Parker et al v. United Financial Casualty Company et al
MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS' 4 MOTION TO DISMISS FOR IMPROPER VENUE OR, IN THE ALTERNATIVE, MOTION TO TRANSFER. Signed by Senior Judge Frederick P. Stamp, Jr. on 8/22/17. (counsel via CM/ECF) (lmm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MICHAEL PARKER and BETH PARKER,
Civil Action No. 5:17CV104
UNITED FINANCIAL CASUALTY COMPANY
and PROGRESSIVE CASUALTY INSURANCE
MEMORANDUM OPINION AND ORDER
DENYING DEFENDANTS’ MOTION TO DISMISS FOR IMPROPER
VENUE OR, IN THE ALTERNATIVE, MOTION TO TRANSFER
The plaintiffs, Michael Parker and his wife, Beth Parker,
filed a complaint in the Circuit Court of Ohio County, West
Virginia, alleging claims of breach of contract and bad faith
The defendants thereafter removed this civil
action to this Court and filed a motion to dismiss for improper
venue or, in the alternative, motion to transfer.
the defendants request that this Court dismiss the plaintiff’s
complaint for improper venue pursuant to Federal Rule of Civil
Procedure 12(b)(3) or, alternatively, to transfer the case to the
United States District Court for the Southern District of Ohio
pursuant to 28 U.S.C. §§ 1404(a) or 1406(a).
The issues presented in the defendants’ motions are now fully
briefed and ripe for decision.
After a review of the parties’
memoranda and the applicable law, this Court finds that the
defendants’ motion to dismiss for improper venue and motion to
transfer must be denied.
The case arises out of Michael Parker’s claim to United for
underinsured motorist benefits after he was injured in a car wreck
on March 1, 2016.
The car wreck took place in Warren Township,
Jefferson County, Ohio, which is located within the Southern
District of Ohio.
Mr. Parker was driving the vehicle within the
course and scope of his employment with Rare Properties, Inc., and
the vehicle was also owned by Rare Properties, Inc.
Parker was covered by Rare Properties’ insurance policy on the
vehicle, which was issued by United, an affiliate of Progressive.
After Mr. Parker reached a settlement with the tortfeasor, United
refused to pay Mr. Parker’s subsequent claim for underinsured
motorist benefits. The plaintiffs are residents of Belmont County,
Ohio, and both defendants are Ohio corporations that are licensed
to conduct business in West Virginia.
Rare Properties, Inc. is a
West Virginia corporation.
For purposes of deciding this motion, the facts are based
upon the allegations contained in the complaint.
Count I of the complaint alleges that underinsured motorist
benefits are due and owing under the United policy and that
United’s failure to pay constitutes a breach of contract. Count II
alleges that Progressive is guilty of common law and statutory bad
faith in its handling of the claim.
Where jurisdiction of a civil action is based solely on
diversity of citizenship, 28 U.S.C. § 1391 provides that the action
may be brought (1) where any defendant resides if all defendants
reside in the same state, (2) where a substantial part of the
events or omissions giving rise to the claim occurred, or (3) where
any defendant is subject to personal jurisdiction at the time the
action is commenced, “if there is no district in which the action
may otherwise be brought.”
28 U.S.C. § 1391(b).
A defendant that
is a corporation is deemed to reside in any judicial district in
which it is subject to personal jurisdiction at the time the action
“To survive a motion to dismiss for improper venue when no
evidentiary hearing is held, the plaintiff need only make a prima
facie showing of venue.”
Mitrano v. Hawes, 377 F.3d 402, 405 (4th
Of course, venue may be proper in multiple districts.
sufficiently substantial to support venue, a court should not focus
only on those matters that are in dispute or that directly led to
the filing of the action, but should review the entire sequence of
events underlying the claim.
A motion to transfer a case to another venue is subject to the
§ 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
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.
In support of their motion to dismiss, the defendants argue
that West Virginia is not the proper venue for this action because
the lawsuit’s only connection with West Virginia is that Mr. Parker
was an employee of Rare Properties, Inc., which is a West Virginia
entity but not a party to the case.
The defendants emphasize that
the plaintiffs are Ohio residents, that the defendants are both
Ohio corporations, and that the car wreck in question took place in
the Southern District of Ohio.
The defendants contend that the
residents and corporations arising out of a motor vehicle accident
that occurred in Ohio,” and that West Virginia’s contacts with the
action are “peripheral and insubstantial.”
Analyzing venue under 28 U.S.C. § 1391(b), the defendants
inapplicable because the defendants are Ohio corporations. The
provision, § 1391(b)(2), is also inapplicable because the events or
omissions giving rise to the claim occurred in Ohio.
defendants argue that the catch-all provision, § 1391(b)(3), is
inapplicable because the lawsuit’s only connection to West Virginia
is that Mr. Parker was an employee of Rare Properties, a West
This Court does not agree with the defendants’ arguments.
Rather, the Court agrees with the plaintiffs that the defendants
have improperly characterized this civil action as a personal
injury case, even though the claims are for breach of contract and
See Plumley v. May, 434 S.E.2d 406, 411 (W. Va. 1993)
(“[W]hen a direct action against an uninsured or underinsured
motorist carrier is pursued, that action sounds in contract . . .
[and] does not require an action against the tortfeasor with whom
the plaintiff has already settled for liability limits . . . .”).
Analyzing the civil action as one for breach of contract and bad
faith, this Court finds that venue is proper in West Virginia under
each of the three provisions of § 1391(b).
corporations, § 1391(c)(2), which provides as follows:
[A]n entity with the capacity to sue and be sued in its
common name under applicable law, whether or not
incorporated, shall be deemed to reside, if a defendant,
in any judicial district in which such defendant is
subject to the court’s personal jurisdiction with respect
to the civil action in question and, if a plaintiff, only
in the judicial district in which it maintains its
principal place of business.
§ 1391(c)(2). The defendants are authorized to do business in West
Virginia, and their contacts with West Virginia are sufficient for
the Court to exercise general personal jurisdiction over them. See
Daimler AG v. Bauman, 134 S. Ct. 746, 761 (2014) (holding that the
corporation’s ‘affiliations with the State are so continuous and
systematic as to render [it] essentially at home in the forum
State.’” (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown,
564 U.S. 915, 919 (2011))).
The Court finds that the defendants
are “essentially at home” in West Virginia because Progressive has
a claims office in Bridgeport, West Virginia, and both defendants
have agents located throughout northern West Virginia, including in
Follansbee, Weirton, Wheeling, Moundsville, and New Martinsville.
jurisdiction over the defendants.
See Goodyear Dunlop Tires
Operations, S.A., 564 U.S. at 919 (“Specific jurisdiction . . .
depends on an ‘affiliatio[n] between the forum and the underlying
controversy,’ principally, activity or an occurrence that takes
place in the forum State and is therefore subject to the State’s
As to the breach of contract claim, the Court can
exercise specific personal jurisdiction over the defendants by
virtue of the insurance policy being issued in West Virginia to a
West Virginia company.
As to the bad faith claim, the complaint
alleges that Progressive’s Bridgeport, West Virginia claims office
handled Mr. Parker’s claim in bad faith.
Mr. Parker’s claim was
specifically assigned to the Bridgeport office, and that office
handled the claim for almost one year. Thus, all of the defendants
can be deemed to reside in West Virginia for the purposes of
“substantial part of the events” provision, § 1391(b)(2).
court . . . . should review ‘the entire sequence of events
underlying the claim.’” (quoting Uffner v. La Reunion Francaise,
S.A., 244 F.3d 38, 42 (1st Cir. 2001))).
Here, the sequence of
support venue because the policy itself was issued in West Virginia
to a West Virginia company having its headquarters in the Northern
District of West Virginia.
Additionally, the suit is for the
breach of the insurance contract and the claim was handled largely
by a Progressive adjuster working out of Progressive’s Bridgeport,
West Virginia claims office.
Lastly, venue in West Virginia is also proper under the catchall provision, § 1391(b)(3), because the plaintiffs’ claims for
breach of contract and bad faith arise in West Virginia and the
defendants have a substantial presence in West Virginia. For venue
to be proper in West Virginia, only one of the three venue
provisions of § 1391(b) must be satisfied.
Here, venue in West
Virginia is proper under all three of the venue provisions.
Accordingly, venue is proper pursuant to 28 U.S.C. § 1391(b).
contend that this case would be more appropriately tried in the
Southern District of Ohio. The defendants argue that the interests
of justice and the convenience of the parties weigh in favor of
transfer because (1) the relevant proof, including witnesses, is
located in Ohio and (2) Ohio courts have a significant interest in
having local controversies adjudicated in Ohio.
After thorough consideration of the factors set forth in In re
Campbell Transp. Co., Inc., this Court finds that transfer of this
civil action is not proper.
First, the ease of access to sources
of proof does not support a transfer because the proof will likely
consist of the policy at issue, and the claims office is located in
Furthermore, the liability issue has already been
settled with the tortfeasor, and most of the relevant medical
records come from Wheeling Hospital and MedExpress Urgent Care,
both located in West Virginia, and are already a part of the
Second, as to the convenience of parties and witnesses factor,
the defendants fall short of the required showing that West
Virginia is less convenient than Ohio.
The plaintiffs live in
Bridgeport, Ohio, which is only a few miles from Wheeling, West
Progressive’s corporate offices are in Mayfield, Ohio,
which is in between Wheeling and Columbus.
Thus, having the trial
in the Southern District of Ohio would not be more convenient than
having the trial in West Virginia.
Third, the cost of obtaining witnesses would not be greater if
the trial is in Wheeling, West Virginia.
As noted previously,
liability is not at issue, and the plaintiffs’ healthcare providers
are located in West Virginia. Because the healthcare providers are
in West Virginia, the fourth factor, the availability of compulsory
process, also does not support transfer to the Southern District of
Fifth, a jury view of the accident scene will likely be
unnecessary given that liability is not an issue.
Court nonetheless notes that it would be able to accommodate a jury
view from Wheeling.
controversy adjudicated at home because this is not a personal
injury case about the Ohio car accident.
Rather, the breach of
contract claim is about an insurance policy issued in West Virginia
to a West Virginia company, and the bad faith claim is about a West
Virginia claims office handling the plaintiffs’ claim in bad faith.
Seventh, the defendants do not offer any other argument that
transferred in the interests of justice to the Southern District of
Lastly, as mentioned above, the plaintiffs’ choice of forum is
accorded considerable weight.
Gulf Oil, 330 U.S. at 508.
Court will not deprive the plaintiffs of their choice of forum
because the defendants would prefer to litigate this civil action
In conclusion, this Court finds that, upon weighing the
factors for transfer, the balance is in favor of not transferring
Accordingly, the defendants’ alternative motion to
transfer is denied.
For the reasons stated above, the defendants’ motion to
dismiss and their alternative motion to transfer venue (ECF No. 4)
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.
August 22, 2017
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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