KROGER v. BRIDGEWATER ET AL
Filing
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MEMORANDUM OPINION & ORDER: 1. Defendant Bridgewater's motion to dismiss 4 is DENIED. 2. Defendant Bridgewater's alternative request to transfer venue 4 is GRANTED. 3. The Clerk of the Court is DIRECTED to transfer this action to the United States District Court for the Southern District of Indiana in New Albany, Indiana, for further proceedings. Signed by Judge Danny C. Reeves on 8/11/2011.(CBD)cc: COR, kyed-strike [Transferred from Kentucky Eastern on 8/12/2011.]
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
(at Frankfort)
DARIN F. KROGER,
Plaintiff,
V.
LELAND T. BRIDGEWATER,
Defendant.
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Civil Action No. 3: 11-21-DCR
MEMORANDUM OPINION
AND ORDER
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This matter is pending for consideration of Defendant Leland T. Bridgewater’s
(“Bridgewater”) motion to dismiss or, in the alternative, to transfer venue. [Record No. 4]
For the reasons discussed below, the Court will grant the alternative relief requested and
transfer this action to the Southern District of Indiana for further proceedings.
I.
Relevant Facts
This case involves an accident involving a pedestrian (Kroger) and a vehicle driven
by Bridgewater. [See Record No. 1; Complaint.] Bridgewater’s vehicle was insured by
Motorist Mutual Insurance Company (“Motorist Mutual”). Kroger alleges that he is a
resident of the State of Indiana, while Bridgewater is a resident of the Commonwealth of
Kentucky.1
1
The Court notes that this allegation is insufficient to establish diversity jurisdiction under 28 U.S.C.
§ 1332. Instead, jurisdiction under this statutory section is based on citizenship. Ordinarily, this deficiency
would result in an order to show cause why the action should not be dismissed for failure to sufficiently plead
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Kroger contends that:
[o]n or about July 23, 2009, [he] was walking in a lawful and safe manner on
the sidewalk along Jefferson Street, in Madison, Indiana. . . . When [he]
reached the intersection of Jefferson Street and East Main Street, he began to
cross East Main Street in a lawful and safe manner in the pedestrian walk way.
. . . At the same time, Bridgewater approached the same intersection traveling
westbound in his motor vehicle on East Main Street with the intention to turn
north onto Jefferson Street. . . . Bridgewater admits that the light at the
intersection was red, and that he was making a right turn, but did not notice
Mr. Kroger in the pedestrian walk way. Bridgewater admits that he struck Mr.
Kroger with his motor vehicle while Mr. Kroger was in the pedestrian walk
way and Bridgewater stated multiple times at the scene that it was
Bridgewater’s fault and that he was sorry.
[Id., at ¶¶ 8-11] His original Complaint contains three counts. First, in paragraphs 20
through 23, he asserts a claim of negligence against Bridgewater. Next, in paragraphs 24
through 27, he alleges that, as a result of its failure to pay his demand under Bridgewater’s
insurance policy, Motorist Mutual violated the Unfair Claims Settlement Practices Act as
codified in Kentucky Revised Statutes (“KRS”) § 304.12-230. Finally, in paragraphs 28
through 30, Kroger contends that Motorist Mutual’s actions in refusing to settle his claims
constitute bad faith.
On July 15, 2011, Bridgewater moved the Court to dismiss the plaintiff’s complaint
or, alternatively, to transfer the action to Indiana for further proceedings. In support of this
motion, the defendant argued that venue in this district is improper under 28 U.S.C. § 1391(a)
because: (i) both of the defendants named in the Complaint (Bridgewater and Motorist
Mutual) do not reside in the same state and (ii) the events giving rise to the plaintiff’s claims
diversity jurisdiction. However, in light of this Court’s decision to transfer the matter, no further action will
be taken in this jurisdiction to address this error in the plaintiff’s Complaint.
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– the pedestrian/motor vehicle accident – did not occur in this jurisdiction. Kroger has not
responded to Bridgewater’s motion. Instead, on July 19, 2011, he filed a notice of voluntary
dismissal of the claims asserted against Motorist Mutual pursuant to Rule 41(a)(1)(A)(i) of
the Federal Rules of Civil Procedure.
II.
Analysis
A.
The Defendant’s Motion To Dismiss
Title 28 of the United States Code, § 1391, provides the method of determining the
proper venue for an action based on diversity jurisdiction. It states that:
(a) A civil action wherein jurisdiction is founded only on diversity of
citizenship may, except as otherwise provided by law, be brought only in (1)
a judicial district where any defendant resides, if all defendants reside in the
same State, (2) a judicial district in which a substantial part of the events or
omissions giving rise to the claim occurred, or a substantial part of property
that is the subject of the action is situated, or (3) a judicial district in which any
defendant is subject to personal jurisdiction at the time the action is
commenced, if there is no district in which the action may otherwise be
brought.
28 U.S.C. § 1391(a) (emphasis added). Because the defendant’s motion to dismiss is not
considered a responsive pleading for purposes of Rule 41 of the Federal Rules of Civil
Procedure, Kroger was authorized to dismiss his claims against Motorist Mutual without
leave of Court.2 As a result, venue is appropriate in the district in which the remaining
defendant resides (i.e., the Eastern District of Kentucky) or in the district in which the
accident occurred (i.e., the Southern District of Indiana).
2
Voluntary dismissal of a party may be accomplished without a court order by the filing of a notice
of dismissal before the opposing party serves either an answer or a motion for summary judgment. See Rule
41(a)(1)(A), Fed. R. Civ. P.
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B.
The Defendant’s Motion To Transfer Venue
As alternative relief, Bridgewater asks the Court to transfer venue of this action “to
a proper venue” which the Court interprets to be the district in which the subject accident
occurred. [Record No. 4, p. 3] With respect to this issue, 28 U.S.C. § 1404 provides:
(a) For the convenience of the 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.
28 U.S.C. § 1404(a). However, before this statutory section is applicable, the initial venue
choice made by the plaintiff must be proper under the general venue statute (28 U.S.C. §
1391) or an applicable special venue provision. Otherwise, the action should be dismissed
or transferred under 28 U.S.C. § 1406.3
The purpose of a § 1404(a) transfer is to prevent wasting time, energy, and money
and, in addition, to safeguard parties, witnesses, and the public against avoidable
inconvenience and expense. Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523
U.S. 26 (1998). In making the determination regarding whether to transfer an action to
another district, courts may weigh and balance a number of factors relevant to the particular
case. See 17 MOORE’S FEDERAL PRACTICE, § 111.13 (Matthew Bender 3d ed.) Here,
the most relevant factors apparent from the record would include the convenience of the
parties and witnesses and the relative familiarity of the court with the applicable law.
3
This statutory section provides, in relevant part, that:
(a) The district court of a district in which is filed a case laying venue in the wrong division
or district shall dismiss, or if it be in the interest of justice, transfer such case to any district
or division in which it could have been brought.
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Consideration of additional factors which would otherwise be included in this analysis is not
appropriate where the parties’ have not provided the Court with sufficient information to
evaluate those factors. Bare bones pleadings are generally insufficient for this purpose.
In the present case, there is no dispute that the accident giving rise to Kroger’s
remaining claim of negligence (Count II) occurred in the Southern District of Indiana.
Presumably, most of the witnesses to the accident reside nearby. Likewise, it would appear
that Indiana law will be applied to this claim. See Adam v. J. B. Hunt Transport, Inc., 130
F.3d 219, 230 (6th Cir. 1997) (In tort cases, the conflict of laws question should not be
determined on the basis of a weighing of interests but simply on the basis of whether
Kentucky has enough contacts to justify applying Kentucky law.) It simply does not appear
that Kentucky has enough contacts to justify application of Kentucky law to the plaintiff’s
negligence claim.
Here, the only connection with Kentucky is Bridgewater’s residence in Milton,
Kentucky, which is just a couple of miles from the scene of the accident and approximately
60 miles from the United States District Court for the Southern District of Indiana located
in New Albany, Indiana. Milton is also approximately 60 miles from Frankfort, Kentucky.
Therefore, the factors given the greatest weight in the Court’s analysis are the location where
the accident occurred and the probable application of Indiana law to the plaintiff’s sole claim
of negligence. Although the issue is close, a federal court sitting in Indiana would be a more
appropriate forum under the circumstances presented. Laumann Mfg. Corp. v. Castings USA,
Inc., 913 F.Supp. 712, 721-722 (E.D.N.Y. 1996).
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III.
Conclusion
As a result of the plaintiff’s dismissal of Defendant Motorist Mutual Insurance
Company as a party to this proceeding, dismissal of the entire action would not be
appropriate based on improper venue because the sole, remaining defendant resides in this
district. However, transfer of this action is appropriate under 28 U.S.C. § 1404(a). The
action could have been filed with the United States District Court for the Southern District
of Indiana and that court has more familiarity with the governing state law. Accordingly, it
is hereby
ORDERED as follows:
1.
Defendant Bridgewater’s motion to dismiss [Record No. 4] is DENIED.
2.
Defendant Bridgewater’s alternative request to transfer venue [Record No. 4]
is GRANTED.
3.
The Clerk of the Court is DIRECTED to transfer this action to the United
States District Court for the Southern District of Indiana in New Albany, Indiana, for further
proceedings.
This 11th day of August, 2011.
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