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St. Paul Fire and Marine Insurance Co. v. Franklin Bank

November 3, 2006

ST. PAUL FIRE AND MARINE INSURANCE COMPANY, PLAINTIFF,
v.
FRANKLIN BANK, S.S.B. AND G.M. SIGN, INC., DEFENDANTS.



The opinion of the court was delivered by: John F. Grady, United States District Judge

MEMORANDUM OPINION

Before the court is the motion of defendant Franklin Bank, S.S.B. ("Franklin Bank") to transfer pursuant to 28 U.S.C. § 1404(a). For the following reasons, the motion is granted.

BACKGROUND

Plaintiff, St. Paul Fire and Marine Insurance Company ("St. Paul"), brings this action for declaratory relief against defendants Franklin Bank, S.S.B. ("Franklin Bank") and G.M. Sign, Inc. ("GM Sign"), concerning St. Paul's obligations under a series of insurance policies between St. Paul and Franklin Bank.

In November 2005, GM Sign brought a nationwide class action against Franklin Bank in Illinois state court for violations of the federal Telephone Consumer Protection Act, 47 U.S.C. § 227 (the "GM Sign Action"). The GM Sign Action was removed to this court in February 2006 and is pending before Judge Kocoras. The only remaining claim pending against Franklin Bank is for sending an unsolicited advertisement to GM Sign's facsimile ("fax") machine and the fax machines of putative class members in violation of 47 U.S.C. § 227(b). GM Sign alleges that the unsolicited faxes caused it to lose paper and toner as well as employee time and prevented it from using its fax machines for business purposes at the time it was receiving Franklin Bank's faxes.

At the time relevant to the complaint, plaintiff St. Paul, a Minnesota corporation with its principal place of business in Minnesota, provided commercial general liability protection to Franklin Bank. Franklin Bank tendered the GM Sign Action to St. Paul for defense. St. Paul denied coverage and then filed the instant action, seeking a declaration that it owes no duty to defend or indemnify Franklin Bank in the GM Sign Action.

Franklin Bank now moves to transfer venue from this district to the Southern District of Texas. In Franklin Bank's view, although venue is proper in this district, it is more convenient to litigate in the Southern District of Texas. GM Sign moves to join in Franklin Bank's motion; that motion is granted.

DISCUSSION

"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). "In other words, transfer is appropriate where:

(1) venue is proper in both the transferor and transferee court;

(2) transfer is for the convenience of the parties and witnesses; and

(3) transfer is in the interest of justice." Abbott Labs. v. Selfcare, Inc., No. 98 C 7102, 1999 WL 162805, at *1 (N.D. Ill. Mar. 15, 1999) (Grady, J.) (internal quotation marks omitted). The moving party has the burden of showing that the transferee court is more convenient. Heller Fin., Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1293 (7th Cir. 1989).

1. Proper Venue

When jurisdiction is based on diversity, as it is in this case, a suit may brought in "(1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought." 28 U.S.C. 1391(a). ...


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