Platt v. Nash et al
MEMORANDUM OPINION AND ORDER re 17 MOTION to Dismiss or Transfer and Memorandum in Support filed by Brienne Lee Nash, Stephen Thomas Platt. The Motion to Dismiss or Transfer (Dkt. #17) is hereby GRANTED and this case is transferred to the United States District Court for the Western District of Virginia, Roanoke Division. Signed by Judge Amos L. Mazzant, III on 10/14/16. (cm, )
United States District Court
EASTERN DISTRICT OF TEXAS
RHONDA C. PLATT
BRIENNE LEE NASH, STEPHEN
THOMAS PLATT, BANNER LIFE
Civil Action No. 4:16-CV-00294
MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendants Brienne Lee Nash (“Brienne”) and Stephen
Thomas Platt’s (“Stephen”) Motion to Dismiss or Transfer (Dkt. #17). After reviewing the
relevant pleadings, the Court finds that the motion should be granted.
Plaintiff Rhonda C. Platt (“Plaintiff”) is the second wife and widow of Raymond Platt
(“Raymond”) (Dkt. #9 at p. 1). Defendants Brienne and Stephen are Raymond’s children from a
prior marriage (Dkt. #9 at p. 1). In 2006, Raymond purchased a $750,000 life insurance policy
(the “policy”) from Defendant Banner Life Insurance Company (“Banner Life”) (Dkt. #9 at p. 2).
Raymond named Plaintiff as the sole beneficiary of the policy (Dkt. #9 at p. 2).
In June 2015, Raymond was diagnosed with cirrhosis of the liver and was hospitalized in
Texas on multiple occasions from June to November 2015 (Dkt. #9 at p. 3–4). On November 20,
2015, Raymond was discharged from Plano Medical Center and flew to Virginia to live with
Brienne (Dkt. #9 at p. 3; Dkt. #17 at p. 5). On December 23, 2015, Raymond electronically
changed the policy so that Rhonda became a 30 percent beneficiary of the policy, Brienne
became a 40 percent beneficiary of the policy, and Stephen became a 30 percent beneficiary of
the policy (Dkt. #9 at p. 5; Dkt. #17 at p. 17). Raymond died on December 26, 2015 (Dkt. #9 at
On February 11, 2016, Plaintiff sent Brienne a letter threatening to file suit if she did not
disavow any claim to the proceeds of the policy (Dkt. #17, Exhibit 8). On February 29, 2016,
Brienne’s counsel stated he would respond to Plaintiff’s letter shortly (Dkt. #21 at p. 4). On
March 17, 2016, Brienne and Stephen filed suit against Plaintiff and Banner Life in the Western
District of Virginia seeking a declaration that the changes Raymond made to the policy are valid
and binding (Dkt. #17, Exhibit 9). On April 25, 2016, Plaintiff filed her Original Petition in the
Collin County District Court (Dkt. #1, Exhibit 1). On May 5, 2016, Brienne and Stephen filed a
Notice of Removal (Dkt. #1). On June 5, 2016, Plaintiff filed an Amended Complaint (Dkt. #9)
seeking a declaration that the changes to the policy are null and void and alleging 1) undue
influence; 2) constructive fraud; and 3) breach of fiduciary duty. On June 28, 2016, Brienne and
Stephen filed a Motion to Dismiss or Transfer (Dkt. #17). On July 15, 2016, Plaintiff filed a
response (Dkt. #21).
“The Fifth Circuit adheres to the general rule that the court in which an action is first
filed is the appropriate court to determine whether subsequently filed cases involving
substantially similar issues should proceed.” Huntsman Corp. v. Int'l Risk Ins. Co., No. CIV.A.
1:08-CV-029, 2008 WL 1836384, at *5 (E.D. Tex. Apr. 22, 2008) (citing Save Power Ltd. v.
Syntek Fin. Corp., 121 F.3d 947, 950 (5th Cir. 1997)). A second-filed court plays a limited role
when presented with a motion to transfer or stay based on the first-to-file rule. See Cadle Co. v.
Whataburger of Alice, Inc., 174 F.3d 599, 605 (5th Cir. 1999). This role is to decide whether the
moving party in the second-filed court has demonstrated a “substantial overlap” between the two
suits. Id. If the moving party satisfies this overlap requirement, the second-filed court allows the
first-filed court to “resolve the question of whether both [cases] should be allowed to proceed.”
Id. “Therefore, the first-to-file rule not only determines which court may decide the merits of
substantially similar issues, but also establishes which court may decide whether the second suit
filed must be dismissed, stayed or transferred and consolidated.” Huntsman, 2008 WL 1836384,
at *5 (citations omitted).
The first-to-file rule does not apply where the first suit is brought in anticipation of the
second suit. See American Reliable Ins. Co. v. Arrington, 269 F. Supp. 2d 758, 760 (S.D. Miss.
2003); California Sec. Co-op, Inc. v. Multimedia Cablevision, Inc., 897 F. Supp. 316, 319 (E.D.
However, “the question of whether the first-filed action was an improper
anticipatory filing is for the first-filed court to determine.” Huntsman, 2008 WL 1836384, at *5
(citing Street v. Smith, 456 F. Supp. 2d 761, 768 (S.D. Miss. 2006)).
Here, the first action was filed on March 17, 2016 in the Western District of Virginia
(Dkt. #17, Exhibit 9). As the second-filed court, the Court’s limited role is to determine whether
there is substantial overlap between the two suits. The Court finds that there is, as both suits
seek to determine whether the changes made to the policy are valid and enforceable. Plaintiff
argues that the first-to-file rule is inapplicable because the first suit was an anticipatory filing
(Dkt. #21 at p. 3). However, the question of whether the first-filed action was an improper
anticipatory filing is for the Western District of Virginia, as the first-filed court, to determine.
See Huntsman, 2008 WL 1836384, at *5 (citing Street v. Smith, 456 F. Supp. 2d 761, 768 (S.D.
It is therefore ORDERED that the Motion to Dismiss or Transfer (Dkt. #17) is hereby
GRANTED and this case is transferred to the United States District Court for the Western
District of Virginia, Roanoke Division.
SIGNED this 14th day of October, 2016.
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE
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