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United Life Insurance Co. v. Coulter and Associates, Inc.

United States District Court, D. Kansas

October 8, 2019



          CARLOS MURGUIA United States District Judge.

         This matter is before the court on defendant Coulter and Associates, Inc.'s Motion to Transfer Venue Pursuant to 28 U.S.C. § 1404. (Doc. 16.)


         This case arises from plaintiff's attempts to expand its business to include short-term medical insurance (“STM”) products. Because the STM field is subject to varying state-by-state regulations, plaintiff contracted with defendant for development, compliance, and filing services in support of plaintiff's STM product. Plaintiff alleges that negligence and inadequacies in defendant's services led to the Massachusetts Attorney General's Office (“MAGO”) launching an investigation of plaintiff's Massachusetts STM product for failure to comply with various state laws and regulations. Plaintiff incurred substantial damages through both the settlement of that matter and defending several follow-on investigations of plaintiff's other STM products in other states.

         Before the MAGO's investigation, defendant allegedly spoke with a representative of the Massachusetts Division of Insurance (“MDOI”), Mr. Ed Charbonnier. Defendant alleges that it relied on conversations with Mr. Charbonnier when advising plaintiff on regulatory and legal compliance under Massachusetts law. Defendant asks the court to transfer this case to the District of Massachusetts because one of plaintiff's STM products was marketed in Massachusetts, the MAGO was the first Office to investigate plaintiff's STM product and trigger the other investigations, plaintiff's settlement in the MAGO investigation was paid to persons in Massachusetts, and because Mr. Charbonnier is allegedly located there.


         Section 1404(a) is a “judicial housekeeping measure” designed “to prevent the waste of time, energy and money and to protect litigants, witnesses and the public against inconvenience and expense” by allowing easy change of venue. Van Dusen v. Barrack, 376 U.S. 612, 616, 636 (1964) (citation and quotation marks omitted). To facilitate these goals, “[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 or to any district or division to which all parties have consented.” 28 U.S.C. § 1404(a). A motion for transfer under Section 1404(a) is reviewed “according to an individualized, case-by-case consideration of convenience and fairness.” Chrysler Credit Corp. v. Country Chrysler, Inc., 928 F.2d 1509, 1516 (10th Cir. 1991) (citing Stewart Org. v. Ricoh Corp., 487 U.S. 22, 29 (1988)). The moving party bears the burden of showing that the existing forum is inconvenient. Id. at 1515.

To determine whether to transfer a case, the court considers:
[P]aintiff's choice of forum; the accessibility of witnesses and other sources of proof, including the availability of compulsory process to insure the attendance of witnesses; the cost of making the necessary proof; questions as to the enforceability of a judgment if one is obtained; 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.

Id. at 1516 (quoting Texas Gulf Sulfur Co. v. Ritter, 371 F.2d 145, 147 (10th Cir. 1967)).

         Transfer will rarely be granted unless the above factors weigh strongly in the moving party's favor, and transfer is not appropriate merely to shift burdens from one party to another. See KCJ Corp. v. Kinetic Concepts, Inc., 18 F.Supp.2d 1212, 1214 (D. Kan. 1998) (citing Scheidt v. Klein, 956 F.2d 963, 965 (10th Cir. 1992)).


         Defendant argues that the District of Kansas is an inconvenient forum because (1) at least one witness and some evidence may be more easily obtained in Massachusetts, and (2) this case may involve issues of Massachusetts law. Defendant does not argue that other considerations weigh in its favor. Plaintiff argues that most of the relevant evidence is likely within the parties' control, the court's subpoena power is sufficient for any witnesses in Massachusetts, and that no other considerations plausibly weigh in defendant's favor.

         To demonstrate inconvenience, the moving party must (1) identify the witnesses and their locations; (2) indicate the quality or materiality of their testimony; and (3) show that the witnesses are unwilling to appear at trial, that deposition testimony would be insufficient, or that the court's compulsory process would be ...

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