United States District Court, S.D. Florida
GARY H. LEBBIN and THE LEBBIN-SPECTOR FAMILY TRUST, By and Through Its Trustees Roger M. Lebbin and Carole Sue Lebbin, Plaintiffs,
TRANSAMERICA LIFE INSURANCE COMPANY, Defendant.
THEODORE D. CHUANG UNITED STATES DISTRICT JUDGE.
Gary H. Lebbin and the Lebbin-Spector Family Trust, by and
through its trustees Roger M. Lebbin and Carole Sue Lebbin
("the Trust"), have brought this civil action
against Defendant Transamerica Life Insurance Company
("Transamerica") alleging breach of contract and
related claims arising from Transamerica's termination of
a life insurance policy because Gary Lebbin has now turned
100 years old. Presently pending before the Court is
Transamerica's Motion to Transfer Venue. Having reviewed
the submitted materials, the Court finds that no hearing is
necessary. See D. Md. Local R. 105.6. For the
reasons set forth below, the Motion is GRANTED.
6, 1990, Gary and Bernice Lebbin ("the Lebbins")
completed an application for a Transamerica life insurance
policy in Delray Beach, Florida, without specifying the
ultimate beneficiaries of the policy. At the time, Gary
Lebbin was a Florida citizen and listed a Delray Beach
address on the application, but he also maintained a
residence in Maryland. Jack Kaye, a Transamerica agent,
conducted the discussions and negotiations regarding the sale
of the insurance policy with Gary Lebbin while in Florida.
25, 1990, the Lebbins formed the Trust in Montgomery County,
Maryland, naming their children, Roger Lebbin and Carole Sue
Lebbin, as Trustees ("the Trustees".. Two days
later, on June 27, 1990, the Lebbins completed another
application for a Transamerica life insurance policy, this
time naming the Trust as the policy owner and beneficiary.
This application was signed by Gary and Bernice Lebbin, as
well as both Trustees on behalf of the policy owner, in Chevy
Chase, Maryland, but the Lebbins continued to list their
address as a residence in Delray Beach, Florida. On July 9,
1990, Transamerica issued life insurance policy number
92324057 ("the 92324057 Policy"), which insured the
Lebbins for $2, 000, 0000. The policy was issued on a form
approved by the Florida Office of Insurance Regulation.
Lebbins completed a third application on December 17, 1991.
They listed the same Delray Beach, Florida address as their
residence and signed the application in Delray Beach. The
Trustees also signed as policy owner. A life insurance
illustration form, which shows the assumed cash value of the
policy at various ages, states that it was presented by Jack
Kaye on December 19, 1991 in Florida. On December 20, 1991,
Transamerica issued policy number 92387187 ("the
92387187 Policy"), a $1, 200, 000 policy insuring the
Lebbins. The 92387187 Policy was also issued on a form
approved by the Florida Office of Insurance Regulation. A
premium payment for the 92324057 Policy was made by Gary
Lebbin, with a check listing his Delray Beach address, on
October 21, 2014.
Lebbin is 100 years old and continues to live in Delray
Beach, Florida. The Trust was formed in Maryland and is
administered there. Roger Lebbin resides in and is a citizen
of Maryland, and Carole Sue Lebbin is a Florida citizen and
resides in Delray Beach, Florida but also maintains another
residence in Maryland. Jack Kaye, the original agent who sold
the 92324057 and 92387187 Policies ("the
Policies"), is 89 years old and lives in South Florida.
Lisa Fleming, the current servicing agent for the Policies
who reviewed the Polices with Gary Lebbin at her office in
Florida in 2010, lives and works in South Florida. Both Kaye
and Fleming have asserted that it would be a hardship for
them to travel to Maryland for a trial and .
other proceedings relating to this case. The accountant for
the Trust, Dianne Fagerli, is based in Florida but has stated
that it would not be a hardship for her to travel to
Maryland. Transamerica is an Iowa corporation and maintains
offices in both Florida and Maryland.
their Motion to Transfer Venue, Transamerica seeks to
transfer this case to the United States District Court for
the Southern District of Florida "for the convenience of
parties and witnesses" and "in the interest of
justice" pursuant to 28 U.S.C. S 1404(a). Mot. Transfer
at 1, ECF No. 19. Transamerica argues that such a transfer is
warranted because Gary Lebbin initiated and negotiated the
purchase of the Policies in Florida through a Florida agent,
and all of the known witnesses in this case reside in
Florida. In response, Plaintiffs emphasize the importance of
a plaintiffs choice of forum, in this case, Maryland, and
argue that Transamerica's claims of inconvenience in the
absence of a transfer are speculative.
the parties do not dispute that venue is proper in Maryland,
the Court analyzes Defendant's request to transfer the
case under the change of venue statute, 28 U.S.C. S 1404(a).
See Lafferty v. St. Riel, 495 F.3d 72, 78 (3d Cir.
2007) (observing that transfer under S 1404(a) is appropriate
"when venue is proper and [28 U.S.C. S 1406] should be
used when venue is improper".. "For the convenience
of parties and witnesses, in the interest of justice, a
district court may transfer any civil action to another
district court or division where it might have been
brought[.]" 28 U.S.C.1404(a) (2012); see Kontoulas
v. A.H Robins Co., 745 F.2d 312, 315 (4th Cir. 1984). It
is undisputed that this case could have been brought in the
Southern District of Florida.
prevail on a motion under § 1404(a), the moving party
"must show by a preponderanee of the evidence that the
proposed transfer will better and more conveniently serve the
interests of the parties and witnesses and better promote the
interests of justice." Helsel v. Tishman Realty
& Const. Co., 198 F.Supp.2d 710, 711 (D. Md. 2002).
The Court weighs a number of case-specific factors in making
this determination, including: (1) the weight accorded to the
plaintiffs choice of forum; (2) witness convenience and
access to sources of proof; (3) the convenience of the
parties; and (4) the interest of justice. Trustees of the
Plumbers & Pipefitters Nat'l Pension Fund v. Plumbing
Servs., Inc. ('Trustees",, 791 F.3d 436, 444
(4th Cir. 2015); see also Gulf Oil Corp. v. Gilbert,
330 U.S. 501, 508-09 (1947); Brown v. Stallworth,
235 F.Supp.2d 453, 456 (D. Md. 2002).
the balance is strongly in favor of the defendant, the
plaintiffs choice of forum should rarely be disturbed."
Collins v. Straight, Inc., 748 F.2d 916, 921-22 (4th
Cir. 1984). "(B]efore transfer is warranted, a defendant
must demonstrate that the deference due plaintiffs choice of
venue is clearly outweighed by other factors." Bd.
of Trustees, Sheet Metal Workers Nat'l Fund. v. Baylor
Heating & Air Cond, Inc., 702 F.Supp. 1253, 1256
(E.D. Va. 1988). In deciding a motion to transfer, a court
may consider materials outside the pleadings. See Vanity
Fair Mills, Inc. v. T Eaton Co., 234 F.3d 633, 645 (2d
Cir. 1956); Huang v. Napolitano, 721 F.Supp.2d 46,
47 n.2 (D.D.C. 2010); Citibank, N.A. v. Affinity
Processing Corp., 248 F.Supp.2d 172, 176 (E.D.N.Y.