Odom v. Northwestern Mutual Life Insurance Company
Filing
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ORDER granting 7 Motion to Change Venue Signed by Honorable Patrick Michael Duffy on April 8, 2013.(prei, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Anthony C. Odom,
Plaintiff,
v.
Northwestern Mutual Life Insurance Co.,
Defendant.
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Civil Action No.: 2:13-cv-00407-PMD
ORDER
This matter is before the Court upon Northwestern Mutual Life Insurance Company’s
(“Northwestern Mutual” or “Defendant”) Motion for Change of Venue pursuant to 28 U.S.C. §
1404 and Local Civil Rule 3.01(c) DSC. Defendant seeks an Order of the Court transferring the
case from the Charleston Division to the Aiken Division of the United States District Court for
the District of South Carolina. For the reasons set forth below, Defendant’s motion is granted.
BACKGROUND
Plaintiff filed this action in the Charleston County Court of Common Pleas against
Defendant for breach of contract and bad faith refusal to pay benefits due under a disability
insurance policy. The allegations of the Complaint relate to whether Plaintiff is disabled under
the policy and the extent of Plaintiff’s purported disability. Because Plaintiff is seeking damages
of not less than $2.25 million and Northwestern Mutual is a citizen of a state other than South
Carolina, Defendant removed this matter pursuant to 28 U.S.C. § 1446 to the United States
District Court for the District of South Carolina, Charleston Division. Thereafter, Defendant filed
the motion now before the Court seeking a change of venue on grounds that for the convenience
of the parties and witnesses, in the interest of justice, venue should be transferred to the Aiken
Division. Plaintiff contests the motion.
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ANALYSIS
“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.”
28 U.S.C. § 1404(a) (emphasis added). This provision “is intended to place discretion in the
district court to adjudicate motions for transfer according to an ‘individualized, case-by-case
consideration of convenience and fairness.’” Stewart Organization, Inc. v. Ricoh Corp., 487 U.S.
22, 29 (1988) (quoting Van Dusen v. Barrack, 376 U.S. 612, 622 (1964)). The movant has the
burden to demonstrate that a transfer of venue is appropriate. See Sw. Equip., Inc. v. Stoner &
Co., No. 6:10-1765-HMH, 2010 WL 4484012, at *2 (D.S.C. Nov. 1, 2010). However, this
burden is relaxed when the “plaintiff sues in a forum which has no discernible connection with
the controversy.” Id. (citing DeLay & Daniels, Inc. v. Allen M. Campbell Co., 71 F.R.D. 368,
371 (D.S.C. 1976)). The threshold requirement is that venue is proper in the proposed district.
United States v. $78,850.00 in U.S. Currency, No. 2:05-1752-PMD, 2006 WL 2384709, at *3
(D.S.C. Mar. 9, 2006). That requirement is met in this case because Plaintiff brought this action
in the Charleston County Court of Common Pleas, and Defendant removed the action to this
Court, which is the district court “for the district and division embracing the place where such
action is pending.” See 28. U.S.C. § 1441(a). As such, venue in the District of South Carolina is
proper. See also Selective Ins. Co. of South Carolina v. Schremmer, 465 F. Supp. 2d 524, 525
(D.S.C. 2006) (“The general venue statute is 28 U.S.C. § 1391, but venue in a removed case is
governed exclusively by 28 U.S.C. § 1441(a) . . . .”). The parties disagree, however, over which
division within the District of South Carolina should hear this case. Therefore, the Court must
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consider whether transfer to the Aiken Division is in the interest of justice and will serve the
convenience of the parties and witnesses. See id. at 527.1
Defendant raises the following issues, which it believes necessitate transfer to the Aiken
Division: that the Aiken Division is more convenient to non-party witnesses; that the sources of
proof are located within the Aiken Division; and that the Charleston Division has no discernible
connection with the allegations or acts set forth in the Complaint.
Based on the fact that the allegations of the Complaint relate to whether Plaintiff is
disabled under the policy and to what extent, Defendant submits that non-party witnesses—
Plaintiff’s treating physicians—would find the Aiken Division to be a more convenient forum.
In support of this claim, Defendant attaches Plaintiff’s Request for Disability Benefits where
Plaintiff indicates that two of the three doctors who treated him are located in Aiken, South
Carolina. Although one of Plaintiff’s doctors is located in Columbia, South Carolina, and the
doctor whom Defendant used to assess Plaintiff’s claim is located in Augusta, Georgia,
Defendant argues that the Aiken Division is a more proper venue than the Charleston Division.
Namely, because Aiken is closer to Columbia than Charleston, and Augusta is 22 miles from the
Aiken courthouse, compared with approximately 150 miles from the Charleston courthouse. In
response, Plaintiff argues that because his key witness, the doctor in Columbia, and the doctor
used by Defendant are not located in Aiken, the Aiken Division should not be favored over the
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The following factors are commonly considered:
(1) the ease of access to the sources of proof; (2) the convenience of the parties
and witnesses; (3) the cost of obtaining the attendance of the witnesses; (4) the
availability of compulsory process; (5) the possibility of a view by the jury; (6)
the interest in having local controversies decided at home; and (7) the interests of
justice.
Landers v. Dawson Constr. Plant, Ltd., 201 F.3d 436, 1999 WL 991419, at *2 (4th Cir. 1999)
(unpublished table decision) (citations omitted).
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Charleston Division. Plaintiff also states that even if this Court finds that there are more
witnesses closer to Aiken than Charleston, this fact alone without supporting affidavits and
reliable information regarding the expected importance of the witnesses is insufficient to
overcome the burden place upon the Defendant.
There is little doubt that it is more convenient for both party’s witnesses to travel to
Aiken rather than Charleston. Notably, Plaintiff does not claim that there are potential witnesses
who either live or work within the Charleston Division. Thus, if venue is transferred to the
Aiken Division, the inconvenience complained of by Defendant in its motion would not be
merely shifted to Plaintiff’s witnesses. See Sw. Equip., Inc., 2010 WL 4484012, at *2 (finding
that “transfer of venue is inappropriate if the transfer merely shifts the burden of litigation from
one party to the other”). The Court finds that this factor does weigh in favor of transferring
venue. Similarly, in terms of the convenience of the parties, it appears that only Plaintiff’s
counsel will experience some degree of inconvenience upon a transfer because unlike Plaintiff,
who resides in Aiken, Plaintiff’s counsel resides in Beaufort, near Charleston County.
Defendant’s counsel is based out of Columbia, which is closer to Aiken than Charleston, and
despite the fact that Defendant has an office in Charleston, and not Aiken, Defendant contends
that all communications and correspondence regarding Plaintiff’s claim were sent from its
offices in Wisconsin, directly to Plaintiff’s home address in Aiken.
Additionally, access to
sources of proof regarding Plaintiff’s job duties and claims of disability is most convenient in the
Aiken Division. Due to the nature of Plaintiff’s claim, representatives from Plaintiff’s former
employers would likely be valuable sources of proof. According to Plaintiff’s Request for
Disability Benefits, one of Plaintiff’s former employers, Sims Recycling, is located in Aiken
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County, and the other, Augusta Fiberglass, is located in Blackville, South Carolina, located 30
miles from Aiken, and 103 miles from Charleston.
Although the Court recognizes that the travel involved here would not be substantial, it is
evident that non-party witnesses will have to travel more and incur additional expenses if venue
remains in Charleston and that access to sources of proof is most convenient in the Aiken
Division.
Therefore, the convenience and cost of obtaining witnesses, along with the
convenience of the parties and the ease of access to the sources of proof in this case, all weigh in
favor of transferring venue to the Aiken Division.
Lastly, Defendant contends that transfer is appropriate to the Aiken Division because the
Charleston Division has little or no discernible connection to the controversy. See Delay &
Daniels, Inc., 71 F.R.D. at 371 (“Where, as here, plaintiff sues in a forum which has no
discernible connection with the controversy, its weight is further diminished.”). Moreover, a
plaintiff does not have an absolute right to choice of forum in every case. See id. As Plaintiff
points out, the principal connection this action has with the Charleston Division is that Defendant
has an office in Charleston County. Plaintiff also obtained an attorney who is located in
Beaufort County, which is nearer to Charleston than Aiken. Therefore, for these two reasons, this
matter was filed in Charleston County. On the other hand, the Complaint does not allege that any
acts or omissions occurred in Charleston. Moreover, Plaintiff does not dispute that Defendant’s
Charleston office did not handle any matters related to Plaintiff’s policy or that the Northwestern
Mutual Agent who assisted him is not located in Charleston.
Ultimately, the Court finds that the Aiken Division is the more appropriate division to
hear this case. First, Plaintiff is a resident of Aiken County, which is within the Aiken Division.
He has no connection to the Charleston Division. Second, all of the material witnesses reside
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either in the Aiken Division or the Aiken Division offers lower costs for obtaining witnesses and
other sources of proof should the case proceed to trial. Moreover, convenience of witnesses is a
signification factor when determining whether transfer is warranted. Some courts have held that
it is the most important factor and typically afford greater weight to convenience of non-party
witnesses than party witnesses. See Sw. Equip., Inc., 2010 WL 4484012, at *3. Finally, because
this case is in the early stages, there is little chance that a transfer of venue will result in delay of
prejudice to either side.
CONCLUSION
Defendant has shown the Court that the convenience of the witnesses and parties will be
served best by transferring the case under § 1404. Therefore, the Court exercises its discretion to
transfer the case to the Aiken Division of the United States District Court for the District of
South Carolina.
Accordingly, it is hereby ORDERED that Defendant’s Motion for Change of Venue is
GRANTED.
AND IT IS SO ORDERED.
April 8, 2013
Charleston, SC
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