Opinion
No. 00-3163
March 8, 2001
RULING ON MOTION
Defendant STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY has filed a Motion to Dismiss and Change of Venue. Plaintiffs ROBERT L. MORRISON and GLORIA A. MORRISON oppose this motion. No other defendant has joined in this motion.
Defendant STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY ("STATE FARM") filed the instant motions to dismiss for lack of jurisdiction and improper venue pursuant to Federal Rules of Civil Procedure 12(b)(2) and 12(b)(3) respectively. Alternatively, defendant moves for change of venue pursuant to 28 U.S.C. § 1404 (a). Plaintiff claims that jurisdiction and venue are proper, and change of venue will result in the burdensome inconvenience of expert witnesses.
On or about August 17, 2000, plaintiff ROBERT L. MORRISON was operating a Barry Graham Oil Service company vehicle heading west on Interstate highway I-10 between Baton Rouge and Lafayette, Louisiana. At the same time, a vehicle, owned by defendant PASCUAL GONZALEZ and operated by defendant FRANCISCO GONZALEZ, was proceeding in the same direction on I-10 directly behind the plaintiff's vehicle. Without warning, the defendant's vehicle collided with the plaintiff's vehicle. The impact forced the plaintiff's vehicle forward and into the guardrail. As a result of the rear-end collision, the plaintiff allegedly suffered severe and disabling spinal injuries, pain and suffering, medical expenses, and loss of earning capacity. The accident was investigated by a Louisiana State Police Trooper, and it appears that there were no witnesses to the accident.
Both of the plaintiffs, ROBERT L. MORRISON and GLORIA A. MORRISON, are domiciled in Alabama. The defendants named in this action are: (1) FRANCISCO GONZALES, a resident of North Carolina and the driver of the vehicle that collided with the plaintiff; (2) PASCUAL GONZALEZ, a resident of North Carolina, father of FRANCISCO GONZALEZ, and owner of the vehicle that collided with the plaintiff; (3) ALLSTATE INSURANCE COMPANY, automobile liability insurer for defendant PASCUAL GONZALEZ; (4) AMERICAN NATIONAL PROPERTY CASUALTY COMPANY, uninsured motorist insurer for plaintiff ROBERT L. MORRISON; and (5) STATE FARM, an Illinois corporation doing business nationwide and automobile liability insurer for Barry Graham Oil Service, an Alabama corporation, and insurer of the vehicle plaintiff ROBERT L. MORRISON was driving at the time of the accident. Barry Graham Oil Service, the plaintiff ROBERT L. MORRISON's employer, is an intervenor in this action.
JURISDICTION
This Court has subject matter jurisdiction over the instant action pursuant to 28 U.S.C. § 1332. All parties are completely diverse, with the plaintiffs residing in Alabama and the defendants domiciled in North Carolina. The insurance company defendants are sued directly pursuant to Louisiana's Direct Action Statute. In pertinent part, the Direct Action Statute provides:
B. (1) The injured person or his or her survivors or heirs mentioned in Subsection A, at their option, shall have a right of direct action against the insurer within the terms and limits of the policy; and, such action may be brought against the insurer alone, or against both the insured and insurer jointly and in solido, in the parish in which the accident or injury occurred or in the parish in which an action could be brought against either the insured or the insurer under the general rules of venue prescribed by Code of Civil Procedure Art. 42 only. However, such action may be brought against the insurer alone only when:
(a) The insured has been adjudged a bankrupt by a court of competent jurisdiction or when proceedings to adjudge an insured a bankrupt have been commenced before a court of competent jurisdiction;
(b) The insured is insolvent;
(c) Service of citation or other process cannot be made on the insured;
(d) When the cause of action is for damages as a result of an offense or quasi-offense between children and their parents or between married persons;
(e) When the insurer is an uninsured motorist carrier; or
(f) The insured is deceased.
(2) This right of direct action shall exist whether or not the policy of insurance sued upon was written or delivered in the state of Louisiana and whether or not such policy contains a provision forbidding such direct action, provided the accident or injury occurred within the state of Louisiana. Nothing contained in this Section shall be construed to affect the provisions of the policy or contract if such provisions are not in violation of the laws of this state.
LA. REV. STAT. ANN. §§ 22:655 (emphasis added).
Defendant STATE FARM is a foreign insurance company licensed to do business in the State of Louisiana. As a national insurer, defendant conducts a significant amount of business within the State of Louisiana, including the New Orleans area, which is wholly within the physical jurisdiction of the Court. In accordance with the Direct Action Statute, the plaintiffs can properly assert a claim directly against the uninsured motorist carrier. Thus, the Court properly has jurisdiction over defendant STATE FARM for the purposes of plaintiffs' direct action, and the defendant's 12(b)(2) lack of jurisdiction motion is without merit.
VENUE
The Court acknowledges the unique position of defendant STATE FARM. As uninsured motorist carrier, the Direct Action Statute allows the defendant to be sued directly. As insurer of intervenor Barry Graham Oil Service, and thus the insurer of the vehicle plaintiff ROBERT L. MORRISON was driving at the time of the accident, defendant STATE FARM is subrogated to the rights and status of the intervenor.
Regarding proper venue, the 28 U.S.C. § 1391 the general venue statute provides in pertinent part:
(a) A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which 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. . . . .
(c) For purposes of venue under this chapter, a defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced. In a State which has more than one-judicial district and in which a defendant that is a corporation is subject to personal jurisdiction at the time an action is commenced, such corporation shall be deemed to reside in any district in that State within which its contacts would be sufficient to subject it to personal jurisdiction if that district were a separate State, and, if there is no such district, the corporation shall be deemed to reside in the district within which it has the most significant contacts.28 U.S.C. § 1391 (emphasis added).
The district court has authority to transfer a case to a different venue as follows:
(a) For 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.
(b) Upon motion, consent or stipulation of all parties, any action, suit or proceeding of a civil nature or any motion or hearing thereof, may be transferred, in the discretion of the court, from the division in which pending to any other division in the same district.28 U.S.C. § 1404 (emphasis added). Regarding intervenors, the law in Louisiana is clear and consistent with most other jurisdictions, whereas "an intervenor cannot object to the form of the action, to the venue, or to any defects and informalities personal to the original parties." LA. CODE CIV. PROC. ANN. art. 1094.
As defendant in the instant action, STATE FARM argues that venue is improper because of the residences of the parties, the parties' lack of contacts with the state of Louisiana, and the location of the accident.
Defendant STATE FARM is a large, national insurance company licensed to conduct business in the State of Louisiana, and conducts a significant amount of business in the New Orleans area. Worth noting is that there are just over 100 telephone listings for the defendant and its agents in the New Orleans metro-area alone. Under 28 U.S.C. § 1391 (c) venue is proper in the Eastern District of Louisiana. At the commencement of this action, STATE FARM as a corporation had, and still has, enough contacts to establish personal jurisdiction in the Eastern District. Thus, the Court is a proper venue for the instant action, and the defendant's 12(b)(3) improper venue motion is without merit.
The defendant further argues that witnesses essential to the litigation of this case will be inconvenienced by venue in the Eastern District.
The Fifth Circuit has identified several factors to be considered when deciding if a change of venue is appropriate. These factors include: (1) ease of obtaining access to sources of proof; (2) availability of compulsory process for unwilling witnesses; (3) cost of obtaining willing witnesses; (4) possibility of viewing of the premises; and (5) all other practical matters that affect trial efficiency and expense. Sonic Drive-In of Alexandria v. Dronet, 968 F. Supp. 303, 304 (E.D.La. 1997) (relying on Gulf Oil Corp. v. Gilert, 330 U.S. 501 (1947) and Koehring Co. v. Hyde Constr. Co., 324 F.2d 295 (5th Cir. 1964)). In balancing the factors, significant weight should be given to the plaintiff's choice of forum. Id. (citing Peteet v. Dow Chemical Co., 868 F.2d 1428, 1436 (5th Cir. 1989)).
The first two factors appear to have little relevance to the instant action. The Court is not aware of any sources of evidence that will be difficult to produce because of venue, nor is the court aware of any unwilling witnesses.
The third factor, cost of bringing willing witnesses, is a significant consideration. Only three potential non-party witnesses have been identified. One is the investigating officer, who was a witness to the scene of the accident. This witness is a State Trooper of Louisiana, and, as part of his job, spends the majority of his time traveling across the entire state. The other two witnesses are the treating physicians of the plaintiff who have their primary practices in New Orleans. A change of venue would incur additional traveling expense and increase the amount of time the physicians must be away from their patients. Since, most, if not all, of the witnesses would find the Eastern District a more convenient and more cost effective venue, the third factor weighs in favor of no change of venue.
The fourth factor, viewing the scene in question, appears to carry little weight in this analysis. While it will be difficult to view the scene of the accident from the courthouse, such evidence is typically brought to court in the form of pictures and diagrams, not the roadway itself. The Court is under the impression that the accident occurred on an interstate highway, and there has been no allegation that the technical features of the roadway contributed to the cause of the accident.
Finally, the fifth factor of added burdens of expense and inefficiency is worth considering. The instant action involves five named defendants and one intervenor. As discussed above, the intervenor must take the action, including choice of venue, as he finds it. All of the named defendants are not domiciled in the State of Louisiana, but four of them have accepted the jurisdiction and venue of the Court by answering the complaint without reservation. See FED. R. Civ. P. 12(h). In answering the complaint, all of the defendants have obtained local counsel. There may be a significant economic cost to the majority of the defendants in the form of traveling expenses of counsel or cost of obtaining new local counsel if venue is changed. It would appear to be an unjust burden on the rest of the defendants to allow a change of venue that may only benefit one.
The final consideration is the plaintiff's choice of forum. It is well established that the plaintiff decides where the suit is brought. Here, the defendants, except for the movant, have agreed to the jurisdiction of the Court and the plaintiffs' choice of venue. A change of venue at this stage of the litigation would only serve to increase the legal expenses of all parties involved, increase the burden on the majority of the witnesses, and thwart the plaintiffs' right to bring an action in the jurisdiction of his choice. Thus, in balancing the factors in light of the plaintiff's choice of venue, change of venue appears improper.
Accordingly for the foregoing reasons,
IT IS ORDERED that, the defendant's motion to dismiss for lack of jurisdiction pursuant to Federal Rules of Civil Procedure 12(b)(2) is DENIED; (2) the defendant's motion to dismiss for improper venue pursuant to Federal Rules of Civil Procedure 12(b)(3) is DENIED; and (3) the defendant's motion for change of venue pursuant to 28 U.S.C. § 1404 (a) is DENIED.