Admiral Insurance Co v. Dual Trucking, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

ADMIRAL INSURANCE COMPANY, CIVIL ACTION

Plaintiff

VERSUS NO. 20-383

DUAL TRUCKING, INC., ET AL., SECTION: “E”

Defendants

ORDER AND REASONS

Before the Court is a motion to dismiss on abstention grounds or, in the alternative,

on forum non conveniens grounds, filed by Defendants Dual Trucking and Transport,

LLC (DTT) and Dual Trucking, Inc. (DTI).1 For the reasons that follow, Defendants’

motion to dismiss on abstention grounds is DENIED. Defendants’ motion in the

alternative to dismiss on forum non conveniens grounds is construed as a motion to

transfer venue pursuant to 28 U.S.C. 1404(a) and GRANTED. The Court orders that the

above-captioned case is TRANSFERRED TO THE DISTRICT OF MONTANA,

BILLINGS DIVISION.

BACKGROUND

Plaintiff Admiral Insurance Company (“Admiral”) brings the instant suit against

Defendants DTT and DTI, seeking a declaratory judgment “[t]hat Admiral has no duty to

defend or indemni[fy]” DTT or DTI against allegations made in two Montana state-court

actions brought under insurance policies Admiral issued to Defendants in Louisiana.2 The

plaintiffs in the two Montana state-court actions, commenced in 2014 and 2015, allege

DTI and DTT operated a solid waste management system that introduced toxic and

1 R. Doc. 12. Plaintiff Admiral Insurance Company opposes the motion. R. Doc. 13. Defendants filed a reply.

R. Doc. 22.

2 R. Doc. 1, at 40. The parties agree the policies were issued in Louisiana. R Doc. 22, at 9.

hazardous materials onto property Defendants leased.3 DTI and DTT notified their

insurer, Admiral, of the state court lawsuits pending against them, and Admiral is

providing DTI and DTT a defense in both suits, subject to a reservation of rights.4 Admiral

is not a party to the lawsuits in Montana state court.5

Between 2012 and 2014, Admiral insured DTI and DTT under various separate but

substantially identical environmental cleanup and pollution liability policies.6 The

policies excluded, among other categories, claims arising from any insured’s “intentional,

willful, deliberate non-compliance with any statute [or] regulation;” any insured’s

“dishonest, illegal, fraudulent or criminal act;” or “[a]ny Pollution Conditions Discovered

prior to the inception of th[e] Polic[ies].”7

On March 13, 2020, after Admiral filed suit in this Court seeking a declaratory

judgment “[t]hat Admiral has no duty to defend or indemni[fy]” DTI or DTT,8 DTI and

DTT filed the instant motion.9 In this motion, Defendants argue abstention is warranted

under Brillhart v. Excess Insurance Co. of America10 because of the pending actions in

Montana state court.11 Defendants argue in the alternative that the Court should dismiss

the case “for improper venue under the doctrine of forum non conveniens.”12 In the

portion of their motion dealing with venue and forum non conveniens, Defendants

request the Court “dismiss this case (or at least transfer it to Montana),” and cite 28 U.S.C.

3 R. Doc. 1-2; R. Doc. 1-3.

4 R. Doc. 12-3, at 1–2.

5 R. Doc. 1-2; R. Doc. 1-3.

6 R. Doc. 1-9; R. Doc. 1-10; R. Doc. 1-11; R. Doc. 1-20; R. Doc. 1-21; R. Doc. 1-22.

7 E.g. R. Doc. 1-9, at 19.

8 R. Doc. 1, at 40. The parties agree the policies were issued in Louisiana. R Doc. 22, at 9.

9 R. Doc. 12.

10 316 U.S. 491 (1942).

11 R. Doc. 12.

12 R. Doc. 12-2, at 8.

1404(a), which governs venue transfer.13 Several of the cases Defendants cite deal with

venue transfer, not dismissal.14 As a result, the Court construes Defendants’ motion to

dismiss on forum non conveniens grounds as a motion to transfer venue pursuant to 28

U.S.C. 1404(a).

LAW AND ANALYSIS

“The term abstention refers to judicially created rules whereby federal courts may

not decide some matters before them even though all jurisdictional and justiciability

requirements are met.”15 Indeed, the power of the federal courts is a limited one and the

doctrines of abstention are grounded in rules of comity and federalism, created to prevent

unnecessary intrusion by the federal court into a state’s power to hear and decide state

law issues. Because Defendants’ invocation of Brillhart abstention presents a threshold

question regarding the Court’s exercise of jurisdiction over this matter, it must be decided

first.16

The Court finds abstention 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 same parties, and deciding this case would not implicate

13 Id. at 9.

14 Id.

15 Chisom v. Jindal, 890 F. Supp. 2d 696, 718 (E.D. La. 2012) (Morgan, J.) (quoting ERWIN CHEMERINSKY,

FEDERAL JURISDICTION 811 (6th ed. 2012)).

16 Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 585 (1999) (holding that, because “Article III generally

requires a federal court to satisfy itself of its jurisdiction over the subject matter before it considers the

merits of a case,” jurisdictional issues “necessarily precede[] a ruling on the merits,” but “the same principle

does not dictate a sequencing of jurisdictional issues. It is hardly novel for a federal court to choose among

threshold grounds for denying audience to a case on the merits. Thus, as the Court observed in Steel Co.,

district courts do not overstep Article III limits when they decline jurisdiction of state-law claims on

discretionary grounds without determining whether those claims fall within their pendent jurisdiction or

abstain under Younger v. Harris, without deciding whether the parties present a case or controversy.”

(internal citations omitted)).

principles of federalism and comity, fairness concerns, or issues of judicial economy. 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 economy.

I. Abstention Is Not Warranted Under Brillhart.

The Declaratory Judgment Act17 “is an enabling act, which confers discretion on

the courts rather than an absolute right on a litigant.”18 “The Declaratory Judgment Act

has been understood to confer on federal courts unique and substantial discretion in

deciding whether to declare the rights of litigants.”19 “In the declaratory judgment

context, the normal principle that federal courts should adjudicate claims within their

jurisdiction yields to considerations of practicality and wise judicial administration.”20

Although “the district court’s discretion is broad, it is not unfettered.”21

Courts in the Fifth Circuit engage in a three-step inquiry when considering a

declaratory judgment suit. They determine: “(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 dismiss the action.”22

17 28 U.S.C. § 2201(a).

18 Wilton v. Seven Falls Co., 515 U.S. 277, 287 (1995) (quoting Public Serv. Comm’n of Utah v. Wycoff Co.,

344 U.S. 237, 241 (1952)).

19 Id. at 286.

20 Id. at 289.

21 Travelers Ins. Co. v. Louisiana Farm Bureau Federation, 996 F.2d 774, 778 (5th Cir.1993).

22 Sherwin-Williams Co. v. Holmes Cty., 343 F.3d 383, 387 (5th Cir. 2003) (citing Orix Credit Alliance, Inc.

v. Wolfe, 212 F.3d 891, 895 (5th Cir.2000)).

A. Because this is an action for declaratory judgment that Admiral

has no duty to defend or indemnify DTI and DTT, this case is

justiciable.

The Court finds there is a justiciable case or controversy between the parties in this

case. “Where the Declaratory Judgments Act is invoked[,] the same jurisdictional

requirements as to a case or controversy must be met as in other suits.”23

In Ironshore Specialty Ins. Co. v. Tractor Supply Co.,24 the Fifth Circuit analyzed

the justiciability of an insurer’s declaratory judgment action under Texas law, which

governed the insurance contract in the case.25 Similarly, this Court turns to state law to

determine whether the case is justiciable.

Montana and Louisiana law do not differ on whether this claim is justiciable.

Under both states’ laws, an action by an insurer seeking a declaratory judgment on

whether it owes an insured party a duty to defend is justiciable before a finding of liability

in the underlying action.26 The law of both states also requires that a declaration

regarding the duty to indemnify is generally not justiciable unless the issues in the

declaratory judgment action are “independent and separable”27 from those in the

underlying action or “the same reasons that negate the duty to defend likewise negate any

possibility the insurer will ever have a duty to indemnify.”28

23 Brown & Root, Inc. v. Big Rock Corp., 383 F.2d 662, 665 (5th Cir. 1967) (citing Altvater v. Freeman, 319

U.S. 359 (1943)). The Supreme Court and the Fifth Circuit have held that an actual case or controversy

existed in cases in which insurers brought declaratory judgment actions regarding their liability in pending

underlying state court actions. Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 271–74 (1941) (“That the

complaint 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. 2015); AXA Re Prop. & Cas. Ins. Co. v. Day, 162 F. App’x. 316,

318–19 (5th Cir.2006).

24 624 F. App’x 159.

25 Id. at 163.

26 Morad v. Aviz, No. CIV.A. 12-2190, 2013 WL 1403298, at *4 (E.D. La. Apr. 5, 2013); Skinner v. Allstate

Ins. Co., 2005 MT 323, ¶ 18, 329 Mont. 511, 518-19, 127 P.3d 359, 364.

27 Skinner, 127 P.3d at 364.

28 Morad, 2013 WL 1403298, at *4 (citing Northfield Ins. Co. v. Loving Home Care, Inc., 363 F.3d 523, 536

(5th Cir. 2004)).

In this case, Admiral seeks a declaration that it has no duty to defend or indemnify

DTI and DTT. Because under both Louisiana and Montana law an action by an insurer

seeking a declaratory judgment on whether it owes an insured party a duty to defend is

justiciable before a finding of liability in the underlying action, this case is justiciable.29

B. The Court has authority to grant Plaintiff declaratory relief.

The Court has jurisdiction over this case pursuant to 28 U.S.C. § 1332 because the

parties are completely diverse and the amount-in-controversy requirement is met.30 Even

when a district court has jurisdiction over a case, however, it does not have authority to

grant declaratory relief when

1) a declaratory defendant has previously filed a cause of action in state

court against the declaratory plaintiff,

2) the state case involves the same issues as those involved in the federal

case, and

3) the district court is prohibited from enjoining the state proceedings

under the Anti–Injunction Act.31

These factors do not apply in this case. Defendants DTI and DTT have not filed suit

against Admiral in state court. The cases in Montana state court do not involve the scope

of Admiral’s insurance agreement 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

29 The Court’s previous order regarding the declaratory judgment sought by Endurance was also justiciable

because that action sought a declaration of no duty to defend as well as no duty to indemnify. Endurance

Am. Specialty Ins. Co. v. Dual Trucking & Transp., LLC, No. CV 17-1293, 2018 WL 5251910 (E.D. La. Oct.

22, 2018).

DTI and DTT appear to argue this Court has not decided justiciability and that justiciability issues

can be re-argued in Montana. R. Doc. 12-2, at 11; R. Doc. 22, at 2. The Court must determine its jurisdiction

before transferring a matter. As a result, the Court has concluded this matter, and the Endurance matter,

are justiciable as is very clear under Louisiana and Montana law.

30 R. Doc. 1 ¶¶ 9–10.

31 Travelers Ins. Co. v. Louisiana Farm Bureau Fed’n, Inc., 996 F.2d 774, 776 (5th Cir. 1993) (citing Texas

Employers’ Ins. Ass’n v. Jackson, 862 F.2d 491, 506 (5th Cir.1988) (en banc), cert. denied, 490 U.S. 1035,

(1989)).

injunction to stay proceedings in a State court.”32 Issuing a declaratory judgment in this

case would not enjoin the proceedings in Montana State Court. As a result, the Anti-

Injunction Act does not apply, and the Court has authority to grant declaratory relief.

C. The Trejo factors, which govern the Court’s exercise of discretion

to dismiss the action, weigh against dismissal.

Because this case is justiciable and the Court has authority to grant declaratory

relief, the Court must decide whether to exercise its discretion to abstain.33 In a

declaratory judgment action, a district court’s decision to abstain is governed by the

standard the Supreme Court announced in Brillhart v. Excess Insurance Co. of America

and its progeny.34 In St. Paul Ins. Co. v. Trejo,35 the Fifth Circuit interpreted and restated

the Brillhart standard, requiring district courts deciding whether to abstain to consider:

1) whether there is a pending state action in which all of the matters in

controversy may be fully litigated,

2) whether the plaintiff filed suit in anticipation of a lawsuit filed by the

defendant,

3) whether the plaintiff engaged in forum shopping in bringing the suit,

4) whether possible inequities in allowing the declaratory plaintiff to

gain precedence in time or to change forums exist,

5) whether the federal court is a convenient forum for the parties and

witnesses,

6) whether retaining the lawsuit in federal court would serve the

purposes of judicial economy, and

7) whether the federal court is being called on to construe a state

judicial decree involving the same parties and entered by the court

before whom the parallel state suit between the same parties is

pending.36

32 28 U.S.C. § 2283.

33 Sherwin-Williams, 343 F.3d at 387.

34 316 U.S. 491 (1942); see also Wilton, 515 U.S. at 289–90.

35 39 F.3d 585 (5th Cir. 1994).

36 Id. at 590–91.

The Fifth Circuit has explained that the seven Trejo factors address the three aspects of

the Brillhart standard: “the proper allocation of decision-making between state and

federal courts,” fairness, and efficiency.37

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 comity.38 In this case,

Admiral 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 “impact of the absence of any pending

state court action” between the parties as a “threshold issue.”39 In Sherwin-Williams v.

Holmes Cty., the Fifth Circuit held that although “[t]he lack of a pending parallel state

proceeding should not automatically require a district court to decide a declaratory

judgment action, . . . it is a factor that weighs strongly against dismissal.”40 The absence

of state court cases parallel to this action weighs strongly against dismissal.

The Court turns to the second through fourth factors, which implicate fairness

considerations.41 Defendants do not argue that Admiral filed this suit in anticipation of a

lawsuit filed by Defendants. Defendants’ motion contains no allegation that Admiral’s

filing suit in a Louisiana federal court was unfair.42 The fairness considerations weigh

against dismissal.

37 Sherwin-Williams, 343 F.3d at 390–91.

38 Id. at 392.

39 Id.

40 Id. at 394.

41 Id. at 391.

42 Defendants’ motion confuses the fairness factors with concerns of judicial economy. R. Doc. 12-2, at 6.

(“Even assuming 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.”).

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.43 The distance between the

Defendants and the federal courthouse for the Eastern District of Louisiana is not an

inconvenience in this case.44 In their motion, Defendants argue the Eastern District of

Louisiana is an inconvenient forum because the case should be litigated in Montana.45

The alleged inconvenience of litigating in Louisiana, 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 dismissal.

The sixth factor, whether retaining the lawsuit in federal court would serve the

purposes of judicial economy, also requires the Court to consider the interest of judicial

efficiency. 46 “[E]fficiencies may result from litigating issues pertinent to multiple

potential claims against a defendant in one federal forum, as opposed to a number of state

courts.”47 In this case, there are two pending 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 promotes judicial efficiency. This factor weighs against dismissal.

The Court finds all the Trejo factors weigh against abstention. As a result, the Court

denies Defendants’ motion to abstain.

43 See, e.g., Sherwin-Williams, 343 F.3d at 400 (finding that requiring a defendant to travel from the

Northern District of Mississippi to the federal district court for the Southern District of Mississippi in

Jackson, Mississippi, not “unduly burdensome”); Dow Agrosciences v. Bates, 332 F.3d 323, 328 (5th Cir.

2003) (finding the Lubbock Division of the Northern District of Texas not inconvenient for twenty-nine

defendants, over half of whom lived in other Divisions of the same district).

44 Plaintiff alleges Defendants’ principle place of business is within the Eastern District of Louisiana in

Houma, Louisiana. R. Doc. 1, ¶¶ 3–4.

45 R. Doc. 12-2, at 7.

46 Sherwin-Williams, 343 F.3d at 391.

47 Id. at 400.

II. The Court Has Discretion to Transfer Venue Pursuant to 28 U.S.C.

1404(a).

28 U.S.C. § 1404(a) provides, “For the convenience of the 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 or to any district or division to which all parties

have consented.”48 “[T]he purpose of the section is to prevent the waste ‘of time, energy

and money’ and ‘to protect litigants, witnesses and the public against unnecessary

inconvenience and expense.’”49 Courts applying § 1404(a) first determine “whether the

judicial district to which transfer is sought would have been a district in which the claim

could have been filed.”50 The court then considers a “number of private and public interest

factors, none of which are given dispositive weight,” to determine whether transfer serves

the convenience of the parties and witnesses.51

A. This suit could have been brought in the United States District

Court for the District of Montana.

The Court first determines whether the District of Montana is a forum where the

case “might have been brought.”52 The Supreme 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.”53 In any event, it is clear this case would be justiciable in

Montana as well.54 The United States District Court for the District of Montana would

48 28 U.S.C. § 1404(a).

49 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)).

50 In re Volkswagen AG, 371 F.3d 201 (5th Cir. 2004) (citing In re Horseshoe Entm’t, 337 F.3d 429, 432

(5th Cir. 2003)).

51 Id. (citations omitted).

52 28 U.S.C. § 1404(a).

53 Van Dusen v. Barrack, 376 U.S. 612, 624 (1964)

54 Skinner v. Allstate Ins. Co., 2005 MT 323, ¶ 18, 329 Mont. 511, 518-19, 127 P.3d 359, 364.

have had personal jurisdiction over Defendants and venue would have been proper had

this case been brought there.

1. 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 may exercise personal

jurisdiction over defendants within the jurisdiction of Montana state courts.55 Montana

state courts apply a two-step test to determine whether they may exercise personal

jurisdiction over a nonresident defendant.56 They “first determine whether personal

jurisdiction exists under Rule 4(b)(1) of the Montana Rules of Civil Procedure, . . . [then]

whether the exercise of personal jurisdiction conforms with ‘the traditional notions of fair

play and substantial justice embodied in the due process clause.’”57

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.58

Defendants are “found” within Montana if their “activities are ‘substantial’ or ‘systematic

and continuous.’”59 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 employee or agent, of any of the following acts: (A) the transaction of any business

within Montana; (B) the commission of any act resulting in accrual within Montana of a

55 McGee v. Riekhof, 442 F. Supp. 1276, 1277 (D. Mont. 1978) (citing FED. R. CIV. P. 4(e); Wright v. Yackley,

459 F.2d 287, 288 (9th Cir. 1972)).

56 Tackett v. Duncan, 2014 MT 253, ¶ 22, 376 Mont. 348, 334 P.3d 920.

57 Milky Whey, Inc. v. Dairy Partners, LLC, 2015 MT 18, ¶ 18, 378 Mont. 75, 80, 342 P.3d 13, 17 (citing

Cimmaron Corp. v. Smith, 2003 MT 73, ¶ 10, 315 Mont. 1, 67 P.3d 258).

58 See id. (quoting M.R.C.P. 4(b)(1)).

59 Edsall Const. Co. v. Robinson, 246 Mont. 378, 382 (1991) (quoting Int’l Shoe Co. v. Washington, 326 U.S.

310 (1945)).

tort action; (C) the ownership, use, or possession of any property, or of any interest

therein, situated within Montana.”60

Defendants in this case leased property and transacted business in Montana over

the course of several years.61 Their activities were substantial, systematic, and 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. Admiral’s declaratory judgment 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 Amendment. The Due Process Clause of the Fourteenth

Amendment “operates to limit the power of a State to assert in personam jurisdiction over

a nonresident defendant.”62 For a court’s exercise of personal jurisdiction over a non-

resident 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 must purposefully direct his activities or

consummate some transaction with the forum or resident thereof; or

perform some act by which he purposefully avails himself of the privileges

of conducting activities in the forum, thereby invoking the benefits and

protections of its laws; (2) the claim must be one which arises out of or

relates to the defendant’s forum-related activities; and (3) the exercise of

60 M.R.C.P. 4(b)(1).

61 R. Doc. 1 ¶ 13.

62 Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 413–14 (1984).

jurisdiction must comport with fair play and substantial justice, i.e. it must

be reasonable.63

“The purposeful availment prong of the minimum contacts test requires a ‘qualitative

evaluation of the defendant’s contact with the forum state’ . . . to determine 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.”64

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 defendants in Montana state court.65 Defendants

purposefully availed themselves of the benefits 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 comports 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.

2. 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 omissions giving rise to the claim occurred, or a

substantial part of property that is the subject of the action is situated.”66 Although the

insurance contract was issued in Louisiana, all the events giving rise to the insurance

63 Core–Vent Corp. v. Nobel Industries AB, 11 F.3d 1482, 1485 (9th Cir.1993) (quoting Lake v. Lake, 817

F.2d 1416, 1421 (9th Cir.1987)).

64 Harris Rutsky & Co. Ins. Servs. v. Bell & Clements Ltd., 328 F.3d 1122, 1130 (9th Cir. 2003) (citing Lake,

817 F.2d at 1421; World–Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980)).

65 R. Doc. 1-2; R. Doc. 1-3.

66 28 U.S.C. § 1391(b)(2).

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. Transfer Serves the Convenience of the Parties and Witnesses.

28 U.S.C. § 1404(a) requires district courts to consider “the convenience of the

parties and witnesses” in deciding whether to transfer venue.67 The Court has already

determined it furthered “the convenience of the parties and witnesses” to transfer to

Montana a case nearly identical to the instant matter, and which arose from the same

series of events—Endurance Am. Specialty Ins. Co. v. Dual Trucking & Transp., LLC.68

In re Volkswagen AG enumerates several “private and public interest factors, none

of which are given dispositive weight.” 69 As private factors, the Fifth Circuit listed:

(1) the relative ease of access to sources of proof;

(2) the availability of compulsory process to secure the attendance of

witnesses;

(3) the cost of attendance for willing witnesses; and

(4) all other practical problems that make trial of a case easy, expeditious

and inexpensive.70

As public factors, the court listed:

(1) the administrative difficulties flowing from court congestion;

(2) the local interest in having localized interests decided at home;

(3) the familiarity of the forum with the law that will govern the case;

and

(4) the avoidance of unnecessary problems of conflict of laws of the

application of foreign law.71

67 28 U.S.C. § 1404(a).

68 No. CV 17-1293, 2018 WL 5251910 (E.D. La. Oct. 22, 2018).

69 In re Volkswagen AG, 371 F.3d at 203 (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 n.6 (1981)).

70 Id.

71 Id.

The Court finds the private concerns weigh heavily in favor of transfer.

Interpreting the contractual language of the pollution liability policies Admiral issued DTI

and DTT admittedly does not require extensive access to sources of proof or witness

testimony. 72 However, determining whether Admiral owes Defendants a duty of

indemnity requires extensive factfinding because the court before which the matter is

litigated must apply the contractual language to the facts of the insurance claim. The

pollution liability policies do not insure a number of excluded claims such as claims

arising from Defendants’ intentional, willful, or deliberate noncompliance with any

statute or regulation.73 Determining 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,74 and attendance would be

much less costly and more 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 Supreme Court stated that “the transferee district court must be obligated

to apply the state law that would have been applied if there had been no change of venue.

72 See La. Civ. Code art. 2046 (“When the words of a contract are clear and explicit and lead to no absurd

consequences, no further interpretation may be made in search of the parties’ intent.”).

73 E.g. R. Doc. 1-9, at 19.

74 Rule 45(c)(1) limits a federal court’s power to issue a subpoena commanding a witness to appear to

witnesses who work, reside, or regularly transact business either in the state where the court sits or within

100 miles of the court. The Fifth Circuit considers this 100-mile rule probative to the venue transfer inquiry.

See In re Volkswagen AG, 371 F.3d at 204, n.3. In this case, the federal district court in Montana

A change of venue under § 1404(a) generally should be, with respect to state law, but a

change of courtrooms.”75 In interpreting the insurance policy, the transferee federal

district court in Montana will apply Louisiana law, which is the same law this Court would

have applied. The fact the Montana court must apply unfamiliar foreign law may 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 answer several questions, such

as whether Defendants engaged in willful or deliberate noncompliance with any statute

or regulation. Because either court must apply Louisiana law to the contract and Montana

law to determine the scope of Admiral’s duty of indemnification, this factor does not

weigh heavily for or against transfer.

Louisiana has an interest in having localized interests decided at home. 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, and the public concerns do not weigh heavily for or against transfer, this Court

grants Defendants’ motion to transfer. Plaintiff represents the underlying state court

cases are pending in Roosevelt County, Montana.76 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.

75 Van Dusen, 376 U.S. 612, 639 (1964).

76 R. Doc. 1 ¶ 1.

CONCLUSION

For the foregoing reasons, IT IS ORDERED that the motion to dismiss on

abstention grounds filed by Defendants is DENIED.”

IT IS FURTHER ORDERED that Defendants’ motion in the alternative to

dismiss on forum non conveniens grounds is construed as a motion 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.

New Orleans, Louisiana, this 18th day of May, 2020.

SUSIE oath

UNITED STATES DISTRICT JUDGE

77R. Doc. 12.

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