General Star National Insurance Company v. DiPino et al
Filing
30
MEMORANDUM OPINION AND ORDER DENYING WITHOUT PREJUDICE DEFENDANT EDWARD A. DiPINOS 21 MOTION FOR TRANSFER AND/OR CONSOLIDATION OF CASES. The plaintiff and defendants who are parties both in this civil action and in Civil Action No. 5:14CV76 shall advise the Court of developments in Civil Action No. 5:14CV76 regarding the proposed settlement or other factors that might affect issues in the civil action. Signed by Senior Judge Frederick P. Stamp, Jr. on 10/23/2015. (copy to counsel of record via CM/ECF) (nmm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
GENERAL STAR NATIONAL INSURANCE COMPANY,
a Delaware corporation,
Plaintiff,
v.
Civil Action No. 5:15CV49
(STAMP)
EDWARD A. DiPINO, individually and
d/b/a ED DiPINO APPRAISAL SERVICES, INC.
and MAUREEN DiLORETI, an individual,
Defendants.
MEMORANDUM OPINION AND ORDER
DENYING WITHOUT PREJUDICE
DEFENDANT EDWARD A. DiPINO’S MOTION FOR
TRANSFER AND/OR CONSOLIDATION OF CASES
I.
Background
This is an insurance coverage case wherein the plaintiff seeks
a declaratory judgment. Defendant Edward DiPino (“DiPino”) is also
a defendant in Civil Action No. 5:14CV76, which is before the
Honorable
John
Preston
Bailey.
Defendant
Maureen
DiLoreti
(“DiLoreti”) is a plaintiff in the civil action before Judge
Bailey.
It should be noted that the civil action before Judge
Bailey was filed as a proposed class action.
In this civil action, the plaintiff issued several liability
policies for defendant DiPino regarding real estate appraising.
Those
policies
covered
appraiser
error
and
omissions.
The
plaintiff alleges that several civil actions in state court have
been
filed
practices.
against
defendant
DiPino
for
predatory
lending
The plaintiff, pursuant to its reservation of rights,
now seeks a declaratory judgment.
In the complaint, the plaintiff
alleges eight counts regarding the parties’ rights and obligations
under the various liability policies.
At issue now is defendant DiPino’s motion to transfer and/or
consolidate.
ECF No. 21.
In that motion, defendant DiPino points
out that Civil Action No. 5:14CV76 is currently before Judge
Bailey.
That
civil
action
was
filed
by
defendant
DiLoreti
regarding defendant DiPino’s alleged predatory lending practices.
Defendant DiPino believes that the plaintiff’s claims in the civil
action before this Court are contingent upon the outcome of several
issues in the civil action before Judge Bailey.
For example,
defendant DiPino points out that the plaintiff in the civil action
before this Court alleges that to the extent defendant DiPino is
found liable for dishonest or fraudulent conduct, the plaintiff
will have no duty to indemnify defendant DiPino.
The claims as to
dishonest or fraudulent conduct by defendant DiPino, however, are
pending in the civil action before Judge Bailey.
Therefore, the
plaintiff’s claims may be contingent upon the results of the civil
action before Judge Bailey.
Defendant DiPino also argues that the
issues of fact in both civil actions are the same.
Moreover,
defendant DiPino believes that Judge Bailey will be in the best
position to address the plaintiff’s arguments upon the conclusion
of Civil Action 5:14CV76.
Thus, defendant DiPino contends that
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transfer or consolidation of the cases will create consistent
rulings of common factual and legal issues.
The plaintiff filed a response, wherein the plaintiff opposes
the motion to transfer or consolidate.
ECF No. 25.
The plaintiff
states that a proposed settlement regarding all claims against the
appraiser defendants, including defendant DiPino, is before Judge
Bailey, subject to his approval.
Because the proposed settlement
remains pending, the plaintiff does not believe that consolidation
should be considered until Judge Bailey rules on the proposed
settlement.
If that settlement is approved, the plaintiff claims
that it may file an amended complaint to resolve any remaining
issues, which would concern the coverage limits under the policies.
Further,
the
plaintiff
argues
that
because
it
currently
is
litigating the issue of class certification for the next eight
months, it would incur unnecessary costs and delays if a transfer
or consolidation occurs.
Further, the plaintiff contends that the
issues in this civil action are not contingent upon the results of
the civil action before Judge Bailey.
For those reasons, the
plaintiff seeks denial of defendant DiPino’s motion at this time.
Defendant DiPino did not file a reply.
Also, defendant DiLoreti
did not file a response to the motion.
II.
Applicable Law
In deciding motions to consolidate, Rule 42 of the Federal
Rules of Civil Procedure “gives the Court broad discretion to make
3
decisions about how to most efficiently and economically try cases
on its docket.”
Minter v. Wells Fargo Bank, N.A., 2012 WL 1963347
(D. Md. May 30, 2012); see A/S J. Ludwig Mowinckles Rederi v.
Tidewater Const. Co., 559 F.2d 928, 932 (4th Cir. 1977); see also
Borough v. Olyphant v. PPL Corp., 153 F. App’x 80, 82 (3d Cir.
2005); American Employers’ Ins. Co. v. King Resources Co., 545 F.2d
1265, 1269 (10th Cir. 1976) (affirming the trial court’s discretion
to
deny
a
request
to
consolidate).
Determining
whether
to
consolidate cases turns on “essentially whether the common fact and
law issues indicate that there would be a sufficient saving of time
and effort on the part of the court and the parties to warrant a
joint trial, when balanced against the inconvenience, delay, or
expense to the parties that might result from requiring each to
attend trial of some issues in which it is not involved.”
Stein,
Hall & Co. v. Scindia Steam Nav. Co., 264 F. Supp. 499, 501
(S.D.N.Y. 1967).
As stated by the United States Court of Appeals
for the Fourth Circuit, consolidation is appropriate if the claims
“were
brought
against
the
same
defendant,
rely
on
the
same
witnesses, allege the same misconduct, and answered with the same
defenses.”
Harris v. L&L Wings, Inc., 132 F.3d 978, 982 n.2 (4th
Cir. 1997); see also Burns v. Horry Co., 2006 WL 20409, at *1
(D.S.C. Jan. 4, 2006) (also considering consolidation in light of
the “interest of judicial economy”).
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As to the transfer of a civil action, 28 U.S.C. § 1404(a)
permits a district court, based on “the convenience of parties and
witnesses, in the interest of justice,” to “transfer any 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.” Similar to when considering motions for consolidation,
“decisions to transfer an action under [28 U.S.C. § 1404] are
committed to the discretion of the transferring judge.”
Ferro
Products Corp. v. Cattrell Comp., Inc., 2015 WL 5721605, at *5
(S.D. W. Va. Sept. 29, 2015) (citing Brock v. Entre Computer
Centers, Inc., 933 F.2d 1253, 1257 (4th Cir. 1991)).
As the
Supreme Court of the United States stated, “Section 1404(a) 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)). Factors that a district should
consider include the following:
(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.
AFA Enters., Inc. v. American States Ins. Co., 842 F. Supp. 902,
909 (S.D. W. Va. 1994); Verosol B.V. v. Hunter Douglas, Inc., 806
F.Supp. 582 (E.D. Va. 1992).
Nonetheless, the moving party bears
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the burden of showing that transfer to another forum is proper.
N.Y. Marine & Gen. Ins. Co. v. Lafarge N. Am., Inc., 599 F.3d 102,
113-14 (2d Cir. 2010); Leonard v. Mylan, Inc., 718 F. Supp. 2d 741,
745 (S.D. W. Va. 2010).
III.
Discussion
As stated earlier, defendant DiPino primarily argues that the
issues in this civil action are contingent upon the resolution of
the civil action before Judge Bailey.
Defendant DiPino also
contends that consistent adjudications and simpler discovery will
result if this Court grants his motion.
The plaintiff, however,
believes that this Court should wait until a proposed settlement is
decided upon in the civil action before Judge Bailey.
That
proposed settlement may ultimately dismiss defendant DiPino from
either civil action.
If the proposed settlement is rejected,
however, then the plaintiff admits that a consolidation or transfer
of this civil action may be warranted.
does
not
oppose
denying
defendant
Therefore, the plaintiff
DiPino’s
motion
without
prejudice.
After reviewing the parties filings and the record before the
Court, defendant DiPino’s motion must be denied without prejudice
at this time.
A transfer or consolidation of this civil action
with that of the civil action before Judge Bailey seems premature
at this stage.
defendant
The plaintiff is correct in pointing out that if
DiPino
is
ultimately
6
dismissed
by
the
proposed
settlement, then a consolidation or transfer of this civil action
may be unwarranted.
action
before
In addition, the issues involved in the civil
this
Court,
in
which
the
plaintiff
seeks
a
declaratory judgment, and the civil action before Judge Bailey are
not so interrelated as requiring consolidation or transfer.
The
plaintiff correctly notes that the primary issues in this civil
action pertain to the application of insurance policies issued to
defendant DiPino and the amount of remaining coverage under the
liability limits of those policies.
Determination of those issues
at this stage are not so similar to the issues in the civil action
before Judge Bailey so as to be considered “common fact and law”
for consolidation purposes.
The same can be said as to defendant DiPino’s request for
transfer.
Defendant DiPino, as the moving party, bears the burden
of showing whether transfer is proper.
As stated earlier, the
factors that must be considered in deciding a motion for transfer
include the following:
(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.
AFA Enters., Inc. v. American States Ins. Co., 842 F. Supp. 902,
909 (S.D. W. Va. 1994).
Upon review of those factors, it is clear
that defendant DiPino has not met his burden.
Although both civil
actions contain similar parties and stem somewhat from the same
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predatory lending allegations, none of the factors listed above
warrant the transfer of this civil action at this time. The
allegations, issues, and law at this stage in the civil action
before Judge Bailey and the allegations from this civil action are
not so common that discovery in either civil action will be made
more efficient or easier upon transfer.
Further, the interests of
justice do not justify transferring this civil action at this
time.1
In sum, defendant DiPino has not met his burden at this stage.
Based on the discretion possessed by this Court, defendant DiPino’s
motion for the transfer and/or consolidation of cases must be
denied without prejudice to refiling.
IV.
Conclusion
For the reasons set forth above, defendant Edward A. DiPino’s
motion for transfer and/or consolidation of cases (ECF No. 21) must
be denied without prejudice to refiling.
The plaintiff and
defendants who are parties both in this civil action and in Civil
Action No. 5:14CV76 shall advise the Court of developments in Civil
1
The plaintiff correctly points out that 28 U.S.C. § 1404
applies to the transfer of any civil action to any “other district
or division” where that action may be brought. Here, transferring
this civil action to Judge Bailey, who is also located in the
Northern District, Wheeling Division, would not result in a
transfer to an “other” district or division as interpreted under
the statute. Therefore, this civil action and the civil action
before Judge Bailey are both in the same district and division, and
thus, the statute is facially inapplicable to the civil action at
this time.
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Action No. 5:14CV76 regarding the proposed settlement or other
factors that might affect issues in the civil action before the
undersigned judge.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.
DATED:
October 23, 2015
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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