Brown et al v. Nationwide Mutual Fire Insurance Company
Filing
39
ORDER granting 7 Motion to Change Venue. The Clerk of Court is hereby directed to transfer this case to the United States District Court for the Eastern District of Michigan, Detroit Division. Signed by District Judge William H. Barbour, Jr on 11/07/2012
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
LANCE E. BROWN AND PATRICIA BROWN
VS.
PLAINTIFFS
CIVIL ACTION NO. 3:12-cv-439-WHB-LRA
NATIONWIDE MUTUAL FIRE INSURANCE COMPANY
DEFENDANT
OPINION AND ORDER
This cause is before the Court on the Motion of Defendant,
Nationwide
Mutual
Fire
Insurance
Company,
to
Transfer
Venue.
Having considered the pleadings, the attachments thereto, as well
as supporting and opposing authorities, the Court finds the Motion
is well taken and should be granted.
I.
Factual background and Procedural History
In February of 2011, Plaintiff, Lance E. Brown (“Brown”), was
allegedly injured when he and Marcelle Whisenton (“Whisenton”) were
involved
in
Mississippi.
a
On
motor
July
vehicle
5,
2011,
accident,
Brown
and
which
his
occurred
wife
in
Patricia
(collectively “the Browns”), filed a lawsuit against Whisenton in
the Circuit Court for the First Judicial District of Hinds County,
Mississippi, seeking to recover damages for injuries they allegedly
sustained as a result of the accident.
In December of 2011, the
Browns filed a Second Amended Complaint by which Nationwide Mutual
Fire Insurance Company (“Nationwide”) was added as a defendant.
Through the Second Amended Complaint, the Browns sought to recover
benefits for the injuries/damages they allegedly sustained as a
result of the motor vehicle accident from Nationwide under a policy
of insurance it had issued to Brown.
On June 27, 2012, following a settlement of their claims
against Whisenton, the Browns filed a Third Amended Complaint in
the state court.
By this Complaint, the Browns dropped their
claims against Whisenton and he was removed as a party to the
lawsuit, thereby leaving Nationwide as the sole defendant.
As
regards Nationwide, the Browns allege that it had issued a policy
of insurance to Brown that provided no-fault insurance coverage.
The Browns further allege that although they submitted a claim to
Nationwide
for
personal
injury
protection
benefits
under
the
subject policy following Brown’s motor vehicle accident, Nationwide
breached the subject policy by refusing and/or ignoring their
claim.
Based on these allegations, the Browns seek compensatory
and punitive damages against Nationwide on a claim of breach of
contract.
The Browns also request declaratory relief regarding:
(1) the applicability of the Michigan No-Fault Act, codified at
Michigan Compiled Laws 500.3101, et. seq., in this case; (2) the
amount of expenses and benefits they are owed under the subject
policy; (3) all coverage disputes; and (4) any other issues
necessary to adjudicate the rights of the parties.
2
Nationwide removed the lawsuit to this Court on the basis of
diversity of citizenship jurisdiction.
Under 28 U.S.C. § 1332,
federal courts have exclusive jurisdiction over civil cases in
which the matter in controversy exceeds $75,000 and the parties are
citizens of different states.
Here, the Third Amended Complaint
does not specify the amount in damages sought by the Browns.
In
the Notice of Removal, however, it is alleged, and the Browns do
not
dispute,
that
the
amount
in
controversy
exceeds
the
jurisdictional requisite as they previously demanded damages in
excess of $80,000 in this case.
See Notice of Removal [Docket No.
1], at ¶ 8 (alleging that the Browns sought damages in excess of
$80,000 in their Second Amended Complaint).
Browns
seek
compensatory
and
punitive
Additionally, as the
damages
for
pain
and
suffering, medical expenses, loss of consortium, lost wages, and
damage to their personal property, the Court finds it is apparent
from the face of the Third Amended Complaint that they seek damages
in an amount greater than $75,000. See e.g. Lindy v. Cliburn Truck
Lines, Inc., 397 F. Supp. 2d 823, 828 (S.D. Miss. 2005)(finding the
amount in controversy was satisfied based on the nature of the
plaintiff’s claims, and her silence in response to the defendant’s
allegation that she was seeking greater than $75,000 in damages).
See also Barahona Rodriguez v. Kivitt’s, Inc., Civil Action No.
3:05-cv-738, 2006 WL 2645190, at *1 (S.D. Miss. Sept. 12, 2006)
(same).
The Court additionally finds the diversity of citizenship
3
requirement
of
Section
1332
is
satisfied
as
the
Browns
are
identified in the Third Amended Complaint as being citizens of
Michigan,1 and Nationwide is identified as foreign corporation with
its principal place of business in Ohio.
both
the
amount
in
controversy
and
As the Court finds that
the
complete
diversity
requirements of 28 U.S.C. § 1332 are satisfied, it additionally
finds it may properly exercise federal subject matter jurisdiction
in this case.
Nationwide has now moved to transfer venue to the
United States District Court for the Eastern District of Michigan.
II.
Discussion
Nationwide has moved for a transfer of venue under 28 U.S.C.
§ 1404(a). Under this statute: “For the convenience of 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 or to any district or division to which
all parties have consented.”
Id.
In applying this statute, the
United States Court of Appeals for the Fifth Circuit has held that
the party seeking to transfer venue “must show good cause.”
In re
Volkswagen AG, 545 F.3d 304, 315 (5th Cir. 2008)(“Volkswagon
1
In their pleadings, the Browns claim they are “presently
staying” in Louisiana. See Resp. [Docket No. 12], Ex. A. The
Court finds the Browns’s purported current residency does not
affect the diversity of citizenship analysis because, even if
considered residents of Louisiana, the citizenship of the Browns
and Nationwide would remain diverse.
4
II”)(quoting Humble Oil & Ref. Co. v. Bell Marine Serv., Inc., 321
F.2d 53, 56 (5th Cir. 1963)).
Th[e] “good cause” burden reflects the appropriate
deference to which the plaintiff’s choice of venue is
entitled. When viewed in the context of § 1404(a), to
show good cause means that a moving party, in order to
support its claim for a transfer, must satisfy the
statutory requirements and clearly demonstrate that a
transfer is “[f]or the convenience of parties and
witnesses, in the interest of justice.” Thus, when the
transferee venue is not clearly more convenient than the
venue chosen by the plaintiff, the plaintiff’s choice
should be respected. When the movant demonstrates that
the transferee venue is clearly more convenient, however,
it has shown good cause and the district court should
therefore grant the transfer.
Id.
When considering whether to transfer a case pursuant to
Section 1404(a), the Fifth Circuit has “suggested ... that the
first determination to be made is whether the judicial district to
which transfer is sought would have been a district in which the
claim could have been filed.”
In re Volkswagen AG, 371 F.3d 201,
203 (5th Cir. 2003)(“Volkswagon I”).
Here, Nationwide argues that
the Browns’s claims against it could have been filed in the United
States District Court for the Eastern District of Michigan, and the
Browns
do
not
contest
this
assertion.
Having
reviewed
the
pleadings, the Court finds the Browns’s claims against Nationwide
could have been filed in the Eastern District of Michigan because
that court could exercise federal subject matter jurisdiction
pursuant to 28 U.S.C. § 1332 for the same reasons the exercise of
subject matter jurisdiction is proper in this Court.
5
Second, the
Michigan court could properly exercise personal jurisdiction over
the parties based on the Browns’s citizenship in Michigan at the
time their claims were filed, and the contacts Nationwide had with
that State including that it had issued the subject insurance
policy in Michigan.
Finally, venue is proper in the Eastern
District of Michigan because that is the District in which the
subject policy was issued, and is the District in which the policy
was
allegedly
citizenship
breached
when
their
as
evidence
claims
were
by
the
filed.
Browns’s
See
28
Michigan
U.S.C.
§
1391(b)(2) (providing, in relevant part, that “[a] civil action may
be brought in ... a judicial district in which a substantial part
of the events or omissions giving rise to the claim occurred ...”).
For these reasons, the Court finds the Browns’s claims against
Nationwide could have been filed in the United States District
Court for the Eastern District of Michigan, the proposed transferee
venue.
Having determined the Browns’s claims against Nationwide could
have been filed in the United States District Court for the Eastern
District of Michigan, the Court now considers whether the lawsuit
should be transferred to that venue under 28 U.S.C. § 1404(a).
Under this statute, the Court is required to consider two issues:
“the convenience of parties and witnesses” and “the interest[s] of
justice.”
Id.
The Fifth Circuit has held that the “determination
of ‘convenience’ turns on a number of private and public interest
6
factors, none of which are given dispositive weight.”
Volkswagon
I, 371 F.3d at 203 (citing Action Indus., Inc. v. United States
Fid. & Guar. Co., 358 F.3d 337, 340 (5th Cir. 2004)).
The private
concerns identified by the Fifth Circuit 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; and (4) all other
practical problems that make trial of a case easy, expeditious and
inexpensive.”
Id. (citing Piper Aircraft Co. v. Reyno, 454 U.S.
235, 241 n.6 (1981)).
The public concerns to be considered
include: “(1) the administrative difficulties flowing from court
congestion; (2) the local interest in having localized interests
decided at home; (3) the familiarity of the forum with the law that
will govern the case; and (4) the avoidance of unnecessary problems
of conflict of laws [or in] the application of foreign law.”
Id.
(citing Piper Aircraft, 454 U.S. at 241 n.6).
The first private concern considered is the relative ease of
access to sources of proof.
Here, Nationwide argues that the
majority of the sources of proof in this case are located in
Michigan because (1) all the physicians who, and all the health
care facilities that, provided care to Brown following the accident
are located in Michigan, and (2) the Browns’s claims for benefits
under the subject policy are being managed by Nationwide employees
in Michigan.
See Rebuttal [Docket No. 18], at 3.
7
The Browns do
not dispute these assertions. See e.g. Resp. at 4 (indicating that
Brown’s “treating physicians do reside and/or conduct business in
Michigan.”).
The Browns, however, argue, that the location of the
records in this case is not an issue because the records “are
easily accessible” and “can be easily obtained via mail.” Id.
The
Court finds the Browns’s argument regarding ready accessibility is
contrary to Fifth Circuit precedent.
See e.g. Volkswagon II, 545
F.3d at 316 (explaining that although “access to some sources of
proof presents a lesser inconvenience now than it might have absent
recent developments” does not render the [access to sources of
proof] factor superfluous.”).
The Court additionally finds, and
the parties do not dispute, that because all of the records
relevant to the Browns’s claims against Nationwide are located in
Michigan, the access to sources of proof factor favors transfer.
See id. (finding that the access to sources of proof factor weighed
in favor of transfer in a case in which all of the documents
relating to the underlying claim were located in the proposed
transferee venue).
The second private concern considered is the availability of
compulsory process to secure the attendance of witnesses. Here, as
discussed by Nationwide in its pleadings, all of the witnesses in
this
case,
including
Brown’s
health
care
providers
and
the
employees who managed the claims made by the Browns under the
subject insurance policy, are in Michigan.
8
As such, the Court
finds that all of these witnesses are outside the subpoena power of
this Court, and that any subpoena issued by this Court to require
the attendance of any of these witnesses for deposition or trial
would
be
subject
to
a
motion
to
quash.
See
FED. R. CIV. P.
45(c)(3)(A)(ii)(providing that an issuing court must quash or
modify a subpoena that “requires a person who is neither a party
nor a party’s officer to travel more than 100 miles from where that
person resides, is employed, or regularly transacts business in
person...”).
Accordingly, the Court finds the availability of
compulsory process factor favors transfer despite the Browns’s
argument
that
they
do
witnesses via subpoena.”
not
presently
anticipate
“compelling
See Resp. at 4.
The third concern considered is the cost of attendance for
willing witnesses.
As to this factor, the Fifth Circuit has
explained:
When the distance between an existing venue for trial of
a matter and a proposed venue under § 1404(a) is more
than 100 miles, the factor of inconvenience to witnesses
increases in direct relationship to the additional
distance to be traveled.
Additional distance means
additional travel time; additional travel time increases
the probability for meal and lodging expenses; and
additional travel time with overnight stays increases the
time which these fact witnesses must be away from their
regular employment. Furthermore, the task of scheduling
fact witnesses so as to minimize the time when they are
removed from their regular work or home responsibilities
gets increasingly difficult and complicated when the
travel time from their home or work site to the court
facility is five or six hours one-way as opposed to 30
minutes or an hour.
Volkswagon I, 371 F.3d at 204-05. Here, as discussed above, all of
9
the witnesses in this case are in Michigan.
The Court takes
judicial notice of the fact that Southfield, Michigan (which is
identified
providers
as
the
reside)
city
is
in
which
five
approximately
of
953
Brown’s
miles
Mississippi (which is the location of this Court).
healthcare
from
Jackson,
Based on this
distance, the Court finds the cost of having these witnesses
testify in this Court is significant as there is an increased
probability that they would be required to lodge in this District
overnight thereby increasing the time they would be away from their
regular employment and their home responsibilities.
Accordingly,
the Court finds the cost of attendance factor favors transfer.
The final private factor to be considered is whether there
exists any other practical problems that make trial of a case easy,
expeditious and inexpensive.
The only argument raised in the
pleadings that seemingly implicates this factor is the Browns’s
claim that the vehicle and trailer that were allegedly damaged in
the accident are currently in Louisiana.
There is no claim,
however, that the Browns would be required to transport the
vehicle/trailer to the courthouse for the purpose of having a jury
inspect the alleged damage at trial.
Accordingly, the Court finds
the Browns’s argument regarding the location of the damaged vehicle
and trailer do not impact the Section 1404(a) transfer analysis.
The Court now turns to the public concerns that are to be
considered when deciding a motion to transfer venue under Section
10
1404(a). The first public concern considered is the administrative
difficulties flowing from court congestion.
Here, there has been
no showing that this factor bears on the issue of transfer.
The second public concern considers the local interest in
having localized interests decided at home.
Having reviewed the
pleadings, the Court finds there are no localized interests in
having this case decided in Mississippi.
Specifically, this case
concerns plaintiffs who were citizens of Michigan at the time their
claims against Nationwide were filed, and who are “presently
staying” in Louisiana. The claims in this case involve a policy of
insurance that was issued and allegedly breached in Michigan.
As
understood by the Court, the only connection Mississippi now has
with the Browns’s claims against Nationwide is that it is the state
in which the automobile accident, from which the Browns’s claims
for insurance benefits arose, occurred.2
The Court finds that
while Mississippi may have had an interest in the case when the
issue of liability for the accident was pending, that issue has
been
resolved
as
the
Browns’s
claims
negligent Whisenton have been settled.
against
the
allegedly
There has been no argument
or showing that Mississippi would continue to have an interest in
2
In their Response, the Browns argue that there exists a
localized interest because this Court sits in the same federal
circuit, i.e. the United States Fifth Circuit, as does Louisiana,
the state in which they are currently located. The Browns,
however, have not cited to any authority whereby the sharing of a
common federal circuit implicates the transfer analysis under
Section 1404(a).
11
this case as it involves non-resident parties and concerns a
contract that was neither entered nor allegedly breached within her
borders.
Accordingly, the Court finds the local interest factor
favors transfer.
The third and forth public concerns consider the familiarity
of the forum with the law that will govern the case, and the
avoidance of unnecessary problems of conflict of laws or in the
application of foreign law, respectively.
Here, there has been no
showing that Mississippi law should be applied in this case, and
the Browns have specifically requested that the case be decided
under the Michigan No-Fault Act, codified at Michigan Compiled Laws
500.3101, et. seq.
As the Court has no familiarity with Michigan
law, and has not previously been called upon to apply the Michigan
No-Fault Act, it finds the judges in Michigan would likely be more
familiar with, and therefore better able to determine whether the
laws of that State should be applied in this case, and then to
apply those laws as necessary.
Accordingly, the Court finds the
familiarity with governing law and the application of foreign law
factors favor transfer.
In sum, the Court finds the private and public concerns
relevant to a transfer of venue under 28 U.S.C. § 1404(a) favor
transfer in this case.
Thus, the Court finds Nationwide has shown
good cause for such transfer.
Accordingly, the Court will grant
the Motion of Nationwide to Transfer Venue, and will transfer this
12
case to the United States District Court for the Eastern District
of Michigan, Detroit Division.
III.
Conclusion
For the foregoing reasons:
IT IS THEREFORE ORDERED that the Motion of Nationwide to
Transfer Venue [Docket No. 7], is hereby granted.
IT IS FURTHER ORDERED that the Clerk of Court is hereby
directed to transfer this case to the United States District Court
for the Eastern District of Michigan, Detroit Division.
SO ORDERED this the 7th day of November, 2012.
s/ William H. Barbour, Jr.
UNITED STATES DISTRICT JUDGE
13
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