HENDERSON v. AMERICAN STEAMSHIP OWNERS MUTUAL PROTECTION AND INDEMNITY ASSOCIATION INC et al

Filing 34

ORDER ON PENDING MOTIONS - denying 13 Motion to Dismiss; denying 13 Motion for Summary Judgment; granting 13 Motion to Change Venue; granting 29 Motion to Amend Complaint ; granting 29 Motion to Dismiss Atlantic Pelagic Seafood LLC. REMINDER: After entry of this Order, if Amending a COMPLAINT, counsel are REQUIRED to separately file the AMENDED COMPLAINT Document. By JUDGE D. BROCK HORNBY. (mnw)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
MARK J. HENDERSON,

)
)
PLAINTIFF
)
)
v.
)
)
AMERICAN STEAMSHIP OWNERS )
MUTUAL PROTECTION AND
)
INDEMNITY ASSOCIATION INC.
)
and ATLANTIC PELAGIC
)
SEAFOOD LLC,
)
)
DEFENDANTS
)

NO. 2:11-cv-86-DBH

ORDER ON PENDING MOTIONS
1.

Plaintiff’s Motion to Amend Complaint and to Dismiss Party
The plaintiff’s motion to amend complaint is GRANTED.

The defendant

does not object to the dropping of party Atlantic Pelagic Seafood LLC. It does
complain that the reach-and-apply claim is still premature, but I disagree.
Final (default) judgment in the underlying lawsuit against Atlantic Pelagic
Seafood LLC entered in this court on April 22, 2011. See Henderson v. Atlantic
Pelagic Seafood LLC, No. 2:10-cv-68-DBH (Docket Item 66). More than twenty
days have passed since then. Maine’s reach-and-apply statute states that a
lawsuit

cannot

“be

brought

against

an

insurer

to

reach

and

apply

. . . insurance money until 20 days shall have elapsed from the time of the
rendition of the final judgment against the judgment debtors.” 24-A M.R.S.A.
§ 2904. That requirement is satisfied. The defendant argues that the twenty

days should not start until the appeals period has passed, relying on Goya
Foods, Inc. v. Wallack Mgmt. Co., 290 F.3d 63, 74 (1st Cir. 2002). But that
case dealt with Puerto Rico procedural rules, and in that case the trial judge
actually stayed execution of the judgment pending appeals. Here, the language
of the Maine statute is clear on its face―“rendition of the final judgment”
(emphasis added). That rendition occurred on April 22, 2011.
2.

Defendant’s Motion to Dismiss the Complaint and/or for Summary
Judgment or Alternatively to Transfer Venue
The defendant’s motion to dismiss the complaint and/or for summary

judgment is DENIED,1 but the motion to transfer venue is GRANTED.
On the motion to dismiss the complaint, I conclude that it is premature
to rule now on the defendant’s assertion that a ruling in the Southern District
of New York defaulting the insured Atlantic Pelagic Seafood LLC prevents the
plaintiff from recovering in this reach-and-apply lawsuit.

The plaintiff is

contesting personal jurisdiction in that case, and the judge has not yet ruled
on whether there is jurisdiction over the plaintiff.

Without personal

jurisdiction, there could be no res judicata effect.
The parties disagree over whether the forum clause in the insurance
agreement bears upon where this lawsuit should proceed, whether this court
has personal jurisdiction over the insurer (the plaintiff concedes that there is
no general jurisdiction, but argues that specific jurisdiction exists), and
whether venue is proper in this District.

In granting the motion to amend the complaint, I have rejected the argument that the reachand-apply claim is premature and should be dismissed. In all other respects, the motion is
either premature or moot for the reasons stated in text.
1

2 

But since I conclude that the lawsuit should be transferred to the
Southern District of New York under 28 U.S.C. § 1404(a) (change of venue “for
the convenience of parties and witnesses, in the interest of justice”), § 1406 (a)
(“[t]he district court of a district in which is filed a case laying venue in the
wrong . . . district shall dismiss, or if it be in the interest of justice, transfer
such case to any district . . . in which it could have been brought”) or § 1631
(“[w]henever a civil action is filed in a court . . ., and that court finds that there
is a want of jurisdiction, the court shall, if it is in the interest of justice,
transfer such action . . . to any other such court in which the action . . . could
have been brought at the time it was filed”), and there is no dispute that the
lawsuit could have been brought there, it is unnecessary to rule on the
preceding issues.2
The 1404(a) factors favor transfer for these reasons.
This is a lawsuit over whether the defendant insurer has an obligation to
pay the default judgment the plaintiff has obtained against the insured.
Neither the plaintiff nor the insurer has any Maine presence, and the accident
and injury did not occur here.
There are no witnesses or documents here.

If personal jurisdiction exists but venue is wrong, the transfer is under § 1406(a). See 28
U.S.C. § 1406(a); Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466-67 (1962). If personal
jurisdiction is lacking, § 1631 furnishes the ground for transfer. See 28 U.S.C. § 1631; Cimon
v. Gaffney, 401 F.3d 1, 7 n.21 (1st Cir. 2005) (court noted that, although it did not definitively
have to resolve issue, it was inclined to view § 1631 as applying when federal court lacks any
type of jurisdiction, including personal jurisdiction). Although the academic commentators
seem to urge a trial judge to decide these issues first and thus which transfer section applies,
15 Charles Alan Wright & Arthur R. Miller, FEDERAL PRACTICE AND PROCEDURE § 3842 (3d ed.
2007), the parties have not urged the distinctions here.
2

3 

Although the physical location of documents is not critical in today’s
electronic world, any relevant documents are in New York.
As the case proceeds procedurally, any depositions or affidavits are likely
to come from the defendant’s New York employees and agents.
Any presumption in favor of the plaintiff’s choice of forum, or the “firstto-file” rule is exceedingly weak, because after the plaintiff filed the lawsuit
here that resulted in a default judgment against the insured, his lawyers
announced that they would be filing a reach-and-apply action.

Then the

defendant insurer expeditiously filed its lawsuit in the Southern District for a
declaration of no coverage and soon thereafter the plaintiff filed this lawsuit in
this District for a declaration of coverage (now, by the amended complaint,
converted to a reach-and-apply claim). In other words, both parties engaged in
a race to the courthouse.
The convenience of the plaintiff’s lawyers is not a factor, In re
Volkswagen AG, 371 F.3d 201, 206 (5th Cir. 2004) (“The word ‘counsel’ does
not appear anywhere in § 1404(a), and the convenience of counsel is not a
factor to be assessed in determining whether to transfer a case under
§ 1404(a).”); In re Horseshoe Entm’t, 337 F.3d 429, 434 (5th Cir. 2003); U.S. ex
rel. Ondis v. City of Woonsocket, RI, 480 F. Supp. 2d 434, 437 (D. Mass. 2007),
and I note that they have been permitted to appear pro hac vice in the
Southern District of New York.
In sum, while the arguments are not strong in either direction, they do
favor New York.
4 

Accordingly, the motion to transfer venue is GRANTED, and the motion to
dismiss the Complaint and/or for summary judgment is DENIED.
SO ORDERED.
DATED THIS 6TH DAY OF JUNE, 2011
/S/ D. BROCK HORNBY
D. BROCK HORNBY
UNITED STATES DISTRICT JUDGE

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