Endurance American Specialty Insurance Company vs. Dual Trucking and Transport, LLC et al, No. 2:2017cv01293 - Document 78 (E.D. La. 2018)

Court Description: ORDER AND REASONS - IT IS ORDERED that the 50 Motions to Dismiss on Abstention Grounds filed by Defendants Dual Trucking and Transport, LLC and Dual Trucking, Inc. be and hereby are DENIED. IT IS FURTHER ORDERED that Defendants 51 motions in the alternative to dismiss on forum non conveniens grounds are construed as motions to change venue pursuant to 28 U.S.C. 1404(a) and GRANTED. IT IS FURTHER ORDERED that the above-captioned case is TRANSFERRED TO THE DISTRICT OF MONTANA, BILLINGS DIVISION. Signed by Judge Susie Morgan.(bwn)

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Endurance American Specialty Insurance Company vs. Dual Trucking and Transport, LLC et al Doc. 78 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A EN D U RAN CE AMERICAN SPECIALTY IN SU RAN CE COMPAN Y, Pla in tiff CIVIL ACTION VERSU S N O. 17-12 9 3 D U AL TRU CKIN G AN D TRAN SPORT, LLC ET AL., D e fe n d an ts SECTION : “E” ( 3 ) ORD ER AN D REAS ON S Plaintiff Endurance Am erican Specialty Insurance Com pany (“Endurance”) brings the instant suit against Defendants Dual Trucking and Transport, LLC (“DTT”) and Dual Trucking, Inc. (“DTI”), seeking a declaratory judgm ent of its obligations to DTI and DTT under insurance policies Enduran ce issued to them . 1 Before the Court are m otions to dism iss on abstention grounds or, in the alternative, on forum non conveniens grounds, filed by DTT 2 and DTI. 3 Endurance opposes these m otions. 4 For the reasons that follow, Defendants’ m otions to dism iss on abstention grounds are D EN IED . Defendants’ m otions in the alternative to dism iss on forum non conveniens grounds are construed as m otions to transfer venue pursuant to 28 U.S.C. 140 4(a) and GRAN TED . The Court orders that the above-captioned case is TRAN SFERRED TO TH E D ISTRICT OF MON TAN A, BILLIN GS D IVISION . 1 R. Doc. 71. R. Doc. 50 . 3 R. Doc. 51. 4 R. Doc. 52. 2 1 Dockets.Justia.com BACKGROU N D Defendants DTI and DTT are defendants in two lawsuits in Montana state court alleging DTI and DTT operated a solid waste m anagem ent system that introduced toxic and hazardous m aterials onto property they leased. 5 The lawsuits in Montana state court were com m enced in 20 14 an d 20 15. 6 DTI and DTT notified their insurer, Endurance, of the lawsuits pending against them , an d Endurance is providing DTI and DTT a defense in both suits, subject to a reservation of rights. 7 Endurance is not a party to the lawsuits in Montana state court. 8 Endurance insured DTI and DTT under separate but “substantially identical” pollution liability policies. 9 The policies state Endurance will indem nify DTI and DTT from dam ages “result[ing] from a pollution condition at any site” where DTI and DTT perform “contracting or rem ediation operations,” subject to certain conditions and exclusions. 10 The policy excludes, am ong other categories of claim s, 1) 2) 3) 4) claim s “arising from any insured [party]’s intentional willful or deliberate noncom pliance with any statute [or] regulation”; claim s “arising from an illegal, dishonest, fraudulent, crim inal, or m alicious act by any insured” party; claim s “arising out of any waste . . . transported, shipped or delivered, . . . to any location located beyond the boundaries of a site” where an insured party perform s contracting or rem ediation; or claim s for “any property dam age to any real or personal property that was owned . . . rented, occupied, or in the care, custody or control of any insured” party. 11 5 R. Doc. 37 at 9, ¶ 36; R. Doc. 41 at 5, ¶ 36; R. Doc. 42 at 5, ¶ 36. DTI and DTT are both defendants in one suit, and DTT is the sole defendant in the other. R. Doc. 37 at 9, ¶ 35; 11, ¶ 43; R. Doc. 41 at 5, ¶ 35; 6, ¶ 43; R. Doc. 42 at 5, ¶ 35; 6, ¶ 43. 6 R. Doc. 37 at 9, ¶ 35; 11, ¶ 43; R. Doc. 41 at 5, ¶ 35; 6, ¶ 43; R. Doc. 42 at 5, ¶ 35; 6, ¶ 43. 7 R. Doc. 37 at 13, ¶ 52; R. Doc. 41 at 7, ¶ 52; R. Doc. 42 at 7, ¶ 52. 8 R. Doc. 50 -1 at 5; R. Doc. 51-1 at 5. 9 R. Doc. 37 at 13– 14, ¶ 53– 56; R. Doc. 41 at 8, ¶ 53– 56; R. Doc. 42 at 7– 8, ¶ 53– 56. 10 R. Doc. 37 at 14, ¶ 57; R. Doc. 41 at 8, ¶ 57; R. Doc. 42 at 8, ¶ 57. 11 R. Doc. 37 at 18 – 19, ¶ 58 (italics om itted); R. Doc. 41 at 8, ¶ 58; R. Doc. 42 at 8, ¶ 58. 2 On February 14, 20 17, Endurance filed the instant suit against DTI and DTT. 12 Endurance requests a declaratory judgm ent of its obligations to DTI and DTT under the insurance policies Endurance issued to them , and a judgm ent declaring Endurance owes them no defense or indem nity coverage in the lawsuits pending in Montana state court. 13 On April 13, 20 17, DTI and DTT filed separate but substantially identical m otions to dism iss for lack of jurisdiction or, alternatively, for lack of proper venue. 14 On April 11, 20 18 , the Court issued an order finding deficient Endurance’s jurisdictional allegations, granting Endurance leave to am end its com plaint, and denying Defendants’ m otions without prejudice. 15 Endurance filed an Am ended Com plaint on April 23, 20 18, 16 and a Second Am ended Com plaint on May 17, 20 18 . 17 On J uly 9, 20 18, DTI and DTT filed the instant m otions, 18 in which they m ake argum ents identical to those they m ade in their m otions to dism iss of April 13, 20 17. 19 Defendants argue abstention is warranted under Brillhart v. Excess Ins. Co. of Am . 20 because of the pending actions in Montana state court. 21 Defen dants argue in the alternative that the Court should dism iss the case “for im proper ven ue under the doctrine of forum non conveniens.”22 In the portion of their m otions dealing with venue and forum non conveniens, Defendants request the Court “dism iss this case (or at least transfer it to Montana),” and cite 28 U.S.C. 140 4(a), which governs venue transfer. 23 Several of the 12 R. Doc. 1. Id. 14 R. Docs. 11, 12. 15 R. Doc. 22. 16 R. Doc. 31. 17 R. Doc. 37. 18 R. Docs. 50 , 51. 19 Endurance opposed on J uly 17, 20 18. R. Doc. 52. 20 316 U.S. 491 (1942). 21 R. Docs. 11, 12. 22 R. Doc. 50 -1 at 8; R. Doc. 51-1 at 8. 23 R. Doc. 50 -1 at 8; R. Doc. 51-1 at 8. 13 3 cases Defendants cite deal with venue transfer, not dism issal. 24 As a result, the Court construes Defendants’ m otions to dism iss on forum non conveniens grounds as m otions to transfer venue pursuant to 28 U.S.C. 140 4(a). On Septem ber 24, 20 18, Endurance filed a Third Am ended Com plaint. On Septem ber 26, 20 18, the Court ordered Endurance to am end its com plaint to allege sufficiently the citizenship of DTT. 25 Endurance filed its Fourth Am ended Com plaint on October 3, 20 18. 26 The claim s in the Fourth Am ended Com plaint are substantially identical to the claim s in the Second Am ended Com plaint. 27 As a result, the Court construes Defendants’ m otions to dism iss the claim s in the Second Am ended Com plaint or, in the alternative, to transfer venue, as m otions to dism iss the claim s in the Fourth Am ended Com plaint or, in the alternative, to transfer venue. LAW AN D AN ALYSIS The Court finds absten tion is not warranted in this case. The case is justiciable, and the Court has authority to grant Plaintiff’s request for declaratory relief. There is no parallel state action involving the sam e parties, and deciding this case would not im plicate principles of federalism and com ity, fairness concerns, or issues of judicial econom y. As a result, the Court does not abstain. The Court transfers this case to the District of Montana. The case could have been brought in Montana. Because the witnesses and evidence relevant to the factual issues in the case are in Montana, transfer serves the convenience of the parties and witnesses and the interests of judicial econom y. 24 R. Doc. 50 -1 at 8– 10 ; R. Doc. 51-1 at 8– 10 . R. Doc. 68. 26 R. Doc. 71. 27 Com pare id. w ith R. Doc. 37. 25 4 I. Abs te n tio n is n o t w arra n te d u n d e r Br illh a r t . The Declaratory J udgm ent Act 28 “is an enabling act, which confers discretion on the courts rather than an absolute right on a litigant.”29 “The Declaratory J udgm ent Act has been understood to confer on federal courts unique and substantial discretion in deciding whether to declare the rights of litigants.” 30 “In the declaratory judgm ent context, the norm al principle that federal courts should adjudicate claim s within their jurisdiction yields to considerations of practicality and wise judicial adm inistration.”31 Although “the district court’s discretion is broad, it is not unfettered.”32 Courts in the Fifth Circuit engage in a three-step inquiry when considering a declaratory judgm ent suit. They determ in e: “(1) whether the declaratory action is justiciable; (2) whether the court has the authority to grant declaratory relief; and (3) whether to exercise its discretion to decide or dism iss the action.”33 A. Be cau s e Lo u is ian a law ap p lie s , th is cas e is ju s ticiable . The Court finds there is a justiciable case or controversy between the parties in this case. “Where the Declaratory J udgm ents Act is invoked[,] the sam e jurisdiction al requirem ents as to a case or controversy m ust be m et as in other suits.”34 28 28 U.S.C. § 220 1(a). W ilton v. Seven Falls Co., 515 U.S. 277, 287 (1995) (quoting Public Serv. Com m ’n of Utah v. W y coff Co., 344 U.S. 237, 241 (1952)). 30 Id. at 286. 31 Id. at 289. 32 Travelers Ins. Co. v. Louisiana Farm Bureau Federation, 996 F.2d 774, 778 (5th Cir.1993). 33 Sherw in-W illiam s Co. v. H olm es Cty ., 343 F.3d 383, 387 (5th Cir. 20 0 3) (citing Orix Credit Alliance, Inc. v. W olfe, 212 F.3d 891, 895 (5th Cir.20 0 0 )). 34 Brow n & Root, Inc. v. Big Rock Corp., 383 F.2d 662, 665 (5th Cir. 1967) (citing Altvater v. Freem an, 319 U.S. 359 (1943)). The Suprem e Court and the Fifth Circuit have held that an actual case or controversy existed in cases in which in surers brought declaratory judgm ent actions regardin g their liability in pendin g underlying state court actions. Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270 , 271– 74 (1941) (“That the com plaint in the instant case presents such a controversy is plain.”); Ironshore Specialty Ins. Co. v. Tractor Supply Co., 624 F. App’x 159, 163 (5th Cir. 20 15); AXA Re Prop. & Cas. Ins. Co. v. Day , 162 F. App’x. 316, 318– 19 (5th Cir.20 0 6). 29 5 In Ironshore Specialty Ins. Co. v. Tractor Supply Co., 35 the Fifth Circuit analyzed the justiciability of an insurer’s declaratory judgm ent action under Texas law, which governed the insurance contract in the case. 36 Sim ilarly, this Court turns to state law to determ ine whether the case is justiciable. The Court first addresses whether Montana or Louisiana law applies. A federal court sitting in diversity applies the conflicts of law rules of the state in which it sits. 37 This Court applies Louisiana’s choice-of-law rules. In Cham pagne v. W ard, 38 which has been adopted by the Fifth Circuit, 39 the Louisiana Suprem e Court held that courts applying Louisiana conflicts of law rules m ust first determ ine whether Louisiana law differs from the law of the foreign state, then conduct a choice-of-law analysis as codified at Articles 3515 and 3537 of the Louisiana Civil Code. 40 Montana and Louisiana law differ on whether this claim is justiciable. Under Montana law, an action by an insurer seeking a declaratory judgm ent on whether it owes an insured party a duty of indem nification is n ot justiciable before a finding of liability in the underlying suit. 41 Under Louisiana law, questions of indem nity m ay be determ ined before a finding of liability. 42 Because Montana and Louisiana law differ, the Court applies Louisiana’s choice-of-law rules to determ ine which state’s law applies. 35 624 F. App’x 159. Id. at 163. 37 Pioneer Expl., L.L.C. v. Steadfast Ins. Co., 767 F.3d 50 3, 512 (5th Cir. 20 14) (citin g Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 10 20 , 85 L.Ed. 1477 (1941)). 38 20 0 3-3211 (La. 1/ 19/ 0 5), 8 93 So. 2d 773. 39 Abraham v. State Farm M ut. Auto. Ins. Co., 465 F.3d 60 9, 611 (5th Cir. 20 0 6). 40 Cham pagne, 893 So. 2d at 786. 41 See McFerrin v. United Specialty Ins. Co., No. 15-113, 20 16 WL 4926136 at *2 (D. Mont. 20 16) (“[L]iability of the insured m ust be established before a third-party claim ant m ay file an action against an insurance carrier.”); Skinn er v. Allstate Ins. Co., 329 Mont. 511, 515 (20 15) (“Because [the court] did not resolve the issue of [the plaintiff’s] liability, . . . [the defendant’s] duty to indem nify was a non-justiciable question .”). Under Montan a law, an insurer’s duty to defend an insured party does present a justiciable question . Id. at 516. 42 See AXA Re Prop. & Casualty Ins. Co. v . Day , 162 F. App’x 316, 319 (5th Cir. 20 0 6). 36 6 Louisiana’s choice-of-law rules state that contracts are “governed by the law of the state whose policies would be m ost seriously im paired if its law were not applied to that issue.”43 Article 3537, which governs conflicts of laws for conventional obligations, states a court should evaluate “the strength and pertinence of the relevant policies of all involved states in the light of: (1) the relationship of each state to the parties and the dispute; and (2) the policies and n eeds of the interstate and international system s, including the policies of upholding the justified expectations of parties and of m inim izing the adverse consequences that m ight follow from subjecting a party to the law of m ore than one state.”44 The Fifth Circuit has observed that “Louisiana courts generally choose the law of the state in which the insurance policy in question was issued to govern the interpretation of the term s of the policy.”45 In Cham pagne, an insurance dispute relating to an autom obile accident, the Louisiana Suprem e Court weighed the interests of Louisiana, where the accident took place, against the interests of Mississippi, where the relevant insurance contract was negotiated and form ed. 46 The court found Mississippi had “a m ore substantial interest in the uniform application of its laws governing insurance contracts” than Louisiana had in providing a rem edy for accidents in Louisiana. 47 In this case, Endurance represents “it is uncontested . . . the policy was issued in Louisiana.” 48 As in Cham pagne, Louisiana has a substantial interest in the uniform application of its laws governing insurance contracts issued in this state. Montana has an 43 La. C.C. arts. 3515, 3537. La. C.C. arts. 3537. 45 W oodfield v. Bow m an, 193 F.3d 354, 360 (5th Cir. 1999) (citin g Anderson v. Oliver, 97-110 2 (La. App. 3 Cir. 1/ 7/ 98 ), 70 5 So. 2d 30 1, 30 5– 0 6; Holcom b v. Univ ersal Ins. Co., 640 So. 2d 718, 722 (La. Ct. App.)). 46 Id. at 788 – 8 9. 47 Id. at 789. 48 R. Doc. 52 at 14. 44 7 interest in providing a rem edy for torts that occur in Montana, but the particular dispute in this case involves the interpretation and enforcem ent of the policy issued in Louisiana. The Court finds Louisiana law applies. As a result, questions of indem nity m ay be determ ined before a finding of liability, and this case is justiciable. B. Th is Co u rt h a s au th o rity to gran t Plain tiff d e clarato ry re lie f. In its Fourth Am ended Com plaint, Plaintiff has sufficiently alleged the citizenship of the parties and the am ount in controversy. 49 The parties are com pletely diverse, and the am ount-in-controversy requirem ent is m et. The Court has jurisdiction over this case pursuant to 28 U.S.C. § 1332. Even when a district court has jurisdiction over a case, it does not have authority to grant declaratory relief when 1) 2) 3) a declaratory defendant has previously filed a cause of action in state court against the declaratory plaintiff, the state case involves the sam e issues as those involved in the federal case, and the district court is prohibited from enjoinin g the state proceedings under the Anti– Injunction Act. 50 These factors do not apply in this case. Defendants DTI and DTT have not filed suit against Plaintiff Endurance in state court. The cases in Montana state court do not involve the scope of Endurance’s insurance agreem ent with DTI and DTT, which is the issue involved here. The Anti-Injunction Act does not prevent the Court from granting declaratory relief in this case. The Anti-Injunction Act forbids district courts from “grant[ing] an 49 R. Doc. 71. Travelers Ins. Co. v . Louisiana Farm Bureau Fed’n, In c., 996 F.2d 774, 776 (5th Cir. 1993) (citing Texas Em ploy ers’ Ins. Ass’n v. Jackson, 862 F.2d 491, 50 6 (5th Cir.1988 ) (en banc), cert. denied, 490 U.S. 10 35, (1989)). 50 8 injunction to stay proceedings in a State court.”51 Issuing a declaratory judgm ent in this case would not enjoin the proceedings in Montana State Court. As a result, the AntiInjunction Act does not apply, and the Court has authority to grant declaratory relief. C. Th e Tr e jo facto rs , w h ich go ve rn th e Co u rt’s e xe rcis e o f d is cre tio n to d is m is s th e actio n , w e igh a ga in s t d is m is s a l. Because this case is justiciable and the Court has authority to grant declaratory relief, the Court m ust decide whether to exercise its discretion to abstain. 52 In a declaratory judgm ent action, a district court’s decision to abstain is governed by the standard the Suprem e Court announced in Brillhart v. Excess Ins. Co. of Am . 53 In St. Paul Ins. Co. v. Trejo, 54 the Fifth Circuit interpreted and restated the Brillhart standard, requiring district courts deciding whether to abstain to consider: 1) 2) 3) 4) 5) 6) 7) whether there is a pen ding state action in which all of the m atters in controversy m ay be fully litigated, whether the plaintiff filed suit in anticipation of a lawsuit filed by the defendant, whether the plaintiff engaged in forum shopping in bringing the suit, whether possible inequities in allowing the declaratory plaintiff to gain precedence in tim e or to change forum s exist, whether the federal court is a convenient forum for the parties and witnesses, whether retain ing the lawsuit in federal court would serve the purposes of judicial econom y, and whether the federal court is being called on to construe a state judicial decree involving the sam e parties and entered by the court before whom the parallel state suit between the sam e parties is pending. 55 51 28 U.S.C. § 2283. Sherw in-W illiam s, 343 F.3d at 387. 53 316 U.S. 491 (1942); see W ilton, 515 U.S. at 289– 90 . 54 39 F.3d 585 (5th Cir. 1994). 55 Id. at 590 – 91. 52 9 The Fifth Circuit has explained that the seven Trejo factors address the three aspects of the Brillhart standard: “the proper allocation of decision-m akin g between state and federal courts,” fairness, and efficiency. 56 In cases in which there is parallel litigation in state court, the first and seventh factors require a court to consider the concerns of federalism and com ity. 57 In this case, Endurance is not a party to the actions pending in Montana state court, and those proceedings do not involve the insurance coverage disputes at issue in the instant action. The Montana state court cases are not parallel to the instant action. When there is no parallel state court litigation, a court considers the “im pact of the absence of any pending state court action” between the parties as a “threshold issue.”58 In Sherw in-W illiam s v. Holm es Cty ., the Fifth Circuit held that although “[t]he lack of a pending parallel state proceeding should not autom atically require a district court to decide a declaratory judgm ent action, . . . it is a factor that weighs strongly against dism issal.”59 The absence of state court cases parallel to this action weighs strongly against dism issal. The Court turns to the second through fourth factors, which im plicate fairness considerations. 60 Defendants do not argue that Endurance filed this suit in anticipation of a lawsuit filed by Defendants. Defen dants’ m otions contain no allegation that Endurance’s filing suit in a Louisiana federal court was unfair. 61 The fairn ess considerations weigh against dism issal. 56 Sherw in-W illiam s, 343 F.3d at 390 – 91. Id. at 392. 58 Id. 59 Id. at 394. 60 Id. at 391. 61 Defendants’ m otions confuse the fairness factors with concerns of judicial econom y. R. Doc. 50 -1 at 6, 511 at 6 (“Even assum ing that Plaintiff has no intent to gain an unfair advantage by filing in federal court, the fairness concerns still favor abstention because Plaintiff chose to file a declaratory action in federal court instead of state court where the coverage issue could be handled alongside the underlying litigation.”). 57 10 In considering the fifth factor, whether the federal court is a convenient forum for the parties and witnesses, the Fifth Circuit generally considers the distance between the federal district court and the defendants in the state. 62 The distance between the Defendants and the federal courthouse for the Eastern District of Louisiana is not an inconvenience in this case. 63 In their m otions, Defendants argue the Eastern District of Louisiana is an inconvenient forum because the case should be litigated in Montana. 64 The alleged in convenience of litigating in Louisian a, not Montana, has no bearing on the Trejo factor inquiry of whether litigating in federal court, rather than state court, inconveniences the parties and witnesses. This factor weighs against dism issal. The sixth factor, whether retaining the lawsuit in federal court would serve the purposes of judicial econom y, also requires the Court to consider the interest of judicial efficiency. 65 “[E]fficiencies m ay result from litigating issues pertinent to m ultiple potential claim s against a defendant in one federal forum , as opposed to a num ber of state courts.”66 In this case, there are two pen ding state court cases in which the underlying factual issues are being litigated. The insurance coverage issues involve two substantially identical contracts and one factual situation. Deciding these issues in one federal forum instead of two state fora prom otes judicial efficiency. This factor weighs against dism issal. 62 See, e.g., Sherw in -W illiam s, 343 F.3d at 40 0 (finding that requirin g a defen dant to travel from the Northern District of Mississippi to the federal district court for the Southern District of Mississippi in J ackson, Mississippi, not “unduly burdensom e”); Dow Agrosciences v. Bates, 332 F.3d 323, 328 (5th Cir. 20 0 3) (findin g the Lubbock Division of the Northern District of Texas not inconven ient for twenty-n ine defendants, over half of whom lived in other Divisions of the sam e district). 63 Plaintiff alleges Defendants m aintain offices in Lafayette and Terrebonne Parishes. R. Doc. 71 at 11– 12. Although Lafayette Parish is outside the Eastern District of Louisiana, the Court finds the distance between Defendants and New Orleans is not sufficient to m ake it incon ven ient for Defen dants to be required to litigate in this Court. 64 R. Doc. 50 -1 at 6, R. Doc. 51-1 at 6. 65 Sherw in-W illiam s, 343 F.3d at 391. 66 Id. at 40 0 . 11 The Court finds all the Trejo factors weigh against abstention. As a result, the Court denies Defendants’ m otions to abstain. II. Th e Co u rt h a s d is cre tio n to tran s fe r ve n u e p u rs u an t to 2 8 U .S.C. 14 0 4 ( a) . 28 U.S.C. § 140 4(a) provides, “For the convenience of the parties and witnesses, in the interest of justice, a district court m ay transfer any civil action to any other district or division where it m ight have been brought or to any district or division to which all parties have con sented.”67 “[T]he purpose of the section is to prevent the waste ‘of tim e, energy and m on ey’ and ‘to protect litigants, witnesses and the public against unnecessary inconvenience and expense.’”68 Courts applying § 140 4(a) first determ ine “whether the judicial district to which transfer is sought would have been a district in which the claim could have been filed.” 69 The court then considers a “num ber of private and public interest factors, none of which are given dispositive weight,” to determ in e whether transfer serves the convenience of the parties and witnesses. 70 A. Th is s u it co u ld h ave be e n bro u gh t in th e U n ite d State s D is trict Co u rt fo r th e D is trict o f Mo n tan a . The Court first determ ines whether the District of Montana is a forum where the case “m ight have been brought.”71 The Suprem e Court has held this refers to federal laws about venue and jurisdiction, not to “laws of the transferee State concerning the capacity of [the plaintiffs] to bring suit.”72 As a result, this Court need not determ ine whether this suit would have presented justiciable claim s had it been brought it Montana. The Court 67 28 U.S.C. § 140 4(a). Van Dusen v . Barrack, 376 U.S. 612, 616 (1964) (quoting Continental Grain Co. v. Barge F.B.L.—585, 364 U.S. 19, 26 (1960 )). 69 In re Volksw agen AG, 371 F.3d 20 1 (5th Cir. 20 0 4) (citing In re Horseshoe Entm ’t, 337 F.3d 429, 432 (5th Cir. 20 0 3)). 70 Id. (citations om itted). 71 28 U.S.C. § 140 4(a). 72 Van Dusen v. Barrack, 376 U.S. 612, 624 (1964) 68 12 need only determ ine whether the United States District Court for the District of Montana would have had personal jurisdiction over Defendants and whether venue would have been proper had this case been brought there. i. The United Stated District Court for the District of Montana would have had personal jurisdiction over Defendants. The United States District Court for the District of Montana m ay exercise personal jurisdiction over defen dants within the jurisdiction of Montana state courts. 73 Montana state courts apply a two-step test to determ ine whether they m ay exercise personal jurisdiction over a nonresident defen dant. 74 They “first determ ine whether personal jurisdiction exists under Rule 4(b)(1) of the Montana Rules of Civil Procedure, . . . [then] whether the exercise of personal jurisdiction conform s with ‘the traditional notions of fair play and substantial justice em bodied in the due process clause.’”75 Rule 4(b)(1) of the Montana Rules of Civil Procedure subjects “[a]ll persons found within the state of Montana” to the general jurisdiction of the Montana courts. 76 Defendants are “found” within Montana if their “activities are ‘substantial’ or ‘system atic and continuous.’”77 Rule 4(b)(1) subjects any person to the specific jurisdiction of the Montana courts “as to any claim for relief arising from the doing personally, or through an em ployee or agent, of any of the following acts: (A) the transaction of any business within Montana; (B) the com m ission of any act resulting in accrual within Montana of a 73 McGee v . Riekhof, 442 F. Supp. 1276, 1277 (D. Mont. 1978) (citin g F ED. R. CIV. P. 4(e); W right v. Yackley , 459 F.2d 287, 28 8 (9th Cir. 1972)). 74 Tackett v. Duncan , 20 14 MT 253, ¶ 22, 376 Mont. 348, 334 P.3d 920 . 75 Milky W hey , Inc. v. Dairy Partners, LLC, 20 15 MT 18, ¶ 18 , 378 Mont. 75, 8 0 , 342 P.3d 13, 17 (citing Cim m aron Corp. v. Sm ith, 20 0 3 MT 73, ¶ 10 , 315 Mon t. 1, 67 P.3d 258 ). 76 See id. (quoting M.R.C.P. 4(b)(1)). 77 Edsall Const. Co. v. Robinson, 246 Mont. 378 , 382 (1991) (quoting Int’l Shoe Co. v . W ashington, 326 U.S. 310 (1945)). 13 tort action; (C) the ownership, use, or possession of any property, or of any interest therein, situated within Montana.”78 Defendants in this case leased property and transacted business in Montana over the course of several years. 79 Their activities were substantial, system atic, an d continuous, and they are, as a result, subject to general personal jurisdiction in Montana. Even if Defendants are not subject to general personal jurisdiction in Montana, they are subject to specific personal jurisdiction under Rule 4(b)(1) of the Montana Rules of Civil Procedure. Endurance’s declaratory judgm ent action arises out of Defendants’ transacting business in Montana, Defendants’ actions that resulted in two Montana state court actions, and Defendants’ use of property in Montana. As a result, Defendants fall within the scope of Montana’s long-arm statute. The Court turns to the second prong of the personal jurisdiction analysis: whether a Montana court’s exercise of jurisdiction exceeds the boundaries of the Due Process Clause of the Fourteenth Am endm ent. The Due Process Clause of the Fourteenth Am endm ent “operates to lim it the power of a State to assert in personam jurisdiction over a nonresident defendant.”80 For a court’s exercise of personal jurisdiction over a nonresident defendant to be constitutional under the Due Process Clause, courts in the Ninth Circuit apply the following three-part test: (1) the non-resident defendant m ust purposefully direct his activities or consum m ate som e transaction with the forum or resident thereof; or perform som e act by which he purposefully avails him self of the privileges of conducting activities in the forum , thereby invoking the benefits and protections of its laws; (2) the claim m ust be one which arises out of or relates to the defendant’s forum -related activities; and (3) the exercise of 78 M.R.C.P. 4(b)(1). R. Doc. 37 at 9, ¶ 36; R. Doc. 41 at 5, ¶ 36; R. Doc. 42 at 5, ¶ 36. 80 Helicopteros N acionales de Colom bia, S.A. v . Hall, 466 U.S. 40 8, 413– 14 (1984). 79 14 jurisdiction m ust com port with fair play and substantial justice, i.e. it m ust be reasonable. 81 “The purposeful availm ent prong of the m inim um contacts test requires a ‘qualitative evaluation of the defendant’s contact with the forum state’ . . . to determ ine whether [the defendant’s] conduct and connection with the forum [s]tate are such that [the defendant] could reasonably anticipate being haled into court there.”82 Defendants conducted business in Montana for years. They could have reasonably anticipated being haled into court there in connection with their activities. In fact, they are currently involved in litigation as defen dants in Montana state court. 83 Defendants purposefully availed them selves of the ben efits of doing business in Montana. The insurance contract dispute arises out of and relates to Defendants’ activities in Montana. A Montana court’s exercising jurisdiction over the Defendants com ports with traditional notions of fair play and substantial justice. As a result, had this case been brought in the United States District Court for the District of Montana, that court would have had personal jurisdiction over Defendants. ii. Venue is proper in the District of Montana. Pursuant to 28 U.S.C. § 1391(b)(2), venue is proper in “a judicial district in which a substantial part of the events or om issions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated.”84 Although the insurance contract was issued in Louisiana, all the events giving rise to the insurance 81 Core– Vent Corp. v. N obel Industries AB, 11 F.3d 148 2, 1485 (9th Cir.1993) (quoting Lake v. Lake, 817 F.2d 1416, 1421 (9th Cir.1987)). 82 Harris Rutsky & Co. Ins. Servs. v . Bell & Clem ents Ltd., 328 F.3d 1122, 1130 (9th Cir. 20 0 3) (citin g Lake, 817 F.2d at 1421; W orld– W ide Volksw agen Corp. v. W oodson, 444 U.S. 286, 297 (1980 )). 83 R. Doc. 37 at 9, ¶ 36; R. Doc. 41 at 5, ¶ 36; R. Doc. 42 at 5, ¶ 36. 84 28 U.S.C. § 1391(b)(2). 15 dispute at issue occurred in Montana. As a result, venue would have been proper in the District of Montana. This case could have been brought in the United States District Court for the District of Montana because that court would have had personal jurisdiction over Defendants, and venue would have been proper. B. Tran s fe r s e rve s th e co n ve n ie n ce o f th e p artie s an d w itn e s s e s . 28 U.S.C. § 140 4(a) requires district courts to consider “the convenience of the parties and witnesses” in deciding whether to transfer venue. 85 In re Volksw agen AG enum erates several “private an d public in terest factors, none of which are given dispositive weight.” 86 As private factors, the Fifth Circuit listed: (1) (2) (3) (4) the relative ease of access to sources of proof; the availability of com pulsory process to secure the attendance of witnesses; the cost of attendance for willing witnesses; and all other practical problem s that m ake trial of a case easy, expeditious and in expensive. 87 As public factors, the court listed: (1) (2) (3) (4) the adm in istrative difficulties flowing from court congestion; the local interest in having localized interests decided at hom e; the fam iliarity of the forum with the law that will govern the case; and the avoidance of unnecessary problem s of conflict of laws of the application of foreign law. 88 The Court finds the private concerns weigh heavily in favor of transfer. Interpreting the contractual language of the pollution liability policies En durance issued DTI and DTT adm ittedly does not require extensive access to sources of proof or witness 85 28 U.S.C. § 140 4(a). In re Volksw agen AG, 371 F.3d at 20 3 (citing Piper Aircraft Co. v. Rey no, 454 U.S. 235, 241 n .6 (1981)). 87 Id. 88 Id. 86 16 testim ony. 89 However, determ ining whether Endurance owes Defendants a duty of indem n ity requires extensive factfinding because the court before which the m atter is litigated m ust apply the contractual language to the facts of the insurance claim . The pollution liability policy does not insure claim s arising from Defendants’ intentional “willful or deliberate n oncom pliance with any statute or regulation,” from Defendants’ “illegal, dishonest, fraudulent, crim inal, or m alicious” acts, from Defendants’ transporting waste “to any location located beyond the boundaries” of a contracting site, or from property dam age to property Defendants owned, rented, occupied, or controlled. 90 Determ inin g whether these exclusions apply requires factfinding relating to DTI and DTT’s Montana operations. The sources of proof for these factual issues are in Montana, as are the witnesses who can testify to these issues. A federal court in Montana can issue subpoenas to witnesses in Montana, 91 and attendance would be m uch less costly and m ore convenient for witnesses. The public factors do not weigh heavily in either direction. The parties have not indicated, and this Court is not aware of, any difficulties from court congestion in the federal district court for the District of Montana. There is no difficulty from court congestion in the Eastern District of Louisiana. This case would raise conflicts of laws issues in either forum . In Van Dusen v. Barrack, the Suprem e Court stated that “the transferee district court m ust be obligated to apply the state law that would have been applied if there had been no change of venue. 89 See La. Civ. Code art. 20 46 (“When the words of a contract are clear and explicit and lead to no absurd consequences, no further in terpretation m ay be m ade in search of the parties’ intent.”). 90 R. Doc. 37 at 18 – 19, ¶ 58 (italics om itted); R. Doc. 41 at 8, ¶ 58; R. Doc. 42 at 8, ¶ 58. 91 Rule 45(c)(1) lim its a federal court’s power to issue a subpoena com m anding a witn ess to appear to witnesses who work, reside, or regularly transact busin ess either in the state where the court sits or within 10 0 m iles of the court. The Fifth Circuit considers this 10 0 -m ile rule probative to the venue transfer in quiry. See In re Volksw agen AG, 371 F.3d at 20 4, n.3. In this case, the federal district court in Montana 17 A change of venue un der § 140 4(a) generally should be, with respect to state law, but a change of courtroom s.” 92 In interpreting the insurance policy, the transferee federal district court in Montana will apply Louisiana law, which is the sam e law this Court would have applied. The fact the Montana court m ust apply unfam iliar foreign law m ay seem to weigh against transferring the case to the District of Montana. However, if this Court does not transfer the case, it will need to apply Montana law to determ ine whether Defendants engaged in “willful or deliberate noncom pliance with any statute or regulation” an d whether their conduct was “illegal, dishonest, fraudulent, crim inal, or m alicious,” both of which preclude indem nification. 93 Because either court m ust apply Louisiana law to the contract and Montana law to determ ine the scope of Endurance’s duty of indem nification, this factor does not weigh heavily for or against transfer. Louisiana has an interest in having localized interests decided at hom e. Because the transferee court in Montana will apply Louisiana law, that court is capable of ensuring Louisiana’s interest is upheld. Because the private concerns strongly support transferring venue to the District of Montana, an d the public concern s do not weigh heavily for or against transfer, this Court grants Defendants’ m otion to transfer. Plaintiff represents the underlying state court cases are pending in Wolf Point, Montana. 94 The nearest division of the United States District Court for the District of Montana is located in Billings, Montana. As a result, the Court transfers this case to the Billings Division of the United States District Court for the District of Montana. 92 Van Dusen , 376 U.S. 612, 639 (1964). R. Doc. 37 at 18 – 19, ¶ 58 (italics om itted); R. Doc. 41 at 8, ¶ 58; R. Doc. 42 at 8, ¶ 58. 94 R. Doc. 52 at 23. 93 18 CON CLU SION For the foregoing reasons, IT IS ORD ERED that the Motions to Dism iss on Abstention Grounds filed by Defendants Dual Trucking and Transport, LLC95 and Dual Trucking, Inc. 96 be and hereby are D EN IED . IT IS FU RTH ER ORD ERED that Defendants’ m otions in the alternative to dism iss on forum non conveniens grounds are construed as m otions to change venue pursuant to 28 U.S.C. 140 4(a) and GRAN TED . IT IS FU RTH ER ORD ERED that the above-captioned case TRAN SFERRED TO TH E D ISTRICT OF MON TAN A, BILLIN GS D IVISION . N e w Orle an s , Lo u is ian a, th is 2 2 n d d ay o f Octo be r, 2 0 18 . ________________________________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 95 96 R. Doc. 50 . R. Doc. 51. 19 is

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