United States District Court, D. Montana, Butte Division
WILLIAM DUN, Individually and as the PERSONAL REPRESENTATIVE OF THE ESTATE OF IRMADEL DUN, IRENE DUN, SHERYL DUN, PAT RUGGIERI, and DORA MENGEL, and all others similarly situated, Plaintiffs,
TRANSAMERICA PREMIER LIFE INSURANCE COMPANY, F/K/A MONUMENTAL LIFE INSURANCE COMPANY, F/K/A PEOPLES BENEFIT LIFE INSURANCE COMPANY, FINANCIAL PLANNING SERVICES, INC., BUENA SOMBRA INSURANCE AGENCY, INC., AMPAC INSURANCE AGENCY, INC., AEGON DIRECT MARKETING SERVICES, INC., and DOES V.- XI, Defendants,
MORRIS UNITED STATES DISTRICT COURT JUDGE
Court addresses two motions. Plaintiffs William Dun
(“Dun”), individually and as personal
representative for Irmadel Dun, Irene Dun, Sheryl Dun, Pat
Ruggieri, Dora Mengel, and all others similarly situated,
move the Court to transfer this case to the U.S. District
Court for the District of Columbia. (Doc. 58). Defendants
Financial Planning Services, Inc. (“FPS”) and
Aegon Direct Marketing Services, Inc. (“ADMS”)
ask the Court to dismiss FPS and ADMS as parties based upon
the Court's alleged lack of personal jurisdiction. (Doc.
matter began as a denial of insurance benefit claim when Dun
filed an action against Transamerica Premier Insurance Inc.
(“Transamerica”) in the Eighteenth Judicial
District Court, Gallatin County, Montana. (Doc. 1 at 2).
Irmadel Dun had purchased a life insurance policy in response
to a solicitation that she had received in the mail at her
home in Montana. Id. Transamerica properly removed
the case to the Montana District Court's Butte Division
by means of diversity jurisdiction, pursuant to 28 U.S.C.
§ 1332. Id.
discovery unearthed new information regarding the insurance
policy purchased by Irmadel Dun. (Doc. 21 at 2). Dun
discovered that the insurance policy purchased by Irmadel Dun
had been placed in a Trust with its situs in Washington D.C.
(Doc. 59 at 4-5). Dun amended his Complaint twice to reflect
the new information.
added two potentially liable parties involved in the
dissemination of the insurance policy attached to the Trust -
ADMS and FPS. (Docs. 21, 28). Transamerica currently serves
as Trustor of the Trust, ADMS serves as the Administrator of
the Trust, FPS serves as the Trustee, and the insureds serve
as the beneficiaries of the Trust. (Doc. 59 at 3-6). Dun
lacked knowledge of the existence of the Trust and the roles
played by ADMS, and FPS before he filed his original
complaint. Id. at 2.
the convenience of the parties and witnesses, in the
interests of justice, a district court may transfer any civil
action to any other district court or division where it might
have been brought or to any district or division to which all
parties have consented.” 28 U.S.C. § 1404(a). The
trial court typically determines the question of personal
jurisdiction in advance of venue. Leroy v. Great W.
United Corp., 443 U.S. 173, 180 (1979). Personal
jurisdiction reflects the court's power to exercise
control over the parties. Id. A court may reverse
the normal order of considering personal jurisdiction and
venue when there exists a “sound prudential
justification for doing so . . ..” Id.
party seeking transfer bears the burden of demonstrating that
the transferee district provides a more appropriate forum.
See Jones v. GNC Franchising, Inc., 211 F.3d 495,
499 (9th Cir. 2000). Courts possess broad discretion to
transfer cases. Id. at 498. A court must consider,
however, the factors of convenience and fairness to the
parties in choosing whether to exercise this discretion.
district court's consideration of a transfer pursuant to
§ 1404(a) typically involves two steps. A district court
first must decide whether the action originally could have
been brought in the proposed transferee districts. Hatch
v. Reliance Ins. Co., 758 F.2d 409, 414 (9th Cir. 1985).
If the answer is yes, then the district court must make an
individualized, case-specific, analysis of convenience and
fairness to the parties and witnesses, and an assessment of
the interests of justice. See Jones, 211 F.3d at
498-99. This assessment incorporates multiple factors. These
factors include the following items: (1) the location where
the parties negotiated and executed the relevant agreements;
(2) the forum most familiar with the governing law; (3) the
plaintiffs' choice of forum; (4) contacts of the
different parties with the forum; (5) local interest in the
controversy; (6) the ease of access to sources of proof and
evidence; and (7) relative congestion in each forum.
courts follow state law in determining the bounds of
jurisdiction over a party. Fed.R.Civ.P. 4(k)(1)(A).
Montana's long-arm statute provides that “[a]ny
person is subject to the jurisdiction of the courts of this
state as to any claim for relief arising from the doing
personally, through an employee, or through an agent, of . .
. the transaction of any type of business within this state .
. . contracting to insure any person, property or risk
located within this state at the time of contracting.”
Mont. R. Civ. P. 4(b)(1)(A), (D). The Court must comport with
the limits imposed by federal due process when determining
personal jurisdiction. Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 464 (1985).
U.S. Supreme Court in International Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945), determined that a
state may exercise personal jurisdiction over an out-of-state
defendant if the defendant has certain minimum contacts such
that the maintenance of the suit does not offend
“traditional notions of fair play.”
International Shoe's “conception of fair
play and substantial justice presaged ...