Hopeman Brothers, Inc. v. Continental Casualty Company et al

Filing 31

OPINION AND ORDER: re 12 Motion MOTION to Enjoin the Second-Filed Action; 14 Motion to Transfer Case; 17 Motion for Extension of Time to Answer. Defendants' Motion to Transfer Venue to the Southern District of New York is DENIED, ECF No. 14, and Hopeman's Motion to Enjoin Continental and Lexington from prosecuting the second-filed action in the Southern District of New York, is GRANTED, but Hopeman's Motion to Enjoin the Second-Filed Action with respect to the New York co-plaintiffs is DENIED, ECF No. 12. Having decided the Motion to Transfer and Motion to Enjoin, the Court GRANTS Defendants' Motion for Extension of Time to File Answer, and DIRECTS Defendants to file a responsive pleading or motion within fourteen days. ECF No. 17. Copy of Opinion and Order provided to counsel for Plaintiff and to counsel for Defendants. Signed by District Judge Mark S. Davis on 4/17/2017. (bgra)

FILED
UNITED

STATES

DISTRICT

EASTERN DISTRICT

OF

COURT

APR ! 7 2017

VIRGINIA

Newport News Division
U.S. U(STRICT COURT
NORFOLK VA

HOPEMAN BROTHERS/

INC.,

Plaintiff,
V.

Civil No.

4;16cvl87

CONTINENTAL CASUALTY COMPANY,
and

LEXINGTON INSURANCE COMPANY,
Defendants.

OPINION AND

This matter is before
Second-Filed Action,

12,

the Court on a

filed

("Hopeman"),
EOF No.

ECF

14,

No.

and a

17,

Company

forth

Venue,

(2)

by

filed

by

and Lexington"
the

Motion to Enjoin the

Hopeman Brothers,

Inc.

as well as a Motion to Transfer Venue,

Lexington

below,

Plaintiff

Motion for Extension of

both

and

"Continental
set

ECF No.

ORDER

Defendants

Insurance
or

Court:

Time

DENIES

File Answer,

Continental

Company

"Defendants").

(1)

to

the

Casualty

(collectively
For

Motion

the
to

reasons
Transfer

GRANTS the Motion to Enjoin Continental and Lexington

from prosecuting the second-filed action,

but DENIES the Motion

to Enjoin the Second-Filed Action as i t relates to the New York
co-plaintiffs,
of Time

to

and

(3)

File Answer.

GRANTS

Defendant's

Motion

for

Extension

I.

On

Court

FACTUAL AND PROCEDURAL BACKGROUND

December

27,

2016,

Hopeman

(the "Virginia action"),

ancillary

Compl.

relief

H 1,

and

for

ECF No.

determination

of

1.

the

filed

nature

for

to

pending,

injury claims

past,

that

have

breach

the

complaint,

and

scope

certain liability insurance policies

respect

complaint

in

this

seeking "declaratory judgment and

damages

In

a

and

or will

of

of

contract."

Hopeman
its

"seeks

rights

under

issued by Defendants

future
be

asbestos-related

asserted against

a

with

bodily

Hopeman,"

together with "damages to recover the amounts it has paid as a
result

of

Defendants'

they issued."
District

Id.

breach

of

the

insurance

contracts

that

Hopeman alleges that venue is proper in this

"because

both

Defendants

are

subject

to

personal

jurisdiction in this District and because a substantial part of
the events or omissions giving rise to the claims alleged herein
occurred

in

this

District,

including

because

a

substantial

portion of the underlying asbestos-related bodily injury claims
against Hopeman were filed in the geographic area encompassed by

this District."

Id.

t

7; 28 U.S.C.

§ 1391.

The complaint was

served on Continental and Lexington on December 29,
No.

ECF

11.

On

January 4,

2017,

several other insurers,
the

2016.

Supreme

Court

of

Continental
filed a

the

State

and Lexington,

along with

declaratory judgment action in
of

New

York

(the

"New

York

action")

against Hopeman concerning the same policies that are

at issue in the Virginia Federal Action.

ECF No.

January

York

18,

2017,

Plaintiffs

amended complaint,
2;

see also N.Y.

19,

2017,

8,

the

Am.

Compl.,

Defendants

filed

the

ECF No.

a

case

to

New York
Co.

al.

V.

ECF No.

federal

("S.D.N.Y")

et

action

to

Ex.

filed
Id.

A.

On

On January

dismiss

the

Virginia

ECF

as an alternative request to

9.

On January 30,

court

in

the

Brothers,

2017,

Southern

and filed its answer.

Hopeman

an

at 1-

Colorado River abstention doctrine,

the motion to dismiss,
the

10-1,

motion

and filed a motion to stay,

removed

New

at 1.

adding two additional plaintiffs.

action based upon
No.

in

15,

Hopeman

District

of

Continental Casualty

Inc.,

No.

1:17-cv-00688

(S.D.N.Y.).

On February 1,
enjoin

the

2017,

second-filed

February

7,

2017,

Virginia

action

filed

a

New

York

Defendants

to

the

consolidated with the

and

Hopeman filed the pending motion to

motion

action.

filed

S.D.N.Y

a

so

ECF

motion

that

No.

to

this

an

extension

case

of

On

transfer

second-filed New York action,

requesting

12.

could

ECF No.

time

the

to

be
14,

file

responsive pleadings until after the Court has disposed of all
motions
parties

affecting
before

the

this

Court's

Court,

ECF

jurisdiction,

No.

17.

On

venue,

February

and
10,

the

2017,

Hopeman opposed Defendant's request for an extension of time to
file.

ECF No.

21.

On February 15,

2017,

Defendants

responded

to Hopeman's motion to enjoin the New York action,

and filed a

reply in support of

time, ECF No. 24.

ECF No.

23,

their motion for extension of

Hopeman filed a response opposing Defendant's

motion to transfer on February 17, 2017, ECF No. 25, and filed a
reply in support of their motion to enjoin on February 21, 2017,
ECF

No.

26.

Defendants

transfer on

filed

February 23,

their
ECF No.

2017,

reply

to

27,

the

motion

and withdrew

to

their

motion to dismiss and the alternative motion to stay on February
28,

2017.

ECF No.

28.

Thus,

currently pending before the Court

is Hopeman's Motion to Enjoin the Second-Filed Action,
12,

Defendants'

Defendants'

17.

Motion

to

Transfer

Venue,

ECF

ECF No.

No.

14,

Motion for Extension of Time to File Answer,

Having

been

fully

briefed,

these

matters

are

and

ECF No.

ripe

for

review.
II.

Title

28

establishes
witnesses,
transfer

of

that,
in

any

the

LEGAL STANDARD

United

"[f]or

the

the

interest

of

civil

action

to

States

Code,

convenience
justice,
any

other

a

Section

of

1404,

parties

district

district

court

or

and
may

division

where it might have been brought or to any district or division
to

which

Such

all

statute

parties
"is

have

intended

consented."
to

place

28 U.S.C.

discretion

in

§

1404(a).

the

district

court to adjudicate motions for transfer of venue according to
an

'individualized,

case-by-case

consideration

of

convenience

and fairness.'"
29

(1988)

Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22,

(quoting

Van

Dusen

v.

Barrack,

376

U.S.

612,

622

(1964)) .
In order to determine whether a

appropriate,
whether
forum,
of

"a

the
and

district

claims
(2)

might

court
have

must

make

two

been brought

inquires:

in

the

(1)

transferee

whether the interest of justice and convenience

the parties and witnesses

Koh v. Microtek Int'l,
2003).

§ 1404 transfer of venue is

Inc.,

justify transfer
250 F. Supp.

to

2d 627,

that
630

forum."

(E.D. Va.

The second prong of § 1404(a) requires a court to afford

deference

to

the

plaintiff's

chosen

forum

because

under

the

"first-filed" rule a plaintiff "is ordinarily entitled to choose
its

forum."

F.2d 178,

factors

18 0

(4th Cir.

weighs

district

exception

court

to

convenience

v.

Ellicott

Corp.

1974).

otherwise,

the

the

first-filed

favors

the

(unpublished)

v.

Modern

Therefore,

case

in which i t was

Discovery Commc'ns,

2001)

Mach.

rule

second action."

Inc.,

(noting

11 P.
that

to

filed."

exists

be

tried

Id.

"when

while

502

in

an

balance

of

the

301-02

plaintiff's

the

However,

Learning Network,

App'x 297,

forum is an important consideration,

Co.,

unless the balance of

"ought

first

Welding

Inc.

(4th Cir.
choice

of

courts also disfavor races

to the courthouse and forum shopping (citing Myles Lumber Co. v.
CNA Financial Corp.,

233 F.3d 821,

824

(4th Cir.

2000)).

In determining whether the convenience of the parties and

witnesses,

and the interest of justice,

district

court

looks

"(1) plaintiff's

parties,

(3)

choice

witness

Supp.

2d 991,

of

show

994-95

Ultimately,
"that

forum,

(E.D.

Va.

Supp.

Fruehauf
balance

Corp.,
of

weigh]

more

2010)
Supp.

Nationwide

4:10CV00069,

(emphasis
740,

F.

than

742

Finally,

in

76,

77

among

the

parties

the

forum

WL

Ins.

the

Inc.,

769

(W.D.N.C.
and

the

v.

Lee,

482

Corp.

v.

DMP

1985)).

"[T]he

witnesses

which

to

'shift

Inc.

(quoting

to

(E.D. Va.

on the movant

JTH Tax,

Supp.

of

(4)

667

merely

2007)

Mut.

2010

Facebook,

is

Va.

favor

the

(quoting Heinz Kettler

(E.D.

convenience
in

LLC v.

of

and

750 F. Supp. 2d 660,

does

736

617

strongly

sought."
CIV.

731,

access,

the

factors;

convenience

the burden of proof

transfer

2d

(2)

2011)

inconvenience to the other party.'"
F.

principal

and

Pragmatus AV,

GmbH & Co. V. Razor USA, LLC,
2010) ) .

four

convenience

interest of justice."
F.

to

support transfer,

[must

transfer

is

Co.

v.

The

Overlook,

LLC,

No.

2520973,

at

*3

(E.D.

June

17,

original)

(quoting

Nossen

v.

Va.

Hoy,

750

P.

(E.D. Va. 1990)).

if the district court determines that transfer is

not appropriate,

it may enjoin further prosecution of a

second-

filed action in another court.

Learning Network, 11 F. App'x at

301

to allow the

(applying first-filed rule

first-filed action

to proceed and enjoining the second action); Allied-Gen. Nuclear

Servs.

V.

1982)

Commonwealth Edison Co.,

("Ordinarily,

675

F.2d 610,

is

permitted

subsequently filed."

to

proceed

to

Industrial Chemicals,

Cir.

accord.

1020,

1025

rule,

the

the

the first or prior

exclusion

of

another

(citing Carbide & Carbon Chemicals Corp. v.

United States
1944)));

(4th Cir.

when multiple suits are filed in different

Federal courts upon the same factual issues,
action

611

City

(2d Cir.

1991)

"first

of

court

Inc.,

140

F.2d 47,

v.

Exxon

Corp.,

N.Y.

(holding that,
has

under the

jurisdiction

49

(4th

932

F.2d

first-filed

to

enjoin

the

prosecution of the second action").
III.

DISCUSSION

Hopeman requests that the Court enjoin the New York action

and allow the case to proceed in this Court,

ECF No.

Defendants

this

S.D.N.Y.

requests

so

that

that

it may be

New York case,

ECF No.

should

the

transfer

comprehensive
According

the

case

to

Defendants
the

argue

Opening

transfer

would

Br.
(1)

4,

court

issues;

Defs.'

to

and

Reply

enjoining

the

resolve

(3)

Br.
New

complex

protect

1,

York

all

ECF

York

New

interested

No.

27.

action

from

the

Court

the

"more

is

ECF

(2)

No.

15.

piecemeal

allow a New

insurance

parties'

coverage

interests.

argues

proceeding

to

this

prevent

Hopeman

while

second-filed

it

litigation and potentially inconsistent rulings;
York

case

that

S.D.N.Y because

Defs.'

Defendants,

transfer

consolidated with the

14.

action."

to

Court

12,

would

that

(1)

prevent

piecemeal
should

litigation and

not

make

applicability

of

a

inconsistent

decision

New

York

rulings,

based

law

(2)

upon

because

the

the

until

Court

potential

discovery

is

complete it is unclear whether New York law or Virginia law will
apply,

and (3)

the interest of all parties' properly before the

court may be protected in the instant litigation.
Pl.'s Resp. Br., ECF No.
A.

It
filed

25.
Motion to Transfer

is undisputed that

case

and

the

New

See generally

the Virginia action was

York

action

The S.D.N.Y generally applies a

was

the

the

first-

second-filed

"bright-line rule"

case.

to determine

which court should resolve forum disputes such as this:

"[t]he

court before which the first-filed action was brought determines
which

V.

forum will

hear

Congregation

(S.D.N.Y.

the

case."

Jeshuat

2014)

Israel,

(internal

First-Filed Action,

Hopeman

Brothers,

2017).
the

Therefore,

first-filed

983

citations

Related

Inc.,

Congregation Shearith Israel

F.

omitted);

Continental

No.

Supp.

see

Casualty

1:17-cv-00688

2d

Co.

(S.D.N.Y.

420,

422

Notice

of

et

v.

al»
Feb.

9,

as the second-filed court routinely defers to

court

to

determine

which

court

will

hear

the

In order to determine whether transfer is appropriate,

the

case, this Court will move forward with such analysis.

Court

must

determine

"(1)

whether

brought in the transferee forum,

and
8

the
(2)

claims

might

have

been

whether the interest of

justice and convenience of the parties and witnesses justify
transfer to that forum."

threshold
brought

matter,

its

S.D.N.Y.

the

claim

250 F.

Court

against

finds

Supp.

that

Continental

Similar to this Court,

2d at 630.

Hopeman

and

could

Lexington

interest

and costs,

exceeds

$75,000,

and there

diversity of citizenship between the parties.
Hopeman

does

not

contest

proper in the S.D.N.Y.

were

issued

business

to

in

Hopeman

New

jurisdiction

is

§ 302(a)(1)

business

New

See

continues

to

do

it

proper

in

Defs.'

the

during

so.

its

is

complete

H 5.

venue

principal

Opening

Br.

Lexington

is

Court

of

does

personal

N.Y.

time

the

Nor

that

and

relevant

place

5.

under

Therefore,

exclusive

that

S.D.N.Y.

the

Id.

the

insurance policies

assertion

Continental

York

in

See Compl.

assertion

had

Defendants'

because

in

while

York.

challenge

Defendants'

because the relevant

Hopeman

have

the S.D.N.Y possesses siibject

matter jurisdiction because the amount in controversy,
of

As a

C.P.L.R

transacted

periods
finds

and
that

Hopeman could properly have filed its claim in the S.D.N.Y.
The

Court

next

determines

whether

transfer

of

the

case

is

in the "interest of justice and convenience of the parties and
witnesses."
have

been

decision

court.

to

Koh,

250 F.

brought

in

transfer

One Beacon Ins.

Supp.
the

transferee

venue

Co.

2d at 630.

is

v.

within

If the claims could
court

the

initially,

discretion

of

the
the

JNB Storage Trailer Rental Corp.,

312 F. Supp. 2d 824, 828 (E.D. Va. 2004)
Hunter Douglas,

In

exercising

factors

Inc.,

this

806

F.

Supp.

discretion,

582,

the

to determine whether to

Court

(2)

parties and witnesses;

(3)

of

availability of

(4)

the

591

(E.D.

Va.

considers

transfer venue,

ease of access to sources of proof;

witnesses;

(citing Verosol B.V. v.
1992)).

multiple

such as

"MD

the convenience of the

the cost of obtaining the attendance
compulsory process;

(5)

the interest in having local controversies decided at home;

(6)

in diversity cases,
law;

and

(7)

the

the court's familiarity with the applicable

interest of

312 F.

Supp.

2d at 828

Exch.,

Inc.,

105 F.

Supp.

the

factors

may

to

consider

all

of

factors
witness

Info.

Servs.,

and

.

LLC,

2d 493,
be

.

.

are

interest

467

F.

498

(E.D.

994-95

choice

Va.

2005));

(summarizing

of

forum,

(2)

see

to

of

Supp.

the

also

the

sources

justice."
2d

convenience

v.

OnLine

2000)).

While

"[t]he
choice
of

principal
of

proof,

Byerson v.

party

Equifax

Inc.,

386 F. Supp. 2d 708,

the

769

as

(E.D.

F.

Va.

Supp.

2006)

2d at

"(1) plaintiff's

parties,

(3)

the interest of justice").

10

forum,

632

factors

of

Inc.

Co.,

627,

Pragmatus,

transfer

convenience and access, and (4)

Va.

plaintiff's

(quoting Samsung Elecs. Co v. Rambus,
716

(E.D.

considered,

access

the

One Beacon Ins.

(quoting HHP Int' 1 Inv. ,

convenience,

convenience,

justice.'"

witness

1. Plaintiff's Choice of Forum

The Court first considers plaintiff's choice of forum.
the plaintiff,

District

of

Appeals
rule,

Hopeman chose to file

Virginia.

for

the

Fourth

this case in the Eastern

generally

Circuit

has

Compl.

adopted

The
the

of

balance

action."

Volvo

Inc.,

F.3d 581,

386
F,2d

at

of

Const.

180

convenience
Equip.

594-95

n.2).

N.

in

Am.,

{4th Cir.

Thus,

favor

Inc.

v.

2004)

Plaintiff's

Court

of

"first-filed"

in which the "first suit should have priority,

showing

502

See

As

of

absent the
the

second

CLM Equip.

(quoting
choice

Co.,

Ellicott,

of

forum

is

given substantial weight in evaluating whether to transfer venue
because "[i]t is well settled that a court should rarely disturb
a

plaintiff's

clearly

favor

Ralsky,

203 F.

Kettler GmbH,
forum

...

choice

of

forum

transfer,..."
Supp.

2d 601,

750 F.
is

Supp.

unless
Verizon

623-24

Online

(E.D. Va.

2d at 667

typically

the balance

entitled

of

hardships

Servs.,

Inc.

2002);

v.

Heinz

{"[P] laintiff's choice of
to

'substantial

weight,'

especially where the chosen forum is the plaintiff's home forum
or bears a

substantial relation to the

250 F.

Supp. 2d at 623

those

possible

plaintiff.").
plaintiff's

under

("The initial choice of forum,
the

However,

chosen

the more weight a

cause of action.");

forum

law,

"the
and

is

a

greater
the

court will give
11

privilege
the

Koh,

from among

given

to

the

connection between

plaintiff's

cause

of

to the plaintiff's

a

action,

choice."

Agilent Techs.,
327

{E.D. Va.

Inc. v. Micromuse,

2004);

Inc.,

see GTE Wireless,

its home

Supp. 2d 322,

Inc. v.

71 F. Supp. 2d 517, 519 (E.D. Va. 1999)

of

316 F.

Qualcomm,

Inc.,

("[A] plaintiff's choice

forum is given more weight than its choice of a

foreign forum.").

Defendants

argues

Plaintiff's

choice

should not

be

given

substantial weight because the instant action "has so few ties"

to

this

Court. ^

Defs.'

Opening Br.

11.

However,

Hopeman's complaint and in its response brief,

that

this

relevant

action

regards

insurance

asbestos-related

Defendants'

policies

lawsuits,

of

to
which

Hopeman explains

obligation

indemnify
over

ten

in both

under

the

Hopeman

against

thousand

lawsuits

have been filed within the geographic area encompassed by this

District.

Compl.

K 5;

PI.'s Resp.

Br.

9

("Virginia is also a

major center of asbestos-related bodily injury lawsuits against
Hopeman-11,565

only

627

cases

cases

in

addition

to

relevant

lawsuits,

retains
lawsuits.

this

local

New

in

York

District

Hopeman

counsel

Pl.'s

incorporation

through

Resp.

in
Br.

Virginia,

the

end

during

being

is

the

the

January

same

location

incorporated

Virginia
9-10.
(2)

of

in
In

the

2017,

period.").
of

in

many

of

In

of

the

Virginia

and

connection
light

versus

(1)

significant

with

these

Hopeman's
number

of

' Defendants do not argue that venue is improper in the Eastern District of
Virginia.
12

asbestos-related cases filed against Hopeman in this geographic
area,

(3)

Hopeman's

retention of

local

counsel

significant number of asbestos-related cases,
cause

of

expenses

finds

action

in

related

this

to

Hopeman's

case

these

choice

seeks

to

forum

is

and

(4)

indemnify

asbestos-related

of

related to

that the

Hopeman

claims,

entitled

the

to

the

for

Court

substantial

weight because the chosen forum is significantly related to the
cause of action.

Defendants also argue that the first-filed rule should not
apply because Hopeman's complaint was an "improper anticipatory
filing."

Defs.'

declined

to

Opening Br.

accept

8.

Defendants represent that they

Hopeman's

pending

settlement

offer

on

December 23,

2016,

and the same day presented a counter-proposal

to Hopeman.

Id.

Having been in settlement discussions since

2014,

Hopeman

represents

Defendants rejected the

Pl.'s

Opening

December 27,
breach

of

Relief.

down."

2016,

At
were

Defs.'

Hopeman's

5.

after

settlement offer on December 23,

2016.

time

"unaware

decided

result,

to

file

Hopeman

Defendants.

that

that

Opening Br.

of

a

against

the

filing

anticipation

suit

As

it

filed

suit

on

requesting declaratory judgment and alleging

contract

8.

Defendants

Br.

that

settlement

8.

Therefore,

constituted

Defendants

Hopeman

an

filing
13

Compl.
filed

its

discussions

for

complaint,
had

broken

Defendants argue that

anticipatory

in

Prayer

the

more

filing

"in

appropriate

jurisdiction,
argues

state

in New York State."

that,

as

forum

shopping."
The

the

for

natural

its

Id.

In response,

plaintiff,

damages

its

action

is

"choice

not

Court

observes

resolution by a

cannot

a

improper

that

Hopeman,

having

home

forura

asserted

court."

{7th Cir.

conclude

action was

an

Hyatt

2002) .

that

Int'1

Corp.

v.

grievance for
Coco,

As the natural plaintiff,

Hopeman's

that

is the "natural Plaintiff"

because it is the party "who wishes to present a

718

of

Pl.'s Resp. Br. 16.

Defendants are in breach of contract,

707,

Hopeman

filing

of

"anticipatory filing."

the

It

is

F.3d

the Court

first
true

302

cause

that

of

courts

look with "disfavor" upon actions filed merely as an "improper
act of forum shopping,

or a race to the courthouse."

Network, 11 F. App'x at 301.

Learning

However, an "improper anticipatory

filing" occurs when a party files a lawsuit "under the apparent
threat of a
suit

in

presumed adversary filing the mirror image of that

another

Holding Co.,

court."

97

F.

Hopeman did not
that

file

Defendants

Defendants

do

Supp.

not

the

were

Id.

2d 549,

that

about

represent

they were

broken down."

Defs.'

557

Citigroup

{S.D.N.Y.

complaint under an

litigation when Hopeman beat

admits

{quoting

to

file

that

they

it

to

"unaware that
Opening Br.
14

8.

the

Inc.

v.

City

2000)).

Here,

"apparent

threat"

litigation—in
were

about

courthouse,

to

but

fact.
file
rather

settlement discussions had
Thus,

Hopeman's complaint

cannot be considered an improper anticipatory filing because it
was

not

"made

under

Learning Network,

the

11 F.

and

litigation."

Moreover,

and perhaps

Hopeman's complaint is not a

requests

declaratory

Prayer for Relief,

natural

plaintiffs,
Compl.,

Brothers,

Inc.,

Hopeman's

first-filed

request

Continental

No.

judgment

and

"mirror

damages,

but the New York plaintiffs,

only

generally

filing,

imminent

of the New York suit because Hopeman alleges breach of

contract
Compl.

of

App'x at 301.

more importantly to note,
image"

threat

Casualty

1:17-cv-00688

action

declaratory

is

Co.

et

(S.D.N.Y.

not

an

not being

judgment,
al.

v.

2017).

improper

VA

see

Hopeman

Therefore,

anticipatory

and Hopeman's choice of forum is entitled to substantial

weight.
2.

Convenience of Parties and Witnesses

Nevertheless, Hopeman's choice of forum is not controllingthe

Court

must

evaluate

whether

an

exception

to

the

"first-

filed" rule applies because a "balance of convenience favors the
second

action."

Learning

Network,

11

F.

App'x

at

301-02.

Defendants do not argue that the "balance of convenience" favors

transferring

the

case

to

New

York,

instead

convenience of the parties and witnesses is a

stating

that

the

"neutral factor."

Defs.' Opening Br. 12.

In

weighing

the

balance

specifically considers whether the
15

of

convenience,

the

Court

"convenience of the parties"

and "witness convenience and access" weigh in favor of transfer,
Pragmatus, 769 F. Supp. 2d at 994-95.
transfer,

balance

the burden of proof is on Defendants to show that the

of

convenience

"strongly in favor of
Nationwide Mut.
Supp.

As the parties requesting

2d at

Ins.,

736.

among

parties

assess

at

convenience,

the "ease of access to sources of proof,

witnesses,
Inc.

V.

state
not

Inc.,

Samsung,

that

weigh

the

386

Supp.
of

Defs.'

Opening

New

acknowledge

York

that

Therefore,

to show that
the

F.

Supp.

transfer,"

convenience

other.

F.

convenience

nor

convenient a forum."
that

499

against

factor."
"neither

weighs

*3;

JTH Tax,

courts

must

482

factors

2d

the costs of obtaining

but

Br.

at

717

693

be

deemed

to

a

"does

neutral

Defendants,

substantially

favors
forum

is

transfer,
more

and

more

Defendants

convenient

because Defendants have not met

convenience

of

the

parties,

convenience and access, weigh against transfer.

16

than

the

their burden

convenience weighs strongly in favor of
of

2007)

Defendants

and witnesses

According

would

Va.

n.l3).

"should be

12.

(E.D.

Lycos,

Defendants bear the burden of showing

strongly
neither

685,

the parties

Virginia

Id.

2d

F.

consider

and the availability of compulsory process."

TiVo,

(quoting

witnesses

the forum to which transfer is sought."
2010 WL 2520973,

To

and

and

transfer,
witness

3.

Finally,

the Court must evaluate whether transfer is in the

"interest of justice."
While

the

above

convenience,
the

case.

transfer

769 F.

Supp.

choice of

2d at 994-95.
forum,

parties'

and witness convenience-weigh against transferring

because

and

factors."

Pragmatus,

factors-plaintiff's

Defendants

appropriate

Interest of Justice

the

the

argue

that

"interest

interest

of

transfer

of

is

justice

justice

nevertheless

strongly

"outweighs

favors"

the

other

Defs.' Opening Br. 5.

The interest of justice factor "encompasses public interest
factors
most

aimed at

prominent

*systemic

integrity and

considerations

being

"judicial

avoidance of inconsistent judgments."

at 635

(quoting Samsung,

fairness,
having

the

local

applicable law,

duty,

and

Id. ;

accord.

Court

assesses

"docket
decided

and

467 F.

Supp.

Byerson,

the
the
2d

In evaluating

congestion,
at

"with

economy

386 F. Supp. 2d at 721).

controversies

home,

interest
knowledge

in
of

unfairness in burdening forum citizens with jury

interest

Conditioning,

fairness,'

in avoiding unnecessary conflicts

Bd.

Of

Trustees

702

F.

Supp.

(considering as factors:

v.

1253,

Baylor

1260

Heating

{E.D.

Va.

law."
&

Air

1988)

"the pendency of a related action,

court's familiarity with the applicable

law,

the possibility

the ability to join other parties,
17

the

docket conditions,

access to premises that might have to be viewed,
of an unfair trial,

of

and the

possibility

avoids

of

harassment").

duplicative

invested
LLC V.

in

where

court

litigation

one

'substantial time and energy'

Loopnet,

Va. Aug. 30,

Inc.,

2012)

No.

Defendants

2:12C:V2,

in a

938

in

favor

same

has

case."

court

already

CIVIX-DDI,
at

*7

(E.D.

Inc. v. Maersk Line,

(E.D. Va. 2005)).

essentially argue

decisively

the

2012 WL 3776688,

{citing U.S. Ship Mgmt.,

Ltd., 357 F. Supp. 2d 924,

weighs

"Litigation

of

that

the

transfer

interest

as

(1)

of

justice

transfer

would

better protect the rights of all interested parties because the
New York

litigation

litigation

due

issues,

(2)

and

to

is

"more

comprehensive"

additional

parties

transfer would allow a

than

and

the Virginia

additional

legal

New York court to resolve

complex issues of New York insurance and contract law.^

Defs.'

Opening Br. 4; Defs.' Reply Br. 4-8, ECF No. 27.
In

evaluating

whether

rights of all the parties,

transfer

would

best

protect

the

the Court evaluates the ability to

join other parties to the Virginia action,

Bd.

Of Trustees,

702

F. Supp. at 1260, and what effect a ruling in the Virginia case
would

have,

Samsung,

386

F.

Supp.

2d

at

721.

Here,

neither

party briefed whether the additional issues and parties from the

' Defendants' remaining arguments advocate that only one court should hear the
claims between Continental,
Lexington,
and Hopeman in order to prevent
duplicative litigation and inconsistent results.
The parties agree that
duplicative cases should not simultaneously proceed in different courts,
though Hopeman requests that the New York case be enjoined pending the
disposition of this case, while Continental and Lexington request that this
case

be

transferred

to

the

S.D.N.Y.

to

case.

18

be

consolidated

with

the

New

York

New York action could be joined in the Virginia action, and thus
the

Court

makes

no

finding

on

this

issue.

However,

in

evaluating what effect a ruling in the Virginia case would have
on the ultimate disposition of the New York case,
resolution

of

the

dispute

between

Lexington in New York was
Virginia

case,

res

Hopeman,

assuming that

Continental,

enjoined pending disposition of

judicata

would

prevent

any

2002)
the

L.L.C.

V.

Mollicam,

287

F.3d

{"Under res judicata principles,
same

matters

parties

can

actually

both

ostensibly

in

have

.

the

a

316,

See Orca

318

(4th

Cir.

a prior judgment between

subsequent

necessarily

Thus,

actions

determined'"

preclude

and

adjudication.").
to

Inc.,

the

inconsistent

judgment on the same issues between the same parties.
Yachts,

and

litigation

resolved

in

on

the

those

first

if the "legal and factual issues common
.

.

were

Virginia

preclusive

'actually

and

case,

the

Virginia

effect

on

subsequent

necessarily

case

would

litigation

over the same insurance policies between Continental, Lexington,
and

Hopeman

in

the

New

duplicative litigation.

Next,

the

Court

applicable

law.

Bd.

Defendants argue that a
interpret

the

New

insurance

York

applicable
and

York

case,

and

would

thereby prevent

Orca Yachts, 287 F.3d at 318.

considers
Of

its

Trustees,

familiarity
702

F.

with

Supp.

at

the
1260.

New York court will be better able to
law,

which Defendants

contract
19

law.

Defs.'

assume

will

be

Opening

Br.

8.

However,

Hopeman

points

out

that

while

"New

York

law

may

ultimately be applicable [, ] . . . it is by no means clear based
solely

on

the

addresses

Hopeman's Complaint."

listed

in

Pl.'s Resp.

the
Br.

policies
14-15.

the
V.

"last act"
St.

2005)

Paul

Ins.

Co.,

407

F.3d

Res.
631,

Bankshares Corp.
635-36

{4th

Cir.

("Under Virginia law, a contract is made when the last act

to complete it is performed,
policy,

the

insured."
Co.,

such as the

a court applies the law where

of contracting occurred.

Mercury

to

Under Virginia

conflict of laws rules,^ in evaluating a contract,
insurance policies at issue here,

attached

last

(quoting

377 F.3d 408,

act

is

Seabulk
419

and in the context of an insurance

the

delivery

Offshore,

(4th Cir.

of

the

Ltd.

2004))).

v.

policy

Am.

to

Home

the

Assur.

According to Hopeman,

^ As the jurisdiction where the complaint was filed first, Virginia conflict
of laws rules apply to the first-filed action regardless of which court
ultimately hears the case.
See Van Dusen, 376 U.S. at 639 ("[T]he transferee
district court must be obligated to apply the state law that would have been
applied if there had been no change of venue. A change of venue under
§1404 (a) generally should be, with respect to state law, but a change of
courtrooms.").
However, as pointed out by Hopeman, Pl.'s Resp. Br. 15, in
the

second-filed

action-under

New

York's

conflict

of

interest

laws-the

S.D.N.Y. might be obligated to apply Virginia law to the case.
New York
applies the law of the state with the "most significant relationship to the
transaction and the parties," and in the context of insurance contracts, the
court looks to the "principal location of the insured risk."
Certain
Underwriters

at

(2006), aff'd,
location

of

Lloyd's,

London

876 N.E.2d 500

the

insured

v.

(2007).

risk'

is

Foster

Wheeler

Corp.,

36

A.D.3d

17,

21

In situations in which the "'principal
unclear

because

the

insured

risks

are

equally spread across many states, New York courts generally substitute the
'principal location of the insured risk' with the insured's domicile," which
here would be Virginia, as Hopeman's state of incorporation.
Wausau Bus.
Ins. Co. V. Horizon Admin. Servs. LLC, 803 F. Supp. 2d 209, 214 (E.D.N.Y.
2011) (quoting Foster Wheeler, 36 A.D.3d at 21).
Thus, in the second-filed
action. New York's conflict of laws rule might require that the New York
court apply Virginia law, thereby undermining Defendants' argument in favor
of the overall case being resolved in New York in order for a New York court
to evaluate New York law.

20

"[i]t is not certain on the current record that

the

'last act'

of contracting occurred in New York for New York law to apply in
this Court,"

because identifying when and where the

occurred

an

is

issue

Because it appears

that

for

discovery.

there

Pl.'s

"last act"

Resp.

Br.

15.

is dispute about when and where

the "last act" occurred in forming the contract,

and because the

Court is able to apply the law of New York should New York law
be applicable,

the Court does not find that familiarity with the

applicable law weighs in favor of transfer to the S.D.N.Y.
Finally,

the

Court

observes

that

the

interest

of

justice

weighs in favor of transfer when one court has already invested
substantial

time

3776688, at *7
because

and energy

was

the

case,

CIVIX-DDI,

2012

WL

{citing U.S. Ship Mgmt., 357 F. Supp. 2d at 938),

"priority should not

complaint

into

filed

first,

be measured exclusively by which
but

rather

in

terms

of

how

much

progress has been made in the two actions," Moses H.

Cone Mem'l

Hosp.

21

v.

Mercury

Constr.

Corp.,

460

U.S.

1,

(1983)

(discussing priority of first-filed action in the context of the
Colorado River abstention doctrine).

were

filed

within

days

of

one

Here,

another

however,

and

neither

both cases

case

has

substantively progressed because in both cases the parties await
resolution of the pending motion to transfer and pending motion
to enjoin.

21

As explained above, each factor is either neutral or weighs

against transfer of this case to the S.D.N.Y.
chose

this

Court

as

the

forum

to

file

decision is given substantial weight.
F.

Supp.

2d

at

667.

Absent

Ins.,

2010

WL

2520973,

Defendants

at

justice justifies the transfer,

this

Court

forum.

declines

The

to

Court

*3,

and

Byerson,

deny

its

to

therefore

case,

and

this

Heinz Kettler GmbH,

convenience of the parties strongly favors
Mut.

Plaintiff Hopeman

the

showing

that

transfer,
that

the

750
the

Nationwide
interest

of

467 F. Supp. 2d at 635,

plaintiff

DENIES

its

Defendants'

choice
Motion

of
to

Transfer Venue.

B. Motion to Enjoin Second-Filed Action

Having declined to transfer this case to the S.D.N.Y.,
Court

now determines

whether

it

is

appropriate

to

enjoin

second-filed action currently pending in the S.D.N.Y.

requests
the

the
the

Hopeman

that the Court enjoin the second-filed action because

first-filed

rule

According to Hopeman,

applies.

Pl.'s

Opening

Br.

21-22.

the parties agree that the New York action

and Virginia action are "parallel," and as such only one should
proceed

to

the

Additionally,

exclusion

Hopeman

of

argues

the

that

other.

Pl.'s

Defendants

Reply

are

Br.

1.

engaging

in

"various forms of procedural gamesmanship," such as arguing that
the

New

action

York

action

includes

should

additional

be

chosen

to

plaintiffs,
22

proceed

but

because

that

simultaneously

arguing

that

additional
their

Id.

the

Court

plaintiffs

claims

or must

at 2.

should

actually
instead

Finally,

not

have

take

consider

the

their

Hopeman states

ability
claims

that

whether

to

to

the

litigate

arbitration.

"there is no dispute

that the first-filed rule applies even where the parties to the
lawsuits are not identical," such as the situation here.

Id.

at

3.

In response,
some

of

the

Defendants argue that while both cases involve

same

factual

additional

plaintiffs

Companies")

together

Resp.

Br.

1.

issues,

{the
with

According

the

"Certain

related

to

New

York

London

insurance

Defendants,

against

Hopeman

without

the

includes

Market

Insurance

policies.

allowing

case to proceed will either force Defendants

claims

case

Def.'s

the

Virginia

to litigate their

benefit

of

being

co-

Plaintiffs with the additional plaintiffs in the New York case—

if

that case proceeds without Continental and Lexington-or,

the

York

Court

enjoins

the

co-plaintiffs

New York case

to

await

the

completely,

adjudication

force

of

the

case before proceeding in their case against Hopeman.
5.

Defendants

interest

of

prejudice"
impermissibly
plaintiffs.

argue

justice"

that

because

Defendants
delay

both

the

while

justice

to

Id.
23

options

are

first

option

the
the

the

second
additional

Id. at 4to

the

"severely

option
New

New

Virginia

"contrary

would

if

would

York

co-

When

a

district

appropriate,

court

determines

that

under the first-filed rule,

further prosecution of a

App'x at 301; Allied-Gen.,

United

States,

general

the court may enjoin

Learning Network, 11 F.

675 F.2d at 611; accord.

U.S.

.

.

.

principle

Generally,

not

Exxon Corp.,

see Colorado River Water Conservation Dist.

424

district courts,

is

second-filed action in another court in

order to avoid duplicative litigation/

932 F.2d at 1025;

transfer

800,

817

(1976)

("As

between

federal

though no precise rule has evolved,

is

to

duplicative

avoid

duplicative

litigation

occurs

v.

the

litigation.").

when

"the

parties,

issues and available relief do not significantly differ between
the

two."

Cottle

v.

Bell,

229

(unpublished table decision).
first-to-file
identical

if

rule,
there

the
is

action

is

Nizer,

brought

action embracing
^ The

traditional

pursuant

to

in

the

one

interest.

Winter v.

once

courts

of

235

issue
test
Civil

for

with

Supp.

brought
issuing

Natural Res.

determine

Procedure

Def.

that

Council,

the

65

a

need

2000)

the

not

respect

be

1974)

court

to

the

635-36;

2d at

{2d Cir.

district

is

Cir.

see

("Where an

and

a

later

in another federal
preliminary

requires

Inc.,

first-filed

a

injunction

to
establish that (1) it is likely to succeed on the merits, (2) it is likely to
suffer irreparable harm in the absence of the injunction, (3) the balance of
the equities tips in its favor, and (4) an injunction is in the public

However,

Rule

F.

federal

same

assessed

overlap

467

{4th

"[f]or purposes of

being

F.2d 232,

four-factor

Federal

actions

Byerson,

505

1142

However,

substantial

issues and parties."
Meeropol v.

F.3d

555 U.S.

rule

plaintiff

7,

20

applies,

(2008).

"courts

have not imposed the traditional four-factor standard when deciding whether a
preliminary injunction should issue."
Safety Nat. Gas. Corp. v. U.S. Dep't
of
23,

Homeland Sec.,

No.

H-05-CV-2159,

2010

2010).
24

WL 5419043,

at

*4

(S.D.

Tex.

Dec.

court,

the

first

court

has

jurisdiction

prosecution of the second action.
where

the

parties

(internal

180

citations

n.2

whether a

the

two

omitted));

(observing

Second Circuit's

an

in

that

see

the

also

Fourth

first-filed rule).

determination

discretionary basis,"

that

involved,

and

3)

the

Nutrition & Fitness,
(W.D.N.C.

are

not

identical."

Ellicott,

While

2)

502

has

the

F.2d

adopted

v.

at

the

determination of

second-filed action is

made

on

a

case-by-case,
"1)

the similarity of the parties

similarity

Inc.

the

is applicable even

Circuit

is

enjoin

courts have considered three factors;

the chronology of the filings,

360

actions

district court should enjoin a

"equitable

357,

This rule

to

of

the

Blue Stuff,

issues

Inc.,

264

at

stake."

F.

Supp.

2d

2003).

As the Court explained above in evaluating whether transfer
of the Virginia case to New York was appropriate,
case was the first-filed action,

any

exception

See

supra

Virginia

justified

Part
case,

III.A.
the

and the Court did not find that

denying

Hopeman

Having

Court

now

the Virginia

retained
decides

its

choice

of

jurisdiction
whether

to

forum.

over

the

enjoin

the

parties from prosecution of the second-filed action in New York.
The Court may enjoin the New York action in its entirety if i t

finds

that

"the

parties,

issues

significantly differ between

1142,

and

available

[both cases],"

relief

Cottle,

do

not

229 F.3d at

or alternatively, may enjoin only the Virginia defendants,
25

Continental and Lexington,^ from prosecuting their case against
Hoperaan,

Fed.

R.

Civ.

enjoin parties).
both

cases:

P.

Here,

Hopeman,

65

(d) (2)

three of

(noting

that

the parties

Continental,

a

are

court

the

in

However,

and Lexington.

same

as

has been repeatedly argued by Continental and Lexington,
York

action

includes

Insurance Companies

legal

issues

the

{the

between

additional

Hopeman,

Continental,

declaratory judgment action
for

contrast,

breach

of

contract

in

the

Market

Next,

the

Lexington

and

in both cases,

in both cases,

the New

London

"New York co-plaintiffs").

based upon the same alleged facts

claim

Certain

may

are

and include a

but only include

Virginia

action.

a
In

based upon the limited documentation currently before

the Court, the legal issues between Hopeman and the New York co-

plaintiffs

appear

Hopeman

and

related

to

Claims"
New

the
the

to

be

New

based

York

1985

on

insurance

co-plaintiffs

"Agreement

York

co-plaintiffs

Continental

Casualty Co.

1:17-CV-00688

judgment

individual

(S.D.N.Y.

regarding

insurance

are
et

Feb.

each

policy

and

Concerning

(the "Wellington Agreement"),

v.

22,

issues

Asbestos-Related

Pis.'

Resp.

2017).

Hopeman

While

a

2,

Inc.,

Hopeman Brothers,

co-plaintiff's

with

include

between

to which eight of the nine

signatories.

al.

policies

No.

declaratory

liability

may

on

present

its

similar

® Subject to the applicable Federal Rules of Civil Procedure and Local Rules,
the New York co-plaintiffs may choose to join the Virginia case.
Civ.

P.

19 & 20.

26

See Fed. R.

legal and factual issues to the Virginia action, because the co-

plaintiffs and underlying insurance policies are unique to the
New

York

action,

the

parties

have

not

issues "do not significantly differ."

demonstrated

Cottle,

that

the

229 F.3d at 1142

{finding that two cases were not duplicative when the complaints
named different defendants even though the cases raised similar
issues and sought similar remedies).
In

summary,

Continental,

it

and

appears

Lexington,

that

the

as

parties

between

and

Hopeman,

legal

contested are virtually identical between both cases.

a

second action to proceed between the

the

same legal and factual

litigation,
Enjoin

and therefore

Continental

and

same parties

issues
To allow

litigating

issues would constitute duplicative

the Court GRANTS Hopeman's Motion to

Lexington

from

prosecuting

the

second-

filed action, pending disposition of the case before this Court.
However,

based

upon

the

documentation

before

the

Court,

it

appears that as between Hopeman and the New York co-plaintiffs
the

parties

and

are

Virginia
different
York

and

based
case.
legal

legal

on

issues

Therefore,
and factual

co-plaintiffs,

the

involve

insurance

different

contested

policies

because

of

the

unique

than

unique

parties

in

the

parties

and

issues between Hopeman and the New

Court

DENIES

the

Motion

to

Enjoin

the

Second-Filed Action with respect to the New York co-plaintiffs,
and leaves to the S.D.N.Y. the question of how to best proceed.
27

IV.

For

the

reasons

Transfer Venue

ECF

No.

14,

Lexington

to

and

from

set

the

CONCLUSION

forth

Southern

Hopeman's

above,

District

Motion

prosecuting

Defendants'

the

Southern District of New York,

to

of

New

York

Enjoin

Motion
is

DENIED,

Continental

second-filed

action

to

in

and
the

is GRANTED, but Hopeman's Motion

to Enjoin the Second-Filed Action with respect to the New York
co-plaintiffs

is DENIED,

ECF No.

12.

to Transfer and Motion to

Enjoin,

Motion

Time

for

Defendants

Extension

to

file

fourteen days.
The

a

to

responsive

the

File

SO

Answer,

pleading

Clerk is REQUESTED to send a

IS

Court GRANTS

or

Defendants'
and

DIRECTS

motion

within

ECF No. 17.

Order to counsel
IT

of

Having decided the Motion

copy of

for Plaintiff and to counsel

this Opinion and

for Defendants.

ORDERED.

/s/lfnir^
Mark S.
UNITED

Norfolk, Virginia
April

2017

28

STATES

Davis

DISTRICT JUDGE