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Jamison v. Depositors Insurance Co.

United States District Court, D. Nebraska

May 22, 2014

NELLE JAMISON, JOHN PAUL JAMISON, Plaintiffs,
v.
DEPOSITORS INSURANCE COMPANY, Defendant.

MEMORANDUM AND ORDER

CHERYL R. ZWART, Magistrate Judge.

BACKGROUND

This matter is before the court on Defendant's motion to change the venue of this case to the United States District Court for the Western District of Wisconsin. (Filing No. 12). For the reasons discussed below, the motion is denied.

Plaintiffs Nelle and Paul Jamison (the "Jamisons") reside in Lancaster County, Nebraska, but own real and personal property at 383 Mondamin Trail, La Pointe, Wisconsin 54850 (the "Property"). The Jaminsons used the Property as a second home and "generally visited the [Property] between July 1 and August 7 and, in some... years, briefly in May, October and over Thanksgiving break." (Filing No. 21-1, ¶8 at CM/ECF p. 2). The Jamisons contacted INSPRO, Inc. in Lincoln, Nebraska to secure insurance for the Property. The insurance policy was issued by Depositors Insurance Company ("Depositors") through INSPRO, Inc. (Filing No. 21-3, ¶11 at CM/ECF p. 2). Depositors is an Iowa corporation with its principal place of business in Iowa. (Filing No. 1, ¶8 at CM/ECF p. 2).

The Jamisons' insurance policy for the Property (the "Policy") provides that "[a]ny provision of this policy... that is in conflict with a Wisconsin statute or rule is hereby amended to conform to that statute or rule." (Filing No. 14, ¶11 at CM/ECF p. 2). The policy also advises policy holders of their right to file any complaint regarding the policy with the Wisconsin Commissioner of Insurance. (Filing No. 14, ¶12 at CM/ECF pp. 2-3).

On May 15, 2013, Nelle Jamison's mother, Donna Woods, was visiting the Property and discovered water damage. She promptly notified the Jamisons of the damage. The damaged property was also viewed by Jon Hinrichs, Robert Norris and Dee Norris - all residents of Lincoln, Nebraska. (Filing No. 21-1, ¶¶ 24-27 at CM/ECF p. 3).

On May 15, 2013, the Jamisons contacted Scott L. Wagner at INSPRO, Inc. in Lincoln, Nebraska and notified him of the water damage to the Property. The Jamisons received correspondence from Claims Associate Chad Cichosz from Depositors' office in Des Moines, Iowa. At some point, Chichosz inspected the Property. The property was also inspected by Vieau Associates, Inc. from Edina, Minnesota; Castle Inspection Service from Marshfield, Wisconsin; and ServiceMaster Corporation from Madeline Island, Wisconsin. Eventually, the Jamisons received a denial letter from Depositors in August of 2013. The denial was signed by Mike Stumberg, Large Loss Claims Manager and was mailed from Grundy Center, Iowa. (Filing No. 21-2 at CM/ECF pp. 9-14).

Plaintiff filed this action in the District Court of Lancaster County, Nebraska seeking declaratory relief to determine the parties' rights under the insurance policy and asserting causes of action based on breach of contract and bad faith. (Filing No. 2). Defendant removed the case to this court on January 16, 2013, (Filing No. 1), and now moves to transfer venue to the United States District Court for the Western District of Wisconsin.

ANALYSIS

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. When considering a motion to transfer under section 1404(a), the court must balance:

(1) the convenience of the parties, (2) the convenience of the witnesses - including the willingness of witnesses to appear, the ability to subpoena witnesses, and the adequacy of deposition testimony, (3) the accessibility to records and documents, (4) the location where the conduct complained of occurred, and (5) the applicability of each forum state's substantive law.

Terra Int'l, 119 F.3d at 696.

Terra Int'l identified a non-exclusive list of other factors a court may consider when addressing the "interest of justice" factor in motions to change venue. These include: 1) judicial economy, 2) the plaintiff's choice of forum; 3) the comparative costs of litigating in each forum, 4) each party's ability to enforce a judgment, 5) obstacles to a fair trial, 6) conflict of law issues, 7) and the advantages of having a local court determine questions of local law. See Terra Int'l, 119 F.3d at 699 (citations omitted).

In addition to the general factors set forth in section 1404(a), courts will conduct a "case by case evaluation of the particular circumstances at hand and consider all relevant factors." Terra Int'l., Inc. v. Mississippi Chemical Corp. , 119 F.3d 688, 691 (8th Cir. 1997). "[F]ederal courts give considerable deference to a plaintiff's choice of forum and thus the party ...


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