for the injury, and thus a duty to defend. Hartford and Centaur refused to defend Schmid on the theory that their respective duties to defend are narrowly confined. Schmid then filed suit in this Court against both defendants for breach of contract and bad faith.
Defendants argue that this action should be transferred to the Southern District of New York under 28 U.S.C. § 1404(a). A District Court may transfer an action to any other district where it might have been brought originally if the transfer would serve the convenience of the parties and witnesses and is in the interest of justice.
In considering the merits of a transfer motion, the Court may consider factors subsumed by purpose of the statute as well as the factors enumerated in section 1404(a). SEC v. Page Airways, 464 F. Supp. 461, 463 (D.D.C. 1978).
Defendants argue that this case should be transferred for two reasons. First, they contend that neither the underlying tort actions nor the contract action in the case at bar provide any factual nexus with the District of Columbia, and that it would therefore be inconvenient to try the case in the District of Columbia as well as to be expensive for all litigants. Second, defendants argue that plaintiff engaged in blatant forum shopping by filing suit in the District of Columbia and that the interest of justice would be ill-served by allowing it to benefit from such activity.
As noted, defendants' first point is that the District of Columbia is an inappropriate forum because none of the underlying tort actions were brought here; no part of the insurance contracts at issue were negotiated, entered into, or performed here; none of Schmid's insurance companies are incorporated or maintain head offices here;
and none of the witnesses or records are located here. Plaintiff responds that since this case is national in scope, there is no one "appropriate" forum, and that New York is no more convenient a forum than the District of Columbia. Consequently, Schmid argues, plaintiff's choice of forum is entitled to substantial weight and should not be disturbed by the Court.
The Court finds that, on the bases enumerated above, the defendants have made a showing that the case has a closer factual relationship with New York than it does with the District of Columbia. If that factor were the only consideration in a section 1404(a) analysis, however, that showing would not alone justify transferring the case to New York because the nationwide scope of the case reduces somewhat the importance of those factual considerations.
However, the Court's inquiry does not end there.
Defendants' second and much more persuasive argument is that transfer is warranted in the interest of justice because Schmid engaged in forum shopping in choosing to file this lawsuit in the District of Columbia. Defendants contend that Schmid filed the lawsuit in the District of Columbia only in order to benefit from this Circuit's ruling in Keene Corporation v. Insurance Company of North America, 215 U.S. App. D.C. 156, 667 F.2d 1034 (D.C. Cir. 1981). That case, involving a very similar contractual dispute between an insured and its insurer over the duty to defend in underlying tort claims arising from asbestos exposure, held that the duty to defend in cases involving extended exposure injuries is extremely broad.
But the courts in virtually every other jurisdiction which have addressed the issue have decided that the duty to defend in such cases is a much narrower one.
The plaintiff does not deny that it filed its lawsuit in the District of Columbia to take advantage of the broad rule of law established in Keene, but it argues that the general presumption favoring the plaintiff's choice of forum is not negated simply because it filed here to take advantage of favorable precedent.
The court rejects Schmid's argument. Initially, it is well established that where the plaintiff's forum choice has no factual nexus with the lawsuit, as is the case here, its choice of forum may be accorded less weight in a section 1404(a) analysis. Franklin v. Southern Railway, 523 F. Supp. 521, 524 (D.D.C. 1981); see also, Credit Alliance Corp. v. Nationwide Mutual Insurance Co., 433 F. Supp. 688, 689 (S.D.N.Y. 1977). More importantly, the transfer provisions in the U.S. Code, which grew out of the common law doctrine of forum non conveniens, were in part intended to prevent forum shopping. Cheeseman v. Carey, 485 F. Supp. 203, 214-15 (S.D.N.Y. 1980). This Court cannot find that it is in the interest of justice to encourage, or even allow, a plaintiff to select one district exclusively or primarily to obtain or avoid specific precedents, particularly in circumstances such as these where the relevant law is unsettled and the choice of forum may well dictate the outcome of the case. See Cheeseman v. Carey, 485 F. Supp. 203, 215 (S.D.N.Y. 1980).
While choice of an advantageous forum alone might not warrant a transfer, as plaintiff asserts, when such forum shopping is considered with the other factors in this case, i.e., the complete lack of nexus with the District of Columbia and the relatively more convenient forum available in the Southern District of New York, it is clear that this case should be transferred to that district.
Accordingly, for the reasons stated herein, it is this 27th day of March, 1986
ORDERED that defendants' motion to transfer this case to the Southern District of New York be and it is hereby granted.