United States District Court, S.D. Indiana, Hammond Division
OPINION AND ORDER
R. CHERRY MAGISTRATE JUDGE.
matter is before the Court on Defendant PMG Industrial,
LLC's Motion for Transfer of Venue [DE 28], filed on
November 16, 2016. Plaintiff Scottsdale Insurance Company
filed a response on November 30, 2016, and Defendant PMG
Industrial, LLC filed a reply on December 7, 2016. This
matter is also before the Court on Defendant PMG Industrial,
LLC's Motion to Substitute Affidavit of Rick Flores [DE
32], filed on December 7, 2016. Defendant PMG Industrial, LLC
asks for a transfer of venue to the Southern District of
Indiana, Evansville Division, pursuant to 28 U.S.C. §
1404(a). For the reasons set forth below, the Court grants
the Motion for Transfer of Venue.
Scottsdale Insurance Company (“Scottsdale”) filed
its Complaint for Declaratory Judgment in this District to
obtain a declaration that it has no duty to defend or
indemnify Defendant PMG Industrial, LLC (“PMG”)
in connection with a separate lawsuit pending in this
District brought by Walsh Construction Company
(“Walsh”) against Chicago Explosive Services, LLC
(“CES”) and PMG (Walsh Constr. Co. v. Chi.
Explosive Servs., LLC and PMG Indus., LLC, No.
Scottsdale is a corporation organized under the laws of Ohio,
with its principal place of business in Scottsdale, Arizona.
Defendant PMG is a limited liability company organized under
the laws of Indiana, with its principal place of business in
Evansville, Indiana, and with its members citizens of
Indiana. Defendant Walsh is a corporation organized under the
laws of Illinois, with its principal place of business in the
State of Illinois. Defendant CES is a limited liability
company organized under the laws of Indiana, with its
principal place of business in Evansville, Indiana, with two
of its members citizens of Indiana and a third member a
citizen of either Illinois or Florida.Scottsdale
represents that the amount in controversy, including the
potential costs of defending and indemnifying PMG with regard
to the underlying lawsuit exceeds $75, 000.00. Jurisdiction
in this matter is premised upon diversity of citizenship.
See 28 U.S.C. § 1332(a).
Complaint in this case, Scottsdale notes that the complaint
in the related litigation brought by Walsh alleges that, on
October 11, 2012, Walsh and CES entered into a Subcontract
Agreement for certain bridge demolition services, including
demolition of two spans of the Cline Avenue Bridge, in East
Chicago, Indiana. The related complaint alleges that CES
performed blasting work through the use of explosives and
that PMG assisted CES in the completion of the blasting.
Scottsdale further notes that the complaint in the related
case alleges that the blasting caused severe property damage
that Walsh was contractually obligated to repair at a cost
totaling approximately $2, 127, 250.19. Finally, the related
complaint alleges that “the blasting work performed by
PMG was an ultra-hazardous activity” and that, as a
result, PMG is strictly liable for proximately causing the
damage. (Compl. ¶¶ 26, 27 (quoting Ex. B, Count
VII, ¶¶ 29, 30)).
case, Scottsdale alleges that it issued to PMG a commercial
general liability insurance policy effective August 16, 2012,
through August 16, 2013. The policy includes a Demolition
Exclusion endorsement that provides, in part, that the
insurance does not apply to “‘property
damage' arising out of any blasting operations” and
does not apply to “‘property damage' arising
out of the demolition of any building or structure that has a
height in excess of three stories or fifty (50) feet from the
ground surface on the exterior of any building or
structure.” (Compl. ¶ 12). The Complaint further
alleges that, although Scottsdale initially agreed to defend
PMG in the related case brought by Walsh under a reservation
of rights, through the course of discovery, Scottsdale
learned that the bridge at issue has a height in excess of
fifty feet from the ground surface and that the work PMG
allegedly performed included drilling holes in the bridge for
the placement of explosives. On information and belief,
Scottsdale alleges that a portion of PMG's work on the
bridge was performed at a height in excess of fifty feet from
the ground surface.
Scottsdale asks for a declaratory judgment in this case that
there is no coverage under the Policy because the Demolition
Exclusion endorsement precludes coverage entirely.
initial matter, the Court grants the Motion to Substitute
Affidavit of Rick Flores to allow the substitution of his
signed Affidavit for the unsigned Affidavit filed with
PMG's opening motion.
PMG seeks transfer of venue under 28 U.S.C. § 1404(a)
from the Northern District of Indiana, Hammond Division to
the Southern District of Indiana, Evansville Division. PMG
argues that the convenience of the parties, the witnesses,
and the interest of justice will be better served by the
transfer of venue. Plaintiff Scottsdale opposes the transfer
to § 1404(a), “[f]or 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). Therefore, (1) venue must be proper in
the transferor court; (2) venue must be proper in the
transferee court; and (3) the transfer must serve the
convenience of the parties and witnesses and must be in the
interests of justice. See Coffey v. Van Dorn Iron
Works, 796 F.2d 217, 219-20 (7th Cir. 1986); Law
Bulletin Publ'g, Co. v. LRP Publ'ns, Inc., 992
F.Supp. 1014, 1017 (N.D. Ill. 1998). Although specifically
set forth 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.” Travel Supreme, Inc. v. NVER Enters.,
Inc., No. 3:07CV194PPS, 2007 WL 2962641, at *8 (N.D.
Ind. Oct. 5, 2007) (quoting Coffey, 796 F.2d at 219
n.3); see also Research Automation, Inc. v.
Schrader-Bridgeport Int'l, Inc., 626 F.3d 973, 977
(7th Cir. 2010) (quoting Stewart Org., Inc. v. Ricoh
Corp., 487 U.S. 22, 29 (1988)). The party seeking
transfer has the “burden of showing that ‘the
transferee forum is clearly more convenient.'”
Heller v. Fin., Inc. v. Midwhey Powder Co., 883 F.2d
1286, 1293 (7th Cir. 1989). “[W]hen the inconvenience
of the alternative venues is comparable there is no basis for
a change of venue[.]” In re Nat'l Presto
Indus., 347 F.3d 662, 665 (7th Cir. 2003).
venue is proper in this court under 28 U.S.C. §
1391(b)(2) as a substantial part of the events or omissions
giving rise to the related litigation occurred in this
District and a substantial part of the property that is the
subject of the related litigation is situated in this
District. East Chicago, Indiana, where the blasting work
occurred, is in this District.
venue is proper in the Southern District of Indiana. In its
opening motion, PMG does not analyze any of the requirements
of § 1391(b) as to venue in the Southern District of
Indiana, and Scottsdale comments only in a footnote that the
parties do not dispute that venue is proper in the transferee
district but also offers no analysis of § 1391(b). ...