A federal judge from the Middle District of North Carolina has granted Boston College’s motion to transfer a cheerleader’s negligence claim against the school to the District of Massachusetts.
In so ruling, the court found that Massachusetts was more “legally convenient” for all the parties than North Carolina, where the incident occurred.
The plaintiff in this case was Alexandra K. Weishaupt, who enrolled at Boston College in Chestnut Hill, Massachusetts in September of 2006 and became a member of its cheerleading squad.
On November 22, 2008, Weishaupt travelled with the cheerleading squad to Wake Forest University in Winston-Salem, North Carolina, to perform at a regularly-scheduled NCAA football game between the two schools. While participating in a “3-person high pyramid,” Weishaupt was injured when a spotter failed to catch her upon her dismount, and her head hit the ground. Thereafter, she was treated at the Wake Forest University Baptist Medical Center in Winston-Salem and returned to Boston. She continued to receive treatment in Boston, graduated from Boston College, and worked for a local television station. At some point she moved to Salt Lake City, Utah, where she currently lives and works for a television station.
Weishaupt sued on November 17, 2011, in the General Court of Justice, Superior Court Division, in Forsyth County, North Carolina. She alleged that Boston College was “negligent for, principally, failing to properly supervise the activity, failing to provide adequate experienced cheerleaders and instructors, failing to make proper arrangements to allow for an early arrival of the squad and proper rest, failing to provide a qualified spotter, failing to properly instruct the squad and train the coaches, and failing otherwise to act reasonably,” according to the court.
Boston College removed the action to federal court and moved to transfer venue to the District of Massachusetts, “based on the convenience of the parties and witnesses.”
The court first reviewed Section 1404(a), which authorizes a district court “to transfer an action ‘[f]or the convenience of parties and witnesses [and] in the interest of justice . . . to any other district or division where it might have been brought.’ 28 U.S.C. § 1404(a). The statute sets forth a two-step process for determining whether to transfer a case. First, the court must determine whether the action could have been brought in the district to which the defendant seeks a transfer. Cable-La, Inc. v. Williams Commc’ns, Inc., 104 F. Supp. 2d 569, 574 (M.D.N.C. 1999). ‘After determining that a suit could have been brought in another district, the court must determine whether that forum is a legally convenient one pursuant to 28 U.S.C. § 1404(a).’ Knight Med., Inc. v. Nihon Kohden Am., Inc., 765 F. Supp. 291, 292 (M.D.N.C. 1991).”
The court quickly determined that the claim “might have been brought” in the District of Massachusetts. The next step was to look at the following discretionary factors:
(1) the plaintiff’s initial choice of forum; (2) relative ease of access to sources of proof; (3) availability of compulsory process for attendance of unwilling witnesses, and the cost of obtaining attendance of willing and unwilling witnesses; (4) possibility of a view of the premises, if appropriate; (5) enforceability of a judgment, if one is obtained; (6) relative advantage and obstacles to a fair trial; (7) other practical problems that make a trial easy, expeditious, and inexpensive; (8) administrative difficulties of court congestion; (9) local interest in having localized controversies settled at home; (10) appropriateness in having a trial of a diversity case in a forum that is at home with the state law that must govern the action; and (11) avoidance of unnecessary problems with conflicts of laws.
Plant Genetic Sys., N.V. v. Ciba Seeds, 933 F. Supp. 519, 527 (M.D.N.C. 1996) (citation omitted)
While conceding that the plaintiff’s choice of forum “is entitled to deference,” the court wrote that, “it is substantially lessened in this case where virtually all of the facts that underlie her cause of action, both as to liability and damages, occurred in Massachusetts.”
Turning to “the relative ease of access to witnesses and other evidence for trial,” the court conceded the plaintiff’s point that her expert, Herb Appenzeller, Ed.D., may have difficulty traveling out of state. However, “nearly all of the liability and damages witnesses in this case reside in or near Massachusetts,” wrote the court.
“Weishaupt argues that transferring the case to Massachusetts would simply shift the inconvenience from Boston College to her. But that is not the case. Weishaupt must travel across the country no matter which venue is selected. Apart from the emergency room treating physicians in Winston-Salem, only her retained expert may bear some inconvenience. Yet, the convenience of expert witnesses is generally ‘of little or no significance on a motion to transfer.’ 17 Moore et al., supra § 111.13[1][f][iv]; see also Ventress v. Radiator Specialty Co., Civ. A. No. 11-1419, 2012 U.S. Dist. LEXIS 52099, 2012 WL 1247205, at *3 n.1 (E.D. La. Apr. 13, 2012) (noting that expert witnesses are given ‘little weight’ in the transfer determination, citing cases). Moreover, as Boston College demonstrates, Dr. Appenzeller travels as part of his consulting practice, including recent speaking engagements in Boston on April 29, 2011, and in Daphne, Alabama, on November 11, 2011. His curriculum vitae posts an extensive list of locations around the nation where he has given presentations and served as a consultant.”
Numerous other factors favored the defendant, among them the availability of compulsory process for attendance of unwilling witnesses and associated cost as well as local interest.
On the latter, the court wrote that “although the accident occurred in this district, the theory of liability rests almost exclusively on alleged acts and omissions in Massachusetts. The District of Massachusetts is the location of Boston College’s principal place of business, the site of the alleged training and supervision deficiencies, the residence of virtually all liability witnesses, and the location of virtually all evidence. Thus, this action is far from a localized controversy.”
Alexandra K. Weishaupt v. Boston College and Trustees Of Boston College; M.D.N.C.;
1:11-cv-1122, 2012 U.S. Dist. LEXIS 58288; 4/24/12
Attorneys of Record: (for plaintiff) James Robert Faucher, Lead Attorney, Benson, Brown & Faucher, PLLC, GREENSBORO, NC. (for defendants): David Erik Albright, Lead Attorney, Smith Moore, LLP, Greensboro, NC; Laura Jeanne Dildine, Smith Moore Leatherwood, LLP, Greensboro, NC.
