Kafack v. Primerica Life Ins. Co.

• Decision Date: 19 July 1996
• Docket Number: Civil Action No. 1:95CV01561 RMU.
• Citation: 934 F. Supp. 3
• Parties: Leopold KAFACK, Plaintiff, v. PRIMERICA LIFE INSURANCE COMPANY, et al., Defendants.
• Court: U.S. District Court — District of Columbia

934 F. Supp. 3

Leopold KAFACK, Plaintiff, v. PRIMERICA LIFE INSURANCE COMPANY, et al., Defendants.

Civil Action No. 1:95CV01561 RMU.

United States District Court, District of Columbia.

July 19, 1996.

David Huntington Williams, Williams & Eoannou, Bethesda, MD, for Plaintiff.

Bryan D. Bolton, Derek B. Yarmis, Funk & Bolton, P.A., Baltimore, MD, David A. Carter, Howell, Gately, Whitney & Carter, Towson, MD, Thomas M. Wood, IV, Neuberger, Quinn, Gielen, Rubin & Gibber, P.A., Baltimore, MD, for Defendants.

MEMORANDUM OPINION AND ORDER

URBINA, District Judge.

Granting Motion to Transfer

This matter comes before the court upon Primerica Life Insurance Company (Primerica) and Federal Kemper Life Assurance Company's (Kemper) motion to transfer this action to the United States District Court for the District of Maryland.¹ After careful consideration of the pleadings and the entire record herein, the court concludes that the defendants' motion to transfer shall be granted because the present action could have been brought in Maryland and the interests of the parties and of potential witnesses, as well as the interest of justice dictate that the action be heard in that forum.

I. Background

Leopold Kafack (Mr. Kafack), a resident of the District of Columbia, has lodged a civil complaint against Primerica, Kemper, Transamerica Occidental Life Insurance Company (Transamerica), and Equifax Credit Information Services, Inc. (Equifax). Primerica, Kemper, and Transamerica are insurance companies that sold separate life insurance policies to the plaintiff's father, Sontsa Kemetong (Mr. Kemetong). The plaintiff filed a seven count complaint based on the following causes of action: (1) breach of contract; (2) breach of fiduciary duty; (3) malicious prosecution; (4) defamation; (5) intentional infliction of emotional distress; (6) breach of implied covenant of good faith and fair dealing; and (7) tortious interference with contract. The breach of contract, breach of fiduciary duty, and breach of implied covenant of good faith and fair dealing causes of action are based on the issuance of the three insurance policies. Mr. Kafack alleges that the insurance company defendants entered into a conspiracy to deny him benefits due under these three life insurance policies, two of which were entered into in Maryland. The third policy was entered into in the District of Columbia. The malicious prosecution, defamation, intentional infliction of emotional distress, and tortious interference with contract causes of action are premised upon the allegation that all of the defendants maliciously aided a criminal prosecution of the plaintiff by Maryland authorities by falsely accusing the plaintiff of criminal conduct. Mr. Kafack's complaint requests a judgment for over $60,000,000 in compensatory and punitive damages against each of the defendants.

Mr. Kafack is the son of Mr. Kemetong, who is now deceased. Mr. Kafack is the named beneficiary of the three life insurance policies purchased by Mr. Kemetong. Mr. Kemetong was a citizen of the Republic of Cameroon. Mr. Kafack asserts that, between 1990 and 1992, Mr. Kemetong purchased from each of the defendant insurance companies, life insurance policies providing for a cumulative total death benefit of $1,000,000. Mr. Kafack maintains that Mr. Kemetong died of malarial fever on February 5, 1993 while in Cameroon on business. In late March and early April 1993, Mr. Kafack asserts that he applied to the defendants Primerica, Kemper, and Transamerica for payment of the life insurance policy proceeds due and owing as a result of his father's death. He avers that Primerica, Kemper, and Transamerica conspired to deny him the benefits due under the three life insurance policies and that they commissioned Equifax, a credit information corporation which compiles personal credit histories, to investigate the circumstances of the incident.

Mr. Kafack asserts that representatives of the defendants visited Cameroon to investigate the death of Mr. Kemetong. He contends that the defendants contacted Dr. E.R. Dipoko, a physician in Cameroon familiar with the decedent and the circumstances surrounding his death. Dr. Dipoko stated to the defendants that he fabricated an initial death certificate to help Mr. Kemetong's family. Mr. Kafack maintains that in May 1993, Primerica advised him that it would not pay the proceeds of Mr. Kemetong's policy to the beneficiary and that it would seek criminal and civil sanctions against him if he pursued the claim. Mr. Kafack alleges that in June 1994, Transamerica informed him that it, too, refused to pay the proceeds of Mr. Kemetong's policy because Dr. Dipoko had stated that the death certificate which he provided was a "fabrication." Mr. Kafack alleges that Dr. Dipoko's use of the term "fabrication" meant that he helped to expedite the claim of the plaintiff and the plaintiff's family because he was familiar with the death of the insured.

Mr. Kafack also alleges that in June 1993 Kemper informed him that it would not pay the proceeds of Mr. Kemetong's policy because of various alleged discrepancies in the insured's application. Kemper, for its part, asserts that its investigation of Mr. Kemetong's death and the related insurance policy revealed that Mr. Kemetong had never entered the United States; that Mr. Kemetong's date of birth was closer to 1900 than the 1941 date represented in his insurance application; that Mr. Kemetong actually died earlier than was represented; that Mr. Kemetong's death certificate was fraudulent; and that the social security number given by the applicant belonged to a deceased Texas woman unrelated to Mr. Kemetong. As a result, Kemper refused to pay Mr. Kafack the proceeds of the insurance policy.

In addition to alleging that the defendant insurance companies refused to pay the proceeds of Mr. Kemetong's policies, Mr. Kafack asserts that Primerica, Kemper, Transamerica, and Equifax maliciously arranged his indictment in Montgomery County, Maryland, for the felony of attempted theft and fraudulent insurance acts. In September 1994, Mr. Kafack was acquitted of all charges by a Montgomery County, Maryland, judge.

Presently before the court is Primerica and Kemper's motion to transfer this action to the District of Maryland.

II. Analysis

The defendants seek to transfer this case to the state of Maryland pursuant to 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.

The moving party bears the burden of establishing that the transfer of this action is proper. Air Line Pilots Ass'n v. Eastern Air Lines, 672 F.Supp. 525, 526 (D.D.C. 1987); Int'l Brotherhood of Painters & Allied Trades Union v. Best Painting & Sandblasting Co., 621 F.Supp. 906, 907 (D.D.C. 1985). Section 1404(a) vests "discretion in the district court to adjudicate motions to transfer according to individualized, case-by-case consideration of convenience and fairness." Stewart Organization, Inc. v. Ricoh Corp., 487 U.S. 22, 27, 108 S.Ct. 2239, 2242-43, 101 L.Ed.2d 22 (1988) (quoting Van Dusen v. Barrack, 376 U.S. 612, 622, 84 S.Ct. 805, 812, 11 L.Ed.2d 945 (1964)).

The threshold question under Section 1404(a) is whether the action might have been brought in Maryland. Van Dusen, 376 U.S. at 613, 84 S.Ct. at 807-08. In a suit based on diversity, as is this one, venue is proper 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 (3) a judicial district in which the defendants are 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). In the case at bar, venue is proper in Maryland under 28 U.S.C. § 1391(a)(2) since the plaintiff's claims arise out of a nucleus of facts that, for the most part, took place in Maryland.

Specifically, two of the insurance policies were issued in Maryland, one of which was issued in Maryland while the plaintiff was residing in Silver Spring, Maryland. With respect to the third policy, which was entered into in the District of Columbia with Transamerica, the plaintiff engaged in activities in Maryland that led to his indictment and prosecution there. For instance, the plaintiff mailed his claim form to Transamerica's office in Silver Spring, Maryland. In addition, he personally visited the office in Maryland to facilitate the processing of his claim after the insured's death. Furthermore, the acts that allegedly led to the plaintiff's wrongful prosecution occurred in Maryland. Mr. Kafack completed both the Kemper and Primerica insurance claim forms for proceeds in Maryland. These insurance claim forms contained the alleged misrepresentations that led to Mr. Kafacks's indictment and prosecution. Kemper, Primerica, and Transamerica allegedly made defamatory statements about Mr. Kafack in Maryland to the Maryland Insurance Administration's Anti-Fraud Unit. Lastly, the official investigation of Mr. Kafack's activities was conducted in Maryland, and Maryland was the forum of the alleged malicious prosecution. Most of the events that form the factual predicate for Mr. Kafack's claims occurred in Maryland. As a result, Mr. Kafack could have brought the instant action in Maryland.

The court's inquiry proceeds to the issue of whether the case should be transferred based on the convenience of the parties, the convenience of the witnesses, and the interests of justice. In ruling on Section 1404(a) motions, courts have not, however, limited their consideration to these three enumerated factors but have considered many variants including the private interests of the parties and the public interests of the court,...