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RESORTS INTL., INC. v. LIBERTY MUT. INS. CO.

December 21, 1992

RESORTS INTERNATIONAL, INC., Plaintiff,
v.
LIBERTY MUTUAL INSURANCE COMPANY, THE TRAVELERS INDEMNITY COMPANY, and INSURANCE COMPANY OF NORTH AMERICA, Defendants.



The opinion of the court was delivered by: STANLEY S. BROTMAN

BROTMAN, District Judge.

 Presently before the court is the motion of defendant Insurance Company of North America ("INA") to transfer the present action to the United States District Court for the Middle District of Florida, pursuant to 28 U.S.C. § 1404(a). Upon consideration of the parties' submissions, and for the reasons set forth below, the court denies INA's motion.

 I. Facts and Procedure

 In this environmental insurance case, plaintiff Resorts International, Inc. ("Resorts"), seeks indemnification from each of the defendant insurance companies under comprehensive liability insurance policies for monies and expenses paid pursuant to the settlement of an underlying claim against Resorts.

 Plaintiff Resorts is a corporation incorporated in Delaware with its principal office located in New Jersey. From approximately 1958 to 1979, Resorts, or its corporate predecessors, owned and operated a paint manufacturing facility in Tampa, Florida. In 1980, the facility was sold to Insilco Corporation ("Insilco"), which then owned and operated the facility until December 31, 1986. During all or some of the period 1958-1986, hazardous substances were disposed on the site. In 1988, after Insilco signed an administrative consent order with the Florida Department of Environmental Regulation to remove environmental toxins from the groundwater and soils and the facility site, Insilco brought suit seeking damages for environmental contamination from Resorts, which by this time had filed for bankruptcy. In September 1990, Resort and Insilco settled the action for $ 2 million. In addition to this sum, Resorts incurred costs in attorneys' fees, expert witness fees, and other expenses in defending itself in the course of its litigation with Insilco.

 Defendant Liberty Mutual Insurance Company ("Liberty Mutual") is an insurer incorporated' in Massachusetts with its principal place of business in Massachusetts. Defendants Travelers Indemnity Company ("Travelers") is an insurer incorporated in Connecticut with its principal place of business in Connecticut. Defendant INA is an insurer incorporated in Pennsylvania with its principal place of business in Pennsylvania. All three defendants refuse to indemnify Resorts for the sums paid in the course of the Insilco litigation, despite Resorts demands.

 II. Discussion

 INA moves this court to transfer the present action to the Middle District of Florida. *fn1" Section 1404(a) provides:

 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.

 28 U.S.C. § 1404(a). A section 1404(a) transfer analysis requires two steps. First, the court must determine whether the transferee district is one in which the action might have originally been brought. Hoffman v. Blaski, 363 U.S. 335, 4 L. Ed. 2d 1254, 80 S. Ct. 1084 (1960). Thus, the transferee court must have subject matter jurisdiction, personal jurisdiction, and venue over the action. Shutte v. Armco Steel Corp., 431 F.2d 22, 24 (3d Cir. 1970), cert. denied, 401 U.S. 910, 27 L. Ed. 2d 808, 91 S. Ct. 871 (1971). Second, the court must use its sound discretion to determine whether the transfer is for the convenience of parties and witnesses and in the interest of justice. Plum Tree, Inc. v. Stockment, 488 F.2d 754, 756 (3d Cir. 1973).

 The initial question in a transfer analysis is whether the action might have been brought in the transferee forum. Therefore, this court must first determine whether venue and jurisdiction are proper in the Middle District of Florida. The burden of proof rests with INA, the moving party. Plum Tree, 488 F.2d at 756. INA addresses this question in a lone footnote in its reply brief. *fn2" The court is not fully satisfied that INA's assertions satisfy its burden of proof. However, for the purposes of this motion, the court will assume that venue and jurisdiction properly fall in the Middle District of Florida and will undertake the second step required by section 1404(a).

 The Supreme Court, in Gulf Oil v. Gilbert, 330 U.S. 501, 91 L. Ed. 1055, 67 S. Ct. 839 (1946), articulated an analytic framework for balancing the various interests and concerns at stake in a transfer request. *fn3" Under Gulf Oil, a court should consider two broad categories of factors. First, the court should balance the various private interests of the parties to the litigation. These factors include the plaintiff's choice of forum, ease of access to sources of proof, availability of compulsory process over unwilling witnesses, the cost of attendance of willing witnesses, and the possibility of a jury view of the premises. Id. at 508. Second, a transfer analysis must take into account the public interest in the administration and adjudication of justice. These factors include court congestion, local interest in having cases tried at home, and familiarity of the forum court with the applicable law. Id. at 508-09.

 Under Third Circuit precedent, it is well established that a plaintiff's choice of forum is a "paramount consideration" and should cot be lightly disturbed. Shutte, 431 F.2d at 25. "To overcome the presumption in favor of [plaintiff's] choice of forum, the defendant[] must show, under the test enunciated in Gulf Oil, [that] the balance of conveniences weighs 'strongly in favor' of transfer to a more convenient forum." Sandvik, 724 F. Supp. 303, 307 (D.N.J. 1989). While the exact standard of proof remains an undecided point in the Third Circuit, id. at 308 n.9, it is clear that "something more than a mere preponderance of the evidence" is required. See Kisko v. Penn Central Transportation Co., 408 F. Supp. 984, 986 (M.D. Pa. l976). *fn4"

 Analysis begins with the convenience of the parties. The record indicates that none of the parties has Florida as its principal place of business. Resorts is located primarily in New Jersey, INA in Pennsylvania, Travelers in Connecticut, and Liberty Mutual in Massachusetts. Indeed, it seems clear that, between Florida and New Jersey, New Jersey is geographically the more convenient forum for the parties to the litigation. *fn5" The court notes that this also means that access to proof in control of the parties is easier from the New Jersey forum. INA asserts, however, that "thousands of pages of documents are still in Florida." INA's Brief at 2. Resorts counters that INA already, in the course of the underlying Insilco litigation, obtained copies of the pertinent documents and has sent 26 boxes filled with these papers to INA and the other two defendants. Resorts' Brief at 8. INA acknowledges the 26 boxes, but responds that "the documents in the possession of most non-party witnesses, such as the environmental ...


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