Jamhour v. Scottsdale Ins. Co.

• Decision Date: 03 May 2002
• Docket Number: No. C2-01-484.
• Citation: 211 F.Supp.2d 941
• Parties: Khalil JAMHOUR, etc., Plaintiff, v. SCOTTSDALE INSURANCE COMPANY, et al, Defendants.
• Court: U.S. District Court — Southern District of Ohio

211 F.Supp.2d 941

Khalil JAMHOUR, etc., Plaintiff, v. SCOTTSDALE INSURANCE COMPANY, et al, Defendants.

No. C2-01-484.

United States District Court, S.D. Ohio, Eastern Division.

May 3, 2002.

Marcell Rose Anthony, Columbus, OH, for plaintiff.

Nicholas Edward Subashi, Law Office of Nicholas E. Subashi, Dayton, OH, Jefffrey Alan Hazlett, Dayton, OH, for Scottsdale Ins. Co., defendant.

John Charles Nemeth, Columbus, OH, for Gallodora Ins. Agencies, Inc., defendant.

OPINION AND ORDER

SARGUS, District Judge.

This matter is before the Court for consideration of Defendants' Joint Motion for Transfer of Venue under 28 U.S.C. § 1404. (Doc. # 25).¹ Plaintiff's Motion to Strike the Affidavit of Joseph Gallodoro. (Doc. # 43). The Court exercises jurisdiction over this matter pursuant to 28 U.S.C § 1332. For the reasons set forth below, Plaintiff's Motion to Strike is DENIED without prejudice to refile and Defendants' Motion is GRANTED.

I. FACTS

Plaintiff is the sole shareholder of Jamhour, Incorporated ("Jamhour"), doing business as the Rose Café, a Louisiana corporation. (Id. ¶ 2; Doc. # 25, Ex. 3). In Jamhour's Articles of Incorporation, signed by Plaintiff on May 25, 1998, Plaintiff is listed as the incorporator and Plaintiff's address is shown to be 7533 West Judge Perez Drive, Arabi, Louisiana, the same as that of the Rose Café. (Id.; Complaint ¶ 1).

Defendant Scottsdale Insurance Company ("Scottsdale") is an Arizona corporation and is the issuer of a commercial insurance policy covering the Rose Café. (Complaint ¶ 1). Defendant Gallodoro Insurance Agencies, Incorporated, ("Gallodoro"), is a Louisiana corporation, with its sole office located in Louisiana. (Id.).

In approximately June of 1999, Plaintiff solicited Gallodoro, by telephone, to procure a commercial insurance policy to cover the Rose Café. (Pl.Aff.¶ 5). Gallodoro faxed a commercial insurance policy application, naming the insurer as Scottsdale, from its office in Louisiana to Plaintiff in Ohio. (Id.). Plaintiff claims that he signed the insurance application and faxed it back to Gallodoro. (Id. ¶ 6). Plaintiff paid his Jamhour's insurance premiums with a check drawn on an Ohio bank. (Id.). There is a dispute as to whether the application was signed in Ohio by Plaintiff, or whether Plaintiff gave oral permission to Gallodoro to have an employee of the Rose Café sign on Plaintiff's behalf. Nevertheless, the application was accepted by Scottsdale and the Rose Café was insured by the commercial policy for a one year period beginning on July 2, 1999. (Id., Ex. A).

On November 21, 1999, a fire occurred at the Rose Café. (Id.¶ 9). Plaintiff filed claims with Scottsdale for loss of business income in excess of $21,000.00, for fire damage and loss of business records and documents which did not exceed $5,000.00, for fire damage and loss to certain bathroom renovations approximating $6,000, and for fire damage to certain other restaurant equipment and to inventory approximating $10,600.00. (Id. ¶ 10).

On April 28, 2000, Scottsdale paid $8,316.03 to Plaintiff. (Plaintiff's Memorandum Contra to Defendants' Motion for Transfer of Venue, Ex. B). Scottsdale also prepared and sent to Plaintiff an inventory of damaged contents of the Rose Café that it had compiled from its post-fire investigation. Scottsdale claimed that Plaintiff had provided no documentation of any additional damage due to the fire. (Id.). Scottsdale, however, offered to send the adjuster to reinspect the Rose Café to check for additional damage. (Id.). Further, Scottsdale claims it asked for documentation of expenditures claimed to be made for renovation of two bathrooms in the Rose Café. (Id.). And, finally, Scottsdale enclosed a copy of Jamhour's application for insurance on the Rose Café, which it claims clearly showed that no request for business interruption insurance had been made, and consequently, the Rose Café did not have coverage for such losses. (Id.).

Plaintiff claims that Scottsdale untimely paid only a portion of the claim for fire damage to certain equipment and inventory, and denied or did not respond to claims for the balance of the fire claim. (Complaint ¶ 11).

In April or May of 2000, Plaintiff claims that he discovered that all of the business equipment in the Rose Café had been stolen. (Id. ¶ 16). Plaintiff thereafter filed a claim for $65,000.00 for the equipment he claimed had been stolen. (Id.). Plaintiff contends that the receipts for the stolen equipment were lost in the fire at the Rose Café. (Id. ¶ 18). The equipment was allegedly purchased from Sun T.V. and Wasserstrom, both stores in Columbus, Ohio. (Pl.Aff.¶¶ 15, 17). Since Plaintiff had no receipts, he offered his tax return reflecting over $65,000.00 in shareholder contributions to Jamhour as proof that he had purchased the restaurant equipment. (Id. ¶ 15). Further, Plaintiff offers the testimony of Matthew Hendrix, an employee of Wasserstrom Company, that Plaintiff did in fact purchase restaurant equipment from Wassertstrom. (Plaintiff's Memorandum Contra Defendants' Motion for Transfer of Venue, Ex. D).

On April 11, 2001, Scottsdale denied Plaintiff's claim for loss incurred due to the alleged theft. (Id. Ex C). Scottsdale contends that it denied the claim because Plaintiff produced no evidence that there was a theft; Plaintiff produced no documents or witnesses to prove he owned any of the allegedly stolen items; Plaintiff produced no documents or witnesses to corroborate that he purchased the allegedly stolen equipment from Wasserstrom; Plaintiff produced no documents or witnesses the substantiate his claim that he paid over $50,000.00 cash for the allegedly stolen items and drove the items in a Ryder truck from Columbus, Ohio to Louisiana; Plaintiff produced no evidence of the source of the cash by which he made the alleged purchases; Plaintiff produced no evidence of having rented a Ryder Truck or gasoline purchases for the trip to Louisiana; Plaintiff could not identify the rental agency from which the truck was rented or to which it was dropped off; and, Plaintiff could not identify the laborers he claimed unloaded the truck in New Orleans, or produce evidence of payment for the offloading of the truck. (Id.).

On April 23, 2001, Plaintiff filed the Complaint in this suit in the Court of Common Pleas, Franklin County, Ohio. Plaintiff claims breach of insurance contract by failure to fully pay the claim arising out of the 1999 fire at the Rose Café failure to pay the claim arising out of the April-May 2000 theft of $65,000 in equipment; failure to perform a contract because of Plaintiff's Arab race and Muslim religion in violation of 42 U.S.C. § 1981; and, negligent misrepresentation on the part of Gallodoro in its procurement of suitable insurance for the Rose Café.

Defendants removed the case to this Court on May 24, 2001. (Doc. # 1).

II. VENUE

Defendants move the Court to transfer venue to the United States District Court for the Eastern District of Louisiana pursuant to 28 U.S.C. § 1404(a). Defendants do not argue that Ohio is an improper venue: rather, they claim that this Court is not the most fair and convenient forum for resolution of this action. "Even in cases where venue is proper, a court may entertain a motion to transfer if there exists a better forum for the resolution of the dispute between the parties." SKY Technology Partners v. Midwest Research Institute, 125 F.Supp.2d 286, 290-91 (S.D.Ohio 2000) citing Martin v. Stokes, 623 F.2d 469, 474 (6th Cir.1980).

A. Standard for Transfer to a More Convenient Forum

The standard for transfer of venue to a more convenient forum is found in 28 U.S.C. § 1404(a), which provides:

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.

Pursuant to Section 1404(a), the threshold consideration is whether the action "might have been brought" in the transferee court. An action "might have been brought" in a transferee court if:

a. The court has jurisdiction over the subject matter of the action

b. Venue is proper there, and

c. The defendant is amenable to process issuing out of the transferee court.

SKY Technology, 125 F.Supp.2d at 291 citing Continental Grain Co. v. Barge FBL-585, 364 U.S. 19, 80 S.Ct. 1470, 4 L.Ed.2d 1540 (1960).

In the case at bar, the district court in Louisiana would have diversity jurisdiction over this action since the parties are citizens of different states. 28 U.S.C. § 1332(a)(1). Further, Defendants' acknowledge that they would be subject to process in that district. Finally, venue would be proper in Louisiana under the general venue statute, 28 U.S.C. § 1391(a)(2), if "a substantial part of the events or omissions giving rise to the claim arose" there. First of Michigan Corp. v. Bramlet, 141 F.3d 260, 263 (6th Cir.1998). This is true even if a substantial part of the events giving rise to this claim are found to have been in Ohio. The fact that substantial activities took place in Ohio does not disqualify Louisiana as a proper venue as long as "substantial" activities took place in Louisiana too. Id. Louisiana should not be disqualified even if it is shown that the activities in Ohio were more substantial. Id. Clearly, a substantial part of the events in this case took place in Louisiana. Thus, Louisiana is a proper venue for this case. Consequently, this case could have been brought in Louisiana.

Once it is determined that a case could have been brought in the transferee court, the issue becomes whether transfer is justified under the balance of the language of Section 1404(a) which analyzes whether transfer is justified for "the convenience of parties and witnesses" and "in the interest of justice." The factors to be considered under Section 1404(a) are similar to those weighed by courts in determining forum non conveniens motions; however, transfers pursuant to Section...