Waterway Gas & Wash Company v. OneBeacon America Insurance Company

Filing 46

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that defendants motion to transfer venue, pursuant to 28 U.S.C. § 1404, to the Western District of Missouri [Doc. #13] is denied.. Signed by Honorable Carol E. Jackson on 9/16/2010. (KMS)

W ater way Gas & Wash Company v. OneBeacon America Insurance Company

Do c. 46

UNITED STATES DISTRICT COURT E A S TE R N DISTRICT OF MISSOURI E AS TE RN DIVISION

W A TE R W A Y GAS & WASH CO., Plaintiff, vs. O N E B E A C O N AMERICA INS. CO., Defendant.

) ) ) ) ) ) ) ) )

Ca se No. 4:09-CV-2121 (CEJ)

M E M O R A N D U M AND ORDER This matter is before the Court on defendant's motion to transfer venue, p u rsu a n t to 28 U.S.C. § 1404, to the United States District Court for the Western D istrict of Missouri. Plaintiff has filed a response in opposition to the motion and th e issues are fully briefed. I. B a c kg r o u n d

P la in tiff Waterway Gas & Was Company operates a gas station in Kansas C ity, Missouri. Defendant OneBeacon America Insurance Company issued plaintiff a policy of insurance for business and property losses. On June 12, 2008, a water m a in owned and operated by the City of Kansas City, Missouri ruptured. The

ru p tu red water main was located immediately adjacent to the gas station; repairs to the water main were completed on June 25, 2008. On June 23, 2008, an alarm indicated that water was flowing into an un dergroun d gasoline storage tank located about 30 feet from the ruptured water lin e. Water was entering the tank at the rate of 40 gallons per hour. Plaintiff alleges that the tank was ruptured beyond repair and required replacement, which in turn required removal of all of the underground storage tanks, excavation of

Dockets.Justia.com

contam inated soil, replacement of tank beds, and installation of new product lines, a process which took six weeks to complete. Plaintiff submitted a claim for

cov era ge for its costs of remediaton and construction, employee expenses, and lost revenue. Defendant denied the claim, asserting that the tank rupture was ca u sed by corrosion, which the policy specifically excluded from coverage. Plaintiff filed suit in this district, asserting claims for breach of contract and vexatious re fu s a l to pay pursuant to Mo.Rev.Stat. §§ 375.296 and 375.420. II. D i s c u s s io n

D e fe n d a n t seeks transfer to the Western District of Missouri, pursuant to 28 U .S .C. § 1404, which provides: "For the convenience of parties and witnesses, in the interests of justice, a district court may transfer any civil action to any other d istrict or division where it might have been brought." The parties agree that this a ction "might have been brought" in the Western District of Missouri. The statute reveals three general categories of factors the courts must consider in when deciding a motion to transfer -- the convenience of the parties, th e convenience of the witnesses, and the interests of justice. Terra Int'l, Inc. v. M ississip p i Chem. Corp., 119 F.3d 688, 691 (8th Cir. 1997). This is not an

exh au stive list, however, and courts must engage in a "case-by-case evaluation of the particular circumstances at hand and a consideration of all relevant factors." I d . Among the factors courts consider are "the availability of judicial process to com pel the attendance of unwilling witnesses, the governing law, the relative ease of access to sources of proof, the possibility of delay and prejudice if transfer is gran ted, and the practical considerations indicating where the case can be tried

-2-

m ore expeditiously and inexpensively." Fibra-Steel, Inc. v. Astoria Industries, In c., 708 F. Supp. 255, 257 (E.D. Mo. 1989). The party seeking a transfer bears the burden of proving a transfer is w arranted and courts generally give considerable deference to a plaintiff's choice of forum. Terra Int'l, 119 F.3d at 695. "When plaintiff and defendant are in

different states there is no choice of forum that will avoid imposing inconvenience; a nd when the inconvenience of the alternative venues is comparable, there is no ba sis for a change of venue; the tie is awarded to the plaintiff." Trident Steel C o rp . v. Oxbow Steel Int'l, LLC, 2009 WL 3242045, *4 (E.D. Mo. Oct. 5, 2009) (qu oting In re National Presto Indus., Inc., 347 F.3d 662, 665 (7th Cir. 2003)). "`T h e re is nothing . . . in the language or policy of § 1404(a) to justify its use by d efen da nts to defeat the advantages accruing to plaintiffs who have chosen a fo ru m which, although it was inconvenient, was a proper venue." Van Dusen v. B a rra ck , 376 U.S. 612, 633-34 (1964). The presumption in favor of the plaintiff's ch oice of forum is given greater weight when the plaintiff is a resident of the forum in which suit is brought. Houk v. Kimberly-ClarkCorp., 613 F.Supp. 923, 927

(W .D. Mo. 1985) (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255 (1981)). 1. Con ven ience of the Parties

This factor weighs against transfer: plaintiff's corporate offices are located in Chesterfield, Missouri, and, according to plaintiff, all of its documentary ev id en ce and most of its employees with evidence in the case are located in this d istrict. Defendant's principal place of business, documents, and corporate

resid en ts are located in Massachusetts, and either venue is equally inconvenient to defendant. -3-

2.

Con ven ience of the Witnesses

" [ T ] he most important factor in passing on a motion to transfer under S ectio n 1404(a) . . . is the convenience of the witnesses, most particularly non pa rty witnesses who are important to the resolution of the case." 15 Charles A lan Wright et al., Federal Practice and Procedure § 3851 (3rd ed. 2007). "[S]h eer numbers of witnesses will not decide which way the convenience factor tip s ." Terra Int'l, 119 F.3d at 696. D efen d a n t identifies more than 20 nonparty witnesses based in the Western D istrict that it says are necessary to determine the cause of the tank's failure.1 This group includes: employees of the public water utility and contractors involved in repairing the water main (four witnesses); Neumayer Equipment Company, retained by plaintiff to determine the cause of the tank failure (eight witnesses em p loy ed in the Western District and one in this district); Genesis Environmental S olutions, a company that completed work on the tank in 2007 (eight witnesses); D elta Consultants, retained to determine the groundwater levels (two witnesses); a nd American Steel Works, the company that manufactured the ruptured tank (o n e witness). Assuming that some number of these witnesses are essential to resolution of the dispute, defendant argues that the potential difficulty of securing the attenda nce of unwilling witnesses at trial in this district weighs in favor of transfer to the Western District. In response, plaintiff submits the affidavit of general

Defendant identifies a number of witnesses from outside both districts, who w ill be required to travel whether the case is transferred or not. Defendant does n o t claim that their convenience is a factor to be considered. -4-

1

coun sel Michael Goldman. Mr. Goldman attests that Delta Consultants, Neumayer E q u ip m en t, and Genesis Environmental have pledged their willingness to cooperate an d will not object to having their witnesses present at trial. Defendant has not p ro v id e d any basis for concluding that any of the crucial witnesses would be un w illing to appear in this district or that their testimony could not be presented v ia videotaped deposition. Defendant has failed to persuade the Court that

con ve n ien ce of the witnesses weighs in favor of transfer. 3. Interest of Justice

Fa ctors considered under the "interest of justice" prong include judicial econ om y , the comparative costs to the parties of litigating in each forum, each pa rty's ability to enforce a judgment, obstacles to a fair trial, conflict of law issues, a n d the advantages of having a local court determine questions of local law. Terra In t'l, 119 F.3d at 696. Judicial economy would not be served by transferring this ca se to the Western District: this Court has entered a Case Management Order, th e parties are engaged in discovery, and a trial date has been established. There is a high likelihood that resolution of this matter would be delayed by a transfer. Th e remaining factors are either neutral or weigh against transfer: plaintiff's costs w ill increase if the matter is transferred. Since both districts are located in

M issou ri, issues arising from the governing law are unaffected by the location. Ha ving carefully considered the convenience of the parties and witnesses a nd the interests of justice, and having weighed factors contributing to each, the C ou rt concludes that defendant has failed to make a clear showing that the b a la n ce of interests weighs in favor of the proposed transfer. A c c o rd i n g ly , -5-

IT IS HEREBY ORDERED that defendant's motion to transfer venue, p u rsu a n t to 28 U.S.C. § 1404, to the Western District of Missouri [Doc. #13] is d e nie d .

CAROL E. JACKSON U N ITE D STATES DISTRICT JUDGE

D a ted this 16th day of September, 2010.

-6-