Jackson v. Economou et al CV-07-259-JL 4/30/08 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Jackson National Life Insurance Company

v. Civil N o . 07-00259-JL Opinion N o .

Robert G. Economou, et a l .

O R D E R

Plaintiff Jackson National Life Insurance Company (“JNL”)

initiated this interpleader action under

1 in

order to settle a dispute over the proceeds of an annuity it had

issued to Henry O. LeTourneau. The named death beneficiaries of

the annuity are claimants Robert G. Economou and Donna Normand,

LeTourneau’s stepchildren (“the stepchildren” or “the

stepchildren claimants”). Claimant Mary Ann Greska, LeTourneau’s

biological child, asserts that she and LeTourneau’s other

biological offspring are entitled to the annuity proceeds due to

undue influence, abuse, and neglect inflicted on the decedent by

the stepchildren’s mother.

1 The jurisdictional minimum for “statutory interpleader” under § 1335 differs from “rule interpleader” under Fed. R. Civ. P. 22 in that the jurisdictional minimum for the amount in controversy under the statutory version is $500, while the minimum for rule interpleader, which falls under the general rules of diversity jurisdiction, remains $75,000. Jurisdiction, uncontested by the parties in this case, lies

in this court under

(2006) (statutory

interpleader).

The stepchildren have moved to dismiss the case on the basis

of forum non conveniens, or in the alternative, to transfer this

case to a different venue pursuant to

(a) (2006).

Oral argument on the motion was heard on April 2 1 , 2008. For the

reasons set forth below, the motion to dismiss is denied, and the

motion to transfer is granted.

I. BACKGROUND

In 2002, JNL issued a “Target Select Deferred Annuity” to

LeTourneau. The annuity provided that certain benefits would be

payable to a designated beneficiary or beneficiaries upon

LeTourneau’s death. In 2004, LeTourneau designated Greska, who

is his biological daughter, and two other biological children as

beneficiaries. Two years later, LeTourneau executed and sent to

JNL a “beneficiary change form” designating his stepchildren,

Economou and Normand, as equal beneficiaries, to the exclusion of

the biological children. About seven months later, LeTourneau

died. The ensuing death certificate, issued by Florida

authorities, indicated that the cause of death was pneumonia with

2 an approximate onset three weeks prior, and “advanced dementia”

with an approximate onset one year prior.

Economou and Normand each asserted a claim for fifty percent

of the death benefit. Receiving information that the biological

children, including Greska, intended to challenge the change in

beneficiary designation because of LeTourneau’s dementia, JNL

initiated this § 1335 interpleader action.2

Greska, who lives in New Hampshire, asserts that

LeTourneau’s spouse at his death (the stepchildren’s mother)

exerted undue influence on him and subjected him to abuse and

neglect, causing him to execute the beneficiary change form

designating the stepchildren as beneficiaries. Greska alleges

(but does not specify) several incidents of abuse and neglect

occurring in Florida, as well as indicia of dementia on

LeTourneau’s part, during 2006. The alleged manifestations of

dementia, instances of abuse and neglect, and the execution of

the beneficiary change form all took place i n , or in the vicinity

o f , Port Charlotte, Florida, where LeTourneau resided until his

death. The stepchildren claimants, Economou and Normand, reside

in Tewksbury, Massachusetts, and Peabody, Massachusetts,

2 Two other natural children claimants, one living in New Hampshire and the other in Florida, did not appear in this action and were subsequently defaulted.

3 respectively. They assert that LeTourneau’s last will and

testament was executed on April 1 0 , 2006, in Charlotte County,

Florida, at which time witnesses swore that LeTourneau was of

sound mind, and under no constraint or undue influence. They

further assert that on May 1 , 2006, LeTourneau was examined by

his long-time treating physician, presumably in or near Port

Charlotte, Florida, who found him to be of sound mind. Claiming

to have had no knowledge of LeTourneau’s designation of them as

beneficiaries until his death, the stepchildren dispute that he

was suffering from advanced dementia for a period of one year

prior to his death as indicated on the death certificate.

Having deposited the disputed funds with the court (see

(a)(1)), and recovered its costs and fees, see Trs.

of Directors Guild of Am.-Producer Pension Benefits Plan v . Tise,

, 426 (9th Cir. 2000); Ferber C o . v . Ondrick,

(1st Cir. 1962), JNL was dismissed from the case in

accordance with the customary procedure in interpleader actions.

See Hudson Sav. Bank v . Austin,

(1st Cir.

2007).

4 II. ANALYSIS

The motion to dismiss on forum non conveniens grounds

requires little consideration. Forum non conveniens is “a

discretionary tool for the district court to dismiss a claim,

even when” as here, “it has proper jurisdiction.” Adelson v .

Hananel,

3 , 52 (1st Cir. 2007) (citing Gulf Oil Corp.

v . Gilbert,

(1947) and Koster v . Lumbermens Mut.

Cas. Co.,

(1947)). “[A] supervening venue

provision, permitting displacement of the ordinary rules of venue

when, in light of certain conditions, the trial court thinks that

jurisdiction ought to be declined,” forum non conveniens “has

continuing application [in federal courts] only in cases where

the alternative forum is abroad, and perhaps in rare cases where

a state or territorial court serves litigational convenience

best.” Sinochem Int’l C o . v . Malaysia Int’l Shipping Corp., ___

U.S. ___, 127 S . C t . 1184, 1190 (2007) (brackets in original;

internal citations omitted) (citing American Dredging C o . v .

Miller,

, 449 n.2 (1994) and 14D Charles Alan Wright

et al., Federal Practice and Procedure § 3828, at 620-623 & nn.9-

10 (3rd ed. 2007)).

Since the alternative forum at issue in this case is not a

foreign country, but rather the Middle District of Florida, a

forum non conveniens dismissal would be improper in this case.

5 The stepchildren claimants’ reliance on the doctrine is

misplaced, and their motion to dismiss is denied. The court will

proceed to address their motion to transfer venue under

(a).

Applicable legal standard

“Under § 1404(a), [3] a district court may transfer any civil

action to any other district where it may have been brought

‘[f]or the convenience of parties and witnesses, in the interest

of justice.’” Coady v . Ashcraft & Gerel,

, 11 (1st

Cir. 2000) (quoting

(a) (2006) (bracketed

footnote added)). 4 “The burden of proof rests with the party

3 The stepchildren claimants have not argued that venue in the District of New Hampshire is improper. Thus, the court need not address

(a), which applies where venue is improper in the transferor court. 4 The opening provision of the statute, entitled “Change of venue,” provides as follows:

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.

(a). Although the parties neither briefed nor argued this issue, the court finds that the Middle District of Florida is an “other district or division where [the interpleader action] might have been brought.”

A statutory interpleader action may be brought in the district where one or more of the claimants reside.

. JNL has effected valid service of process on interpleader defendant Cecile C . Payne,

6 seeking transfer; there is a strong presumption in favor of the

plaintiff’s choice of forum.”

(citing Gulf,

(applying the doctrine of forum non conveniens)). A properly

grounded motion to transfer venue is committed to the discretion

of the transferor court, which has wide latitude in determining

whether to grant i t . Auto Europe, LLC v . Conn. Indem. Co.,

0 , 64 (1st Cir. 2003).

The text of the transfer statute itself (see supra at n.5)

sets forth three factors which form the basis of the court’s

consideration (but to which the court’s inquiry is not strictly

limited): (1) the convenience of the parties, (2) the

convenience of the witnesses, and (3) the interest of justice.

See id. “The three factors mentioned in the statute, convenience

of parties and witnesses and the interest of justice, are broader

generalities that take on a variety of meanings in the context of

specific cases. Further, the statute gives no hint about how

these broad categories are to be weighed against each other.” 15

Wright, supra, § 3847 at 97-98. The First Circuit has stated

that while the compendia of factors is a helpful starting point,

“not every item applies in every case and, in the last analysis,

whose domicile at the time was Port Charlotte, Florida. Although Payne subsequently defaulted, see supra n.2, there is no question that this action could have been initiated in that district since she did reside there at its commencement.

7 the list of factors is illustrative rather than all-inclusive.

‘The ultimate inquiry is where trial will best serve the

convenience of the parties and the ends of justice.’” Iraquorri

v . Int’l Elevator, Inc.,

, 12 (1st Cir. 2000) (quoting

Koster, 320 U.S. at 5 2 7 ) ; see also Coffey v . Van Dorn Iron Works,

, 219 n.3 (7th Cir. 1986) (noting that while “the

trial judge is limited to the three factors as specifically

mentioned 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”).

The courts, drawing heavily on concepts from § 1404(a)’s

predecessor doctrine, forum non conveniens, have broken down the

statute’s three enumerated grounds for transfer –- convenience to

parties, convenience to witnesses, and the interest of justice –-

into “private-interest” and “public-interest” factors see, e.g.,

Coady,

1 . The private-interest factors are:

• the plaintiff’s choice of forum;

• location of the operative events in the case;

• convenience of the parties;

• the convenience of the witnesses;

• cost of obtaining witnesses;

• location of counsel;

• ability to compel attendance of witnesses;

8 • accessibility and location of sources of proof;

• possibility of a jury view; and

• the existence of a contractual forum/selection clause.

See id.; see also Cianbro Corp v . Curran-Lavoie, Inc.,

, 11 (1987); 17 James Wm. Moore et al., Moore’s Federal

Practice, § 111.13[1][b], at 111-67-111-68 (3rd ed. 2008); 15

Wright, supra, § 3847, at 109.

Plaintiff’s choice of forum. Although “there is a strong

presumption in favor of the plaintiff’s choice of forum,” Coady,

1 , “[s]ome courts have said that [the presumption]

is less significant in certain contexts such as . . . when the

plaintiffs . . . have no real interest in the outcome of the

action.” 15 Wright, supra § 3846, at 127-129 & n.14 (citing

Mutual of Omaha Ins. C o . v . Dolby,

(E.D. Pa.

1982) (finding presumption inapplicable in interpleader cases).

Fitting this description, interpleader actions do not use the

“plaintiff’s choice” presumption. In re Monies on Deposit in

Accounts at Stearns Bank Nat’l Ass’n, N o . 06-542,

, at *1 (D. Minn. Dec. 2 9 , 2006) (“However, where the

plaintiff has no underlying interest in where the case is

litigated, as in an interpleader action, courts need not defer to

the plaintiff’s choice of venue.”) (citing Wilmington Trust C o .

9 v . Gillespie,

, 1341 n.3 (D. Del. 1975));

Reliastar Life Ins. C o . of N.Y. v . LeMone, N o . 05-545,

, at *5 (W.D. Va. Mar. 1 6 , 2006); Bankers Trust C o . of W .

N.Y. v . Crawford,

(W.D.N.Y. 1983) (“In an

interpleader action, however, the plaintiff has no real interest

concerning the jurisdiction in which the dispute between or among

the defendants/claimants is to be litigated. There is thus no

reason to defer to its selection of forum.”); see also Employees

Sav. Plan of Mobil Oil Corp. v . Vickery,

(S.D.N.Y. 1983). Since JNL has already been dismissed from the

case and awarded its fees and costs, it has no real interest in

its outcome, and in fact has filed a pleading stating that it

takes no position on the request to transfer. Its choice of

forum therefore carries no presumptive weight. Thus, this factor

militates neither for nor against the requested transfer.

Location of the operative events in the case. While the

various claimants to the annuity proceeds reside in New England

states, the events that will determine the outcome occurred in

and around Port Charlotte, Florida. LeTourneau’s execution of

the beneficiary change form took place there, as did the

execution of his last will and testament and his most recent

examination by a physician, both of which may be probative as to

his mental condition at the relevant time. Further, any abusive,

10 neglectful, or coercive conduct amounting to duress or undue

influence on the part of LeTourneau’s spouse, as alleged by

Greska, also occurred in Florida. Indeed, the very event cited

by Greska, involving LeTourneau’s “wandering lost and confused in

or around May or June of 2006,” resulted in his being found by

the Charlotte County (Florida) Sheriff’s Department. Thus, the

location of the operative facts favors the Middle District of

Florida as the superior venue.

Convenience of the parties. If “convenience” means no more

than ease of travel to the courthouse, the current venue has an

edge over Florida where the convenience of the parties is

concerned. Pro se claimant Greska is a resident of New

Hampshire, and the stepchildren claimants reside in

Massachusetts, on New Hampshire’s southern border. The

stepchildren claimants, however, have requested this transfer,

and at the hearing on their motion argued persuasively that

defending this litigation in New Hampshire will be unduly

inconvenient and unduly burdensome for them, because it will

require the transportation of witnesses (both fact and opinion

witnesses, including medical and law enforcement professionals)

from Florida to New Hampshire. These arguments in favor of

transfer slightly outweigh Greska’s plea for the case to remain

here.

11 Convenience of the witnesses. This court has held that the

convenience of the witnesses is “probably the most important

factor.” Sousa v . TDBanknorth Ins.,

(quoting

Fairview Machine & Tool C o . v . Oakbrook Int’l, Inc.,

(D. Mass. 1999) and Princess House, Inc. v . Lindsey,

6 , 18 (D. Mass. 1991)). Virtually all of the non-

party witnesses--LeTourneau’s treating physician, other medical

personnel, and other witnesses to LeTourneau’s behavior (both in

the year leading up to his death and at the times he executed his

will and the beneficiary change form), as well as his daughter

Cecile, the members of the Charlotte County Sheriff’s Department,

key staff of the Elderly Abuse Division of the Florida Department

of Health and Human Services and, significantly, the target of

Greska’s accusations of abuse, neglect and undue influence,

Lorraine Letourneau--all reside in Florida, presumably not far

from LeTourneau’s home while alive. These witnesses will be

required to produce evidence, testify at depositions, and testify

at trial. Since the convenience of these witnesses is “probably

the most important factor,”

it strongly favors a Florida

venue.

Cost of obtaining witnesses and evidence. Again, nearly

every important witness in this case resides or works in the

vicinity of Port Charlotte, Florida. Consideration of the cost

12 of obtaining witnesses goes hand-in-hand with the question of

convenience to witnesses. Although some of the issues raised by

Greska’s allegations would likely be narrowed by the discovery

process, necessitating the actual trial testimony of fewer

witnesses, it seems inevitable that the testimony of several

Florida residents will be required at trial. The comparative

costs of transporting these witnesses to court in Florida, as

opposed to here in Concord, New Hampshire, tips the scale

strongly toward Florida as the better venue.

Location of counsel. The location of the parties’

respective counsel has little bearing on this analysis. Greska

is proceeding pro s e . And as established at the motion hearing,

the other claimants will likely retain Florida counsel if the

matter is transferred there.

Comparative ability to compel attendance of witnesses.

Assessing the relative power of the current venue and the

transferee venue to require the attendance of witnesses

necessarily focuses on any uncooperative or indifferent witnesses

who might prefer not to testify at trial. The Florida venue has

the clear edge in this regard. As already noted, nearly every

important witness in the case resides or works in the area of

Charlotte County, Florida. Since a District Court’s trial

subpoena power is limited to 100 miles from the location of the

13 trial, see Fed. R. Civ. P. 45(b)(2), and the 1991 amendments to

Rule 45 were enacted to enable courts to compel the attendance of

in-state witnesses, see Mohamed v . Mazda Motor Corp.,

(E.D. Tex. 2000); Fed. R. Civ. P. 45 advisory

committee’s notes, 1991 am. ¶ 1 , this factor favors the requested

transfer.

Accessibility and the location of sources of proof. As a

general matter, witnesses and documents tend to follow events,

costs tend to follow witnesses and documents, and sources of

proof--the factor in question here--tend to follow all of these.

In addition to the individual witnesses who are in themselves

sources of proof, the other likely sources are the institutions

where some of these witnesses work and potentially relevant

documents are maintained. In this case, those institutions

include the Charlotte County Sheriff’s Department, any medical

practice or facility where LeTourneau was treated or examined

prior to his death, the Elderly Abuse Division of the Florida

Department of Health and Human Services, and the Office of Vital

Statistics that issued LeTourneau’s death certificate. All of

these institutions are located in the Middle District of Florida,

which weighs in favor of a transfer.

Mr. LeTourneau’s medical file, any deputy sheriff’s report,

any attorney’s notes regarding the execution of LeTourneau’s will

14 or the beneficiary change form in question, and any other

document generated by the Elderly Abuse Division of the Florida

Department of Health and Human Services exist i n , and are

maintained by institutions and offices located i n , the state of

Florida. While the portability of documentary evidence makes

this factor less significant than those set forth above, nothing

about this factor suggests that New Hampshire is a more

convenient or otherwise superior venue.

Other factors. The remaining factors listed above -- the

possibility of a jury view, and the existence of a contractual

forum selection clause –- have no bearing on this matter. A

trial in this case will not require a jury view, and there has

been no allegation by any party that the annuity in question

contained a forum selection clause.

The public-interest factors traditionally relate to the

efficient administration of the court system. See Coffey,

. They include:

• administrative difficulties caused by court congestion;

• local interest in the controversy and the burden of jury duty; and

• the proposed forum’s familiarity with the governing law. See

Administrative difficulties. Neither Greska nor the

stepchildren have relied on the relative level of court

15 congestion in this district and the Middle District of Florida in

their competing arguments for and against a transfer. Based on

the court’s own research, the two fora do not appear

significantly different in this respect. See Administrative

Office of the United States Courts, Federal Court Management

Statistics (2007). So this consideration does not factor into

the analysis of the transfer motion.

Local interest and burden on jurors. This interpleader

matter will not require a jury trial, so the burdens of jury duty

have no bearing on the disposition of the motion. And local

interest in the controversy--whether, and to what extent

allegedly abusive and neglectful conduct and accompanying duress

by LeTourneau’s spouse undermined the validity of the beneficiary

change--does not figure to be particularly high. If one venue

has an edge, it is likely the Middle District of Florida, whose

residents may have some interest in the judicial resolution of

controversy over estate planning documents executed there. Thus,

to the extent that this factor has any bearing, it weighs in

favor of the Florida venue.

Familiarity with governing law. Greska does not dispute the

other parties’ assertion that Florida law will govern the

determination of the validity of the beneficiary change form, and

the court sees no reason to question i t . Although this court is

16 capable of construing Florida law and applying it to the evidence

presented, and a federal court should not shirk its

responsibility to interpret and apply the law of other

jurisdictions, see Omni Hotel Mgmt. v . Roundhill Dev., Ltd.,

(D.N.H. 1997), this admonition presupposes the

obvious: standing alone, a requirement to apply Florida law

favors (but does not compel) a transfer to a Florida venue.

There can be little question that the United States District for

the Middle District of Florida is better versed i n , and in a

better position to apply, Florida law.

CONCLUSION

The stepchildren claimants’ motion to dismiss on forum non

conveniens grounds is DENIED. Their motion to transfer venue to

the Middle District of Florida is GRANTED. Although several of

the private-interest and public-interest factors favor the

requested transfer, the court relies most heavily on what is

“probably the most important factor,” Sousa,

, at 5 ,

the convenience of the witnesses involved.

The court is mindful, however, of Greska’s position that,

due primarily to her pro se status, the transfer will cause her

substantial inconvenience because she believes, prosecuting her

claims in Florida is beyond her resources and expertise. The

17 court notes, however, that the location of the large majority of

the witnesses in Florida would in all likelihood have required

her to travel there anyway in the course of litigating her claim

because, again, this court cannot compel those witnesses to

travel to New Hampshire to testify. For this reason, before this

case is transferred to the Middle District of Florida, the Clerk

will wait 30 days from the date of this order to enable Greska to

pursue an appeal of this court’s ruling if she wishes. If Greska

does not take an appeal within that time, however, the matter

shall be transferred to the Clerk for the United States District

Court for the Middle District of Florida, and administratively

closed in this court.

SO ORDERED.

y^W^Tgb tt Joseph N. Laplante United States District Judge

Dated: April 3 0 , 2008

cc: William D. Pandolph, Esq. Ronald J. Caron, Esq. Jaye Rancourt, Esq. Mary Ann D. Greska, pro se

18