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Cohen v. State Farm and Casualty Co.

August 13, 2009


The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge


This action arises out of a homeowners' insurance claim submitted by Plaintiffs David and Marian Cohen, ("Plaintiffs") to Defendant State Farm Casualty Company ("State Farm"). In the instant motion, Defendant seeks to transfer the action to the District of Nevada under 28 U.S.C. § 1404. For the reasons that follow, the Court will transfer this action to the District of Nevada.


On May 7, 2009, Plaintiffs filed a complaint in the Superior Court of California, County of Stanislaus. Plaintiffs' complaint alleges that State Farm breached a homeowners' insurance policy ("Policy"), breached the implied covenant of good faith and fair dealing, violated the Nevada Unfair Claims Practices Act, and violated Nevada and California elder abuse laws. Plaintiffs allege that State Farm improperly investigated and wrongly denied their claim and that State Farm owes them benefits under the Policy for property damage and personal property losses caused by a September 12, 2008 theft at their Las Vegas, Nevada house ("Nevada Property"). Plaintiffs assert that the property damage and theft were caused by All American Liquidation ("AAL"), a company that Plaintiffs hired to conduct an estate sale at the Nevada Property. See David Cohen Dec. ("Cohen Dec.") ¶ 17. In August 2008, Plaintiffs met with representatives from AAL in Las Vegas to discuss AAL's estate sale services. On August 15, 2009, Plaintiffs and AAL signed a contract. Id. at ¶ 6. On August 20, 2008, Plaintiffs sent a letter to AAL canceling the contract because Plaintiffs were concerned that AAL had the right to sell all of the personal property in Plaintiffs' home, whereas Plaintiffs only wanted to sell specified items. Id. at ¶¶ 7, 9. Thereafter, AAL called the Plaintiffs and told them that AAL would be willing to limit the sale of personal property to only the items that were specifically designated by Plaintiffs. Id. at ¶ 10. AAL representatives, Barbara and Edward Wintringhan, met Plaintiffs at their Nevada Property to go over the specific items that were to be sold. Id. at ¶¶ 10-11. During the meeting, AAL and Plaintiffs entered into an oral agreement, in which AAL agreed to sell only specified items. Id. at ¶ 14. After the sale, Plaintiffs discovered that AAL had sold items, that were not to be sold, and had removed various built-in appliances from the Nevada Property. Id. at ¶¶ 14, 17.

In September 2008, Plaintiffs presented their theft claim ("Claim") under the Policy to State Farm and alleged that AAL stole their property by trickery and/or false pretenses.

In October 2008, Plaintiffs moved to Modesto, California and became residents of California. See Cohen Dec. ¶¶ 3, 28.

On December 17, 2008, after conducting an investigation, State Farm sent a letter to Plaintiffs denying their Claim on the basis that no theft had occurred because Plaintiffs had entered into a legally binding contract with AAL.

On May 7, 2009, Plaintiffs filed this suit.On June 15, 2009, State Farm removed the action to this court on the basis of diversity jurisdiction. On June 17, 2009, State Farm filed a 28 U.S.C. § 1404(a) motion seeking to transfer this action to the District of Nevada, Las Vegas division. On July 17, 2009, Plaintiffs filed an opposition to Defendant's motion. On July 27, 2009, Defendant filed a reply.


28 U.S.C. § 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). This statute partially displaces the common law doctrine of forum non conveniens. See Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986); Miskow v. Boeing Co., 664 F.2d 205, 207 (9th Cir. 1981). The purpose of § 1404(a) is "to prevent the waste of time, energy, and money and to protect litigants, witnesses and the public against unnecessary inconvenience and expense." Van Dusen v. Barrack, 376 U.S. 612, 616 (1964); Kawamoto v. C.B. Richard Ellis, Inc., 225 F.Supp.2d 1209, 1213 (D. Haw. 2002). "Section 1404(a) is intended to place discretion in the district court to adjudicate motions for transfer according to an 'individualized, case by case consideration of convenience and fairness.'" Stewart Organization, Inc. v. RICOH Corp., 487 U.S. 22, 29 (1988) (quoting Van Dusen, 376 U.S. at 622).

In order to transfer a case under § 1404(a), the "defendant must make a strong showing of inconvenience to warrant upsetting the plaintiff's choice of forum." See Decker, 805 F.2d at 843. The district court must weigh numerous factors when deciding whether to transfer a case under § 1404(a):

A motion to transfer venue under § 1404(a) requires the court to weigh multiple factors in its determination whether transfer is appropriate in a particular case. For example, the court may consider: (1) the location where the relevant agreements were negotiated and executed, (2) the state that is most familiar with the governing law, (3) the plaintiff's choice of forum, (4) the respective parties' contacts with the forum, (5) the contacts relating to the plaintiff's cause of action in the chosen forum, (6) the differences in the costs of litigation in the two forums, (7) the availability of compulsory process to compel attendance of unwilling non-party witnesses, and (8) the ease of access to sources of proof. Additionally, the presence of a forum selection clause is a "significant factor" in the courts § 1404(a) analysis . . . [and] the relevant public policy of the forum state, if any, is at least as significant a factor in the § 1404(a) balancing.

Jones v. GNC Franchising, Inc., 211 F.3d 495, 498-99 (9th Cir. 2000). The Court may also consider the convenience of parties and witnesses, feasability of consolidation of other claims, local interest in the controversy, and the court congestion of the two ...

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