Venue refers to the place where a lawsuit may be brought. If more than one county is proper, the plaintiff may choose where to file. There is a strong presumption in favor of the plaintiff’s choice. The party seeking a change of venue has the burden of proving a right to change. This may happen when the venue is not proper or when the convenience of witnesses and justice would be promoted by the change.
A recent Colorado Supreme Court case discussed this issue.1 Plaintiffs, in two separate actions, filed suit in Boulder County and defendant Farmers moved to change the venue, claiming that no witnesses had a connection to Boulder. The trial courts granted the motions. They were reviewed on appeal for an abuse of discretion and the Colorado Supreme Court held that venue was proper in Boulder County and that an affidavit stating that another venue is proper based on the location of the plaintiff and witnesses is insufficient, so the matters were sent back to Boulder County.
Rule 982 states :
[A]n action shall be tried in the county in which the defendants, or any of them, may reside at the commencement of the action, or in the county where the plaintiff resides when service is made on the defendant in such county; or if the defendant is a nonresident of this state, the [action] may be tried in any county in which the defendant may be found in this state, or in the county designated in the complaint, and if any defendant is about to depart from the state, such action may be tried in any county where plaintiff resides, or where defendant may be found and service had.
Farmers has its principal place of business in California and is not a resident of Colorado, thus plaintiffs are able to choose their venue. Plaintiffs may have engaged in ‘forum shopping’ by choosing Boulder County, but since Farmers is a non-resident, this is not improper. Since Farmers moved to change venue, they were required to show “through affidavit or evidence, the identity of the witnesses, the nature, materiality and admissibility of their testimony, and how the witnesses would be better accommodated by the requested change in venue.”3 Conclusory statements do not satisfy this standard, nor did the attorney affidavits in this case.
The Court looked at the facets of the affidavit supplied by Farmers:
- The identity of witnesses. The people listed were not properly identified and Farmers concentrated mainly on the Plaintiffs and their witnesses and largely ignored their own, thus the affidavits were insufficient to justify a change of venue.
- The nature, materiality and admissibility of the witnesses’ testimony. A general summary of expected testimony must be provided. The court should be able to determine the substance, importance and admissibility of testimony. This standard was not met by Farmers.
- How the witnesses would be affected. Farmers did not provide any information from any witnesses where they stated that the current venue was inconvenient. Distance and travel time factor into this decision, but they are not dispositive. There was not enough evidence provided by Farmers to justify a change of venue.
- The ends of justice. Farmers argues that the ‘ends of justice’ would be served by ensuring that the jury composition was fair and that plaintiffs could not forum shop to avoid CAPP4 districts. Since both potential venues are metropolitan jurisdictions, the Court found no real difference in the potential jurors.
Courts should attempt to accommodate litigants and witnesses to the extent possible, but should do so within certain parameters. The Sampson court outlined evidentiary requirements for a motion to change venue and they were not met by Farmers.
I hope this information is helpful when deciding where to file your case, and in defending that decision against a motion to change venue. If you need musical inspiration, please listen to (Back Home Again) Indiana, which is my current venue as I write this blog.
1 Hagan v. Farmers Insurance Exchange, 2015 WL 332193 (Co., January 26, 2015).
2 C.R.C.P. 98(c)(1).
3 Sampson v. District Court, 197 Colo. 158,160, 590 P.2d 958, 959 (1979).
4 Civil Access Pilot Project (CAPP) rules are not applicable in Boulder County as they are in other jurisdictions.