United States District Court, S.D. West Virginia, Charleston Division
GARY W. RICH, et al., Plaintiffs,
FIRST MERCURY INSURANCE COMPANY, et al., Defendants.
MEMORANDUM OPINION AND ORDER
E. JOHNSTON, CHIEF JUDGE.
before the Court is Defendant First Mercury Insurance
Company's (“FMIC”) motion to transfer. (ECF
No. 6.) For the reasons discussed more fully below, the Court
DENIES the motion. (ECF No. 6.)
case arises out of an insurance coverage dispute between
Plaintiffs Gary Rich (“Rich”) and his law firm
the Law Office of Gary W. Rich, L.C. (the “Rich Law
Firm”) and their insurer FMIC regarding a prior lawsuit
Plaintiffs filed in the Northern District of West Virginia.
(ECF No. 1-1.) In that prior lawsuit, counterclaims were
filed against Plaintiffs. (See Id. at 4-8.) Those
various claims have since been resolved. (See ECF
No. 7 at 4.) Plaintiffs now seeks defense costs from FMIC for
these counterclaims. (See ECF No. 1-1.)
filed the present action in the Circuit Court of Kanawha
County, West Virginia. Defendant subsequently removed the
action to this Court. (ECF No. 1.) On May 30, 2019, FMIC
filed the present motion to transfer this action to the
Northern District of West Virginia. (ECF No. 7.) Plaintiffs
timely responded to the motion, (ECF No. 8), and FMIC timely
replied, (ECF No. 9.) As such, the motion is fully briefed
and ripe for adjudication.
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). Such a
transfer, however, is dependent upon the “weighing . .
. [of] a number of case-specific factors.” Stewart
Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988). The
Fourth Circuit has established four factors that a district
court should consider in deciding motions to transfer under
§ 1404(a): “(1) the weight accorded to
plaintiff's choice of venue; (2) witness convenience and
access; (3) convenience of the parties; and (4) the interest
of justice.” Trs. of the Plumbers & Pipefitters
Nat'l Pension Fund v. Plumbing Servs., Inc., 791
F.3d 436, 444 (4th Cir. 2015).
prior to the Fourth Circuit's decision in
Trustees, this Court has considered a slightly more
detailed list of factors such as the following: “(1)
ease of access to sources of proof; (2) the convenience 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.” AFA Enters.,
Inc. v. Am. States Ins. Co., 842 F.Supp. 902, 909 (S.D.
W.Va. 1994); see also Heuvel v. Navy Fed. Credit
Union, No. 3:16-cv-1839, 2016 WL 7155769, at *2 n.3
(S.D. W.Va. Dec. 7, 2016).
is well settled that the decision whether to transfer a
matter to another district is committed to the sound
discretion of the district court.” AFA Enters.,
Inc. v, 842 F.Supp. at 908 (citations omitted).
“The party seeking transfer carries the burden of
showing that the current venue is inconvenient.”
See Leonard v. Mylan, Inc., 718 F.Supp.2d 741, 745
(S.D. W.Va. 2010) (citing N.Y. Marine & Gen. Ins. Co.
v. Lafarge N. Am., Inc., 599 F.3d 102, 113-14 (2d Cir.
initial matter, The Court notes that Plaintiffs concede that
this action could have been brought in the Northern District
of West Virginia. (See ECF No. 8 at 2.) As the parties do not
dispute whether this action could have been properly brought
in the Northern District, the Court will focus its inquiry on
whether FMIC has met its burden of establishing that transfer
to the Northern District is proper. See United
Bankshares, Inc. v. St. Paul Mercury Ins. Co., No.
6:10-cv-00188, 2010 WL 4630212, at *9 (S.D. W.Va. Nov. 4,
none of the allegations in the Complaint have any connection
to the present forum. Therefore, the Court applies the
presumption in favor of Plaintiffs' forum choice with
less force. See Klay v. AXA Equitable Life Ins. Co.,
No. 5:08-cv-118, 2009 WL 36759, at *3 (N.D. W.Va. Jan. 6,
2009) (“‘[W]here the plaintiff's choice of
forum is a place where neither the plaintiff nor the
defendant resides and where few or none of the events giving
rise to the cause of action accrued,' that choice weighs
less in the Court's consideration.” (quoting
Ion Beam Applications, S.A. v. Titan Corp., 156
F.Supp.2d 552, 563 (E.D. Va. 2000))). However, in light of
the other relevant factors, the Court concludes that a
transfer of venue in this case is not warranted.
has not raised any argument that all of the sources of proof
are located in the Northern District. See United
Bankshares, Inc. v. St. Paul Mercury Ins. Co., No.
6:10-cv-00188, 2010 WL 4630212, at *10 (S.D. W.Va. Nov. 4,
2010). Further, as this is an insurance coverage dispute that
will likely only involve the insurance contract and the
Complaint, only limited factual discovery, if any, will be
needed. Thus, even if these sources of proof are in the
Northern District, the limited necessity of these sources
causes this factor to only weigh slightly in favor of
the convenience of non-party witnesses, “[t]he party
asserting witness inconvenience has the burden to proffer, by
affidavit or otherwise, sufficient details respecting the
witnesses and their potential testimony to enable the court
to assess the materiality of evidence and the degree of
inconvenience.” Samsung Elec. Co, Ltd., v. Rambus,
Inc., 386 F.Supp.2d 708, 718 (E.D. Va. 2008). FMIC has
not met its burden of showing that the witnesses most
relevant to this matter will be inconvenienced by this action
being in this District. FMIC simply asserts that any West
Virginia based witnesses are located in the Northern District
and that there are out of state witnesses that may need to
travel to West Virginia. (See ECF No. 7 at 6.) FMIC
does not identify who these witnesses are and their level of
necessity to resolving this action. Further, Plaintiffs have
stated they do not plan to engage in significant discovery.
That, along with the nature of this action, makes it unlikely
that there will be a need to have witnesses travel frequently
such that ...