Cortez v. Hallmark County Mutual Insurance Company

Filing 19

ORDER denying 4 Motion to Dismiss for Failure to State a Claim / and for Improper Venue. Signed by Judge Jay C. Zainey on 7/28/15. (jrc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LEMCY CORTEZ

CIVIL ACTION

VERSUS

NO: 15-0479

HALLMARK CTY. MUT. INSUR.
CO.

SECTION: "A" (2)

ORDER AND REASONS
Before the Court is a Rule 12(b)(6) Motion to Dismiss for
Failure to State a Claim Upon Which Relief Can be Granted and
Rule 12(b)(3) Motion to Dismiss Based on Improper Venue / Forum
Non Conveniens (Rec. Doc. 4) filed by defendant Hallmark County
Mutual Insurance Company ("Defendant").
("Plaintiff") opposes the motion.

Plaintiff Lemcy Cortez

The motion, set for hearing on

March 11, 2015, is before the Court on the briefs without oral
argument.1
I.

BACKGROUND

The instant case arises out of an automobile accident on an
Oklahoma state highway.

Plaintiff alleges that on or about June

25, 2014, he was traveling westbound when the driver of another
vehicle veered into his lane.

Plaintiff claims that he suffered

significant injuries and that the other driver was killed as a
result of the accident.

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Plaintiff alleges that the accident

The Court finds that oral argument would not be helpful to
resolve the issues before it.

occurred as a result of the negligence of the other driver.
According to the Plaintiff, the other driver carried an
insurance policy with Safeco Insurance with a $50,000 liability
limit.

Plaintiff reports that he settled with the other driver

and Safeco under that policy.
Plaintiff now seeks via this litigation to recover uninsured
/ underinsured motorist and medical benefits from Defendant, whom
Plaintiff claims had issued a policy of insurance to the vehicle
which Plaintiff was driving at the time of collision.
II.

DISCUSSION

As Defendant has presented arguments under both 12(b)(6) and
12(b)(3), the Court will divide its analysis into two sections.
It will first address the arguments under 12(b)(6).
a.

Motion to Dismiss via 12(b)(6)

In the context of a motion to dismiss the Court must accept
all factual allegations in the complaint as true and draw all
reasonable inferences in the plaintiff’s favor.

Lormand v. US

Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009) (citing Tellabs,
Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007); Scheuer
v. Rhodes, 416 U.S. 232, 236 (1974); Lovick v. Ritemoney, Ltd.,
378 F.3d 433, 437 (5th Cir. 2004)).

However, the foregoing tenet

is inapplicable to legal conclusions.
Ct. 1937, 1949 (2009).

Ashcroft v. Iqbal, 129 S.

Thread-bare recitals of the elements of a

cause of action, supported by mere conclusory statements, do not
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suffice.

Id. (citing Bell Atlantic Corp. v. Twombly, 550, U.S.

544, 555 (2007)).
The central issue in a Rule 12(b)(6) motion to dismiss is
whether, in the light most favorable to the plaintiff, the
complaint states a valid claim for relief.

Gentilello v. Rege,

627 F.3d 540, 544 (5th Cir. 2010) (quoting Doe v. MySpace, Inc.,
528 F.3d 413, 418 (5th Cir. 2008)).

To avoid dismissal, a

plaintiff must plead sufficient facts to “state a claim for
relief that is plausible on its face.”
S. Ct. at 1949).

Id. (quoting Iqbal, 129

“A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.”

Id.

The Court does not accept as true

“conclusory allegations, unwarranted factual inferences, or legal
conclusions.”

Id. (quoting Plotkin v. IP Axess, Inc., 407 F.3d

690, 696 (5th Cir. 2005)).
by factual allegations.

Legal conclusions must be supported

Id. (quoting Iqbal, 129 S. Ct. at 1950).

Defendant argues that Plaintiff settled his claim with the
alleged tortfeasor and the alleged tortfeasor's insurance carrier
without either giving notice to Defendant or allowing Defendant
to tender an amount equal to the tentative settlement.

Defendant

contends that these actions trigger exclusions in its policy and,
in the alternative, render the policy null and void.
As an essential foundation for these arguments, Defendant

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relies on record document evidence consisting not only of the
policy at issue, but also other items such as an endorsement
letter issued by Defendant and an affidavit.

Additionally, both

the opposition filed by Plaintiff and the reply filed by
Defendant rely heavily on affidavits, emails, vehicle
registrations, and corporate information to either make or rebut
the arguments presented.

The Court may not consider such

materials in determining the merits of a 12(b)(6) motion.

Thus,

the Court cannot address the merits of the arguments; if the
parties choose to raise such arguments again, they will be better
addressed on summary judgment at a later stage in the proceedings
after appropriate discovery has been undertaken.2
b.

Motion to Dismiss via 12(b)(3)

The Court will only address the issue of forum non
conveniens in its 12(b)(3), as that is the only related issue
briefed by Defendant.3
In resolving a forum non conveniens issue "the ultimate
inquiry is where trial will best serve the convenience of the
parties and the ends of justice."

Syndicate 420 at Lloyd's

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The Court's decision at this point in the proceedings should
not be read as an indication of any opinion as to the merits of either
party's argument.
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The Court notes the sparse briefing on this issue. Defendant
has devoted three sentences to the substantive analysis of this
argument in its memorandum and included no further argument on this
issue in its reply to Plaintiff's opposition.

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London v. Early Am. Ins. Co., 796 F.2d 821, 827 (5th Cir. 1986)
(quoting Koster v. Lumbermen's Mut. Casualty Co., 330 U.S. 518,
527 (1947)).

"The general principal of the doctrine 'is simply

that a court may resist imposition upon its jurisdiction even
when jurisdiction is authorized.'"

Dickson Marine Inc. v.

Panalpina, Inc., 179 F.3d 331, 342 (5th Cir. 1999) (citing Gulf
Oil Corp. v. Gilbert, 330 U.S. 501, 507 (1947)).
The first step in a forum non conveniens analysis is to
determine whether there exists an adequate and available
alternative forum for resolution of the dispute.

Syndicate 420

at Lloyd's London, 796 F.2d at 828 (5th Cir. 1986) (citing
Perusahaan Umum Listrik Negara Pusat v. M/V Tel Aviv, 711 F.2d
1231, 1238 (5th Cir. 1983)).

The second step of the forum non

conveniens inquiry involves the balancing of public and private
interest factors.
The private interest factors to be considered by the
Court relate primarily to the convenience of the
litigants. They include:
(1) the relative ease of access to sources of proof;
(2) the availability of compulsory process to secure the
attendance of witnesses;
(3) the cost of attendance for willing witnesses;
(4) all other practical problems that make trial of a
case easy, expeditious and inexpensive.
The public interest factors relevant to the analysis are:
(1) the administrative difficulties flowing from court
congestion;
(2) the local interest in having localized controversies
decided at home;
(3) the familiarity of the forum with the law that will
govern the case;
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(4) the avoidance of unnecessary problems of conflict of
laws or the application of foreign law.
Id. at 831 (citing Piper Aircraft Co. v. Reyno, 454 U.S.
235, 241 n.6 (1981)).
In balancing the public and private interest factors, the
Fifth Circuit has emphasized that "no one private or public
interest factor should be given conclusive weight."

Dickson

Marine Inc. v. Panalpina, Inc., 179 F.3d 331, 342 (5th Cir.
1999).

Furthermore, the plaintiff's choice of forum is "entitled

to great weight in the balancing of factors, and unless the
balance strongly favors the defendants, the plaintiff's choice of
forum should not be overturned."

Syndicate 420 at Lloyd's

London, 796 F.2d at 831 (quoting Gulf Oil Corp. v. Gilbert, 330
U.S. 501, 508 (1947)).
Defendant does not advocate for a certain venue; it argues
only that Louisiana is an inconvenient one.

Defendant points out

that the accident occurred in Oklahoma, that Plaintiff's employer
and Defendant both do business in Texas, and that the policy was
negotiated and issued in Texas.

Plaintiff responds that all

major witnesses are in Louisiana and that Plaintiff, his wife,
and the majority of treating doctors are all within the Eastern
District of Louisiana.

Plaintiff alleges that there are no

witnesses to the accident in Oklahoma and that the Defendant
routinely defends cases in the Eastern District of Louisiana.
Finally, Plaintiff notes that Plaintiff's employer has an office

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in Louisiana and that Plaintiff was employed within Louisiana.
As neither party disputes that courts in Texas or Oklahoma
are adequate and available, the Court will focus its analysis on
the second prong – the public and private factors.
Noting the significant deference that must be given to
Plaintiff's choice of forum, this Court finds that the Eastern
District of Louisiana constitutes a convenient forum.

The only

private factor that weighs in favor of a different forum is the
location of the accident, Oklahoma.

Defendant has not contested

Plaintiff's claim as to the location of the majority of
anticipated witnesses.

Thus, the private factors weigh in favor

of Louisiana as a convenient forum.

Even if viewed in a light

most favorable to Defendant, an analysis of the public factors
remains inconclusive.

Both parties devoted considerable briefing

to whether Louisiana or Texas law will apply.4

However, even if

transferred to Texas, the disputes about choice of law would
remain.

Further, even if Texas law must ultimately be applied,

courts within this district have familiarity with the law of that
state, given its proximity.

Therefore, the Court will not

dismiss or transfer this case on the basis of forum non
conveniens.

C.f., Am. Dredging Co. v. Miller, 510 U.S. 443, 455

(1994)(quoting Piper Aircraft Co., 454 U.S. at 257 ("The forum

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Being unnecessary to its decision today, the Court does not
resolve this issue at this point in the proceedings.

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non conveniens determination is committed to the sound discretion
of the trial court.")).
Accordingly, and for the foregoing reasons;
IT IS ORDERED that the Motion to Dismiss (Rec. Doc. 4) filed
by Plaintiffs is DENIED.

It is denied without prejudice to

Defendant's ability to raise the arguments made on its 12(b)(6)
motion at a later stage in the proceedings.

This 28th day of July 2015.

______________________________
JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE

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