A federal judge from the Eastern District of Michigan has agree to transfer the claim of the mother of a professional basketball player, who sued after her son died on the basketball court, to the neighboring Western District. Several factors supported the transfer, including the fact that many of the proposed witnesses reside in the Western District.
The incident leading to the lawsuit occurred on March 24, 2018 when, in the final minutes of a minor league basketball game, Zeke Upshaw, a 26-year-old professional basketball player for the Detroit Pistons’ Grand Rapids Drive NBA G League team, collapsed to the floor in full cardiac arrest and was taken unconscious to the hospital.
His mother and the plaintiff, Jewel Upshaw, claimed that for more than five minutes “not a single life-saving measure was taken to address Zeke’s fatal condition. He was kept on life support for two days and then died.”
Upshaw sued, claiming negligence and gross negligence against the NBA, the Detroit Pistons Basketball Company and SSJ Group, owners of the Grand Rapids Drive, and the Deltaplex Arena where the game was held. She also claimed that the defendants should not have allowed her son to play basketball, knowing that his medical condition made it dangerous, and should have disclosed Upshaw’s concerning medical information to him. She stated the following causes of action:
Negligence and gross negligence against defendants Pistons and SSJ;
Negligence and gross negligence against defendant DeltaPlex;
Negligence and gross negligence against defendant NBA;
Negligent misrepresentation by omission against defendants NBA, Pistons, and SSJ;
Fraudulent concealment against defendants NBA, Pistons, and SSJ;
Fraud by omission/failure to warn against defendants NBA, Pistons, and SSJ;
Intentional misrepresentation against defendants NBA, Pistons, and SSJ;
Wrongful death and exemplary damages against all defendants;
Intentional infliction of emotional distress—bystander recovery against all defendants; and
Negligent infliction of emotional distress—bystander recovery against all defendants.
The defendants jointly moved to transfer this case to the Western District, pursuant to 28 U.S.C. § 1404(a).
“A district court should consider several factors when adjudicating a motion to change venue,” wrote the judge: “(1) whether the action could have been brought in the proposed transferee district, (2) whether a transfer would promote the interests of justice, and (3) whether a transfer would serve the parties’ and witnesses’ convenience.” IFL Group, Inc. v. World Wide Flight Services, Inc., 306 F. Supp. 2d 709, 712 (E.D. Mich. 2004). Defendants must demonstrate that “fairness and practicality strongly favor the forum to which transfer is sought.” Id. With respect to the first prong, whether the action could have been brought in the proposed transferee district, both Defendants and Plaintiff recognize that this action could have been brought in the Western District of Michigan, so the first prong of the test is satisfied.
“As to the second and third prongs, several additional factors also guide the district court’s determination of whether a transfer would promote the interests of justice and serve the convenience of the parties. These include: (1) the convenience of witnesses; (2) the location of relevant documents and relative ease of access to sources of proof; (3) the convenience of the parties; (4) the locus of the operative facts; (5) the availability of process to compel the attendance of unwilling witnesses; (6) the relative means of the parties; (7) the forum’s familiarity with the governing law; (8) the weight accorded the plaintiff’s choice of forum; and (9) trial efficiency and the interests of justice, based on the totality of the circumstances.” Id. (citing Overland, Inc. v. Taylor, 79 F. Supp. 2d 809, 811 (E.D. Mich. 2000)).
The first, third, and fourth factors supported the transfer.
“As to the first factor, the plaintiff’s claims arise from an event that took place in Grand Rapids, Michigan, the seat of the federal district court for the Western District of Michigan. Witnesses are likely to include the attendees at the game at the DeltaPlex and hospital staff who treated Mr. Upshaw. All these witnesses are ostensibly non-parties to the case and not employees of any defendant. Venue in the Western District of Michigan would be more convenient for these witnesses. Indeed, with respect to factor six, it would be more difficult to compel the attendance of unwilling witnesses if this trial were held in the Eastern District of Michigan. Fed. R. Civ. P. 45(c) states that a subpoena may compel a witness’ attendance only within 100 miles of where that person ‘resides, is employed, or regularly transacts business in person’ or within the same state where the person resides, is employed, or regularly transacts business in person if the person ‘is a party or a party’s officer; or is commanded to attend a trial and would not incur substantial expense.’ Grand Rapids, Michigan is over 100 miles from Detroit, Michigan. It would therefore be difficult or impossible—depending on the circumstances—to compel the attendance of unwilling witnesses at proceedings in Detroit.
“Plaintiff lists five potential witnesses residing in the Eastern District of Michigan. But all these potential witnesses appear to be employees of the defendants. Therefore, as the plaintiff herself states, these witnesses are presumptively able to testify and travel to either forum. The residence of these five witnesses does not outweigh the inconvenience to the many non-party witnesses who presumably reside in the Western District of Michigan.
“The third factor—the convenience of the parties—cuts in favor of transfer on balance. All the defendants seek transfer to the Western District, indicating that this would be more convenient for them. Because the plaintiff resides outside of Michigan, the burden of inconvenient travel on the plaintiff will be roughly the same regardless of whether the case is transferred. ‘[W]here the plaintiff does not reside in the chosen forum, courts assign less weight to the plaintiff’s choice.’ Means v. United States Conference of Catholic Bishops, 836 F.3d 643, 651 (6th Cir. 2016).
“As to factor four, the locus of operative facts is plainly in the Western District—that is where the incident that generated this suit took place.”
Upshaw v. National Basketball Association, Detroit Pistons Basketball Company, SSJ Group LLC, The DeltaPlex Arena; E.D. Mich.; 2019 U.S. Dist. LEXIS 73083, 2:18-CV-13301-TGB; 4/30/19
Attorneys of Record: (for plaintiffs) Robert C. Hilliard, Hilliard Martinez Gonzalez LLP, Corpus Christi, TX. (For NBA defendant) Brandon M. Pellegrino, Bowman and Brooke, Bloomfield Hills, MI; Anthony J. Dreyer, Jeffrey A. Mishkin, Skadden, Arps, Slate, Meagher and Flom LLP, New York, NY; Lisa M. Gilford, Sidley Austin LLP, Los Angeles, CA; Thomas P. Branigan, Bowman & Brooke LLP (Detroit), Bloomfield Hills, MI. (For Detroit Pistons Basketball Company defendant) Charles Michael Seely, Jill M. Hale, Jonathan L. Israel, Foley and Lardner LLP, New York, NY; Leah R. Imbrogno, Foley & Lardner LLP, Detroit, MI. (For SSJ Group LLC defendant) James R. Bradley, Secrest, Wardle, Lansing, MI. (For The DeltaPlex Arena defendant) Brandon M. H. Schumacher, Foster Swift Collins and Smith, Lansing, MI; Joshua K. Richardson, Foster, Swift, Lansing, MI.
