Jackson v. Economou et al CV-07-259-JL 4/30/08 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Jackson National Life Insurance Company
v. Civil N o . 07-00259-JL Opinion N o . 2008 DNH 094 Robert G. Economou, et a l .
O R D E R
Plaintiff Jackson National Life Insurance Company (“JNL”)
initiated this interpleader action under 28 U.S.C. § 1335 1 in
order to settle a dispute over the proceeds of an annuity it had
issued to Henry O. LeTourneau. The named death beneficiaries of
the annuity are claimants Robert G. Economou and Donna Normand,
LeTourneau’s stepchildren (“the stepchildren” or “the
stepchildren claimants”). Claimant Mary Ann Greska, LeTourneau’s
biological child, asserts that she and LeTourneau’s other
biological offspring are entitled to the annuity proceeds due to
undue influence, abuse, and neglect inflicted on the decedent by
the stepchildren’s mother.
1 The jurisdictional minimum for “statutory interpleader” under § 1335 differs from “rule interpleader” under Fed. R. Civ. P. 22 in that the jurisdictional minimum for the amount in controversy under the statutory version is $500, while the minimum for rule interpleader, which falls under the general rules of diversity jurisdiction, remains $75,000. Jurisdiction, uncontested by the parties in this case, lies
in this court under 28 U.S.C. § 1335 (2006) (statutory
interpleader).
The stepchildren have moved to dismiss the case on the basis
of forum non conveniens, or in the alternative, to transfer this
case to a different venue pursuant to 28 U.S.C. § 1404(a) (2006).
Oral argument on the motion was heard on April 2 1 , 2008. For the
reasons set forth below, the motion to dismiss is denied, and the
motion to transfer is granted.
I. BACKGROUND
In 2002, JNL issued a “Target Select Deferred Annuity” to
LeTourneau. The annuity provided that certain benefits would be
payable to a designated beneficiary or beneficiaries upon
LeTourneau’s death. In 2004, LeTourneau designated Greska, who
is his biological daughter, and two other biological children as
beneficiaries. Two years later, LeTourneau executed and sent to
JNL a “beneficiary change form” designating his stepchildren,
Economou and Normand, as equal beneficiaries, to the exclusion of
the biological children. About seven months later, LeTourneau
died. The ensuing death certificate, issued by Florida
authorities, indicated that the cause of death was pneumonia with
2 an approximate onset three weeks prior, and “advanced dementia”
with an approximate onset one year prior.
Economou and Normand each asserted a claim for fifty percent
of the death benefit. Receiving information that the biological
children, including Greska, intended to challenge the change in
beneficiary designation because of LeTourneau’s dementia, JNL
initiated this § 1335 interpleader action.2
Greska, who lives in New Hampshire, asserts that
LeTourneau’s spouse at his death (the stepchildren’s mother)
exerted undue influence on him and subjected him to abuse and
neglect, causing him to execute the beneficiary change form
designating the stepchildren as beneficiaries. Greska alleges
(but does not specify) several incidents of abuse and neglect
occurring in Florida, as well as indicia of dementia on
LeTourneau’s part, during 2006. The alleged manifestations of
dementia, instances of abuse and neglect, and the execution of
the beneficiary change form all took place i n , or in the vicinity
o f , Port Charlotte, Florida, where LeTourneau resided until his
death. The stepchildren claimants, Economou and Normand, reside
in Tewksbury, Massachusetts, and Peabody, Massachusetts,
2 Two other natural children claimants, one living in New Hampshire and the other in Florida, did not appear in this action and were subsequently defaulted.
3 respectively. They assert that LeTourneau’s last will and
testament was executed on April 1 0 , 2006, in Charlotte County,
Florida, at which time witnesses swore that LeTourneau was of
sound mind, and under no constraint or undue influence. They
further assert that on May 1 , 2006, LeTourneau was examined by
his long-time treating physician, presumably in or near Port
Charlotte, Florida, who found him to be of sound mind. Claiming
to have had no knowledge of LeTourneau’s designation of them as
beneficiaries until his death, the stepchildren dispute that he
was suffering from advanced dementia for a period of one year
prior to his death as indicated on the death certificate.
Having deposited the disputed funds with the court (see 28
U.S.C. § 1335(a)(1)), and recovered its costs and fees, see Trs.
of Directors Guild of Am.-Producer Pension Benefits Plan v . Tise,
234 F.3d 415, 426 (9th Cir. 2000); Ferber C o . v . Ondrick, 310
F.2d 462, 467 (1st Cir. 1962), JNL was dismissed from the case in
accordance with the customary procedure in interpleader actions.
See Hudson Sav. Bank v . Austin, 479 F.3d 102, 107 (1st Cir.
2007).
4 II. ANALYSIS
The motion to dismiss on forum non conveniens grounds
requires little consideration. Forum non conveniens is “a
discretionary tool for the district court to dismiss a claim,
even when” as here, “it has proper jurisdiction.” Adelson v .
Hananel, 510 F.3d 4 3 , 52 (1st Cir. 2007) (citing Gulf Oil Corp.
v . Gilbert, 330 U.S. 501 (1947) and Koster v . Lumbermens Mut.
Cas. Co., 330 U.S. 518 (1947)). “[A] supervening venue
provision, permitting displacement of the ordinary rules of venue
when, in light of certain conditions, the trial court thinks that
jurisdiction ought to be declined,” forum non conveniens “has
continuing application [in federal courts] only in cases where
the alternative forum is abroad, and perhaps in rare cases where
a state or territorial court serves litigational convenience
best.” Sinochem Int’l C o . v . Malaysia Int’l Shipping Corp., ___
U.S. ___, 127 S . C t . 1184, 1190 (2007) (brackets in original;
internal citations omitted) (citing American Dredging C o . v .
Miller, 510 U.S. 443, 449 n.2 (1994) and 14D Charles Alan Wright
et al., Federal Practice and Procedure § 3828, at 620-623 & nn.9-
10 (3rd ed. 2007)).
Since the alternative forum at issue in this case is not a
foreign country, but rather the Middle District of Florida, a
forum non conveniens dismissal would be improper in this case.
5 The stepchildren claimants’ reliance on the doctrine is
misplaced, and their motion to dismiss is denied. The court will
proceed to address their motion to transfer venue under 28 U.S.C.
§ 1404(a).
Applicable legal standard
“Under § 1404(a), [3] a district court may transfer any civil
action to any other district where it may have been brought
‘[f]or the convenience of parties and witnesses, in the interest
of justice.’” Coady v . Ashcraft & Gerel, 223 F.3d 1 , 11 (1st
Cir. 2000) (quoting 28 U.S.C. § 1404(a) (2006) (bracketed
footnote added)). 4 “The burden of proof rests with the party
3 The stepchildren claimants have not argued that venue in the District of New Hampshire is improper. Thus, the court need not address 28 U.S.C. § 1406(a), which applies where venue is improper in the transferor court. 4 The opening provision of the statute, entitled “Change of venue,” provides as follows:
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). Although the parties neither briefed nor argued this issue, the court finds that the Middle District of Florida is an “other district or division where [the interpleader action] might have been brought.” Id. A statutory interpleader action may be brought in the district where one or more of the claimants reside. 28 U.S.C. § 1397. JNL has effected valid service of process on interpleader defendant Cecile C . Payne,
6 seeking transfer; there is a strong presumption in favor of the
plaintiff’s choice of forum.” Id. (citing Gulf, 330 U.S. at 508
(applying the doctrine of forum non conveniens)). A properly
grounded motion to transfer venue is committed to the discretion
of the transferor court, which has wide latitude in determining
whether to grant i t . Auto Europe, LLC v . Conn. Indem. Co., 321
F.3d 6 0 , 64 (1st Cir. 2003).
The text of the transfer statute itself (see supra at n.5)
sets forth three factors which form the basis of the court’s
consideration (but to which the court’s inquiry is not strictly
limited): (1) the convenience of the parties, (2) the
convenience of the witnesses, and (3) the interest of justice.
See id. “The three factors mentioned in the statute, convenience
of parties and witnesses and the interest of justice, are broader
generalities that take on a variety of meanings in the context of
specific cases. Further, the statute gives no hint about how
these broad categories are to be weighed against each other.” 15
Wright, supra, § 3847 at 97-98. The First Circuit has stated
that while the compendia of factors is a helpful starting point,
“not every item applies in every case and, in the last analysis,
whose domicile at the time was Port Charlotte, Florida. Although Payne subsequently defaulted, see supra n.2, there is no question that this action could have been initiated in that district since she did reside there at its commencement.
7 the list of factors is illustrative rather than all-inclusive.
‘The ultimate inquiry is where trial will best serve the
convenience of the parties and the ends of justice.’” Iraquorri
v . Int’l Elevator, Inc., 203 F.3d 8 , 12 (1st Cir. 2000) (quoting
Koster, 320 U.S. at 5 2 7 ) ; see also Coffey v . Van Dorn Iron Works,
796 F.2d 217, 219 n.3 (7th Cir. 1986) (noting that while “the
trial judge is limited to the three factors as specifically
mentioned in § 1404(a), . . . these factors are best viewed as
placeholders for a broader set of considerations, the contours of
which turn upon the particular facts of each case”).
The courts, drawing heavily on concepts from § 1404(a)’s
predecessor doctrine, forum non conveniens, have broken down the
statute’s three enumerated grounds for transfer –- convenience to
parties, convenience to witnesses, and the interest of justice –-
into “private-interest” and “public-interest” factors see, e.g.,
Coady, 223 F.3d at 1 1 . The private-interest factors are:
• the plaintiff’s choice of forum;
• location of the operative events in the case;
• convenience of the parties;
• the convenience of the witnesses;
• cost of obtaining witnesses;
• location of counsel;
• ability to compel attendance of witnesses;
8 • accessibility and location of sources of proof;
• possibility of a jury view; and
• the existence of a contractual forum/selection clause.
See id.; see also Cianbro Corp v . Curran-Lavoie, Inc., 814 F.2d
7 , 11 (1987); 17 James Wm. Moore et al., Moore’s Federal
Practice, § 111.13[1][b], at 111-67-111-68 (3rd ed. 2008); 15
Wright, supra, § 3847, at 109.
Plaintiff’s choice of forum. Although “there is a strong
presumption in favor of the plaintiff’s choice of forum,” Coady,
223 F.3d at 1 1 , “[s]ome courts have said that [the presumption]
is less significant in certain contexts such as . . . when the
plaintiffs . . . have no real interest in the outcome of the
action.” 15 Wright, supra § 3846, at 127-129 & n.14 (citing
Mutual of Omaha Ins. C o . v . Dolby, 531 F. Supp. 511 (E.D. Pa.
1982) (finding presumption inapplicable in interpleader cases).
Fitting this description, interpleader actions do not use the
“plaintiff’s choice” presumption. In re Monies on Deposit in
Accounts at Stearns Bank Nat’l Ass’n, N o . 06-542, 2006 WL
3841518, at *1 (D. Minn. Dec. 2 9 , 2006) (“However, where the
plaintiff has no underlying interest in where the case is
litigated, as in an interpleader action, courts need not defer to
the plaintiff’s choice of venue.”) (citing Wilmington Trust C o .
9 v . Gillespie, 397 F. Supp. 1337, 1341 n.3 (D. Del. 1975));
Reliastar Life Ins. C o . of N.Y. v . LeMone, N o . 05-545, 2006 WL
733968, at *5 (W.D. Va. Mar. 1 6 , 2006); Bankers Trust C o . of W .
N.Y. v . Crawford, 559 F. Supp. 1359, 1364 (W.D.N.Y. 1983) (“In an
interpleader action, however, the plaintiff has no real interest
concerning the jurisdiction in which the dispute between or among
the defendants/claimants is to be litigated. There is thus no
reason to defer to its selection of forum.”); see also Employees
Sav. Plan of Mobil Oil Corp. v . Vickery, 99 F.R.D. 138, 143
(S.D.N.Y. 1983). Since JNL has already been dismissed from the
case and awarded its fees and costs, it has no real interest in
its outcome, and in fact has filed a pleading stating that it
takes no position on the request to transfer. Its choice of
forum therefore carries no presumptive weight. Thus, this factor
militates neither for nor against the requested transfer.
Location of the operative events in the case. While the
various claimants to the annuity proceeds reside in New England
states, the events that will determine the outcome occurred in
and around Port Charlotte, Florida. LeTourneau’s execution of
the beneficiary change form took place there, as did the
execution of his last will and testament and his most recent
examination by a physician, both of which may be probative as to
his mental condition at the relevant time. Further, any abusive,
10 neglectful, or coercive conduct amounting to duress or undue
influence on the part of LeTourneau’s spouse, as alleged by
Greska, also occurred in Florida. Indeed, the very event cited
by Greska, involving LeTourneau’s “wandering lost and confused in
or around May or June of 2006,” resulted in his being found by
the Charlotte County (Florida) Sheriff’s Department. Thus, the
location of the operative facts favors the Middle District of
Florida as the superior venue.
Convenience of the parties. If “convenience” means no more
than ease of travel to the courthouse, the current venue has an
edge over Florida where the convenience of the parties is
concerned. Pro se claimant Greska is a resident of New
Hampshire, and the stepchildren claimants reside in
Massachusetts, on New Hampshire’s southern border. The
stepchildren claimants, however, have requested this transfer,
and at the hearing on their motion argued persuasively that
defending this litigation in New Hampshire will be unduly
inconvenient and unduly burdensome for them, because it will
require the transportation of witnesses (both fact and opinion
witnesses, including medical and law enforcement professionals)
from Florida to New Hampshire. These arguments in favor of
transfer slightly outweigh Greska’s plea for the case to remain
here.
11 Convenience of the witnesses. This court has held that the
convenience of the witnesses is “probably the most important
factor.” Sousa v . TDBanknorth Ins., 2006 DNH 034, at 5 (quoting
Fairview Machine & Tool C o . v . Oakbrook Int’l, Inc., 56 F. Supp.
2d 134, 141 (D. Mass. 1999) and Princess House, Inc. v . Lindsey,
136 F.R.D. 1 6 , 18 (D. Mass. 1991)). Virtually all of the non-
party witnesses--LeTourneau’s treating physician, other medical
personnel, and other witnesses to LeTourneau’s behavior (both in
the year leading up to his death and at the times he executed his
will and the beneficiary change form), as well as his daughter
Cecile, the members of the Charlotte County Sheriff’s Department,
key staff of the Elderly Abuse Division of the Florida Department
of Health and Human Services and, significantly, the target of
Greska’s accusations of abuse, neglect and undue influence,
Lorraine Letourneau--all reside in Florida, presumably not far
from LeTourneau’s home while alive. These witnesses will be
required to produce evidence, testify at depositions, and testify
at trial. Since the convenience of these witnesses is “probably
the most important factor,” id., it strongly favors a Florida
venue.
Cost of obtaining witnesses and evidence. Again, nearly
every important witness in this case resides or works in the
vicinity of Port Charlotte, Florida. Consideration of the cost
12 of obtaining witnesses goes hand-in-hand with the question of
convenience to witnesses. Although some of the issues raised by
Greska’s allegations would likely be narrowed by the discovery
process, necessitating the actual trial testimony of fewer
witnesses, it seems inevitable that the testimony of several
Florida residents will be required at trial. The comparative
costs of transporting these witnesses to court in Florida, as
opposed to here in Concord, New Hampshire, tips the scale
strongly toward Florida as the better venue.
Location of counsel. The location of the parties’
respective counsel has little bearing on this analysis. Greska
is proceeding pro s e . And as established at the motion hearing,
the other claimants will likely retain Florida counsel if the
matter is transferred there.
Comparative ability to compel attendance of witnesses.
Assessing the relative power of the current venue and the
transferee venue to require the attendance of witnesses
necessarily focuses on any uncooperative or indifferent witnesses
who might prefer not to testify at trial. The Florida venue has
the clear edge in this regard. As already noted, nearly every
important witness in the case resides or works in the area of
Charlotte County, Florida. Since a District Court’s trial
subpoena power is limited to 100 miles from the location of the
13 trial, see Fed. R. Civ. P. 45(b)(2), and the 1991 amendments to
Rule 45 were enacted to enable courts to compel the attendance of
in-state witnesses, see Mohamed v . Mazda Motor Corp., 90 F. Supp.
2d 757, 778 (E.D. Tex. 2000); Fed. R. Civ. P. 45 advisory
committee’s notes, 1991 am. ¶ 1 , this factor favors the requested
transfer.
Accessibility and the location of sources of proof. As a
general matter, witnesses and documents tend to follow events,
costs tend to follow witnesses and documents, and sources of
proof--the factor in question here--tend to follow all of these.
In addition to the individual witnesses who are in themselves
sources of proof, the other likely sources are the institutions
where some of these witnesses work and potentially relevant
documents are maintained. In this case, those institutions
include the Charlotte County Sheriff’s Department, any medical
practice or facility where LeTourneau was treated or examined
prior to his death, the Elderly Abuse Division of the Florida
Department of Health and Human Services, and the Office of Vital
Statistics that issued LeTourneau’s death certificate. All of
these institutions are located in the Middle District of Florida,
which weighs in favor of a transfer.
Mr. LeTourneau’s medical file, any deputy sheriff’s report,
any attorney’s notes regarding the execution of LeTourneau’s will
14 or the beneficiary change form in question, and any other
document generated by the Elderly Abuse Division of the Florida
Department of Health and Human Services exist i n , and are
maintained by institutions and offices located i n , the state of
Florida. While the portability of documentary evidence makes
this factor less significant than those set forth above, nothing
about this factor suggests that New Hampshire is a more
convenient or otherwise superior venue.
Other factors. The remaining factors listed above -- the
possibility of a jury view, and the existence of a contractual
forum selection clause –- have no bearing on this matter. A
trial in this case will not require a jury view, and there has
been no allegation by any party that the annuity in question
contained a forum selection clause.
The public-interest factors traditionally relate to the
efficient administration of the court system. See Coffey, 796
F.2d at 220-21. They include:
• administrative difficulties caused by court congestion;
• local interest in the controversy and the burden of jury duty; and
• the proposed forum’s familiarity with the governing law. See id.
Administrative difficulties. Neither Greska nor the
stepchildren have relied on the relative level of court
15 congestion in this district and the Middle District of Florida in
their competing arguments for and against a transfer. Based on
the court’s own research, the two fora do not appear
significantly different in this respect. See Administrative
Office of the United States Courts, Federal Court Management
Statistics (2007). So this consideration does not factor into
the analysis of the transfer motion.
Local interest and burden on jurors. This interpleader
matter will not require a jury trial, so the burdens of jury duty
have no bearing on the disposition of the motion. And local
interest in the controversy--whether, and to what extent
allegedly abusive and neglectful conduct and accompanying duress
by LeTourneau’s spouse undermined the validity of the beneficiary
change--does not figure to be particularly high. If one venue
has an edge, it is likely the Middle District of Florida, whose
residents may have some interest in the judicial resolution of
controversy over estate planning documents executed there. Thus,
to the extent that this factor has any bearing, it weighs in
favor of the Florida venue.
Familiarity with governing law. Greska does not dispute the
other parties’ assertion that Florida law will govern the
determination of the validity of the beneficiary change form, and
the court sees no reason to question i t . Although this court is
16 capable of construing Florida law and applying it to the evidence
presented, and a federal court should not shirk its
responsibility to interpret and apply the law of other
jurisdictions, see Omni Hotel Mgmt. v . Roundhill Dev., Ltd., 675
F. Supp. 745, 753 (D.N.H. 1997), this admonition presupposes the
obvious: standing alone, a requirement to apply Florida law
favors (but does not compel) a transfer to a Florida venue.
There can be little question that the United States District for
the Middle District of Florida is better versed i n , and in a
better position to apply, Florida law.
CONCLUSION
The stepchildren claimants’ motion to dismiss on forum non
conveniens grounds is DENIED. Their motion to transfer venue to
the Middle District of Florida is GRANTED. Although several of
the private-interest and public-interest factors favor the
requested transfer, the court relies most heavily on what is
“probably the most important factor,” Sousa, 2006 DNH 034, at 5 ,
the convenience of the witnesses involved.
The court is mindful, however, of Greska’s position that,
due primarily to her pro se status, the transfer will cause her
substantial inconvenience because she believes, prosecuting her
claims in Florida is beyond her resources and expertise. The
17 court notes, however, that the location of the large majority of
the witnesses in Florida would in all likelihood have required
her to travel there anyway in the course of litigating her claim
because, again, this court cannot compel those witnesses to
travel to New Hampshire to testify. For this reason, before this
case is transferred to the Middle District of Florida, the Clerk
will wait 30 days from the date of this order to enable Greska to
pursue an appeal of this court’s ruling if she wishes. If Greska
does not take an appeal within that time, however, the matter
shall be transferred to the Clerk for the United States District
Court for the Middle District of Florida, and administratively
closed in this court.
SO ORDERED.
y^W^Tgb tt Joseph N. Laplante United States District Judge
Dated: April 3 0 , 2008
cc: William D. Pandolph, Esq. Ronald J. Caron, Esq. Jaye Rancourt, Esq. Mary Ann D. Greska, pro se