Breech v. Liberty Mutual Fire Insurance Company

Filing 14

ORDER: Defendant's Motion to Transfer Division (Doc. 7 ) is hereby GRANTED and this case shall be TRANSFERRED to the Eastern Division of the United States District Court for the Southern District of Ohio. Signed by Judge Michael R. Barrett on 7/21/2015. (jee)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
LOIS BREECH,

:
:

Plaintiff,
v.

Case No. 1:15-cv-346
Judge Michael R. Barrett

:

LIBERTY MUTUAL INSURANCE
COMPANY,

:
:

Defendant.
OPINION AND ORDER
This matter is before the Court on Defendant Liberty Mutual Fire Insurance Company’s
Motion to Transfer Division. (Doc. 7). 1 Plaintiff Lois Breech has filed a response in opposition
(Doc. 9), and Defendant has filed a reply (Doc. 13).
I.

OVERVIEW
On April 22, 2015, this insurance dispute was filed in the Hamilton County Court of

Common Pleas by Charles Lusher on behalf of his grandmother, Plaintiff Lois Breech, for whom
he holds Power of Attorney. (Doc. 4, PageId 19). Breech owns the property located at 2167
State Route 141 in Gallipolis, Ohio (“the Property”) and has a homeowner’s insurance policy
through Defendant Liberty Mutual Fire Insurance (“Defendant”). (Id., PageId 19-20). Breech
and Lusher, however, both currently live in Huntington, West Virginia. (Doc. 9-1, PageId 49).
In the Complaint, Plaintiff alleges that the roof of the Property was damaged as a result of
wind/rain. (Doc. 4, PageId 20). She alleges that she made a claim for coverage to Defendant,
which Defendant denied on the basis that there was no wind damage to the Property’s roof. (Id.,
PageId 19-20). Defendant, however, provided a payment for damages alleged to have been
caused by negligent tarping of the roof. (Id., PageId 20). Plaintiff claims that Defendant knew
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Defendant indicates that it was improperly named in the Complaint as “Liberty Mutual Insurance Company” and
that it is properly identified as “Liberty Mutual Fire Insurance Company.” (Doc. 7, PageId 30).

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or should have known that it was not justified in denying coverage based on wind/rain damage
and that payment was inadequate to cover all of the damage suffered as a result of the wind/rain
damage. (Id.) She asserts two claims for relief: (1) breach of contract and (2) bad faith. (Id.,
PageId 21-22). This case was removed from the Hamilton County Court of Common Pleas on
May 26, 2015. (Doc. 1).
II.

STANDARD
Defendant moves to transfer the case pursuant to 28 U.S.C. § 1404(b) from the United

States District Court for the Southern District of Ohio, Western Division (“Western Division”) to
the United States District Court for the Southern District of Ohio, Eastern Division (“Eastern
Division”). Under § 1404(b), a district court is authorized to transfer a civil action properly
venued in one district to another district or division.
Upon motion, consent, or stipulation of all parties, any action, suit or
proceeding of a civil nature or any motion or hearing thereof, may be
transferred, in the discretion of the court, from the division in which pending to
any other division in the same district.
28 U.S.C. § 1404(b). Intradistrict transfers pursuant to § 1404(b) “are discretionary transfers
subject to the same analysis as under § 1404(a) but apparently judged by a less rigorous
standard.” Hanning v. New England Mut. Life Ins. Co., 710 F. Supp. 213, 215 (S.D. Ohio 1989)
(citing Johnson v. Burlington-Northern, Inc., 480 F. Supp. 259, 260 (W.D. Mo. 1979)); see also
Svete v. Wunderlich, No. 2:07-cv-156, 2009 U.S. Dist. LEXIS 92846, at *7 (S.D. Ohio Sept.15,
2009) (relying on Hanning). Section 1404(a) provides that:
For the convenience of parties and witnesses, in the interest of justice, a district
court may transfer a 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.
28 U.S.C. § 1404(a). A district court considering a motion under § 1404(a) must “evaluate both
the convenience of the parties and various public-interest considerations.” Atl. Marine Constr.
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Co., 134 S. Ct. 568, 581 (2013). This analysis requires consideration of the parties’ private
interests as well as the public interest in the administration of justice. Id. at 581 n. 6; see also
DRFP, LLC v. Republica Bolivariana De Venezuela, 945 F. Supp. 2d 890, 902 (S.D. Ohio 2013);
Kay v. Nat’l City Mortg. Co., 494 F. Supp. 2d 845, 849 (S.D. Ohio 2007). The moving party
bears “the burden of establishing the need for a transfer of venue.” Kay, 494 F. Supp. 2d at
849=50 (citing Jamhour v. Scottsdale Ins. Co., 211 F. Supp. 941, 945 (S.D. Ohio 2002)).
Ultimately, the decision whether to transfer venue is one that is within the discretion of the trial
court. Id.
III.

ANALYSIS
The parties do not dispute that this action could have been brought in the Eastern

Division, the proposed transferee division. The parties disagree, however, as to whether the
private and public interests weigh in favor of transfer.
A. Private Interests
The private interests to be considered, in addition to Plaintiff’s choice of forum, include
the following:
“The relative ease of access to sources of proof; availability of compulsory
process for attendance of the unwilling, and the cost of obtaining attendance of
willing witnesses; possibility of view of the premises, if view would be
appropriate to the action; and all other practical problems that make trial of the
case easy, expeditious and inexpensive.”
DRFP, LLC, 945 F. Supp. 2d at 902 (quoting Dayton Superior Corp. v. Yan, 288 F.R.D. 151,
165 (S.D. Ohio 2012)) (additional internal quotations omitted).
1. Plaintiff’s choice of forum
Plaintiff contends that her choice of forum should be accorded substantial deference.
(Doc. 9, PageId 43). Defendant disagrees, arguing that this factor is entitled to less deference

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because Plaintiff did not file in her home forum and this forum has no relevant connection to the
matter in dispute. (Doc. 7, PageId 34-35; Doc. 13, PageId 71).
Defendant’s argument is well taken. Although “a plaintiff’s choice of forum should be
given weight when deciding whether to grant a motion to change venue, this factor is not
dispositive.” Lewis v. ACB Bus. Servs., 135 F.3d 389, 413 (6th Cir. 1998). Less deference is
given to the Plaintiff’s choice if the forum is not her residence. See Kay, 494 F. Supp. 2d at 850;
Dayton Superior Corp., 288 F.R.D. at 166. In addition, less deference is given to a plaintiff’s
chosen forum when the cause of action has little connection with the chosen forum. DRFP, LLC,
945 F. Supp. 2d at 902-03; see also Residential Fin. Corp. v. Jacobs, No. 2:13-cv-1167, 2014
U.S. Dist. LEXIS 42745, at *16 (S.D. Ohio Mar. 25, 2014) (“As this Court has recognized,
however, when none of the relevant conduct occurred in the plaintiff’s chosen forum, this factor
has less weight.”).
In the instant case, neither Breech nor Lusher reside in the Southern District of Ohio,
Western Division; instead, they are residents of Huntington, West Virginia. When Breech
resided in Ohio, her residence was in Gallia County, Ohio, which is in the Eastern Division. The
Property that is the subject of this lawsuit also is located in Gallia County, Ohio such that this
cause of action has little connection to the Western Division. Therefore, the Court gives less
deference to Plaintiff’s choice of forum.
2.

Access to sources of proof and witnesses

Plaintiff argues that the access to the sources of proof—mainly, weather data,
photographs/videos of the damage, and Defendant’s files—are all equally accessible in the
Western Division as in the Eastern Division. (Doc. 9, PageId 43). Plaintiff further contends that
the Western Division is more convenient for Defendant’s roof damage expert who works with a
company based in Louisville, Kentucky. (Id., PageId 43-44).
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Defendant disagrees that the sources of proof favor the Western Division. (Doc. 7,
PageID 35-36; Doc. 13, PageId 71-72). Defendant points out that the Property alleged to have
been damaged is located in the Eastern Division, the consequences of Defendant’s actions or
inactions all occurred in relation to the Property in the Eastern Division, contractors or other fact
witnesses who witnessed the alleged damage also are likely to be found in the Eastern Division,
and Defendant’s expert is located in Charleston, West Virginia, which is closer to the Eastern
Division.

(Doc. 7, PageID 35-36; Doc. 13, PageId 71-72).

Defendant also contends that

Finnicum Adjusting Company, a public adjustor retained by Plaintiff, is located near Canton,
Ohio, which is closer to the Eastern Division than the Western Division. (Doc. 13, PageId 72).
While the Court agrees that the documents and weather data are equally accessible in
either division, Plaintiff has identified no sources of proof that are actually located in the
Western Division. The other potential sources of proof that have been identified either are
located in the Eastern Division or are located closer to the Eastern Division than the Western
Division. Breech and Lusher are located approximately the same distance from the Eastern
Division and the Western Division. Accordingly, this factor favors transfer to the Eastern
Division.
3. Availability of compulsory process for attendance of unwilling witnesses
The parties appear to agree that this factor is neutral.
4. Possibility of view of the premises
Plaintiff argues that a view of the Property would not be appropriate in this case because
any damage to the Property’s roof is documented by photographic and video evidence. (Doc. 9,
PageId 44). Defendant disagrees, arguing that it may be necessary for the expert or the jury to
view the current condition of the roof. (Doc. 13, PageId 73).

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While documentary evidence of the damage to the roof may exist and it may be possible
to obtain documentary evidence of the current condition of the roof, that does not conclusively
mean that a view of the premises could not occur. Accordingly, this factor weighs slightly in
favor of transfer to the Eastern Division where the Property is located.
5. Other considerations
Plaintiff’s argument on this factor repeats some of the arguments set forth above. (Doc.
9, PageId 44-45). Plaintiff also points out that her counsel is located in the Western Division.
(Doc. 9, PageId 45).
Defendant disagrees that other considerations weigh against transfer. (Doc. 7, PageId 3637; Doc. 13, PageId 73). In addition to the arguments already discussed above, Defendant
contends that the case would be more expeditious and inexpensive in the Eastern Division due to
the ease of access to some sources of proof in the Eastern Division. (Doc. 7, PageId 37).
Defendant further contends that the forum selected by Plaintiff has a tenuous connection to the
parties and the subject matter of this lawsuit and points out that Defendant and Finnicum have
selected counsel in the Eastern Division. (Id.; Doc. 13, PageId 73).
The Court agrees that there is a tenuous connection to the Western Division, as discussed
above. The location of the selected counsel is neutral. The other considerations weigh in favor
of transfer to the Eastern Division.
B. Public Factors
The Court also must consider the public interest in determining whether transfer to the
Eastern Division is appropriate. DFRP, LLC, 945 F. Supp. 2d at 902. Public factors may
include “‘[d]ocket congestion, the burden of trial to a jurisdiction with no relation to the cause of
action, the value of holding trial in a community where the public affected live, and the

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familiarity of the court controlling law.’” Id. (quoting Dayton Superior, 288 F.R.D. at 165)
(additional internal quotations omitted).
1. Docket congestion
The relative congestion of the dockets of the Eastern Division and Western Division is
neutral.
2. Burden of trial to a jurisdiction with no relation to the cause of
action/value of holding trial in a community where the public affected live
As previously explained, Plaintiff has not identified a single source of proof or witness
located in the Western Division. Neither Breech nor Lusher currently reside or previously have
resided during the relevant timeframe in the Western Division, and a substantial portion of the
relevant proof is located in or closer to the Eastern Division, including the Property that is the
subject of this lawsuit. There is no material connection to the Western Division. Accordingly,
these public factors weigh in favor of transfer.
3. Familiarity of the Court with controlling law
The Eastern Division is as familiar with the controlling law as the Western Division.
Therefore, this factor is neutral.
III.

CONCLUSION
Consistent with the foregoing, the Court concludes that the balance of factors weighs in

favor of an intradistrict transfer pursuant to 28 U.S.C. § 1404(b). Accordingly, Defendant’s
Motion to Transfer Division (Doc. 7) is hereby GRANTED and this case shall be
TRANSFERRED to the Eastern Division of the United States District Court for the Southern
District of Ohio.
IT IS SO ORDERED.
s/Michael R. Barrett
JUDGE MICHAEL R. BARRETT
UNITED STATES DISTRICT COURT
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