UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

MSPA Claims 1, LLC

v. Civil No. 18-cv-830-JL Opinion No.

Covington Specialty Insurance Company

MEMORANDUM ORDER

Whether this Medicare-secondary-payer case should be

transferred to the Southern District of Florida turns primarily

on the location of the operative facts and convenience of

potential witnesses, but is also informed by that district’s

resolution of a previous lawsuit between these parties.

Plaintiff MSPA Claims 1, LLC alleges that defendant Covington

Specialty Insurance Company systematically avoided repaying

Medicare Advantage Organizations (“MAOs”) for secondary payments

as required under the Medicare Secondary Payer Act (“MSP Act”),

42 U.S.C. § 1395y(b)(2)(A). MSPA seeks to represent a

nationwide class of MAOs based on a representative claim

involving an accident in Florida. MSPA’s standing to bring this

representative claim depends on whether it was validly assigned

the rights of a now-defunct Florida-based MAO. Covington moves

under

(a) to transfer the case to the Southern

District of Florida. After reviewing the parties’ written submissions and conducting oral argument, the court grants

Covington’s motion to transfer.

Several private-interest and public-interest factors weigh

in favor of transfer, including the important factor of the

convenience of potential witnesses. Only MSPA’s choice of forum

and the relative congestion of the courts weigh against

transfer. And MSPA’s choice is entitled to lesser weight here

because it is bringing a class action, is not a resident of New

Hampshire, and previously filed an extremely similar lawsuit

against Covington in Florida. Transfer under § 1404(a) is

justified.

Applicable legal standard

“[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,

(1st Cir.

2000) (quoting

(a)). “The burden of proof rests

with the party seeking transfer; there is a strong presumption

in favor of the plaintiff’s choice of forum.” Id. at 11.

“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 it.” Jackson Nat. Life

Ins. Co. v. Economou,

(D.N.H. 2008)

2 (citing Auto Europe, LLC v. Conn. Indem. Co.,

(1st Cir. 2003)).

Background

MSPA is a Florida limited liability company with its

principal place of business in Miami, Florida.1 Covington is a

New Hampshire-registered insurance company with a principal

place of business in New Hampshire and an administrative office

in Atlanta, Georgia.2

MSPA alleges that Covington has repeatedly failed to make

payments required by the MSP Act. It alleges that the Act

requires Covington to reimburse MAOs for accident-related

expenses paid out to enrollees in the MAOs’ Medicare Advantage

health plans if those enrollees were also covered by a Covington

no-fault insurance policy.3 MSPA brings a nationwide class

action against Covington on behalf of harmed MAOs.4

MSPA outlines a “representative claim” against Covington

arising from an accident in Florida.5 MSPA alleges that the

1 Compl. (doc. no. 1) ¶ 1. 2 Id. ¶ 2; Def.’s Mem. in Supp. of Mot. to Transfer Venue (doc. no. 12-1) at 2. 3 Compl. (doc. no. 1) ¶¶ 9-10. 4 Id. ¶¶ 42-50. 5 Id. ¶¶ 23-25.

3 injured party was both enrolled in a Medicare Advantage plan

administered by a now-defunct MAO, Florida Health Care Plus

(“FHCP”), and covered by a Covington-issued policy on the

premises where the accident occurred.6 FHCP paid medical

expenses to the injured party, but MSPA argues that Covington

was responsible for these expenses under the MSP Act.7

MSPA claims it is the assignee of FHCP.8 FHCP assigned

certain recovery rights to La Ley Recovery, Systems, Inc.9 La

Ley in turn purported to assign rights to MSPA.10

The Florida Department of Financial Services was appointed

receiver of FHCP.11 The validity and scope of the purported

assignments to MSPA depend in part upon a settlement agreement

between the Department of Financial Services, La Ley, MSPA, and

other related companies.12

MSPA previously brought an extremely similar lawsuit

against Covington that was removed to the Southern District of

6 Id. ¶¶ 24-25, 28. 7 Id. ¶¶ 27-28. 8 Id. ¶¶ 23-33; Pl.’s Resp. in Opp’n to Def.’s Mot. to Dismiss Compl. (doc. no. 19) at 2-11. 9 Compl. (doc. no. 1) ¶ 30. 10 Id. ¶ 30. 11 Ex. 4 to Def’s Mot. to Dismiss Compl. (doc. no. 10-4). 12 See Compl. (doc. no. 1) ¶ 32-33.

4 Florida. MSPA Claims 1, LLC v. Covington Specialty Ins. Co.,

(S.D. Fla. 2016).13 That case was dismissed

for lack of standing, but the dismissal turned in part on the

fact that standing is determined as of the time when a complaint

is filed.

. The complaint in that case was filed

before the settlement agreement was entered, and the court did

not decide whether that agreement would give MSPA standing in a

new lawsuit.

MSPA argues here that it has standing as a

result of the settlement agreement.14

Covington moves to transfer this action to the Southern

District of Florida, Miami Division.15 In addition to the

previous case between these parties, Covington claims that MSPA

13That lawsuit involved the same underlying “class representative claim” as this case. See Def.’s Mem. in Supp. of Mot. to Transfer Venue (doc. no. 12-1) at 9. While the parties represented otherwise at oral argument, the record indicates that the injured party “F.C.” described by the Florida court is identical to the injured party “P.M.” described in MSPA’s complaint. Compare Compl. (doc. no. 1) ¶ 24-28 and Demand Letter (doc. no. 1-6) (demanding $15,825.43 based on P.M.’s claim) with MSPA Claims,

(“FHCP paid for F.C.’s medical expenses, totaling $15,825.43.”). The original complaint filed in the Florida action identified the injured party as “P.M.” Compl. at 4 n.5, MSPA Claims 1,

(No. 16-cv-20338), ECF No. 1-1. 14Pl.’s Resp. in Opp’n to Def.’s Mot. to Dismiss Compl. (doc. no. 19) at 2-11. 15Def.’s Mot. to Transfer Venue (doc. no. 12). Covington has also moved to dismiss the complaint (doc. no. 10) and to strike the class action allegations (doc. no. 11). Because the court grants the motion to transfer, it does not reach these other motions.

5 and related entities have brought numerous other lawsuits

involving similar claims against other insurers in the Middle or

Southern Districts of Florida, many of which remain pending.16

Analysis

The parties agree that this case “may have been brought” in

the proposed transferee district. See

(a).

Indeed, MSPA previously filed suit against Covington and the

case was removed to the Southern District of Florida. MSPA

Claims 1,

(S.D. Fla. 2016).

Transfer therefore turns on whether it would promote “the

convenience of parties and witnesses, in the interest of

justice,”

(a), which is assessed by weighing

private-interest and public-interest factors. Jackson,

. The private-interest factors are:

[T]he plaintiff’s choice of forum; the location of the operative events in the case; the convenience of the parties; the convenience of the witnesses; the cost of obtaining witnesses; the location of counsel; the ability to compel the attendance of witnesses; the accessibility and location of sources of proof; the possibility of a jury view; and the existence of a contractual forum selection clause.

(citing Coady,

).

“The public-interest factors . . . include: administrative

difficulties caused by court congestion; local interest in the

16 Def.’s Mot. to Transfer Venue (doc. no. 12) at 3-6.

6 controversy and the burden of jury duty; and the proposed

forum’s familiarity with the governing law.”

at 223 (citing

Coffey v. Van Dorn Iron Works,

(7th Cir.

1986)). These factors are a “helpful starting point, but ‘not

every item applies in every case and, in the last analysis, the

list of factors is illustrative rather than all-inclusive.’”

Jackson,

(quoting Iragorri v. Int’l

Elevator Inc.,

(1st Cir. 2000). Both types of

factors weigh in favor of transfer here.

A. Private-interest factors

1. MSPA’s choice of forum

“[T]here is a strong presumption in favor of the

plaintiff’s choice of forum.” Coady,

(citing

Gulf Oil Co. v. Gilbert,

(1947). But courts

have deemed that choice “less significant in particular

situations” including “class actions,” “if the plaintiff is not

a resident of the forum,” and if the plaintiff “appears to be

forum shopping.” 15 Charles Alan Wright & Arthur R. Miller

Federal Practice and Procedure § 3848 (4th ed. 2018); see also

Bowen v. Elanes New Hampshire Holdings, LLC,

(D. Mass. 2015) (Casper, J.) (“Where the forum has no

obvious connection to the case or where the plaintiff is not a

forum resident, the plaintiff’s presumption carries less

weight.”); Johnson v. New York Life Ins. Co., No. 12-11026-MLW,

7

at *3 (D. Mass. Mar. 14, 2013) (Wolf, J.) (“A

plaintiff’s choice of forum is less significant . . . in the

context of class actions” or where “it would abet a form of

forum shopping that should not be encouraged.”); Close v.

American Honda Motor Co., No. 94-365-SD,

at *2

(D.N.H. Oct. 18, 1994) (deference accorded the plaintiff's

choice of forum diminished even further when plaintiff brought

suit in forum which was not its “home turf.”).

MSPA has alleged few connections between this case and New

Hampshire. Covington is a New Hampshire corporation, and MSPA’s

broad class allegations might, speculatively, involve events in

New Hampshire. But MSPA is located in Florida, and the putative

class is nationwide.

Most importantly, MSPA previously brought a similar lawsuit

against Covington in Florida, which was dismissed for lack of

standing. While MSPA presents a reasonable argument that events

after the filing of that lawsuit resolved that deficiency, it

has not provided any compelling reasoning for bringing this new

suit in New Hampshire, rather than Florida. This unquestionably

suggests forum shopping, which renders the plaintiff’s choice of

little weight. Cf. Johnson,

at *3 (“[W]here, as

here, the same counsel has filed class actions asserting the

same federal claim in two different districts, and the second

claim was filed after the federal claim was dismissed in the

8 first-filed case, the usual weight given to the plaintiffs’

choice of forum is not justified.”)

2. Location of the operative events

The operative events in MSPA’s “class representative claim”

occurred entirely in Florida. MSPA also relies on events in

Florida to show that FHCP validly assigned its claims to MSPA.

MSPA argues that this factor should be neutral, because its

class action allegations potentially involve conduct throughout

the country. But all the operative facts specifically alleged

in the complaint occurred in Florida. This factor weighs in

favor of transfer.

3. Convenience of the parties

This factor is neutral. MSPA chose to bring this suit in

New Hampshire, and New Hampshire is Covington’s home state. But

Covington, the sole party with a New Hampshire interest, seeks

transfer to MSPA’s home state. Where neither party has

convincingly argued that it would be inconvenienced by

proceeding in its home forum, this factor carries little weight.

4. Convenience of the witnesses

“The availability and convenience of witnesses is the most

important factor in this balancing test.” Sousa v. TD Banknorth

Ins. Agency, Inc.,

(D.N.H. 2006)

(Barbadoro, J.).

9 Here, the convenience of witnesses weighs in favor of

transfer. MSPA’s witness disclosure in the Southern District of

Florida case included 13 witnesses, 12 of which were located at

the same Miami address as MSPA’s counsel in that case.17 The

remaining witness was a representative of the Florida Department

of Financial Services, located in Tallahassee, Florida.

Covington’s witness disclosure named two individuals

associated with RSUI Group, Inc., Covington’s parent company,

without detail on their location.18 It also identifies, by

category, potential witnesses involved in the representative

claim, which had resulted in litigation in Palm Beach County,

Florida. These included the injured party, their medical

providers, corporate representatives for the insured premises,

and defense counsel for the premises. These witnesses likely

either reside in Florida or have significant connections to

Florida.

All of the non-party witnesses identified in these

disclosures have at least some connection to Florida, while none

have ties to New Hampshire. As all of the alleged operative

facts occurred in Florida, the Southern District of Florida

17 Ex. 2 to Def.’s Mot. to Transfer Venue (doc. no. 12-4). 18Ex. 3 to Def.’s Mot. to Transfer Venue (doc. no. 12-5). The address given is in care of Covington’s Florida counsel.

10 would likely be more convenient for any other non-party

witnesses relevant to the representative claim or the standing

inquiry.

MSPA argues that it is too early to tell what witnesses

will be necessary at trial, and that any convenience to

witnesses is negated by its willingness to concede that any non-

party or Covington witnesses may be deposed where they are

located and that deposition testimony may be used at trial for

any non-party key witnesses unable or unwilling to appear in New

Hampshire.19 The proposed concessions do not necessarily resolve

the potential inconvenience, however, as Covington may have a

valid interest in non-party witnesses providing live testimony.

The Southern District of Florida would be at least as

convenient as this district for all potential witnesses in this

case, and would likely be significantly more convenient for

many, especially non-party witnesses. This factor weighs in

favor of transfer.

5. 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

19Pl.’s Opp. to Def.’s Mot. to Transfer Venue (doc. no. 17) at 4-5.

11 witnesses who might prefer not to testify at trial.” Jackson,

. The Southern District of Florida would

have greater subpoena powers over Florida-based witnesses than

this court. See Fed. R. Civ. Proc. 45(c). While neither party

has suggested that they expect uncooperative witnesses in this

case, this factor favors transfer.

6. Accessibility and location of sources of proof

Covington argues that there are documents and public

records relevant to this case in Florida. And it claims that it

maintains its own records in Atlanta, Georgia, not New

Hampshire.20 Both parties acknowledge that any relevant records

may be copied or transmitted in electronic form, so this factor

is not significant.21 But if there are any limitations on the

transfer of documents, accessibility would be greater in

Florida. This factor, while of little weight, thus favors

transfer.

7. Other factors

Neither party has argued that the cost of obtaining

witnesses, location of counsel, possibility of a jury view, or

20 Def.’s Mot. to Transfer Venue (doc. no. 12) at 2. 21See id. at 10; Pl.’s Opp. to Def.’s Mot. to Transfer Venue (doc. no. 17) at 5.

12 existence of a contractual forum selection clause is relevant

here. The court likewise affords them no weight in this case.

B. Public-interest factors

1. Administrative difficulties

Neither party addresses the relative level of court

congestion in this district and the Southern District of

Florida. The Southern District has a higher weighted case load

per judge than this district. See Administrative Office of the

United States Courts, Federal Court Management Statistics

(September 2018). But the Southern District’s familiarity with

related litigation lessens any burden transferring this case

would impose. This factor weighs against transfer, albeit not

significantly.

2. Local interest and burden on jurors

Resolving whether MSPA has standing to bring this action

involves construing a settlement agreement between MSPA and the

DFS, a Florida state agency. There is arguably local interest

in Florida in resolving a dispute involving the actions of a

Florida state agency. To the extent that this factor has any

bearing, it thus weighs in favor of transfer.

3. Familiarity with governing law

This factor derives from the principle that it is

advantageous for diversity cases to be tried by judges familiar

13 with the applicable state law. See Coffey,

(citing Van Dusen v. Barrack,

(1964)). MSPA’s

claims are based in federal law. But determining whether MSPA

has standing involves, at a minimum, interpreting a settlement

agreement governed by Florida law.22 While this court is

certainly capable of applying Florida law, this factor favors

transfer to a court staffed by judicial officers accustomed to

applying Florida law on a daily basis.

4. Judicial economy

Considerations of efficiency and judicial economy affect

whether transfer is warranted. Well Fargo Fin. Leasing, Inc. v.

Tulley Auto. Group, Inc., No. 17-cv-429-JL,

, at

*3 (D.N.H. Sept. 29, 2016) (McCafferty, J.); see Van Dusen,

(purpose of § 1404(a) to “prevent the waste of time,

energy and money and to protect litigants, witnesses and the

public against unnecessary inconvenience and expense.”)

Covington argues that the Southern District of Florida and

Eleventh Circuit Court of Appeals’ familiarity with the previous

case between these parties and related litigation filed by MSPA

weighs in favor of transfer.23

22 See Settlement Agreement (doc. no. 1-4) ¶ 18. 23 Def.’s Mot. to Transfer Venue (doc. no. 12) at 10-11.

14 When parties have previously litigated a case involving

similar issues and facts before the transferee court, transfer

is favored, because that court’s “familiarity with the facts of

the case and the applicable law promotes judicial economy.” D2L

Ltd. v. Blackboard, Inc.,

(D. Md. 2009)

(“Litigation in the same court avoids duplicative litigation

when one court has already invested substantial time and energy

in the related case.”). The Southern District of Florida has

experience with the purported assignment of rights to MSPA and

MSPA’s legal theories. Judicial economy thus weighs in favor of

transfer.

Conclusion

The important factor of the convenience of witnesses weighs

in favor of transfer, as do several other private-interest and

public-interest factors. The presumption created by MSPA’s

choice of forum is lessened here because MSPA is bringing a

class action, is not a resident of New Hampshire, and previously

filed a nearly identical case against the same defendant that

was removed to the transferee court. Only MSPA’s choice and the

relative congestion of the courts weigh against transfer.

Covington has met its burden justifying transfer to the

Southern District of Florida under § 1404(a).

15 Covington’s motion to transfer venue is therefore GRANTED.24

Covington’s motions to dismiss25 and to strike class action

allegations26 are DENIED, without prejudice to being raised in

the transferee venue. The clerk shall transfer this action to

the United Stated District Court for the Southern District of

Florida.

SO ORDERED.

Joseph N. Laplante United States District Judge

Dated: March 21, 2019

cc: Cecilia H. MacIntyre, Esq. John W. Van Lonkhuyzen, Esq. Paul W. Shaw, Esq. Tawny L. Alvarez, Esq. Ashley Kellgren, Esq. Michael K. Kiernan, Esq. Sarah S. Murdough, Esq.

24 Document no. 12. 25 Document no. 10. 26 Document no. 11.

16