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SCHWARZ v. NATIONAL VAN LINES

February 23, 2004.

SOFIA SCHWARZ, Plaintiff,
v.
NATIONAL VAN LINES, INC., DWAYNE SCHIESSER, and APEX RELOCATION SPECIALISTS, INC., Defendants



The opinion of the court was delivered by: AMY J. ST. EVE, District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Sofia Schwarz filed an eight-count complaint against Defendants National Van Lines, Inc. ("National"), Dwayne Schiesser, and Apex Relocation Specialists, Inc. ("Apex"), alleging breach of contract in a bill of lading under 49 U.S.C. § 14706 (the "Carmack Amendment") (Count I), statutory claims under section 1961 of the Racketeer Influenced and Corrupt Organizations Act ("RICO") (Counts VII and VIII), conversion (Count II), intentional infliction of emotional distress (Count III), negligent infliction of emotional distress (Count IV), breach of the implied covenant of good faith and fair dealing (Count V), and constructive fraud based on breach of fiduciary duty (Count VI). In response to Schwarz's complaint, National filed a motion to transfer venue pursuant to 28 U.S.C. § 1404(a). For the reasons stated herein, Defendant's motion to transfer is denied.

BACKGROUND

  Schwarz is a citizen of the United States and of Oregon. Defendant National is an Illinois corporation. (R. 9-1, Def.'s Mem. Supp. Mot. to Transfer Venue, Ex. B at 3.) Defendant Page 2 Schiesser is a citizen of the United States and of Texas. (Id. at 3.) Defendant Apex is a defunct Texas corporation. (Id.)

 I. Events Surrounding Schwarz's Move from Scottsdale to Salem

  In December of 2000, Schwarz hired National to move her belongings from Scottsdale, Arizona to Salem, Oregon. (R, 11-1, Pl.'s Opp'n to Def.'s Mot. to Transfer Venue at 1); (R. 9-1, Def.'s Mem. Supp. Mot. to Transfer Venue at 1.) National's disclosed agent, Apex, through Schiesser, Apex's alleged owner and operator, picked up Schwarz's belongings in Scottsdale, Arizona. (R. 3-1, Pl.'s First Am. Compl. ¶¶ 4-5, 28-33.) Central Moving and Storage ("Central") acted as National's agent in Arizona, coordinating and facilitating Apex and Schiesser's pickup of Schwarz's belongings on December 31, 2000. (Id. ¶¶ 12-17, 24-29.)

  Schwarz's belongings were scheduled to arrive in Salem, Oregon between December 30 and January 10, 2001, but did not arrive within the scheduled delivery window. (R. 11-1, Pl.'s Opp'n to Def.'s Mot. to Transfer Venue at 2.); (R. 9-1, Def.'s Mem. Supp. Mot. to Transfer Venue, Ex. C.) When January 10, 2001 passed with no sign of her belongings, Schwarz began to search for their whereabouts. (R. 11-1, Pl.'s Opp'n to Def.'s Mot. to Transfer Venue at 2.) Schwarz claims that she repeatedly called National in Illinois while her belongings were missing. (R. 3-1, Pl.'s First Am. Compl. ¶¶ 41, 59.)

  On March 18, 2001, a third party informed Schwarz's sister that Schwarz's belongings were in Weatherford, Texas. (Id. at ¶ 61.) National finally delivered Schwarz's belongings on April 22, 2001, without charge. (Id. ¶ 78.)

 II. Schwarz's Insurance Claim and the Ensuing Litigation

  On May 16, 2001, Schwarz filed a formal insurance claim with National for costs resulting from the late delivery of her belongings. (R. 3-1, Pl.'s First Am. Compl. ¶ 78.) On Page 3 October 12, 2001, National rejected a portion of her claim and offered to settle the remainder of the claim. (Id. ¶ 93.) On August 29, 2003, Schwarz's attorney sent National a draft complaint that Schwarz contemplated filing in the United States District Court for the Northern District of Illinois. (R. 11-1, Pl.'s Opp'n to Def.'s Mot. to Transfer Venue at 2.) National responded by filing a declaratory judgment action in the United States District Court for the District of Arizona on September 9, 2003 (the "Arizona Action").

  Schwarz filed her complaint in this Court on October 7, 2003. On December 9, 2003, Schwarz moved to dismiss National's Arizona Action for lack of personal jurisdiction and improper venue, or alternatively, to transfer the case to the Northern District of Illinois ("Illinois Action"). (R. 11-1, Pl.'s Opp'n to Def.'s Mot. to Transfer Venue at 3.)

  ANALYSIS

 I. The First-to-File Rule

  When two similar actions are filed, the general rule favors the forum of the first-filed suit MLR, LLC v. U.S. Robotics Corp., No. 02 C 2898, 2003 WL 685504, *1 (N.D. Ill., Feb 26, 2003) (citations omitted); Barrington Group, Ltd. v. Genesys Software Systems, Inc., 239 F. Supp.2d 870, 873 (E.D. Wis. 2003) (citing Warshawsky & Co. v. Arcata Nat. Corp., 552 F.2d 1257, 1263 (7th Cir. 1977)). Under this "first to file" rule, district courts normally stay or transfer a federal suit "for reasons of wise judicial administration . . . whenever it is duplicative of a parallel action already pending in another federal court."*fn1 Serlin v. Arthur Anderson Co., 3 F.3d 221, 223 (7th Cir. 1993) (citations omitted); Barrington Group, 239 F. Supp.2d at 873 (citations omitted).

  The Seventh Circuit, however, does not rigidly adhere to a "first to file" rule, Trippe Mfg. Page 4 Co. v. American Power Conversion Corp., 46 F.3d 624, 629 (7th Cir. 1995) (citations omitted). Second-filed actions may proceed where favored by the interests of justice. Tempco Elec. Heater Corp. v. Omega Eng'g, Inc., 819 F.2d 746, 749-750 (7th Cir. 1987). Similarly, courts refuse to enforce the first to file rule where forum shopping motivated the first-filed action or the first-filed action constitutes an "improper anticipatory filing" made under threat of an imminent suit and asserting the mirror-image of that suit in another district. Barrington Group, 239 F. Supp.2d at 873; MLR, 2003 WL 685504 at *1 (citations omitted).

  The Declaratory Judgment Act is not a tool with which potential litigants may secure a delay or choose the forum. Schumacher Elec. Corp. v. Vector Products, Inc., 286 F. Supp.2d 953, 955 (N.D. Ill. 2003) (citations omitted). Declaratory judgment actions brought in the face of clear threats of suit and seeking determinations that no liability exists will be closely scrutinized as potentially improper anticipatory filings if the other party ...


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