L. Ed. 2d 1283 (1958) . . . a proper application of K.R.S. 454.210(2)(a) will simultaneously satisfy the requirements of due process.”)

Additionally, the Carmack Amendment’s venue provision provides that a civil claim may be brought “against the delivering rail carrier . . . in the judicial district in which the point of destination is located.” 49 U.S.C. § 11706(d)(2)(A)(ii). Here, the parties do not dispute [*10]  that CSXT qualifies as a delivering rail carrier and that its destination was Ghent, Kentucky. See, e.g., Mem. Supp. Mot. to Dismiss, p. 13, ECF No. 15-1 (“CSXT does not dispute that it is the delivering rail carrier . . . Siemens could have properly filed suit where its principle place of business is located (Orlando, Florida, i.e., the Middle District of Florida) [or] at the destination of the shipment (Ghent, Kentucky, i.e., the Eastern District of Kentucky) . . . .”) For these reasons, the present case could have been brought in the United States District Court for the Eastern District of Kentucky.

 

1. This Case Will Be Transferred to the United States District Court for the Eastern District of Kentucky

Having determined that a case could have been brought in the transferee forum, a court must proceed to determine if transfer is appropriate in the instant case. See, e.g., MTB Servs., Inc. v. Tuckman-Barbee Const. Co., No. RDB-12-02109, 2013 U.S. Dist. LEXIS 44941, 2013 WL 1224484, at *5 (D. Md. Mar. 26, 2013). Defendant requests that this case be transferred to the United States District Court for the Eastern District of Kentucky “because: (a) that district has a much stronger connection to the events that underlie this dispute; and (b) the Eastern District [*11]  of Kentucky is the forum for two lawsuits relating to the shipment at issue in this case, one of which was filed prior to this action and remains pending.” Mem. Supp. Mot. to Dismiss, p. 14, ECF No. 15-1. When considering a motion to transfer pursuant to 28 U.S.C. § 1404(a), this court must consider the following factors: “(1) the weight accorded the plaintiff’s choice of venue, (2) witness convenience and access, (3) convenience of the parties, and (4) the interest of justice.” MTB Servs., Inc., 2013 U.S. Dist. LEXIS 44941, 2013 WL 1224484 at *5. Here, a balancing of these factors weighs in favor of transfer.

 

1. The Weight Accorded to Siemens’ Choice of Venue

A plaintiff’s choice of forum is ordinarily “entitled to substantial weight.” Topiwala v. Wessell, No. WDQ-11-0543, 2012 U.S. Dist. LEXIS 3872, 2012 WL 122411, at *7 (D. Md. Jan. 12, 2012) (quoting Lynch v. Vanderhoef Builders, 237 F. Supp. 2d 615, 617 (D. Md. 2002)). However, a plaintiff’s choice is afforded less weight “when the chosen forum is not the plaintiff’s home or has little connection to the events giving rise to the litigation.” Id. (citing Tse v. Apple Computer, No. 05-2149, 2006 U.S. Dist. LEXIS 68451, 2006 WL 2583608, at *2 (D. Md. Aug.31, 2006)). In this case, Siemens does not allege that Maryland is its home, that its headquarters or principle place of business is located in Maryland, or even that it regularly conducts business within the State of Maryland. On the contrary, Siemens has represented that it is a Florida corporation with a manufacturing [*12]  plant in Dresden, Germany. See Am. Compl. at p. 1, ¶ 6, ECF No. 10. Furthermore, Siemens does not allege that any of its employees or agents have, at any time, entered the State of Maryland. Siemens alleges only that the two electrical transformers at issue in this case “were delivered to CSX at the port of Baltimore, Maryland for carriage . . . .” Id. at ¶ 4.

In contrast, both transformers were transported to Siemens’ customer, Gallatin, in Ghent Kentucky, where they were allegedly “delivered in a damaged condition.” Id. A “preliminary on-site internal inspection” was conducted in Ghent, Kentucky. Following that inspection, one of the transformers was returned to Dresden, Germany, “where it was opened, inspected, [and] repaired” before being returned to Ghent, Kentucky. Id. at ¶ 6. The other transformer “was thoroughly inspected and tested while in storage at Gallatin[‘s] facility.” Given that Maryland has relatively little connection to the Plaintiff or to the events giving rise to this case, the first factor supports transfer.

 

1. Witness Convenience and Access and the Convenience of the Parties

A party claiming witness inconvenience “‘has the burden to proffer, by affidavit or otherwise, [*13]  sufficient details respecting the witnesses and their potential testimony to enable the court to assess the materiality of evidence and the degree of inconvenience.” Topiwala, 2012 U.S. Dist. LEXIS 3872, 2012 WL 122411 at *7 (quoting Koh v. Microtek Int’l, 250 F. Supp. 2d 627, 636 (E.D. Va. 2003). The inconvenience of non-party witnesses is weighed more heavily than the inconvenience of party witnesses, “who are presumed willing to travel to another forum.” Id. (citing Atl. City Assocs. No. Two, LLC v. Reale, No. CCB-11-0078, 2011 U.S. Dist. LEXIS 49296, 2011 WL 1769842, at *3 (D. Md. May 9, 2011). Transfer of venue is “inappropriate” where it will merely “‘shift the balance of convenience'” from plaintiff to defendant. Id. (quoting Bd. of Trs. v. Baylor Heating & Air Conditioning, Inc., 702 F. Supp. 1253, 1258 (E.D. Va. 1988)).

Defendant has not submitted witness affidavits, but Defense counsel has indicated that “witnesses from [several] Kentucky companies are expected to testify.” Mem. Supp. Mot. to Dismiss, p. 17, ECF No. 15-1. These Kentucky companies include Edwards Moving and Rigging, Thoroughbred Contractors, LLC, Kemper Construction, LLC and Sunbelt Rentals, Inc., all companies hired by Siemens and Gallatin to assist in handling the transformers after they were delivered in Ghent, Kentucky. Id. at 16-17; Invoices, Def. Ex. D, ECF No. 15-5. Defendant avers that the “Gallatin [] witnesses alone will be significant in this case given that they attended the inspections and were [*14]  involved in evaluating the potential damage” and that “[t]he overwhelming amount of activity relevant to this action occurred in Kentucky and witnesses pertaining to such activity are based there or nearby.” Id. at 17.

Plaintiff counters that “the most significant inspections, tests and actual repairs were conducted in Dresden, Germany, not Kentucky,” and that the “surveyors and experts” based in Germany are “the most critical witnesses in this matter.” Pl. Response, p. 15, ECF No. 19. Plaintiff suggests that Baltimore is a more convenient forum for those witnesses because of its proximity to an international airport and accessibility via “the MARC and Amtrak rail systems.” Id. at 18. Additionally, Plaintiff claims that the “CSXT employees located at the Port of Baltimore may be called to testify regarding their handling of the cargo there” prior to the alleged damage and that CSXT, because it “maintains significant operations in the Port of Baltimore,” would not be inconvenienced by trying this case in this Court. Id. at 18. Furthermore, Plaintiff indicates that “the independent surveyors Mr. John Ferbend and Paul Hammes of EIMC, the company that inspected the transformers and who attended Gallatin’s facility, are [*15]  residents of New Jersey, not Kentucky” and that it will pay the expenses of any Siemens or Gallatin personnel whose presence is required at trial. Id.

Although Defendant has demonstrated that the majority of individuals with knowledge of the alleged harm reside in Kentucky, or at least outside of Maryland, Plaintiff has indicated that CSXT employees based in Baltimore, Maryland may also be called to testify. Additionally, Defendant has failed to provide the affidavits of any of its anticipated witnesses to support its claim that this Court is an inconvenient forum for them. See CoStar Realty Info., Inc. v. Meissner, 604 F. Supp. 2d 757, 770 (D. Md. 2009) (“the defendant should submit affidavits from witnesses and parties involved that explain the inconvenience and hardship he ‘would suffer if the case were heard in the plaintiff’s chosen forum.’ Dow v. Jones, 232 F. Supp. 2d 491, 499 (D. Md. 2002). Mere assertions of inconvenience or hardship, without more, are insufficient to sustain a motion to dismiss or to transfer pursuant to § 1404(a). See Dow, 232 F.Supp.2d at 499.”) Therefore, the second and third factors are not determinative.

 

1. The Interest of Justice

The interest of justice “‘encompass[es] all those factors bearing on transfer that are unrelated to convenience of witnesses and parties.'” Topiwala, 2012 U.S. Dist. LEXIS 3872, 2012 WL 122411 at *8 (quoting Cross v. Fleet Reserve Ass’n Pension Plan, 383 F. Supp. 2d 852, 857 (D. Md. 2005)). “The possibility of consolidating the action with [*16]  a pendent suit in the transferee forum is considered under this factor.” Id. “To permit a situation in which two cases involving precisely the same issues are simultaneously pending in different District Courts leads to the wastefulness of time, energy and money that § 1404(a) was designed to prevent.” Cont’l Grain Co. v. Barge FBL-585, 364 U.S. 19, 26, 80 S. Ct. 1470, 4 L. Ed. 2d 1540 (1960). The United States Court of Appeals for the Fourth Circuit has acknowledged that consolidating nearly identical suits in the forum in which suit was first brought, the “first-to-file principle, . . . is a rule of sound judicial administration.” See Ellicott Mach. Corp. v. Modern Welding Co., Inc., 502 F.2d 178, 181 (4th Cir. 1974). “[W]hen two nearly identical suits are pending in different federal courts, ‘the case ought to be tried in the district court in which it was first filed,’ other factors being equal.” Topiwala, 2012 U.S. Dist. LEXIS 3872, 2012 WL 122411 at *8 (quoting Ellicott, 502 F.2d at 180). This Court in Fisher v. Rite Aid Corp., No. RDB-09-1909, 2010 U.S. Dist. LEXIS 56383, 2010 WL 2332101, at *2 (D. Md. June 8, 2010) observed the following:

 

The first-to-file rule “requires substantially overlapping cases filed in separate fora to be resolved in the forum where the initial case is filed unless a balance of convenience favors the second action.” Smart Technologies, Inc. v. Polyvision Corp., 3:04-cv-545, 2004 U.S. Dist. LEXIS 29483, at *5-6 (E.D. Va. Oct. 20, 2004) (citing Ellicott Mach. Corp, 502 F.2d at 180). Due to its importance in ensuring judicial efficiency, consistency, and comity, courts have noted that the rule “should not be disregarded lightly.” [*17]  Neuralstem, Inc. v. Stemcells, Inc., 573 F. Supp. 2d 888, 900 (D. Md. 2008) (internal quotation marks omitted); see also Rite Way Crack Repair, LLC v. Guardian Crack Repair, LLC, WMN-09-1207, 2009 U.S. Dist. LEXIS 82574, at *11, 2009 WL 2923085 (D. Md. Sept. 10, 2009) (noting that the underlying principles of the first-to-file rule include the conservation of judicial resources and the parties’ time and money, and to prevent the possibility of reaching conflicting results).

 

 

Fisher, 2010 U.S. Dist. LEXIS 56383, 2010 WL 2332101 at *2.

Here, two lawsuits have already been filed against CSXT in the United States District Court for the Eastern District of Kentucky, both claiming the same damage to the same transformers in the same CSXT shipment as the Plaintiff in this case. Both actions have been brought under the Carmack Amendment and will likely involve the same legal and factual questions as this case. See, e.g., Byerson v. Equifax Info. Servs., LLC, 467 F. Supp. 2d 627, 636 (E.D. Va. 2006) (Granting motion to transfer where “[t]he class complaints [were] quite similar, involving the same provision of federal law and the same basic conduct by the same three defendants). One of those cases has since been dismissed, but the other case, Progressive’s claim against CSXT, remains and has been stayed pending resolution of Defendant’s pending motion.

In the interests of judicial economy and federal comity, and to avoid conflicting judgments4, the remaining two cases should be tried in the same court. In accordance with the first-to-file rule, that court should be the United [*18]  States District Court for the Eastern District of Kentucky, the forum in which the first lawsuit was filed. Therefore, Defendant’s Motion to Transfer (ECF No. 15) is GRANTED. This case will be transferred to the United States District Court for the Eastern District of Kentucky.

 

4   Plaintiff contends that “[n]o inconsistent rulings will be obtained here . . .” because only Siemens, the owner of the transformers, is entitled to relief. Pl. Response, p. 19, ECF No. 19. Plaintiff claims that the Progressive action pending in the transferee forum is “bound to be dismissed.” Id. In support of its Motion to Dismiss, Defendant argues that Siemens does not have standing to bring a claim under the Carmack Amendment, but contends that “Progressive clearly has standing.” Def. Reply, p. 10, ECF No. 20. Resolution of this standing dispute may impact both this case and the case already pending in the transferee court, suggesting that transfer is appropriate. In fact, Defendant has already represented that the Progressive case has been stayed “to conserve judicial and litigant time and effort pending determination of this motion.” Def. Reply, p. 11, ECF No. 20. For these reasons, the standing issue will remain pending for [*19]  resolution in that court.

 

CONCLUSION

For the foregoing reasons, Defendant’s Motion to Transfer Venue (ECF No. 15) is GRANTED. Accordingly, this case will be transferred to the United States District Court for the Eastern District of Kentucky. All presently pending arguments for dismissal of this action will remain pending for consideration in that Court.

A Separate Order Follows.

Dated: March 17, 2016

/s/ Richard D. Bennett

United States District Judge

 

ORDER

For the reasons stated in the accompanying Memorandum Opinion, IT IS this 17th day of March, 2016, HEREBY ORDERED that:

 

1. Defendant CSX Transportation Inc.’s Motion to Transfer Venue (ECF No. 15) is GRANTED;
2. This Case is transferred to the United States District Court for the Eastern District of Kentucky;
3. The Clerk of this Court transmit a certified copy of this Order, accompanying Memorandum Opinion, all Filings in this Case, and Court Records herewith to the Clerk of the Court for the United States District Court for the Eastern District of Kentucky;
4. The Clerk of this Court transmit copies of this Order and accompanying Memorandum Opinion to counsel for the parties; and
5. The Clerk of this Court close this case.

 

 

/s/ Richard D. Bennett [*20]

United States District Judge