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Progressive Gulf Insurance Co. v. Farve

United States District Court, S.D. Mississippi, Western Division

January 30, 2014

KENNETH J. FARVE, et al., Defendants.


DANIEL P. JORDAN, III, District Judge.

This insurance-coverage declaratory-judgment action is before the Court on Defendants' Motion to Transfer Venue [47] and cross motions for summary judgment filed by Defendants [46] and Plaintiff [48]. For the reasons that follow, the motion to transfer venue and Progressive's motion for summary judgment are denied, and Defendants' motion for summary judgment is granted.

I. Facts and Procedural History

At approximately 12:30 a.m. on March 17, 2011, Defendant Kenneth Farve, operating a truck owned by Defendant Bricor, LLC, hit and killed Jason A. Clifton in Port Allen, Louisiana. The involved truck was a listed vehicle on a commercial-auto-insurance policy written by Plaintiff Progressive Gulf Insurance Company and issued to Bricor, but Farve was not listed as an insured driver on the policy. On February 28, 2012, Defendant Wendy Clifton, individually and on behalf of her minor children O.C., D.C., and K.C., filed a wrongful-death lawsuit in Louisiana state court against Farve, Bricor, and Progressive.

On July 31, 2012, Progressive filed its Complaint for Declaratory Judgment in this Court against Farve, Bricor, the Estate of Jason A. Clifton, and Wendy Clifton in her individual and representative capacities (hereinafter "the Cliftons"). Progressive seeks a judgment declaring that it has no duty to defend or indemnify Farve in the underlying litigation, but it has "entered into an agreement [with Bricor]... wherein Progressive... agreed to honor its contract of insurance with Bricor... and defend and indemnify Bricor... pursuant to the policy... regardless of the outcome of this litigation." Bricor Resp. [54] ¶ 4.

On September 14, 2012, the Cliftons filed a Motion to Dismiss Pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure or, in the Alternative, Motion to Stay [17]. The Court denied those motions on November 6, 2012. Following the close of discovery, the parties filed the pending motions, and Progressive asked for expedited review.

II. Venue Motion

A. Title 28 U.S.C. § 1406

The Cliftons first argue that venue in this district is improper under 28 U.S.C. § 1391, necessitating transfer pursuant to 28 U.S.C. § 1406. But the Cliftons admitted venue in their Answer [11] and failed to raise this objection in their initial motion to dismiss. The Cliftons waived their argument under § 1391. See 28 U.S.C. § 1406(b) ("Nothing in this chapter shall impair the jurisdiction of a district court of any matter involving a party who does not interpose timely and sufficient objection to the venue."); Fed.R.Civ.P. 12(g), (h); see also Albany Ins. Co. v. Almacenadora Somex, S.A., 5 F.3d 907, 910 (5th Cir. 1993).

B. Title 28 U.S.C. § 1404(a) The Cliftons alternatively seek transfer to the Middle District of Louisiana under 28

U.S.C. § 1404, which provides, "For the convenience of the parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought...." 28 U.S.C. § 1404(a). To obtain a transfer under § 1404, the movant must demonstrate "good cause." In re Volkswagen of Am., Inc., 545 F.3d 304, 315 (5th Cir. 2008).

Courts in the Fifth Circuit evaluate good cause based on "the private and public interest factors first enunciated in Gulf Oil Corp. v. Gilbert. " Id. (citing Gilbert, 330 U.S. 501 (1947)).

The private interest factors are: "(1) the relative ease of access to sources of proof; (2) the availability of compulsory process to secure the attendance of witnesses; (3) the cost of attendance for willing witnesses; and (4) all other practical problems that make trial of a case easy, expeditious and inexpensive." The public interest factors are: "(1) the administrative difficulties flowing from court congestion; (2) the local interest in having localized interests decided at home; (3) the familiarity of the forum with the law that will govern the case; and

(4) the avoidance of unnecessary problems of conflict of laws [or in] the application of foreign law."

Id. (citing In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004); Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 n.6 (1981)). These factors weigh against transfer.

All of the private interest factors concern the relative abilities of the transferor court and proposed transferee court to try the case in an "easy, expeditious and inexpensive" manner. Id. But this case involves a coverage determination under the policy, and both sides appear to agree that the issue can be decided on the summary-judgment record. Thus, no witnesses will be required to testify, and all relevant documents are already in the record. The private-interest factors do not support transfer.

Nor do the public-interest factors overwhelmingly favor transfer. The first public factor is neutral or disfavors transfer based on the two courts' median disposition times and given the extent to which the case has been litigated in this Court. As to the second factor, the Cliftons are correct that Louisiana holds a local interest in the underlying liability dispute. But Bricor is also a Mississippi LLC, and Mississippi has at least some interest in a coverage dispute involving a Mississippi insured. The final factors regard application of the law, and as discussed below, Louisiana law applies to the coverage question. This fact alone is not sufficient to justify transfer. See Fin. Cas. & Sur., Inc. v. Zouvelos, No. H-11-2509, 2012 WL 2886861, at *8 (S.D. Tex. July 13, 2012).

Because the private-interest factors weigh against transfer and the case has proceeded through discovery and the filing of cross-motions for summary judgment, the Court concludes that the Middle District of Louisiana "is not clearly more convenient than the venue chosen by the plaintiff, [so] the plaintiff's choice should be respected." In re Volkswagen of America, Inc., 545 F.3d at 315. The motion to transfer is denied.

III. Motions for Summary Judgment

A. Standard

Summary judgment is warranted under Rule 56(a) of the Federal Rules of Civil Procedure when evidence reveals no genuine dispute regarding any material fact and that the moving party is entitled to judgment as a matter of law. The rule "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, ...

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