Smith et al v. Scottsdale Insurance Company et al
MEMORANDUM OPINION AND ORDER CONFIRMING PRONOUNCED ORDER OF THE COURTDENYING WITHOUT PREJUDICE DEFENDANTS MOTION FOR CHANGE OF VENUE. re 4 Motion is DENIED WITHOUT PREJUDICEto refiling if proper upon further discovery. Signed by Senior Judge Frederick P. Stamp, Jr on 12/2/13. (cc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
LEVERT SMITH and NELSON D. RADFORD,
Co-Administrators of the Estate of
JOSEPH JEREMAINE PORTER,
Civil Action No. 5:12CV86
SCOTTSDALE INSURANCE COMPANY,
SCOTTSDALE INDEMNITY COMPANY,
and NATIONWIDE INSURANCE COMPANY,
MEMORANDUM OPINION AND ORDER
CONFIRMING PRONOUNCED ORDER OF THE COURT
DENYING WITHOUT PREJUDICE DEFENDANT’S
MOTION FOR CHANGE OF VENUE
The plaintiffs originally filed this action in the Circuit
Court of Ohio County, West Virginia.
Thereafter, the original
defendants removed the action to this Court based on diversity
The plaintiffs are the Co-Administrators of the
Estate of Joseph Jeremaine Porter.
Mr. Porter was fatally injured
in a shooting involving a police officer who was an employee of the
City of Huntington’s Police Department.
The remaining defendant,1
Huntington’s insurer at that time of the shooting.
This Court previously dismissed defendants Scottsdale
Indemnity Company and Nationwide Insurance Company pursuant to the
parties’ stipulation of dismissal (ECF No. 24) as to these
sued the City of Huntington and the police officer as a result of
The defendant, Scottsdale, provided the City’s and
the officer’s defense in that litigation. Mediation and settlement
negotiations were unsuccessful in that litigation.
claims were resolved in the City of Huntington’s and the police
officer’s favor, either through summary judgment, judgment as a
matter of law, or through a jury verdict.
subsequent settlement negotiations between the defendant and the
plaintiffs, which took place during the above-described litigation.
The plaintiffs assert two counts in their complaint.
Count I of
the complaint asserts that the defendant violated the West Virginia
Human Rights Act, W. Va. Code § 5-11-1 et seq., when it did not
settle the plaintiffs’ claims against the City and the officer.
Count II of the complaint, filed pursuant to the West Virginia
Uniform Declaratory Judgments Act, W. Va. Code § 55-13-1 et seq.,
requests that this Court determine the rights of the parties as to
a consent clause in the insurance policy between the City and the
Specifically, the plaintiffs request that this Court
find that the defendant may not rely on the consent clause to
defend against its actions, when it knew or should have known that
Plaintiffs’ claims in the underlying action were for
negligence, wrongful death, and for a deprivation of constitutional
rights under 42 U.S.C. § 1983.
the City’s refusal to give consent to settle was motivated by
This action was previously stayed as a result of an appeal of
the underlying action by the plaintiffs against the City and the
Prior to this stay, however, the defendant had filed a
partial motion to dismiss and a motion to change venue.
motion for change of venue, the defendant argues that this matter
should be transferred to the United States District Court for the
Southern District of West Virginia for convenience, pursuant to 28
U.S.C. § 1404.
The defendant also argues that venue is not proper
in the Northern District of West Virginia because none of the
alleged events or omissions giving rise to the claims occurred in
The plaintiffs oppose the defendant’s motion for
change of venue on the grounds that the defendant has failed to
meet the heavy burden of showing that the case must be transferred.
The defendant replied, arguing that while the defendant does have
The defendant seems to be asserting an argument for improper
venue, which would require that it bring such argument under Rule
12(b)(3) of the Federal Rules of Civil Procedure and seek dismissal
for improper venue. The defendant, however, at no place in its
motion or briefing seeks dismissal for improper venue. Further,
such motion would be futile, as venue is proper in any judicial
district in which any defendant resides and for purposes of venue,
a corporation is deemed to reside in any judicial district where it
is subject to personal jurisdiction. 28 U.S.C. § 1391(b)-(c). The
defendant, a corporation, concedes that it is subject to
jurisdiction throughout West Virginia, and therefore, venue is
proper in either the Northern or Southern District of West
Virginia. See ECF No. 4 *4.
the burden of establishing that venue should be transferred, it has
met such burden.
As this Court has now lifted the stay in this action, this
motion is ripe for decision.
For the reasons stated below, this
Court denies the defendant’s motion to transfer venue without
prejudice to refiling if proper after the completion of further
A motion to transfer a case to different venue is subject to
the provisions of 28 U.S.C. §§ 1404(a) and 1391(a). Pursuant to 28
U.S.C. § 1404(a), “a district court may transfer any civil action
to any other district or division where it might have been brought”
where such transfer is made “[f]or the convenience of parties and
witnesses, in the interest of justice.” 28 U.S.C. § 1404(a). This
rule is intended to allow a court to transfer venue in order to
“make trial of a case easy, expeditious and inexpensive.” Gulf Oil
Corp. v. Gilbert, 330 U.S. 501, 508 (1947) (superceded by statute
on other grounds).
The decision to transfer venue is left to the sound discretion
of the trial court.
(4th Cir. 1956).
Southern Ry. Co. v. Madden, 235 F.2d 198, 201
In making this determination, a court should
(1) ease of access to sources of proof; (2) the
convenience of parties and witnesses; (3) the cost of
obtaining the attendance of witnesses; (4) the
availability of compulsory process; (5) the possibility
of a view; (6) the interest in having local controversies
decided at home; and (7) the interests of justice.
In re Campbell Transp. Co., Inc., 368 F. Supp. 2d 553, 555-56 (N.D.
W. Va. 2005) (citing Alpha Welding & Fabricating Co. v. Todd
Heller, Inc., 837 F. Supp. 172, 175 (S.D. W. Va. 1993)).
movants typically bear the burden of demonstrating that transfer is
proper. Versol B.V. v. Hunter Douglas, Inc., 806 F. Supp. 582, 592
(E.D. Va. 1992).
The Supreme Court of the United States has
further stated that “unless the balance is strongly in favor of the
Gulf Oil, 330 U.S. at 508.
This Court first notes that the parties do not dispute whether
this action may have been brought in the Southern District of West
Virginia, as the plaintiff’s estate is domiciled in the Southern
jurisdiction in the Southern District of West Virginia.
question is whether the venue should be transferred “[f]or the
convenience of parties and witnesses, in the interest of justice.”
28 U.S.C. § 1404(a).
Convenience of the Witnesses, Ease of Access to Sources of
Proof, and Costs of Obtaining the Presence of Witnesses
The defendant addresses the first three convenience factors
together, arguing that the convenience of the witnesses is the most
important factor in evaluating a motion to transfer venue.
defendant states that if any witnesses exist to the actions alleged
by the plaintiffs, such witness would be located in or around the
City of Huntington.
Further, the defendant asserts that the
plaintiffs have not identified any witnesses who would be located
anywhere but in the general vicinity of the City of Huntington. In
opposition to the defendant’s assertions, the plaintiffs argue that
most if not all witnesses except for experts would be out of the
defendant’s home office in Columbus, Ohio, which is closer to the
Northern District of West Virginia than it is to the Southern
The plaintiffs state that they presume any decision
whether or not to offer any settlement was made at the Columbus
defendant’s administrative office in Scottsdale, Arizona, the
plaintiffs state that the distance to either district would be
Further, the plaintiffs argue that the defendant
failed to submit affidavits to indicate the intended witnesses or
the specific matters about which such witnesses would be expected
As such, the plaintiffs assert that the defendant
failed to carry its burden of showing that convenience weighs in
This Court finds that the defendant has failed to show that
for the convenience of the witnesses, venue should be transferred.
Initially, this Court notes that “[t]he party asserting witness
inconvenience has the burden to proffer, by affidavit or otherwise,
sufficient details respecting the witnesses and their potential
testimony to enable the court to assess the materiality of evidence
and the degree of inconvenience.” Koh v. Microtek Int’l, Inc., 250
F. Supp. 2d 627, 636 (E.D. Va. 2003).
Such information is
“necessary to enable the court to ascertain how much weight to give
a claim on inconvenience.”
Bd. of Trs., Sheet Metal Workers Nat.
Fund v. Baylor Heating & Air Conditioning, Inc., 702 F. Supp. 1253,
1256 (E.D. Va. 1988).
The defendant, in its reply in support of the motion to
transfer, indicates that it believes representatives of the City of
Huntington are key witnesses to the alleged racial discrimination
in which the plaintiffs allege the defendant engaged in.
defendant, however, does not allege that these are the only
witnesses that will need to testify, nor does it allege in great
detail what the testimony of these individuals will consist of.
Accordingly, this Court finds that the defendant has failed to meet
it burden of establishing that the convenience to the witnesses
strongly weighs in favor of transfer to the Southern District of
It is not clear at this time, based on the
defendant’s motion, who all the witnesses will be, what they will
testify to, and where such witnesses are located.
allegations concerning the other convenience factors, which are the
cost of obtaining the presence of the witnesses and the ease of
access to sources of proof. Thus, this Court must assume that such
factors are not at issue, and do not make it more or less
convenient to transfer venue to the Southern District of West
Compulsory Process and Possibility of a View
As to these two factors, the defendant concedes that such
factors are irrelevant to the transfer inquiry.
states that either district has compulsory process and the location
of the underlying events that led to this suit is not relevant.
Therefore, based on this concession, this Court finds that such
factors do not make it more or less convenient to transfer venue.
Interest in Having Local Controversies Decided at Home
controversies decided at home weighs in favor of having this
dispute decided in the Southern District of West Virginia, as that
is the locale where the alleged acts occurred.
In opposition, the
plaintiffs argue that the local interest in this case is the
interest of the state of West Virginia.
Specifically, they assert
that the impact of a state-wide law, the West Virginia Human Rights
Act, is connected to the state and not to either district.
Court agrees with the plaintiffs, and finds that as this is a
matter of whether a state law was violated, neither district in
West Virginia has a greater stake in the outcome.
factor does not weigh in favor of transfer to the Southern District
of West Virginia.
The Interests of Justice
The defendant lastly argues that the interests of justice
favor transferring this matter to the Southern District of West
The defendant asserts that the pendency of a related
litigation, specifically, the underlying suit discussed above,
The defendant asserts that as a result of this
underlying suit, the Southern District is familiar with the factual
issues raised in discovery, during mediation, and during the trial
all weigh in favor of transferring the venue.
The defendant does
note, however, that the underlying suit was dismissed and is no
longer pending in the Southern District.
“The ‘interest of justice’ category is designedly broad.” Bd.
of Tr., Sheet Metal Workers Nat. Fund v. Baylor Hearing & Air
Conditioning, Inc., 702 F. Supp. 1253, 1260 (E.D. Va. 1988).
category is “meant to encompass all those factors bearing on
transfer that are unrelated to the other factors.”
JTH Tax, Inc.
v. Lee, 482 F. Supp. 731, 738 (E.D. Va. 2007) (citation omitted).
That being said, this Court does not find that the fact that the
underlying suit took place in the Southern District of West
considering whether the interests of justice require the transfer
of this matter.
The underlying suit is no longer pending in the
Southern District and the current action deals with different
questions and facts than the prior underlying suit. Moreover, this
Court certainly does not find that such a consideration outweighs
the plaintiffs’ choice of forum.
Thus, as this is the only
argument concerning the interests of justice, this Court finds that
the factors, taken as a whole, do not favor the transfer of this
matter to the Southern District.
However, because discovery may
present evidence that convenience and the interests of justice do
favor the transfer of venue, the defendant’s motion is denied
For the reasons stated above, the defendant’s motion to
transfer venue (ECF No. 4) is DENIED WITHOUT PREJUDICE to refiling
if proper upon further discovery.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.
December 2, 2013
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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