The opinion of the court was delivered by: J. CURTIS JOYNER
This declaratory judgment action has been brought before this court by motion of the defendant, Hanover Insurance Company, to transfer this case to the U.S. District Court for the District of New Jersey or, in the alternative, for summary judgment. For the reasons set forth below, the motion to transfer is granted and this action is transferred to the U.S. District Court for the District of New Jersey.
The instant case has its origins in an accident which occurred on June 29, 1988 near the intersection of 11th and Christian Streets in Philadelphia, PA, when the minor defendant, Evelyn Greenstone was struck by a motor vehicle being operated by one Robert Altenbach while she was exiting a double-parked car operated by her mother, Roxanne Greenstone. At the time of the accident, the Greenstone defendants were residents of New Jersey and the motor vehicle from which Evelyn Greenstone was disembarking when she was struck was insured by the New Jersey Automobile Full Insurance Underwriting Association (hereinafter "NJAFIUA" or "JUA") through its servicing carrier, the Hanover Insurance Company. This accident subsequently resulted in the filing of a lawsuit in November, 1989 by Mark and Evelyn Greenstone against Roxanne Greenstone and Robert Altenbach in the Court of Common Pleas of Philadelphia County. At all relevant times, Mark and Roxanne Greenstone were husband and wife and, in addition to their policy of automobile insurance, were insured by the plaintiff John Hancock Property & Casualty Company under a homeowner's policy on their Cherry Hill, New Jersey home. Mr. and Mrs. Greenstone also had an excess insurance policy with the defendant Federal Insurance Company.
From all appearances, John Hancock has been providing a defense for Mrs. Greenstone in the Philadelphia County action notwithstanding its contention that it is not obligated to do so by virtue of an exclusion in the Greenstone's policy. That exclusion states that coverage is not provided for liability which arises from the use, maintenance, ownership, loading or unloading of a motor vehicle. Plaintiff therefore filed this action seeking a judicial declaration that defendant Hanover Insurance Company is obligated to defend and indemnify Roxanne Greenstone for the Philadelphia County lawsuit filed against her by her husband and daughter as well as reimbursement for the funds it has thus far expended in providing Mrs. Greenstone with a defense in that case.
By way of the motion which is currently pending before this court, Hanover Insurance Company contends that, pursuant to New Jersey law, it is merely the servicing carrier for the NJAFIUA and has no liability for claims written by the Association. Consequently, Hanover argues, the NJAFIUA is an indispensable party to this action but cannot be joined herein because it has no contacts with either Pennsylvania or this district and thus this court does not have jurisdiction over it. While Hanover and the NJAFIUA will stipulate to its joinder if this action is transferred to the District of New Jersey; failing transfer, the action cannot stand against Hanover alone in this district. We agree.
The instant motion is somewhat unique in that it requests transfer or the entry of summary judgment in lieu of dismissal for failure to join an indispensable party pursuant to Fed.R.Civ.P. 12(b)(7) and 19. The matter is also noteworthy in that while none of the parties dispute Hanover's contention that the JUA is a proper party to these proceedings and the plaintiff does not object to the proposed transfer, the other defendants do object and dispute Hanover's contention that this court lacks the necessary in personam jurisdiction over the JUA to proceed further.
It is axiomatic that the determination of whether a party is "indispensable" under Rule 19 involves a two-step analysis. First the court must determine if the missing party is a "necessary party" within the meaning of Fed.R.Civ.P. 19(a). Ferrofluidics Corp. v. Advanced Vacuum Components, Inc., 789 F. Supp. 1201, 1207 (D.N.H. 1992), aff'd, 968 F.2d 1463 (1st Cir. 1992). Once the court finds that the party is "necessary," it then proceeds to the second step in the analysis under Rule 19(b) whereby it must decide "whether in equity and good conscience the action should proceed among the parties which are before it or should be dismissed. Dismissal of the action thus follows from a finding that the absent party is "indispensable." Id.
In determining whether a party is necessary, the court's inquiry should focus on whether: (1) in the party's absence complete relief cannot be accorded among those already parties; (2) the missing party claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may (i) as a practical matter impair or impede the person's ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest. Fed.R.Civ.P. 19(a).
In determining whether a party is indispensable, the court must consider:
(1) plaintiff's interest in selecting the forum;
(2) defendant's interest in avoiding multiple litigation, inconsistent relief or sole responsibility for ...