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MUTUAL OF OMAHA INS. CO. v. DOLBY

January 28, 1982

MUTUAL OF OMAHA INSURANCE COMPANY, Plaintiff
v.
A. JAY DOLBY and PROVIDENT NATIONAL BANK, Co-Guardians of the Estate of ANDREW JOHN DOLBY, a minor, Defendants and CATHERINE ROHAS DOLBY, Defendant; EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES, Plaintiff v. A. JAY DOLBY and PROVIDENT NATIONAL BANK, Co-Guardians of the Estate of ANDREW JOHN DOLBY, a minor, Defendants and CATHERINE ROHAS DOLBY, Defendant.



The opinion of the court was delivered by: BECKER

OPINION AND ORDER

These interpleader actions were brought by plaintiffs Mutual of Omaha Insurance Company and Equitable Life Assurance Society of the United States, pursuant to 28 U.S.C. § 1335 (1976), to determine the proper beneficiary of two policies insuring the life of decedent Jon Stephen Dolby. Defendants A. Jay Dolby and Provident National Bank are the co-guardians of the estate of claimant Andrew John Dolby, a minor and the decedent's nephew. Defendant and claimant Catherine Rohas Dolby is the decedent's widow, from whom he was separated at the time of his death.

 Two motions are before us. Catherine has moved under 28 U.S.C. § 1404(a) (1976) to transfer these actions to the United States District Court for the Central District of California, thus requiring us to decide the propriety of transfer in the special context of an interpleader action. Equitable has moved to be discharged and for payment of its costs and attorneys' fees from the interpleaded fund. This motion presents the question whether an insurance company should be reimbursed for the relatively small and foreseeable costs of initiating interpleader actions.

 I. The Facts

 The policies in question were issued in June or July of 1979 by Mutual of Omaha and Equitable through the decedent's employer and have an aggregate face value of $ 306,000.00. At the time these policies were issued, the decedent designated Catherine as the primary beneficiary thereon. The complaints allege that the decedent named Andrew as the primary beneficiary in July 1980, sometime after Catherine and the decedent had separated. The decedent died on November 23, 1980, in Cancun, Mexico.

 Andrew's co-guardians subsequently brought suit against Mutual of Omaha and Equitable in the Court of Common Pleas for Delaware County, Pennsylvania. Mutual of Omaha filed its complaint in interpleader in this court in response to the state court action against it; Equitable removed the state court action against it to this court and counterclaimed under the interpleader statute. The federal actions have been consolidated for all purposes, and both insurers have paid the proceeds of the policies into court. Mutual of Omaha has been discharged and is no longer a party to this action. Equitable will be discharged by the order that accompanies this opinion.

 Catherine, the section 1404(a) movant, resides in the Central District of California. California was also Catherine's and the decedent's marital domicile. Andrew's co-guardians, who have vigorously opposed transfer of this action, are residents of this district.

 II. The Transfer Motion

 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." Thus, before ordering transfer, we must both decide that considerations of convenience and fairness favor transfer and determine that the proposed transferee court is one in which venue is proper. We take up each of these questions in turn.

 A. "The Interest of Justice"

 The convenience and fairness of transfer are measured according to the private interest of the litigants and the public interest of the court. Private interest factors include the location of witnesses and evidence, the power of the court to compel the attendance of witnesses, and the relative abilities of the parties to bear the financial costs of trial. Public interest factors include, in a diversity case, the familiarity of the court with the state law to be applied and the desirability of having localized controversies decided at home. See Van Dusen v. Barrack, 376 U.S. 612, 643, 84 S. Ct. 805, 822, 11 L. Ed. 2d 945 (1964); Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09, 67 S. Ct. 839, 843, 91 L. Ed. 1055 (1947) (forum non conveniens doctrine).

 In the ordinary case, the balance of factors must strongly favor transfer before the plaintiff's choice of forum may be set aside. Shutte v. Armco Steel Corp., 431 F.2d 22, 25 (3d Cir. 1970), cert. denied, 401 U.S. 910, 91 S. Ct. 871, 27 L. Ed. 2d 808 (1971). This presumption in favor of the chosen forum gives meaning to plaintiffs' freedom or privilege to select the forum. See National Sur. Corp. v. Robert M. Barton Corp., 484 F. Supp. 222, 224 (W.D.Okla.1979). Accordingly, the presumption is weaker in circumstances that suggest that plaintiff's freedom or privilege is relatively unimportant, for example, because the named plaintiff has no interest in the merits of the action. For this reason, the presumption is inapplicable in an interpleader action if the party or parties that initiated the action are discharged prior to trial. Wilmington Trust Co. v. Gillespie, 397 F. Supp. 1337, 1341 n.3 (D.Del.1975); Mutual Life Ins. Co. v. Ginsburg, 125 F. Supp. 920, 925 (W.D.Pa.1954), appeal dismissed, 228 F.2d 881 (3d Cir.), cert. denied sub nom. Ginsburg v. Gregg, 351 U.S. 979, 76 S. Ct. 1050, 100 L. Ed. 1495 (1956). Cf. Mitchell v. National R. R. Passenger Corp., No. 81-3271, slip op. at 4 (E.D.Pa.1982) (Pollak, J.) (plaintiff's choice given less deference when chosen forum is not plaintiff's residence); Kreisner v. Hilton Hotel Corp., 468 F. Supp. 176, 177 (E.D.N.Y.1979) (plaintiff's choice entitled to less weight when events underlying cause of action have no connection with chosen forum); Impervious Paint Indus., Ltd. v. Ashland Oil, Inc., 444 F. Supp. 465, 467 (E.D.Pa.1978) (plaintiff's choice accorded less weight in class action in which class has nationwide membership).

 Andrew's co-guardians contend that they are entitled to the ordinary presumption in favor of plaintiff's chosen forum because they brought the original action in the Court of Common Pleas. Their argument is without merit, since the interpleader actions pending in this court are not the same as the state court action, to which Catherine was not a party defendant. Similarly, the defendants in the state court action (the insurance companies) were plaintiffs here and are no longer parties because they have paid the proceeds of the policies into court and have been discharged. *fn1"

 By affidavit and averment, Catherine points to a number of factors that support transfer to the Central District of California. First, because Catherine and the decedent were married and living together during part of the period during which decedent was covered by the insurance policies in question, California's community property law controls Catherine's rights to the proceeds or some portion thereof. *fn2" See Biltoft v. Wootten, 96 Cal.App.3d 58, 157 Cal.Rptr. 581 (Ct.App.1979); In re Foy's Estate, 109 Cal.App.2d 329, 240 P.2d 685 (Dist.Ct.App.1952). Catherine asserts that because of the dissimilarity of ...


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