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Minor v. Subhan

United States District Court, Ninth Circuit

January 16, 2014

Penni Minor, Plaintiff,
v.
Muhammad A. Subhan, M.D.; et al., Defendants.

ORDER

JAMES A. TEILBORG, District Judge.

Pending before the Court is defendants Muhammad A. Subhan, M.D., Barbara Harris-Feshami, M.D., and Kingman Hospital, Inc. d/b/a Kingman Regional Medical Center's (collectively, the "Defendants") Motion to Change Location of Trial (Doc. 107) filed on January 14, 2014. Defendants have requested oral argument on their motion. Plaintiff Penni Minor has not yet filed a Response.

Invoking the change of venue statute which governs the Court, 26 U.S.C. ยง 1404, Defendants request that, in the event this case goes to trial, trial be held "in the division of the U.S. District Court for the District of Arizona located nearest Kingman, Arizona" (Doc. 107 at 1-2) instead of in Phoenix, Arizona. Defendants acknowledge that "[t]his statute gives the trial court discretion on where best to hold the final trial hearing, taking into consideration the convenience of the parties and witnesses." ( Id. at 2). Here, Defendants fleetingly argue that holding the trial outside of Kingman, Arizona, would be inconvenient for Defendants, their attorneys, and unspecified lay witnesses. ( Id. at 2-3). Defendants' motion, however, fails to offer any specificity on what the Court should do to remedy the alleged inconvenience.

This case was filed in the Prescott division of the District of Arizona. Normally, cases filed in the Prescott division are tried in Prescott, Arizona. Indeed, Prescott hosts the U.S. Federal Courthouse closest to Kingman, Arizona. However, the Prescott Federal Courthouse is currently unavailable because it has been deemed uninhabitable by the U.S. General Services Administration. Moreover, because of numerous problems with the courtroom within the Prescott Federal Courthouse, it has become the practice of the Court to try Prescott division cases in Phoenix. Although Defendants' counsel makes reference to the inconvenience that would be suffered by himself, his clients, and unspecified lay witnesses if the trial were to be held outside of Kingman, his motion fails to consider the costs and inefficiencies that would be imposed on Plaintiff, opposing counsel, non-Kingman-based lay witnesses, the Court, its staff, and the jurors in traveling to a distant location, incurring hotel and travel costs, and other concomitant inefficiencies associated with holding a federal civil trial outside of a United States Courthouse.

Moreover, Defendants' motion ignores the practical fact that Prescott is an approximately 150 mile drive from Kingman[1] while Phoenix is an approximately 190 mile drive.[2] Thus, even if the trial could be held in the U.S. Federal Courthouse in Prescott, Defendants, their counsel, and unspecified Kingman-based lay witnesses would incur substantially the same expenses and inconvenience travelling to Prescott as Phoenix. Whatever merits may lay in Defendants favor, there is no practical remedy available to the Court.

Additionally, in their Motion, Defendants attempt to justify their request by alluding to potential difficulty in compelling Kingman-based lay witnesses to appear on behalf of Defendants. (Doc. 107 at 2-3 ("These witnesses are beyond the reach of process of the Court, sitting in Phoenix, Arizona, and have indicated their unwillingness or reticence to attend a trial in Phoenix, Arizona."). Insofar as Defendants are arguing that the Court lacks subpoena power to compel a Kingman-based witness to appear in Phoenix, the Court reminds Defendants that Federal Rule of Civil Procedure 45 permits a subpoena to compel a non-party's attendance at a trial more than 100 miles away[3] if two conditions are met: (1) the trial is held within the state where the person resides, is employed, or regularly transacts business in person; and (2) the person would not incur substantial expense." Fed.R.Civ.P. 45(c)(1)-(c)(1)(B)(ii) (West 2014). Consequently, the Court's subpoena power can, in fact, extend to Kingman-based witnesses. Therefore, if the party seeking the witness's attendance has a good faith belief that compelled attendance would not subject that witness to substantial expense or undue burden, then the lawyer may issue a subpoena to compel that witness's attendance.[4] Moreover, in the event that a witness successfully quashes a subpoena or the party seeking attendance believes the subpoena cannot issue because it would subject the witness to substantial expense, the party seeking that witness's attendance may offer a deposition of that witness at trial. Fed.R.Civ.P. 32(a)(4).[5] Consequently, Defendants nonspecific concerns regarding witness availability fail to persuade the Court that the location of the trial should be changed.

Accordingly,

IT IS ORDERED that Defendants' Motion to Change Location of Trial (Doc. 107) is DENIED.

IT IS FURTHER ORDERED that any subpoena compelling a person who lives, works, and transacts business regularly over 100 miles away from Phoenix to attend the Phoenix trial must be served not later than 60 days prior to trial. A copy of this Order must be served concurrently with any subpoena compelling such person's attendance at the Phoenix trial.

IT IS FURTHER ORDERED that any person seeking to quash a subpoena so served must move to do so not later than 50 days prior to trial. Any person so moving may write directly to the Court and should include the above case number and caption so that the Court may timely consider the motion to quash.


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