Thomas v Allstate Indemnity Company, No. 2:2010cv00943 - Document 21 (W.D. Wash. 2010)
Court Description: ORDER DENYING PLAINTIFF'S MOTION FOR REMAND AND GRANTING DEFENDANT'S MOTION FOR CHANGE OF VENUE; denying 2 Motion to Remand; granting 6 Motion to Change Venue. Case transferred to Western District of Washington. Signed by Judge Edward F. Shea. (CV, Case Administrator) [Transferred from waed on 6/8/2010.]
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Thomas v Allstate Indemnity Company Doc. 21 1 2 3 4 5 6 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 7 8 DAVID E. THOMAS, an individual, 9 Plaintiff, 10 v. 11 12 ALLSTATE INDEMNITY COMPANY, a foreign insurer, 13 NO. CV-10-137-EFS ORDER DENYING PLAINTIFF’S MOTION FOR REMAND AND GRANTING DEFENDANT’S MOTION FOR CHANGE OF VENUE Defendant. 14 15 Plaintiff David E. Thomas (“Thomas”) sued Allstate Indemnity Company 16 (“Allstate”) for various federal and state statutory and common law 17 violations arising out of the alleged breach of a renter’s insurance 18 contract. Thomas alleges that Allstate willfully failed to pay amounts 19 20 21 due under the contract after his apartment was burglarized and several items were taken from it. Thomas is currently incarcerated in Florida, 22 and he granted his relatives power of attorney. The case was initially 23 filed in Spokane County Superior Court. On May 3, 2010, Allstate removed 24 it to this Court. Before the Court, without oral argument, are Thomas’s 25 Motion to Remand (Ct. Rec. 2) and Allstate’s Motion to Change Venue (Ct. 26 ORDER ~ 1 Dockets.Justia.com 1 Rec. 6). For the reasons given below, the Court denies Thomas’s motion 2 and grants Allstate’s motion. 3 I. Motion to Remand 4 5 Allstate filed its notice of removal on May 3, 2010 (Ct. Rec. 1). It claimed diversity of citizenship as its basis for removal. Id. at 2. 6 Thomas argues the amount in controversy is nowhere near $75,000.1 7 When it is ambiguous from the face of the state court complaint 8 9 10 whether the amount in controversy is sufficient, the defendant must show by a preponderance of the evidence that the amount exceeds $75,000. 11 Guglielmino v. McKee, 506 F.3d 696, 699 (9th Cir. 2007). Here, the state 12 court Complaint does not specify the amount sought. (Ct. Rec. 1 Ex. C.) 13 When determining the amount in controversy, the court may consider 14 affidavits and declarations relevant to the amount in controversy at the 15 16 1 As an alternative grounds for jurisdiction, Allstate argues in its 17 18 19 opposition to this motion that a federal cause of action appears on the face of Thomas’s Complaint. (Ct. Rec. 11 at 7.) Although the presence of 20 a federal question provides the Court with subject matter jurisdiction 21 over this case, the Court does not consider this basis because Allstate 22 did not include it in its removal petition or raise it within thirty days 23 of receiving the Complaint. See O’Halloran v. Univ. of Wash., 856 F.2d 24 1375, 1381 (9th Cir. 1988); Sullivan v. BNSF Ry. Co., 447 F. Supp. 2d 25 1092, 1099 (D. Ariz. 2006); Sonoma Falls Developers, LLC v. Nev. Gold & 26 Casinos, Inc., 272 F. Supp. 2d 919, 925 (N.D. Cal. 2003). ORDER ~ 2 1 time of removal. Singer v. State Farm Mut. Auto. Ins. Co., 116 F.3d 373, 2 377 (9th Cir. 1997) (citation omitted). 3 4 5 Thomas claims that his actual damages on the breach of contract claim are limited to $16,291.59, and that statutory treble damages therefore limit his total recovery to $48,874.77. According to Thomas, 6 reasonable attorney’s fees could put the total amount in controversy over 7 $75,000. 8 The Court is satisfied that the jurisdictional requirement of 9 10 11 $75,000 in controversy is met. In his calculation, Thomas neglects a number of bases for recovery. In addition to his two Washington statutory 12 claims that provide treble damages for breach of contract,2 Thomas also 13 alleges insurance bad faith. This tort provides insured persons with 14 redress above and beyond contractual damages to deter insurers from 15 willfully withholding payments due. Woo v. Fireman’s Fund Ins. Co., 150 16 Wn. App. 158, 171 (2009) (quoting Kirk v. Mt. Airy Ins. Co., 134 Wn.2d 17 558, 560 (1998)). He also claims damages from Allstate’s intentional 18 disclosure of private information, in violation of 15 U.S.C. § 6802. 19 20 Those two additional claims alone could account for an additional $26,125.23 in damages. According to Thomas’s counsel’s declaration, 21 attorney’s fees in a case like this might go as high as $15,000 if 22 calculated at an hourly rate, and in this case his fee agreement is 33% 23 of ultimate recovery. Those fees may be included in the calculation. 24 25 26 Guglielmino, 506 F.3d at 700. When the Court considers all the claimed 2 RCW 48.30.010 & 19.86. ORDER ~ 3 1 violations and the potential 33% attorney fee, it concludes that the 2 amount in controversy exceeds $75,000. 3 4 5 II. Motion for Change in Venue Allstate moves to transfer venue to the Western District of Washington, arguing that the convenience of the parties and the interests 6 of justice favor adjudication in that district. A party may move to 7 transfer venue under 28 U.S.C. § 1404(a) “[f]or the convenience of 8 parties and witnesses, in the interest of justice . . . to any other 9 10 11 district . . . where it might have been brought.” The parties do not dispute that jurisdiction and venue would be proper in the Western 12 District of Washington. Thomas argues that transferring venue is not in 13 the interests of justice, however. 14 Allstate submitted police reports in connection with this motion in 15 order to show the addresses of potential witnesses. Thomas objects that 16 those reports are inadmissible hearsay and should not be considered. 17 Cochran v. NYP Holdings, Inc., 58 F. Supp. 2d 1113, 1119 (C.D. Cal. 1998) 18 (holding that a party moving to transfer venue must provide admissible 19 20 evidence as to who the key witnesses will be and what their testimony will include). The Court will consider the reports included in the 21 declaration. The reports are offered to show the truth of matters 22 asserted, including locations of the burglary and its witnesses. 23 Nevertheless, entries in a police report resulting from the officer’s own 24 25 26 observations may be admitted as business records unless it can be shown that they lack trustworthiness. Fed. R. Evid. 803(6); United States v. ORDER ~ 4 1 Pazsint, 703 F.2d 420, 424 (9th Cir. 1983). Thomas does not dispute the 2 reports’ trustworthiness. 3 4 5 When deciding a motion to transfer venue, a court considers the following factors: 1) the state most familiar with the governing law; 2) plaintiff’s choice of forum; 3) the parties’ contacts with the forum; 4) 6 events in the chosen forum related to the cause of action; 5) differences 7 in cost of litigation between the two forums; 6) availability of 8 compulsory process for non-party witnesses; and 7) ease of access to 9 10 11 sources of proof. Jones v. GNC Franchising, Inc., 211 F.3d 495, 498–99 (9th Cir. 2000). 12 On balance, the factors favor transfer. In Thomas’s favor, he 13 plainly chose the Eastern District of Washington. Although he filed this 14 case in Spokane County Superior Court, not federal court, the choice of 15 Spokane County indicates his preference for the Eastern over the Western 16 District of Washington. Nevertheless, courts give less deference to a 17 plaintiff’s chosen forum if the action has little to do with that forum 18 and particularly if witnesses are located elsewhere. Pac. Car & Foundry 19 Co. v. Pence, 403 F.2d 949, 955 (9th Cir. 1968); Saleh v. Titan Corp., 20 361 F. Supp. 2d 1152, 1157 (S.D. Cal. 2005). 21 This district has little connection to the case and all identified 22 non-party witnesses live in the Western District of Washington. Neither 23 24 25 26 party resides in the Eastern District of Washington. Until recently, Thomas resided in the Western District of Washington, and Allstate, a foreign corporation, has its local office in that district. Thomas’s ORDER ~ 5 1 relatives, who represented him in his initial claim with Allstate, reside 2 in the Eastern District, however. To the extent that Thomas’s relatives 3 disputed the initial insurance claim with Allstate, the claim arose in 4 part in Spokane. But it is undisputed that the underlying insurance claim 5 6 arose out of the burglary of an apartment in Mountlake Terrace, which is in the Western District of Washington. Furthermore, it is essential to 7 Allstate’s case to call non-party witnesses to the burglary. Allstate’s 8 investigation and non-payment of the insurance claim for losses from the 9 burglary is the basis for the entire case. Whether Allstate acted 10 11 12 reasonably or in bad faith is therefore essential. The witnesses to the burglary can help clarify the circumstances of the burglary, as Thomas’s 13 insurance claim and the police reports tell different stories bout what 14 happened. Other witnesses may be able to help the fact-finder discover 15 who owned the items that were claimed to have been stolen and describe 16 the condition of the items before they were taken from the apartment. All 17 of those witnesses live in the Western District of Washington. 18 The remaining factors do not point in either direction. The federal 19 courts in both districts are familiar with Washington law, and the 20 21 difference in the cost of litigation is insignificant. Although Allstate’s records are in the Western District, those documents can be 22 copied and delivered to either venue easily. Alexander v. Franklin Res., 23 Inc., No. C 06-7121 SI, 2007 WL 518859, at *4 (N.D. Cal. Feb. 14, 2007). 24 25 26 Because the Western District of Washington has a more significant connection to the events that gave rise to this suit and most of the ORDER ~ 6 1 available witnesses are in that district, the Court finds that transfer 2 is appropriate. The Court recognizes that transfer may inconvenience 3 Thomas’s relatives, who are assisting in litigating this case. Although 4 a court should not grant a transfer if doing so would merely shift the 5 inconvenience of litigation from one party to the other, Ellis v. Costco 6 Wholesale Corp., 372 F. Supp. 2d 530, 541 (N.D. Cal. 2005), the Court 7 finds that venue in the Western District would be substantially more 8 convenient for the parties and witnesses and would serve the interests 9 10 11 of justice. Accordingly, IT IS HEREBY ORDERED: 12 1) Plaintiff’s Motion to Remand (Ct. Rec. 2) is DENIED. 13 2) Defendant’s Motion for Change of Venue (Ct. Rec. 6) is GRANTED. 14 3) The Clerk of the Court is DIRECTED to close this file and 15 16 transfer this matter to the Western District of Washington. IT IS SO ORDERED. The District Court Executive is directed to enter 17 this Order and to provide copies to all counsel. 18 DATED this 7th day of June 2010. 19 20 S/ Edward F. Shea EDWARD F. SHEA United States District Judge 21 22 23 Q:\Civil\2010\137.remand.venue.wpd 24 25 26 ORDER ~ 7
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