Waterbury v. Progressive Northern Insurance Company
Filing
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ORDER denying 32 Motion to Change Venue. Signed by Chief Judge Linda R Reade on 1/4/2016. (skm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION
BRETT WATERBURY,
Plaintiff,
No. 15-CV-112-LRR
vs.
ORDER
PROGRESSIVE NORTHERN
INSURANCE COMPANY,
Defendant.
____________________
I. INTRODUCTION
The matter before the court is Plaintiff Brett Waterbury’s “Motion to Transfer
Venue” (“Motion”) (docket no. 32), which Waterbury filed on November 19, 2015. On
December 3, 2015, Defendant Progressive Northern Insurance Company (“Progressive”)
filed a Resistance (docket no. 33). Waterbury did not file a reply and the time for doing
so has expired. The matter is fully submitted and ready for decision.
II. RELEVANT PROCEDURAL HISTORY
On May 29, 2015, Waterbury filed a Petition in the Circuit Court of Camden
County, Missouri. On July 13, 2015, the case was removed to the United States District
Court for the Western District of Missouri (docket no. 1). On September 10, 2015,
Progressive filed a Motion to Transfer Venue (docket no. 16), requesting that the case be
transferred to the United States District Court for the Northern District of Iowa. Waterbury
did not resist the Motion to Transfer Venue. On October 1, 2015, Judge Nanette Laughrey
entered an Order to Show Cause (docket no. 19), directing Waterbury to demonstrate why
Progressive’s Motion to Transfer Venue should not be granted. Waterbury did not respond
to the Order to Show Cause. On October 16, 2015, the case was transferred to this court
from the United States District Court for the Western District of Missouri. See October
16, 2015 Entry (docket no. 22).
III. ANALYSIS
A. Parties’ Arguments
In the Motion, Waterbury requests that the court transfer venue back to the United
States District Court for the Western District of Missouri. See Brief in Support of the
Motion (docket no. 32-1) at 5. He argues that the case should be transferred because three
witnesses are located in Missouri, two of whom Plaintiff intends to designate as expert
witnesses and that this was not sufficiently explained in Progressive’s initial Motion to
Transfer Venue. Waterbury also states that his former counsel, Todd Miller, did not
inform him of Progressive’s Motion to Transfer Venue and that Miller failed to resist the
Motion to Transfer Venue despite Waterbury’s preference “that his case remain in
Missouri.” Id. at 2; Declaration of Brett Waterbury (docket no. 32-2) at 7-8.
Progressive argues that the court should deny the Motion because “Plaintiff fails to
prove that transferring venue back to [the] Western [District of] Missouri would be
convenient for the parties, the majority of witnesses, or would promote the interests of
justice.” Resistance at 1. Progressive also argues that the Motion is improper because
it merely attempts to discredit Progressive’s Motion to Transfer Venue, which was
unresisted. See Brief in Support of the Resistance (docket no. 33-1) at 3. Although the
court recognizes that Waterbury’s former counsel failed to resist the Motion to Transfer
Venue and that Waterbury cannot do so now, the court will address the Motion on the
merits to determine whether venue in the Northern District of Iowa is appropriate pursuant
to 28 U.S.C. § 1404(a).
B. Applicable Law
The ability to transfer a case to another district is governed by 28 U.S.C. § 1404(a),
which states that “[f]or 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
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it might have been brought or to any district or division to which all parties have
consented.” 28 U.S.C. § 1404(a). Courts must consider “three general categories of
factors . . . when deciding a motion to transfer: (1) the convenience of the parties, (2) the
convenience of the witnesses, and (3) the interests of justice.” Terra Int’l, Inc. v. Miss.
Chem. Corp., 119 F.3d 688, 691 (8th Cir. 1997). However, a court is not limited to those
three factors and should engage in a “case-by-case evaluation of the particular
circumstances at hand and a consideration of all relevant factors.” Id. Furthermore, once
an initial motion to transfer has been granted “and the case is transferred to another
district, the transferee-district should accept the ruling on the transfer as the law of the case
and should not re-transfer ‘except under the most impelling and unusual circumstances’ or
if the transfer order is ‘manifestly erroneous.’” In re Cragar Indus., Inc., 706 F.2d 503,
505 (5th Cir. 1983) (quoting United States v. Koenig, 290 F.2d 166, 173 n.11 (5th Cir.
1961)); see also Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816 (1988)
(stating that the doctrine of “the law of the case” applies “with even greater force to
transfer decisions than to decisions of substantive law [because] transferee courts that feel
entirely free to revisit transfer decisions of a coordinate court threaten to send litigants into
a vicious circle of litigation”).
C. Application
Waterbury argues that the court should transfer this case back to the United States
District Court for the Western District of Missouri because three witnesses, including two
witnesses that Waterbury intends to designate as experts, are located in Missouri.
Waterbury also argues that the court should transfer the case because his Missouri counsel
never resisted to Progressive’s initial motion to transfer and Waterbury was not made
aware of such motion.
Waterbury’s main argument is that the case should be transferred back to Missouri
for the convenience of the witnesses. However, this argument was available to him at the
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time Progressive filed its initial motion to transfer venue to this court. Based on the facts
in the record, it appears that there are three potential witnesses located in Missouri and
four potential witnesses located in Iowa. The fact that two of the Missouri witnesses may
be designated as expert witnesses does not weigh more heavily in favor of transfer.
Additionally, the fact that Waterbury’s former counsel failed to inform Waterbury of
Progressive’s Motion to Transfer Venue or to file a resistance does not provide this court
with a basis to revisit that decision post-transfer.
Although Waterbury does not address the other factors governing transfer in the
Motion, Progressive argues that this court is more convenient for the parties. The court
agrees. Waterbury is a resident of Cedar Rapids, Iowa. Progressive has numerous agents
operating in Iowa, including the agent who denied the claim at issue in this case.
Furthermore, Progressive does not have any offices or agents in Missouri. Although
Waterbury states that he wanted to pursue litigation in Missouri, he does not provide
reasons other than the fact that three of the witnesses are located there.
When evaluating the interests of justice, court can consider “(1) judicial economy,
(2) the plaintiff’s choice of forum, (3) the comparative costs to the parties of litigating in
each forum, (4) each party’s ability to enforce a judgment, (5) obstacles to a fair trial, (6)
conflict of law issues, and (7) the advantages of having a local court determine questions
of local law.” Terra Int’l, 119 F.3d at 696. Progressive argues that several of these
factors support denying the Motion, stating that this case should be heard in Iowa because
“this case revolves around an Iowa insurance contract dispute between an Iowa resident
and a business operating in Iowa” and that the costs of litigation are similar in either
forum. See Brief in Support of the Resistance at 7. Waterbury argues that because three
witnesses live in Missouri, it would be more expensive to have to travel to Missouri for
depositions or for those witnesses to travel to Iowa for trial. However, there are at least
four other witnesses, including Waterbury himself, located in Iowa. Therefore, the
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comparative costs appear substantially similar.
Waterbury also argues that he preferred the case to remain in Missouri. Although
“[i]n general, federal courts give considerable deference to a plaintiff’s choice of forum
and thus the party seeking transfer . . . typically bears the burden of proving that a transfer
is warranted,” that maxim does not apply to the instant Motion because Waterbury already
had a chance to resist the initial transfer of this case. In re Apple, 602 F.3d at 913
(quoting Terra Int’l, Inc., 119 F.3d at 695) (first alteration in original). The fact that his
former counsel failed to resist Progressive’s Motion to Transfer Venue and to inform
Waterbury about such motion does not result in this court analyzing the Motion as a
resistance to Progressive’s initial motion. Instead, Waterbury must demonstrate that
transfer of this case is appropriate, not that the previous transfer was inappropriate.1 The
court finds that Waterbury has not met this burden. The convenience of the parties, the
convenience of the witnesses and the interests of justice do not favor transfer.
Additionally, there is nothing in the instant scenario that constitutes “impelling or
erroneous circumstances” warranting re-transfer of the case. See In re Cragar Indus.,
Inc., 706 F.2d at 505 (quoting Koenig, 290 F.2d at 173 n.11).
IV. CONCLUSION
In light of the foregoing, the Motion to Transfer Venue (docket no. 32) is DENIED.
IT IS SO ORDERED.
1
Waterbury does not argue that this court constitutes an improper venue, only that
he preferred to litigate the case in Missouri as it is a more convenient forum.
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DATED this 4th day of January, 2016.
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