UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SISTER PHILOMENA MALVEAUX,
Plaintiff,
v. Civ. Action No. 10-587 (CKK)
CHRISTIAN BROTHERS SERVICES,
Defendant.
MEMORANDUM OPINION
(November 30, 2010)
Plaintiff Sister Philomena Malveaux (“Sister Philomena”) has filed this breach of contract
action against Defendant Christian Brothers Services (“Christian Brothers”) seeking payment of
benefits under an insurance contract to cover damages sustained by Sister Philomena when she
was struck by an uninsured motorist in the District of Columbia. In lieu of filing an answer,
Christian Brothers has filed a [4] Motion to Transfer Venue to the United States District Court
for the Northern District of Illinois, which is opposed by Sister Philomena. Christian Brothers
argues that transfer is warranted because venue is improper in this district and alternatively
argues that the case should be transferred for the convenience of the parties and witnesses
pursuant to 28 U.S.C. § 1404(a). Upon thorough consideration of the parties’ briefing and the
relevant case law and statutory authority, the Court finds that venue is proper in this district and
that transfer is not in the interest of justice at this time. Accordingly, the Court shall DENY
Defendant’s [4] Motion to Transfer Venue for the reasons explained below.
I. BACKGROUND
Sister Philomena Malveaux is a member of a religious order that has an insurance
agreement with Defendant Christian Brothers Services. Compl. ¶ 2. Christian Brothers does
business nationally and is headquartered in Romeoville, Illinois. Id. ¶ 3. Christian Brothers
provides automobile underinsurance benefits to over 1500 religious orders, including the one to
which Sister Philomena belongs. Id. At the time the Complaint was filed on April 14, 2010,
Sister Philomena resided in Washington, D.C. Id. ¶ 2.
On or about January 13, 2010, Sister Philomena was walking within a crosswalk in the
District of Columbia and was struck by a car, causing her to be thrown high into the air and crash
hard on the ground. Id. ¶ 4. Sister Philomena suffered significant injuries, including a fractured
knee. Id. Sister Philomena was treated for her injuries at Howard University Hospital, where she
had surgery performed on her knee, and after discharge she required extensive rehabilitative
services. Id. ¶ 5. Her hospital bill totaled $66,000, with an additional $50,000 in nursing care
costs. Id. In addition, it appears that Sister Philomena will need knee replacement surgery at an
expected cost of over $45,000. Id.
The driver of the vehicle that struck Sister Philomena was uninsured. Sister Philomena
filed a claim under her own auto insurance policy and obtained the maximum benefits of
$25,000. Id. ¶ 6. Sister Philomena’s religious order has a contract for underinsured and
uninsured auto benefits for an amount up to $1 million. Id. ¶ 7. Sister Philomena submitted an
underinsured claim to Christian Brothers seeking payment for $166,000 in medical bills, as well
as additional claims for pain and suffering. Id. ¶ 9. However, Christian Brothers has not paid the
claims.
In supporting affidavits filed with its transfer motion, Christian Brothers avers that Sister
Philomena has been called on by the Congregational Leader of the Sisters of the Holy Family to
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relocate to New Orleans, Louisiana to obtain medical care and recuperate. See Affidavit of Sister
Eva Regina Martin ¶¶ 1, 6. According to the Congregational Leader, Sister Philomena has been
living in Louisiana since May 2010 and will not be relocated to Washington, D.C. Id. ¶ 6.
Christian Brothers further avers that Christian Brothers Services, Inc. is the Plan Administrator
for The Religious & Charitable Risk Pooling Trust of the Brothers of the Christian Schools and
Affiliates’ Plan Document, which provides financial protection to the Sisters of the Holy Family
for general liability claims. See Affidavit of Elton Sherill ¶¶ 2-3. Christian Brothers explains
that the trust document provides that interpretation of the benefit plan is to be governed by
Illinois law. Id. ¶ 4. In addition, Christian Brothers avers that decisions regarding coverage and
payments involving the trust document are made by trust personnel in Illinois. Id. ¶ 5.
According to a Liability Claim Consultant for Christian Brothers, a trial held in Washington,
D.C. would substantially inconvenience witnesses for the trust. Id.
II. LEGAL STANDARD AND DISCUSSION
Defendant Christian Brothers Services seeks to transfer this action to the United States
District Court for the Northern District of Illinois. Christian Brothers’ primary argument in favor
of transfer is that venue is improper in this district pursuant to 28 U.S.C. § 1391(a). Although
Christian Brothers seeks transfer rather than dismissal of this action, the Court nevertheless
considers Defendant’s pre-answer motion as one brought pursuant to Federal Rule of Civil
Procedure 12(b)(3). If venue is improper in this district, the Court must either dismiss the case or
transfer it to a court in which venue is proper. See 28 U.S.C. § 1406(a) (“The district court of a
district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it
be in the interest of justice, transfer such case to any district or division in which it could have
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been brought.”). Alternatively, Christian Brothers argues that venue should be transferred
pursuant to 28 U.S.C. § 1404(a) for the convenience of the parties and witnesses. The Court
shall address each of these arguments below.
A. Venue Is Proper in the District of Columbia
Defendant contends that this case must be transferred because venue is improper in this
district. Venue in diversity actions is governed by 28 U.S.C. § 1391(a), which provides as
follows:
A civil action wherein jurisdiction is founded only on diversity of citizenship may,
except as otherwise provided by law, be brought only in (1) a judicial district where
any defendant resides, if all defendants reside in the same State, (2) a judicial district
in which a substantial part of the events or omissions giving rise to the claim
occurred, or a substantial part of property that is the subject of the action is situated,
or (3) a judicial district in which any defendant is subject to personal jurisdiction at
the time the action is commenced, if there is no district in which the action may
otherwise be brought.
28 U.S.C. § 1391(a). For purposes of venue, “a defendant that is a corporation shall be deemed
to reside in any judicial district in which it is subject to personal jurisdiction at the time the
action is commenced.” Id. § 1391(c).
Defendant focuses its briefing on the third subsection of § 1391(a), arguing that venue is
not proper under that subsection because there is another district—the Northern District of
Illinois—in which the action may otherwise be brought based on personal jurisdiction. However,
Defendant fails to address the first subsection of § 1391(a), which provides that venue for
corporate defendants may lie in any district where they can be subject to personal jurisdiction.
Defendant concedes in its brief that it does business nationally, and it does not raise any
affirmative objections to this Court’s exercise of personal jurisdiction in its motion. Indeed,
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Defendant implicitly concedes that this Court has personal jurisdiction over it by arguing that
venue is improper under § 1391(a)(3) because the Northern District of Illinois also has personal
jurisdiction over it. By failing to raise such a defense in its pre-answer motion, Defendant has
waived any claim that this Court lacks personal jurisdiction. See Fed. R. Civ. P. 12(h)(1); see
also Cooper v. Farmers New Century Ins. Co., 593 F. Supp. 2d 14, 21 (D.D.C. 2008) (finding
venue proper under § 1391(a) where corporate defendant objected to venue but not personal
jurisdiction in Rule 12(b)(3) motion). Moreover, D.C.’s long-arm statute explicitly provides for
personal jurisdiction over claims arising from a person’s “contracting to insure . . . any person . . .
or risk . . . located . . . within the District of Columbia at the time of contracting . . . .” D.C. Code
§ 13-423(a)(6). Therefore, it appears that this Court has personal jurisdiction over Christian
Brothers by virtue of its agreement to provide insurance for Sister Philomena in the District of
Columbia. Accordingly, venue is proper in this district pursuant to 28 U.S.C. § 1391(a)(1).
Sister Philomena argues that venue is also proper pursuant to § 1391(a)(2) because a
substantial part of the events giving rise to her claim—her automobile collision and subsequent
medical treatment—occurred in the District of Columbia. Defendant argues that these events are
irrelevant because Sister Philomena is bringing a breach of contract claim, not a tort claim, and
the decisions to deny coverage were made by Defendant’s agents in Illinois. Federal courts have
been somewhat inconsistent in deciding how to apply § 1391(a)(2) in insurance coverage actions.
Some courts have focused on the underlying events for which coverage is sought. See, e.g.,
Carolina Cas. Co. v. Data Broadcasting Corp., 158 F. Supp. 2d 1044, 1047 (N.D. Cal. 2001)
(“In an insurance coverage action, to establish venue under section 1391(a)(2), a court looks to
the underlying events for which coverage is sought.”). Others have looked to factors such as
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where the contract was negotiated or executed, where it was to be performed, or where the
alleged breach occurred. See Gulf Ins. Co. v. Glasbrenner, 471 F.3d 353, 357 (2d Cir. 2005). It
is possible that either venue would be proper under § 1391(a)(2). See Clarendon Nat’l Ins. Co. v.
T.M.I. Enters., LLC, Civil Action No. 07-1637, 2008 WL 3838025, at *3 (W.D. La. Aug. 14,
2008) (“[V]enue under [§ 1391(a)(2)] may properly be based on underlying events, but . . . venue
may also be based on events related to the policy at issue. The location suggested by either
analysis may be a lawful venue in a declaratory action; the law no longer limits transactional
venue to one proper district.”). Because Christian Brothers contracted to insure Sister Philomena
in the District of Columbia and she was injured in that forum, the Court finds that venue is also
proper pursuant to § 1391(a)(2).
Because this Court is a proper venue for this action, the Court has no obligation to
dismiss or transfer the case pursuant to 28 U.S.C. § 1406. The Court shall therefore proceed to
consider whether a transfer is in the interest of justice pursuant to § 1404(a).
B. Transfer Is Not in the Interest of Justice
Defendant argues that the Court should transfer this action to the Northern District of
Illinois pursuant to 28 U.S.C. § 1404(a). Section 1404(a) provides that, “[f]or 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). The Court is
afforded broad discretion to decide whether transfer from one jurisdiction to another is proper
under 28 U.S.C. § 1404(a). SEC v. Savoy Indus. Inc., 587 F.2d 1149, 1154 (D.C. Cir. 1978)
(quoting Norwood v. Kirkpatrick, 349 U.S. 29, 32 (1955)). The decision to transfer is made by
an “individualized, case-by-case consideration of convenience and fairness . . . .” Van Dusen v.
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Barrack, 376 U.S. 612, 622 (1964). “The moving party ‘bear[s] a heavy burden of establishing
that plaintiff[’s] choice of forum is inappropriate.’” S. Utah Wilderness Alliance v. Norton, 315
F. Supp. 2d 82, 86 (D.D.C. 2004) (quoting Pain v. United Tech. Corp., 637 F.2d 775, 784 (D.C.
Cir. 1980)).
It is clear that this action could have been brought in the Northern District of Illinois
because Christian Brothers is headquartered there. Accordingly, the only issue now before the
Court is whether the relevant private and public interest factors counsel in favor of transfer. See
Greater Yellowstone Coalition v. Bosworth, 180 F. Supp. 2d 124, 127-28 (D.D.C. 2001)
(discussing the factors courts should consider in weighing a transfer under § 1404(a)). The Court
shall evaluate these below.
1. Private Interests Relevant to Transfer
The Court begins by considering the private interests at stake in a transfer: (1) the
plaintiff’s choice of forum, unless the balance of convenience is strongly in favor of the
defendant; (2) the defendant’s choice of forum; (3) whether the claim arose elsewhere; (4) the
convenience of the parties; (5) the convenience of the witnesses, but only to the extent they may
actually be unavailable for trial in one of the fora; and (6) the ease of access to sources of proof.
Greater Yellowstone Coalition, 180 F. Supp. 2d at 127. Courts generally give considerable
deference to the plaintiff’s choice of forum. S. Utah Wilderness Alliance, 315 F. Supp. 2d at 86.
Defendant argues, however, that the Court should not give significant weight to Sister
Philomena’s choice of forum because she no longer resides here, having relocated to New
Orleans, Louisiana. It is true that the plaintiff’s choice of forum is “conferred less deference by
the court when [it] is not the plaintiff’s home forum.” Shawnee Tribe v. United States, 298 F.
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Supp. 2d 21, 24 (D.D.C. 2002) (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 102 S. Ct. 252,
70 L. Ed. 2d 419 (1981)). But most of these cases involve plaintiffs with little or no connection
to their chosen forum. See id. (citing cases). By contrast, Sister Philomena was a resident of this
forum when she filed this action, and the underlying events giving rise to her claim occurred in
this forum. Therefore, Sister Philomena’s choice of forum is entitled to substantial deference
notwithstanding the fact that she has subsequently moved out of the district.1
Defendant’s choice of forum is also reasonable, as it is headquartered in the Northern
District of Illinois and many witnesses and evidence relating to the insurance coverage are
located there. The claim essentially arose in both fora since the automobile collision occurred in
the District of Columbia and coverage was denied from the Northern District of Illinois. The
convenience of the parties factor does not militate strongly in favor of either forum. Although
Sister Philomena no longer resides in the District of Columbia, she has retained legal counsel
here and, from her perspective, all of the events relevant to this action occurred here. It would
not be more convenient for her to travel to an unfamiliar forum in Illinois than to have her return
to a forum with which she is already familiar.
The parties’ biggest dispute over the private interest factors is whether a transfer would
be convenient for the witnesses or provide easy access to other sources of proof. Defendant
argues that all the key witnesses and evidence are located in Illinois because that is where its
agents made the decisions regarding the scope of coverage under the policy. By contrast, Sister
1
In her opposition brief, Sister Philomena suggests that Christian Brothers pressured her
religious order to relocate her to New Orleans in retaliation for this lawsuit. See Pl.’s Opp’n at 3.
However, Sister Philomena provides no factual support for this naked assertion, and therefore the
Court does not consider it.
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Philomena argues that the primary issue in dispute is the extent of her damages and that the
witnesses and evidence relating to damages are located in the District of Columbia. In her
opposition brief, Sister Philomena contends that Christian Brothers has admitted that there is
coverage for Sister Philomena’s claims, and Defendant does not dispute this contention in its
reply brief. Therefore, the Court assumes that the issue of damages will be the primary dispute
among the parties, suggesting that the District of Columbia is a more convenient forum.
Moreover, the only evidence of inconvenience in the record is a single conclusory statement from
one of Christian Brothers’ employees stating that a trial would substantially inconvenience
witnesses located in Illinois.2 However, Defendant has not suggested that any of its witnesses
will be unavailable at a trial in the District of Columbia or shown that it will be inconvenient to
produce other evidence for a trial in this forum. See Mohammadi v. Scharfen, 609 F. Supp. 2d
14, 18 (D.D.C. 2009) (“The convenience of the witnesses ‘is considered only to the extent that
the witnesses may actually be unavailable for trial in one of the fora.’” (quoting Mahoney v. Eli
Lilly & Co., 545 F. Supp. 2d 123, 127 (D.D.C. 2008))). Because it is unclear based on the present
record whether any critical witnesses would be unavailable for trial in the District of Columbia,
this factor does not weigh in favor of a transfer to the Northern District of Illinois.
In sum, the private interest factors do not weigh in favor of transfer to the Northern
District of Illinois. In light of the traditional deference courts give to the plaintiff’s choice of
forum and the apparent likelihood that damages witnesses will be needed at trial, these factors
2
Defendant also points out that Sister Philomena has sought premature discovery from
Christian Brothers in the form of a Rule 30(b)(6) deposition, which will likely occur in Illinois.
However, the fact that depositions or other pretrial discovery may be conducted outside the
forum does not materially affect the analysis in this case, since there will likely be substantial
discovery outside the forum regardless of the venue for the trial.
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weigh against a transfer.
2. Public Interests Relevant to Transfer
The Court turns next to consideration of the public interest factors, including (1) the
transferee forum’s familiarity with the governing laws and the pendency of related actions in that
forum; (2) the relative congestion of the calendars of the potential transferee and transferor
courts; and (3) the local interest in deciding local controversies at home. Trout Unlimited v. U.S.
Dep’t of Agriculture, 944 F. Supp. 13, 16 (D.D.C. 1996). This case involves a claim for breach
of contract, and the contract issue provides that Illinois law shall govern. The Northern District
of Illinois is more familiar with Illinois law than this Court, and therefore this factor weighs in
favor of a transfer. The parties have not presented any evidence relating to the relative
congestion of the calendars, and this Court has no reason to believe that either forum will be
more efficient than the other. Accordingly, this factor does not weigh in favor or against a
transfer. The third public interest factor, the local interest in deciding local controversies at
home, does not weigh heavily in favor of either forum. Both the District of Columbia and
Illinois have a local interest in resolving this dispute, as it involves an Illinois contract to insure a
person residing in the District of Columbia.
In sum, the public interest factors weigh slightly in favor of a transfer to the Northern
District of Illinois. Since the private interest factors weigh somewhat against such a transfer, the
balance of all the factors does not support a transfer. Because the moving party bears the burden
of establishing that a transfer is proper, the Court shall deny Defendant’s motion to transfer
venue based on the present record. If it appears later in the course of this litigation that the
private interest factors may favor a transfer, Defendant may renew its motion at that time.
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III. CONCLUSION
For the foregoing reasons, the Court finds that venue is proper in the District of Columbia
and that based on the present record, transfer is not in the interest of justice pursuant to 28 U.S.C.
§ 1404(a). Therefore, the Court shall DENY Defendant’s [4] Motion to Transfer Venue to the
United States District Court for the Northern District of Illinois. An appropriate Order
accompanies this Memorandum Opinion.
Date: November 30, 2010
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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