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United States District Court, Northern District of California

April 14, 2003


The opinion of the court was delivered by: William Alsup, United States District Judge


In this insurance-coverage dispute, defendant Safeco Insurance Company of America, Inc. argues that the case should be transferred to the district court for the Central District of California. Because this order finds that all of the material witnesses except plaintiff Botkin are located in the Central District of California or out-of-state entirely, it finds that convenience to witnesses requires transfer in the interest of justice. Accordingly, the Clerk shall TRANSFER this case to the DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA.


This action arises from a dispute between plaintiff Daniel B. Botkin and Safeco over coverage under his automobile-insurance policy. Since 1983 and until four months before the filing of this suit, Mr. Botkin was a resident of Santa Barbara, California, which is in the Central District. Mr. Botkin purchased a Safeco automobile-insurance policy for the period January 19 through July 19, 2002. He bought it through Manchester Insurance Agency, Inc., which is also located in Santa Barbara, California. Mr. Botkin's life partner, Jane M. O'Brien, was listed as a driving member of his household on the policy. Glenn Estabrook, the Manchester employee who sold Mr. Botkin the policy, allegedly told him that both he and Ms. O'Brien were equally and fully covered by the policy.

In February 2002, Ms. O'Brien was tragically killed by an uninsured drunk motorist. Mr. Botkin sought coverage from Safeco for Ms. O'Brien's death under the policy. Ms. O'Brien was not a named insured on the policy. Furthermore, Ms. O'Brien and Mr. Botkin were not legally married, nor had they filed a notice of domestic partnership. On these grounds, Safeco denied coverage. Mr. Botkin's uninsured-motorist claim was handled by various Safeco employees working in Safeco's offices in Fountain Valley, Orange County and in Glendale, Los Angeles County, California — both counties within the Central District.

Plaintiff Sarah Burnett is the executrix of the estate of Ms. O'Brien. She is a resident of the state of Florida. On December 17, 2002, Ms. Burnett and Mr. Botkin filed suit against defendant Safeco in San Francisco Superior Court. Safeco was served on December 19, 2002. On January 17, 2003, Safeco removed the instant action here and on January 22, filed an answer.

In response to Safeco's removal, on January 29, plaintiffs filed a second action in San Francisco Superior Court. This second action was the same as the first action, but in an apparent effort to defeat removal, it added non-diverse defendants Manchester Insurance Agency, Inc. and Glenn Estabrook.*fn1

On February 14, Safeco filed the instant motion to transfer this case to the United State District Court for the Central District of California, noticing a hearing for March 27. On March plaintiffs filed a notice of voluntary dismissal under Rule 41(a), which notice was improper since an answer had already been filed. Plaintiffs did not file the opposition to defendants' motion to transfer due on March 13, and Safeco did not file the reply due March 20. On March 21, this Court struck plaintiffs notice of dismissal and continued the hearing on the motion to transfer. Oral argument was heard on April 10.

For the benefit of the transferee court, this order highlights two other motions which currently are pending in this Court in this case. On March 27, plaintiffs filed a motion to dismiss this action on the grounds that it is identical to the second state-court action. Additionally, on March 28, Safeco filed a motion for leave to file a third-party complaint against Manchester Insurance Agency, Inc. and Glenn Estabrook.


General Standards for Transfer.

28 U.S.C 1404(a) provides for transfer by a district court. It states, in pertinent part:

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.
First, the party seeking the transfer has the burden to establish that the transferee court would have had subject-matter jurisdiction, defendants would have been subject to personal jurisdiction, and venue would have been proper. Hoffman v. Blaski, 363 U.S. 335, 343-44 (1960).

Here, the subject-matter jurisdiction requirement is met based on diversity of citizenship. 28 U.S.C. § 1332. Safeco is a resident of the state of Washington, with its principal place of business in Seattle. The personal-jurisdiction requirement is met since Safeco consents to jurisdiction. Proper venue is dictated by 28 U.S.C. § 1391 (a), which provides that: "A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in . . . (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred . . ." Here, Safeco transacts business in Los Angeles and Orange counties within the Central District of California, and the employees who handled Mr. Botkin's claim work in those counties. The insurance agency and agent from whom Mr. Bokin purchased the policy are located in Santa Barbara county within the Central District of California. Furthermore, at the time the parties entered into the insurance contract at issue in this case, Mr. Botkin resided in Santa Barbara county. Accordingly, venue would be proper in the Central District of California.

Having found these initial requirements are met, this order must explore whether defendant Safeco has provided a rationale sufficient to defeat the presumption in favor of plaintiffs' chosen forum. In judging the weight to be given to a plaintiffs' choice of forum, "consideration must be given to the extent both of the defendant's business contacts with the chosen forum and of the plaintiffs contacts, including those relating to [plaintiffs] cause of action." Pac. Car and Foundry Co. v. Pence, 403 F.2d 949, 954 (9th Cir. 1968). "If the operative facts have not occurred within the forum of original selection and that forum has no particular interest in the parties or the subject matter, the plaintiffs choice is only entitled to minimal consideration." Ibid. In determining which district is more convenient for witnesses, the identity of the witnesses, the location of the witnesses' residences and the substance of their testimony are factors to be considered. A.J. Indus., Inc. v. United States Dist. Ct., 503 F.2d 384, 389 (9th Cir. 1974).

Convenience of the Witnesses.

As noted above, a court can transfer an action based upon the convenience of the parties and the witnesses in the case. Here, all of the actions at issue in this case occurred within Santa Barbara County, Orange County or Los Angeles County. All of these counties are within the Central District. The subject policy was sold in Santa Barbara, the premiums were paid in Santa Barbara, and plaintiff Botkin resided in Santa Barbara until shortly before initiating this action. The claim was handled by Safeco employees located in counties in the central district and both defendant insurance agents still reside in Santa Barbara.

Safeco noted, and plaintiffs did not dispute, that the following witnesses, all of whom reside within the Central District of California, are anticipated to testify at trial: (1) Dawn Jeworski, regional claims analyst for Safeco, works in Fountain Valley office; (2) Karen Perrin, underwriter for Safeco, works in Fountain Valley office; (3) Brent French, supervisor in Safeco's Glendale office which sent Mr. Botkin's denial letter; (4) Glen Estabrook, and his assistant (5) Karen Gulje, who are employed with Manchester Insurance Agency in Santa Barbara.

The only significant persons who do not reside in the Central District are Mr. Botkin, Ms. Burnett and Mick Pagach. Mr. Pagach worked in Safeco's Glendale office and sent Mr. Botkin denial letter. He currently lives in Idaho and no longer works for Safeco. Ms. Burnett, the executrix of Ms. O'Brien's estate, resides in Florida. Accordingly, the convenience for these two individuals is not affected by whether or not transfer is granted.

Mr. Botkin resided in the Central District until a few months before filing suit, including when he obtained the policy at issue and when he initiated the claim against Safeco. It is true that Mr. Botkin has relocated to San Francisco. All of the activities alleged in the complaint, however, occurred in the Central District. This order acknowledges that plaintiff Botkin's deposition was taken by Safeco in San Francisco before he filed this suit, but finds this is not dispositive. That Safeco choose not to inconvenience Botkin (and his attorneys) on that single occasion holds little weight against the clear concern regarding convenience of all the other witnesses in the case. While the Court is sympathetic to Mr. Botkin's situation, it finds that the maintenance of this action in the Northern District of California would not be in the interest of justice.

Plaintiffs' opposition centers almost entirely on the appropriateness of California as a forum for their dispute. Defendants, however, do not request transfer to a forum outside California. Plaintiffs appear to be arguing that the California state court in the County of San Francisco should handle this action. This argument, while perhaps appropriate for a proper motion to dismiss, does not go to the considerations at issue in this motion for transfer.

Additionally, plaintiffs' contention that this motion to transfer is moot based on lack of diversity is completely with merit. Plaintiffs have yet to join in any defendants whose residence would destroy diversity in this case. The fact that such defendants have been named in plaintiffs' state-court action is inapposite.

Accordingly, this order finds that the Central District is the more appropriate forum to handle this action.


For the foregoing reasons, a transfer to the district court for the Central District of California is required in the interest of justice and efficiency. Accordingly, the Clerk shall TRANSFER this action.


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