IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA MARTINSBURG
ELLEN LaFAYE MASSIE OGLESBY,
Plaintiff,
v. Civil Action No. 3:11-CV-100 (GROH)
UNITED STATES,
Defendant.
ORDER TRANSFERRING VENUE TO THE DISTRICT OF COLUMBIA
Pending before this Court are the defendant’s Motion to Transfer Venue to the
District of Columbia [Doc. 9], filed on January 18, 2012, and the plaintiff’s Motion to Deny
the Change of Venue to the District of Columbia [Doc. 13] filed in response on February 17,
2012. Having reviewed the record and the arguments of the parties, this Court concludes
that the defendant’s motion should be GRANTED and the plaintiff’s motion should be
DENIED.
BACKGROUND
I. Factual Allegations
The plaintiff’s husband, Francis Alexander Oglesby, Jr., was a 57-year-old veteran
of the United States military living in a nursing home after having one of his legs amputated
when he was admitted to the Washington D.C. Veterans Affairs Medical Center (“DC
VAMC”) on June 14, 2006. Upon presenting with a red sacrum, perineum, and scrotum,
Mr. Oglesby was diagnosed with cellulitis and administered antibiotics. When asked, Mr.
Oglesby stated that he did not have, nor did he wish to complete, an advance directive. During morning rounds on June 21, 2006, Dr. Charles Faselis noted that Mr.
Oglesby’s skin infection had improved, his vitals were stable, and he was in no distress.
Later that day, Mr. Oglesby was found unresponsive in his room. A code team was called
to intubate Mr. Oglesby and Dr. Faselis, as the attending on service, was contacted. Dr.
Faselis called off the code team, explaining that Mr. Oglesby had previously indicated to
him that he did not want to be resuscitated or intubated. Mr. Oglesby was pronounced
dead. Later that evening, Dr. Faselis told the plaintiff that the cause of death was unknown
but that he assumed that the cause was a cardiac event, e.g., ischemia or malignant
arrhythima, and less likely pulmonary embolus because Mr. Oglesby was on a deep vein
thrombosis prophylaxis.
According to the plaintiff, Mr. Oglesby was “admitted into the hospital to be a lab rat
for Dr. Charles Faselis with his famous clinical studies” and “he was tortured, no phone in
his room, no wheelchair in his room, naked, just a sheet, door shut.” ([Doc. 1] at 1). In
addition, the plaintiff claims that Dr. Faselis should not have ordered the code team to stop
resuscitation or intubation because the hospital did not have a written advance directive on
file.
II. Procedural History
On November 17, 2011, the plaintiff, a resident of West Virginia, filed suit against
the United States in the Northern District of West Virginia, explaining that the Department
of Veteran Affairs informed her that the United States was the proper defendant. The sole
cause of action asserted in the Complaint [Doc. 1] is “wrongful death.”
On January 18, 2012, the United States filed the instant Motion to Transfer Venue
to the District of Columbia [Doc. 9]. In seeking a transfer to the District of Columbia, the
2 United States first explains that the only waiver of sovereign immunity available to the
plaintiff as a jurisdictional basis for this lawsuit arises under the Federal Tort Claims Act
(“FTCA”). Conceding that the Northern District of West Virginia is a proper venue for an
FTCA action based upon the plaintiff’s place of residence, the United States argues that
the action should nevertheless be transferred to the District of Columbia for the
convenience of parties and witnesses pursuant to 28 U.S.C. § 1404(a).
On February 17, 2012, the plaintiff filed the instant Motion to Deny the Change of
Venue to the District of Columbia [Doc. 13]. In opposing a transfer to the District of
Columbia, the plaintiff argues that such a transfer would place a hardship on her because
she does not own a car. In addition, the plaintiff appears to contend that this case will
primarily involve documentation (or the lack thereof) and not the testimony of witnesses.
Finally, the plaintiff relates a concern that the law applied in the District of Columbia could
be more adverse to her interests than the law applied in the Northern District of West
Virginia.
DISCUSSION
I. Applicable Standard
Pursuant to 28 U.S.C. § 1404(a), “[f]or 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 been brought.” The threshold question of a § 1404(a) analysis,
therefore, is whether the judicial district to which transfer is sought qualifies under the
applicable venue statutes as a judicial district where the civil action “might have been
brought.” If a court answers this initial question in the affirmative, a court must then make
3 an “individualized, case-by-case consideration of convenience and fairness.” Toney v.
Family Dollar Store, Inc., 273 F.Supp.2d 757, 763 (S.D. W.Va. 2003) (quoting Stewart
Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988)). In making a § 1404(a) analysis, a court
has broad discretion. Nichols v. G.D. Searle & Co., 991 F.2d 1195 (4th Cir. 1993).
II. Analysis
A. This Civil Action “Might Have Been Brought” in the District of Columbia.
Relevant to this threshold determination is 28 U.S.C. § 1402(b), which provides:
Any civil action on a tort claim against the United States under [28 U.S.C. § 1346(b)1] may be prosecuted only in the judicial district where the plaintiff resides or wherein the act or omission complained of occurred.
Applying § 1402(b) to the instant case, there is no question that this civil action could
have been brought in the District of Columbia. Every act or omission complaint of allegedly
occurred at the DC VAMC within the District of Columbia. Having overcome the initial
threshold question, this Court must now consider the convenience of the respective
venues.
B. The District of Columbia is the More Convenient Venue.
To determine the more convenient venue, this Court is obliged to address the
following factors: (1) the ease of access to sources of proof; (2) the convenience of parties
1 As relevant here, 28 U.S.C. § 1346(b) provides that “the district courts . . . shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for . . .
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA MARTINSBURG
ELLEN LaFAYE MASSIE OGLESBY,
Plaintiff,
v. Civil Action No. 3:11-CV-100 (GROH)
UNITED STATES,
Defendant.
ORDER TRANSFERRING VENUE TO THE DISTRICT OF COLUMBIA
Pending before this Court are the defendant’s Motion to Transfer Venue to the
District of Columbia [Doc. 9], filed on January 18, 2012, and the plaintiff’s Motion to Deny
the Change of Venue to the District of Columbia [Doc. 13] filed in response on February 17,
2012. Having reviewed the record and the arguments of the parties, this Court concludes
that the defendant’s motion should be GRANTED and the plaintiff’s motion should be
DENIED.
BACKGROUND
I. Factual Allegations
The plaintiff’s husband, Francis Alexander Oglesby, Jr., was a 57-year-old veteran
of the United States military living in a nursing home after having one of his legs amputated
when he was admitted to the Washington D.C. Veterans Affairs Medical Center (“DC
VAMC”) on June 14, 2006. Upon presenting with a red sacrum, perineum, and scrotum,
Mr. Oglesby was diagnosed with cellulitis and administered antibiotics. When asked, Mr.
Oglesby stated that he did not have, nor did he wish to complete, an advance directive. During morning rounds on June 21, 2006, Dr. Charles Faselis noted that Mr.
Oglesby’s skin infection had improved, his vitals were stable, and he was in no distress.
Later that day, Mr. Oglesby was found unresponsive in his room. A code team was called
to intubate Mr. Oglesby and Dr. Faselis, as the attending on service, was contacted. Dr.
Faselis called off the code team, explaining that Mr. Oglesby had previously indicated to
him that he did not want to be resuscitated or intubated. Mr. Oglesby was pronounced
dead. Later that evening, Dr. Faselis told the plaintiff that the cause of death was unknown
but that he assumed that the cause was a cardiac event, e.g., ischemia or malignant
arrhythima, and less likely pulmonary embolus because Mr. Oglesby was on a deep vein
thrombosis prophylaxis.
According to the plaintiff, Mr. Oglesby was “admitted into the hospital to be a lab rat
for Dr. Charles Faselis with his famous clinical studies” and “he was tortured, no phone in
his room, no wheelchair in his room, naked, just a sheet, door shut.” ([Doc. 1] at 1). In
addition, the plaintiff claims that Dr. Faselis should not have ordered the code team to stop
resuscitation or intubation because the hospital did not have a written advance directive on
file.
II. Procedural History
On November 17, 2011, the plaintiff, a resident of West Virginia, filed suit against
the United States in the Northern District of West Virginia, explaining that the Department
of Veteran Affairs informed her that the United States was the proper defendant. The sole
cause of action asserted in the Complaint [Doc. 1] is “wrongful death.”
On January 18, 2012, the United States filed the instant Motion to Transfer Venue
to the District of Columbia [Doc. 9]. In seeking a transfer to the District of Columbia, the
2 United States first explains that the only waiver of sovereign immunity available to the
plaintiff as a jurisdictional basis for this lawsuit arises under the Federal Tort Claims Act
(“FTCA”). Conceding that the Northern District of West Virginia is a proper venue for an
FTCA action based upon the plaintiff’s place of residence, the United States argues that
the action should nevertheless be transferred to the District of Columbia for the
convenience of parties and witnesses pursuant to 28 U.S.C. § 1404(a).
On February 17, 2012, the plaintiff filed the instant Motion to Deny the Change of
Venue to the District of Columbia [Doc. 13]. In opposing a transfer to the District of
Columbia, the plaintiff argues that such a transfer would place a hardship on her because
she does not own a car. In addition, the plaintiff appears to contend that this case will
primarily involve documentation (or the lack thereof) and not the testimony of witnesses.
Finally, the plaintiff relates a concern that the law applied in the District of Columbia could
be more adverse to her interests than the law applied in the Northern District of West
Virginia.
DISCUSSION
I. Applicable Standard
Pursuant to 28 U.S.C. § 1404(a), “[f]or 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 been brought.” The threshold question of a § 1404(a) analysis,
therefore, is whether the judicial district to which transfer is sought qualifies under the
applicable venue statutes as a judicial district where the civil action “might have been
brought.” If a court answers this initial question in the affirmative, a court must then make
3 an “individualized, case-by-case consideration of convenience and fairness.” Toney v.
Family Dollar Store, Inc., 273 F.Supp.2d 757, 763 (S.D. W.Va. 2003) (quoting Stewart
Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988)). In making a § 1404(a) analysis, a court
has broad discretion. Nichols v. G.D. Searle & Co., 991 F.2d 1195 (4th Cir. 1993).
II. Analysis
A. This Civil Action “Might Have Been Brought” in the District of Columbia.
Relevant to this threshold determination is 28 U.S.C. § 1402(b), which provides:
Any civil action on a tort claim against the United States under [28 U.S.C. § 1346(b)1] may be prosecuted only in the judicial district where the plaintiff resides or wherein the act or omission complained of occurred.
Applying § 1402(b) to the instant case, there is no question that this civil action could
have been brought in the District of Columbia. Every act or omission complaint of allegedly
occurred at the DC VAMC within the District of Columbia. Having overcome the initial
threshold question, this Court must now consider the convenience of the respective
venues.
B. The District of Columbia is the More Convenient Venue.
To determine the more convenient venue, this Court is obliged to address the
following factors: (1) the ease of access to sources of proof; (2) the convenience of parties
1 As relevant here, 28 U.S.C. § 1346(b) provides that “the district courts . . . shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for . . . death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act occurred.” 28 U.S.C. § 1346(b)(1).
4 and witness; (3) the cost of attendance for witnesses; (4) the availability of compulsory
process; (5) the interest in having localized interests decided at home; and (6) the interests
of justice. As explained below, this Court concludes that these factors weigh in favor of a
transfer to the District of Columbia.
1. The Ease of Access to Sources of Proof
In this case, sources of proof will potentially consist of witness testimony and
documentary evidence. In sum, this factor weighs in favor of a transfer of venue.
“Documents may be transferred from one district to another district with little
difficulty, using electronic means of duplication and transmission.” Local Union No. 3
IBEW v. GE Int’l, Inc., 2011 WL 1842239, *3 (S.D.N.Y. May 9, 2011) (citing Eres N.V. v.
Citgo Asphalt Refining Co., 605 F.Supp.2d 473, 481 (S.D.N.Y. 2009)). Here, there is no
indication that the documents involved will be voluminous or difficult to convert into
electronic form for electronic distribution. Accordingly, the documentary part of this factor
is neutral.
A number of witnesses will likely play a part in discovery and trial. With the
exception of the plaintiff, all of the witnesses to the medical care received by Mr. Oglesby
while at the DC VAMC are located in the District of Columbia. Accordingly, the testimonial
part of this factor weighs in favor of a transfer of venue.
2. The Cost and Convenience of Parties and Witnesses
With regard to the parties, cost and convenience is neutral. The Northern District
of West Virginia is lest costly and more convenient for the plaintiff, whereas the District of
Columbia would probably be less costly and more convenient for the United States. As
5 noted above, however, all of the witnesses to the medical care Mr. Oglesby received while
at the DC VAMC are located in the District of Columbia. Thus, the District of Columbia is
an exceedingly less costly and more convenient venue for the witnesses likely to be
involved. Accordingly, this factor weighs in favor of a transfer of venue.
3. The Availability of Compulsory Process
If venue is maintained in the Northern District of West Virginia, the trial in this matter
will be held in Martinsburg. Pursuant to Federal Rule 45(b)(2) of Civil Procedure,
compulsory process is available within a 100-mile radius of Martinsburg. As noted above,
the majority of witness will be located in Washington D.C., which is inside of that radius.
Accordingly, this factor is neutral.
4. The Interests of Justice
Finally, this Court must consider the interests of justice, “‘an analysis encompassing
those factors unrelated to witness and party convenience.’” Original Creatine Patent Co.,
Ltd. v. Met-Rx USA, Inc., 387 F.Supp.2d 564, 571 (E.D. Va. 2005) (quoting Acterna,
L.L.C. v. Adtech, Inc., 129 F.Supp.2d 936, 939-40 (E.D. Va. 2001)). This factor includes
such considerations as the following: (a) a court's familiarity with the applicable law
(especially relevant, for example, in cases in which the claims involve interpretation of
another state's statutes or another court's jurisprudence); (b) the location where the claims
at issue arose and any consequent local interest in resolving the case locally; and (c) the
relative congestion of the courts' dockets. See Original Creatine, 387 F.Supp. at 571
(citing Intranexus, Inc. v. Siemens Medical Solutions Health Servs., 227 F.Supp.2d 581,
583 (E.D. Va. 2002)).
6 Here, these considerations weigh in favor of the District of Columbia. First, because
the law of the place where the act or omission occurred applies, see 28 U.S.C. §
1346(b)(1), the law of the District of Columbia will govern. The District of Columbia is
undisputably more familiar with its own law, especially the very detailed area of medical
malpractice. Second, the plaintiff’s claim arose exclusively from acts or omissions that
occurred at the DC VAMC. Consequently, the District of Columbia has a clear interest in
resolving the case locally where the DC VAMC is located. Third, this Court is unaware
whether the District of Columbia docket is less congested than that of the Northern District
of West Virginia. In sum, however, this factor weighs in favor of a transfer of venue.
CONCLUSION
For the foregoing reasons, this Court concludes that the District of Columbia is the
more convenient venue. As such, the United States’ Motion to Transfer Venue to the
District of Columbia [Doc. 9] is hereby GRANTED and the plaintiff’s Motion to Deny the
Change of Venue to the District of Columbia [Doc. 13] is hereby DENIED. Accordingly, this
Court hereby ORDERS that this matter be transferred to the District of Columbia.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to all counsel of record herein
and to send a copy to the pro se plaintiff.
DATED: April 10, 2012.