UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

JOHN J. FLAHERTY,

Plaintiff,

v.

BIOMET ORTHOPEDICS, LLC, BIOMET, 

INC., BIOMET MANUFACTURING CORP. and 

BIOMET US RECONSTRUCTION, LLC,

Defendants.

Case No. 13-cv-984-JPG-SCW

MEMORANDUM AND ORDER

This matter comes before the Court for case management purposes. On September 26, 2013, 

the Court ordered plaintiff John J. Flaherty to show cause on or before October 4, 2013, why this case 

should not be transferred pursuant to 28 U.S.C. § 1404(a) to the United States District Court for the 

Western District of Pennsylvania, where he resides and where his surgery involving the allegedly

defective product occurred (Doc. 3). Flaherty responded that venue is proper under 28 U.S.C. 

§ 1391(c) in this district and that this case should eventually be transferred to MDL-2391, In Re: 

Biomet M2a Magnum Hip Implant Product Liability Litigation (Doc. 4). Flaherty did not address the 

relevant factors informing the decision to transfer under 28 U.S.C. § 1404(a). The defendants did not 

reply to Flaherty’s response, although they were given an opportunity to do so.

As a preliminary matter, any proceedings involving this case that are pending before the 

Judicial Panel on Multidistrict Litigation in MDL-2391, do not prohibit this Court from exercising 

jurisdiction over this case prior to a final transfer. R. 2.1(d), Rules of Procedure of the United 

States Judicial Panel on Multidistrict Litigation. While this case may eventually be transferred 

for pretrial proceedings in a multidistrict litigation proceeding, if it ends up going to trial, it will 

return to this district if it is not transferred to a more appropriate district. Thus, the Court has a 

current interest in identifying the correct district for trial. 
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Although venue is proper in the Southern District of Illinois, under § 1404(a), the Court 

may sua sponte transfer the case to a district where it might have been brought for the convenience 

of the parties and in the interests of justice. The decision to transfer a case is left to the discretion 

of the district court. Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988); Van Dusen v. 

Barrack, 376 U.S. 612, 622 (1964); Cote v. Wadel, 796 F.2d 981, 985 (7th Cir. 1986); see 

Norwood v. Kirkpatrick, 349 U.S. 29, 32 (1955).

In deciding a § 1404(a) motion to transfer, the Court should consider a number of 

case-specific factors such as the convenience of the potential transferee forum to the parties and 

witnesses, the fairness of the transfer in light of any forum selection clause and the parties’ relative 

bargaining power, and the interests of justice in general. Stewart, 487 U.S. at 29-30; see Coffey 

v. Van Dorn Iron Works, 796 F.2d 217, 219 (7th Cir. 1986) (citing Van Dusen , 376 U.S. at 622). 

The movant has the burden of establishing that the transfer is “clearly more convenient.” Coffey, 

796 F.2d at 219-20. The Court should give substantial weight in favor of the forum in which the 

plaintiff chose to file the complaint and should rarely transfer a case from the plaintiff’s selected 

forum. In re Nat’l Presto Indus., Inc., 347 F.3d 662, 663-64 (7th Cir. 2003); Heller Fin., Inc. v. 

Midwhey Powder Co., Inc., 883 F.2d 1286, 1294 (7th Cir. 1989). Even if the circumstances 

indicate that a transfer would be clearly more convenient to the parties and witnesses, a court may 

still refuse to transfer the case if it is not in the interest of justice. Coffey, 796 F.2d at 220; Van 

Dusen, 376 U.S. at 625.

In his response to the order to show cause, Flaherty fails to address any of the relevant 

factors involved in the decision to transfer under § 1404(a). Based on the information in the file, 

the Court finds that the Western District of Pennsylvania would be more convenient to the plaintiff 

because he resides there, and the defendants have expressed no objection to litigating this case 

there. The Court gives very little weight to the fact that Flaherty chose to file his lawsuit in the 
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Southern District of Illinois because this district has no connection to his case. Furthermore, the 

witnesses to his surgery and to the impact on his life from the allegedly defective product are likely 

to be in the Western District of Pennsylvania as well. Finally, the interest of justice weigh in 

favor of a transfer; the citizens and courts within the Southern District of Illinois should not be 

burdened with the task of deciding cases having nothing to do with this district, while the citizens 

and courts within the Western District of Pennsylvania have a strong interest in the safety of 

medical devices used by their citizens and their doctors. 

Accordingly, the Court TRANSFERS this case to the United States District Court for the 

Western District of Pennsylvania for all further proceedings. The parties may seek to have that 

case transferred to MDL-2391 if they so desire.

IT IS SO ORDERED.

DATED: October 7, 2013

s/ J. Phil Gilbert

J. PHIL GILBERT

DISTRICT JUDGE