UNITED STATES DISTRICT COURT
 

EASTERN DISTRICT OF MICHIGAN
 

SOUTHERN DIVISION
 

WILLIAM L. SLOAN, EUGENE 1. 

WINNINGHAM, BOB L. BERTRAM, JAMES 

L. KELLEY, on behalf ofthemselves and a Civil Case Number: 09-CV-I0918 

similarly situated class, 

PAUL D. BORMAN 

Plaintiffs, UNITED STATES DISTRICT COURT 

v. 

BORGWARNER, INC" BORGWARNER 

DIVERSIFIED TRANSMISSION PRODUCTS, 

INC. and BORGWARNER FLEXIBLE 

BENEFITS PLANS, 

Defendants. 

-------------_/ 

OPINION AND ORDER
 

DENYING DEFENDANTS' MOTION TO RECONSIDER THE COURT'S ORDER
 

DENYING DEFENDANTS' MOTION TO TRANSFER
 

Now before the Court is Defendants BorgWarner, Inc.'s, BorgWamer Diversified 

Transmission Products Inc.'s ("DTP"), and BorgWarner Flexible Benefit Plans' (collectively, 

"Defendants") Motion to Reconsider the Court's Order Denying Defendants' Motion to Transfer 

("June 17, 2009 Opinion and Order"). (Dkt. No. 33). For the reasons stated below, the Court 

DENIES Defendants' Motion.. 

I. STANDARD 

Eastern District of Michigan Local Rule 7.1 (g) provides the standards for a motion for 

reconsideration; it provides: 

[T]he court will not grant motions for rehearing or reconsideration that merely 

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present the same issues ruled upon by the court, either expressly or by reasonable 

implication. The movant must not only demonstrate a palpable defect by which 

the court and the parties have been misled but also show that correcting the defect 

will result in a different disposition ofthe case. 

A "palpable defect" is a defect which is obvious, clear, unmistakable, manifest, or plain. Mktg. 

Displays, Inc. v. Traffix Devices, Inc., 971 F. Supp. 262, 278 (E.D. Mich. 1997). 

II. ANALYSIS 

Defendants initially challenge the Court's requirement in its June 17,2009 Opinion and 

Order that Defendants bear the burden of showing, by a preponderance ofthe evidence, that 

practicality and fairness "strongly" favor transfer. Specifically, Defendants argue that the 

strongly favor standard is no longer good law and that the Court's application of that standard to 

Defendants' Motion to Transfer was erroneous. They contend that they need only show, by a 

preponderance ofthe evidence, that the balance of equities favors transfer to the Southern 

District ofIndiana. 

Notwithstanding that several courts in this district, I as well as courts in other districts2 

1 See, e.g., Sun Pharm. Indus. v. Eli Lilly & Co., No. 07-CV-15087, 2008 U.S. Dist. 

LEXIS 35206, at *5 (E.D. Mich. Apr. 30,2008); Audi AG v. D'Amato, 341 F. Supp. 2d 734, 749 

(E.D. Mich. 2004); Thomas v. Home Depot, US.A., Inc., 131 F. Supp. 2d 934,936 (E.D. Mich. 

2001). 

2 See, e.g., Inghram v. Universal Indus. Gases, Inc., No.1 :05-cv-19, 2006 U.S. Dist. 

LEXIS 7730, at *11-12 (E.D. Tenn. Feb. 8,2006); FieldTurflnc. v. Turfusa, No. 3:02CV-502-S, 

2004 U.S. Dist. LEXIS 378, at *7 (W.D. Ky. Jan. 13,2004); United States v. Cinemark USA, 

Inc., 66 F. Supp. 2d 881,886-87 (N.D. Ohio 1999); see also MJR Int'l, Inc. v. Am. Arbitration 

Ass'n, No. 2:06-cv-0937, 2007 U.S. Dist. LEXIS 70436, at *7 (S.D. Ohio Sept. 27, 2004) (noting 

that "the party moving for a change of venue must demonstrate that the interests served by 28 

U.S.C. § 1404(a) clearly favor a change of venue"). 

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and other circuits,) consistently have relied on the strongly favor standard in analyzing motions to 

transfer under section 1404, Defendants failed to meet the very burden that they ask this Court to 

apply. That is, Defendants have not established, by a preponderance ofthe evidence, that 

practicality and fairness favor a transfer. Therefore, even if the Court were to apply the standard 

advocated by Defendants, Defendants have not shown such a change would result in a different 

disposition of the Motion to Transfer. 

Of the eight factors the Court examined in denying Defendants' Motion to Transfer, it 

found that only two of the factors4

-locus of operative facts and costs of obtaining willing 

witnesses- favored transfer. The remainder of the factors either did not support a transfer or 

were against it. 

Defendants' second challenge to the Court's June 17,2009 Opinion and Order involves 

the Court's analysis of two of these factors-the convenience ofthe parties and the convenience 

ofthe witnesses-both of which the Court detennined weigh against transfer. 

As to the first factor, the convenience ofthe parties, the Court found that it"tilts against 

transfer." The Court recognized that the plaintiffs, Willard L. Sloan, Eugene 1. Winningham, Bob 

L. Bertram, and James L. Kelley (collectively, "Plaintiffs"), filed suit in this district and provided 

) See, e.g., Shutte v. Armco Steel Corp., 431 F.2d 22 (3rd Cir. 1970); see also In re 

Volkswagen ofAm. Inc, 545 F.3d 304,315 (5th Cir. 2008) (adopting a "good cause" burden, 

which requires that a party seeking a transfer not only "satisfy the statutory requirements [but 

also] clearly demonstrate that a transfer is '[f]or the convenience of the parties and witnesses, and 

in the interest ofjustice"'). 

4 The Court's June 17,2009 Opinion and Order stated that the availability of process to 

compel unwilling witnesses supported transfer. This clearly, however, was a scrivener's error, as 

the entirety of the paragraph preceding that finding pointed to the deficiencies of the Defendants' 

position and the relative strengths ofthe Plaintiffs' supporting evidence. The July 17, 2009 

Opinion and Order should have stated that this factor did not support transfer. 

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affidavits from over 200 of the more than 1,700 putative class members stating that they wanted 

to pursue their claims in Michigan where the Defendants have their corporate offices and that 

they would appear voluntarily in Michigan if called to testify or other participate in the suit. Also 

significant to the Court's decision was the fact Defendants no longer have a substantial ongoing 

presence in Indiana since the Muncie, Indiana plant has closed. 

In its reply brief and again in the brief in support of the instant motion, Defendants 

provide deposition testimony from three of the Plaintiffs in an attempt to show that even 

Plaintiffs feel that litigation in Indiana is more convenient. Just as it did in ruling on its Motion 

to Transfer, the Court finds this testimony unconvincing. First, Plaintiffs James Kelley, a 

resident of Kentucky, and Eugene Winningham, a resident of Tennessee, merely testified that 

they go to Indiana a few times per year to visit with family member who live in or near Muncie, 

not that it is more convenient for them to litigate in Michigan, as opposed to Indiana.5 Second, 

Plaintiff Bob Bertram, a resident of Kentucky, did testify that he was in "bad health" and "can't 

hardly travel," but those restrictions would hamper his ability to appear in court in Michigan just 

as much as it would to appear in Indiana 

Simply put, Plaintiffs filed suit in Defendants' backyard. Although Plaintiffs do not have 

any connection to this forum (i.e., Defendant's backyard), their choice of forum is entitled to 

some deference, albeit rather little. Defendants now want to transfer this case to Plaintiffs' 

backyard (or at least, the putative class's backyard). But, in so doing, they must show that it is 

5 Defendants claim that Kelley "testified that litigation in Indiana is more convenient for 

him than in Detroit" and cites pages forty-five through forty-six and sixty-two of his deposition 

transcript. (Def.'s Br at 9). But, pages forty-five and forty-six do not provide testimony from 

Kelley stating that Indiana is more convenient for him than Detroit, and Defendants failed to 

attach page sixty-two to their brief (they attached page sixty-seven, instead). 

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more convenient for the parties to try the case there. Defendants have not done that. As a 

result, the convenience of the parties factor "tilts" against transfer. 

Likewise, Defendants have not shown that the convenience ofthe witnesses factor favors 

transfer. Instead, they relied on unsupported assertions that Plaintiffs and their key witnesses 

could not seriously argue that this district was more convenient for them and that "the key 

witnesses for all parties are the person who negotiated the [collective bargaining agreements] and 

[health insurance agreements] at the core of this dispute, and most of those individuals reside in 

Indiana." (Dkt. No.8, at 11). For instance, in their brief in support of their Motion to Transfer, 

Defendants state that "with the exception of a few DTP employees who work at DTP's corporate 

headquarters, the majority ofthe individuals that DTP would call are located outside of 

Michigan, and in fact, Indiana" and reference their trial witness list for the related Indiana 

litigation. (Dkt. No.8, at 11 n.lO, Ex. 10). The list includes four current and nine former DTP 

employees but does not list where they currently reside, how critical their testimony is to the 

litigation,6 or even whether they would be willing to testify in this case, let alone whether they 

will be inconvenienced by testifying in the Southern District of Indiana? In fact, Plaintiffs 

provided evidence showing that only four of the people on the list currently reside in Indiana, 

with another four residing in Michigan, and the rest split amongst Ohio, North Carolina, Illinois, 

6"To substantiate a claim of inconvenience to witnesses, a party should provide each 

witness's name and a summary ofthe anticipated testimony to enable the court to assess the 

significance of the testimony." Steelcase, Inc. v. Mar-Mol Co., 210 F. Supp. 2d 920,940 (W.D. 

Mich. 2002). 

7 Of the four witnesses that DTP actually called to testify in the Indiana litigation, one 

now lives in Michigan, one still lives in Indiana, and the other two currently live in Illinois and 

North Carolina. 

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and Arizona. Plaintiffs, on the other hand, provided affidavits from nearly all of their proposed 

witnesses stating that they would not be inconvenienced ifthey were called to testify in 

Michigan. As a result, the convenience of the witnesses factor counsels against transfer. 

III. CONCLUSION 

For the reasons stated, the Court DENIES Defendants' Motion to Reconsider the Court's 

Order Denying Defendants Motion to Transfer. 

SO ORDERED.
 

PAD D. BORMAN 

UNITED STATES DISTRICT JUDGE 

Dated: -7-7 I - aT

--------'---­

Detroit, Michigan 

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