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Akh Company, Inc. v. Universal Underwriters Insurance Co.

United States District Court, Tenth Circuit

June 14, 2013

AKH COMPANY, INC., Plaintiff/Counter-Defendant,
v.
UNIVERSAL UNDERWRITERS INSURANCE COMPANY, Defendant/Counter-Claimant.

MEMORANDUM AND ORDER

JULIE A. ROBINSON, District Judge.

This case comes before the Court on Defendant/Counter-Claimant Universal Underwriters Insurance Company's Motion to Transfer Venue to the Central District of California (Doc. 18). The motion is fully briefed, and the Court is prepared to rule. For the reasons explained in detail below, the Court denies Defendant's motion.

I. Background

This is an insurance coverage dispute filed by AKH Company, Inc. ("AKH") against Universal Underwriters Insurance Company ("UUIC"), arising out of a trademark infringement action against AKH which UUIC defended and settled under a reservation of rights. AKH is a California corporation with its principal place of business in California. It sells and installs tires through its retail garages and internet website under the name "Discount Tire Centers." In May of 2010, The Reinalt-Thomas Corporation dba Discount Tire filed a civil action against AKH in the District of Arizona, alleging that AKH infringed upon and diluted its trademark under state and federal law. AKH in turn filed its own civil action against Reinalt-Thomas in the Central District of California and successfully moved to transfer venue of the first action to the Central District of California. The two lawsuits were consolidated ("the R-T lawsuits") and ultimately settled in December of 2012.[1] UUIC insured AKH under a series of annual liability insurance policies from 2007 to 2013. In December of 2011, AKH notified UUIC of the R-T lawsuits and tendered the claims against AKH for a defense. UUIC accepted AKH's tender of defense of the R-T lawsuit under a reservation of rights.

In this case, AKH seeks declaratory relief that UUIC breached its duties to defend, settle, and act fairly and in good faith. UUIC brings counterclaims for declaratory relief and breach of contract arising out of its defense and settlement of the R-T lawsuits.

The parties dispute whether UUIC is an Illinois or Kansas corporation with its principal place of business in the same state. UUIC asserts that it is an Illinois corporation with its principal place of business in Schaumburg, Illinois. AKH challenges those assertions, stating that UUIC has done nothing more than obtain permission from the Kansas Commissioner of Insurance to redomesticate itself as an Illinois insurer effective as of December 31, 2012, and that obtaining regulatory oversight beginning in - from the Illinois Department of Insurance has no bearing on UUIC's corporate citizenship or on this lawsuit. Furthermore, AKH asserts that the Secretaries of State of both Illinois and Kansas still list UUIC as a Kansas corporation with its principal office in Kansas. UUIC contends that the records of the Secretaries of State are of no import because insurance companies are subject to the exclusive regulation and supervision of the Department of Insurance. UUIC submits that its principal place of business since at least 2007 has been and is Schaumburg, Illinois, but it does not deny that it maintains an office in Overland Park, Kansas.

This Court has jurisdiction over the claims pursuant to 28 U.S.C. § 1332.

While the parties agree that venue is proper in this district pursuant to 28 U.S.C. § 1391, UUIC denies that this venue is convenient. UUIC has filed a motion to transfer this case to the Central District of California pursuant to 28 U.S.C. § 1404 for the convenience of the parties and the witnesses and in the interest of justice.

II. Discussion

Motions to transfer venue are governed by 28 U.S.C. § 1404(a), which provides in relevant part that "[f]or the convenience of 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." Section 1404(a) affords the district court broad discretion to adjudicate motions to transfer based on a case-by-case review of convenience and fairness.[2] As UUIC concedes, the party proposing a particular forum has the burden of proving that plaintiff's chosen forum is inconvenient.[3] Unless the evidence is strongly in favor of the movant, plaintiff's choice of forum should rarely be disturbed.[4] In other words, a court should deny a request for transfer if the result is that the burden of an inconvenient venue would merely shift from one party to another.[5]

In determining whether transfer is appropriate under Section 1404(a), the Court should consider the plaintiff's choice of forum, the accessibility of witnesses and other sources of proof, the cost of making the necessary proof, questions as to the enforceability of a judgment if one is obtained and relative advantages and obstacles to a fair trial, difficulties that may arise from congested dockets, the possibility of the existence of questions arising in the area of conflict of laws, the advantage of having a local court determine questions of local law, and "all other considerations of a practical nature that make a trial easy, expeditious and economical."[6] The Court examines each in turn.

Plaintiff's Choice of Forum

Courts generally hold that the plaintiff's choice of forum weighs against transfer.[7] "[U]nless the balance is strongly in favor of the movant[, ] the plaintiff's choice of forum should rarely be disturbed."[8] Courts give less deference to the plaintiff's choice, however, if plaintiff does not reside in the district.[9] Here, Plaintiff is not a resident of Kansas. It is a California corporation with its principal place of business in California. Thus, although the Court must give deference to Plaintiff's forum choice, the weight of such choice is somewhat diminished because Plaintiff does not reside in Kansas.

Moreover, "[c]ourts also accord little weight to a plaintiff's choice of forum where the facts giving rise to the lawsuit have no material relation or significant connection to the plaintiff's chosen forum.'"[10] Defendant asserts that nearly all of the operative facts underlying the complaint and counterclaim occurred in the Central District of California, with the only significant contact in Kansas being Stephanie Cole, a UUIC employee who works in its Kansas office. Plaintiff, however, contends that Kansas has a significant connection and material relation in this coverage case because: (1) UUIC is a citizen of Kansas; (2) the insurance contract was made in Kansas; and (3) Stephanie Cole is the UUIC employee who processed AKH's claim under the policies and supervised UUIC's defense.

The parties devote much space in their respective briefs to their disagreement as to whether UUIC is a Kansas or Illinois corporation. A careful reading of UUIC's supporting documents and the relevant state statutes leads the Court to conclude that UUIC is a Kansas corporation, its reference to its relationship to the state of Illinois is a red herring, and its purported evidence does not advance its argument that this case should be transferred to the Central District of California. The Court first notes the various ways in which UUIC describes itself.

"UUIC is an Illinois corporation (Declaration of Ella Liberman, ¶¶ 2-3, and Exhibits A and B)."[11]
"AKH alleges it chose this forum because it believed UUIC was domiciled in Kansas."[12]
"UUIC is a resident of Kansas and California."[13]
"UUIC does not believe that Kansas has an interest in this dispute because neither party is a ...

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