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ANGLO AMERICAN INS. GROUP, P.L.C. v. CALFED INC.

February 26, 1996

ANGLO AMERICAN INSURANCE GROUP, P.L.C. and ANGLO AMERICAN INSURANCE HOLDINGS LIMITED, Plaintiffs, against CALFED INC., XCF ACCEPTANCE CORPORATION, as successor by merger to CALFED INC., and WILLIAM J. FITZPATRICK, Defendants. WILLIAM J. FITZPATRICK, Third-Party Plaintiff, -against- ANGLO AMERICAN INSURANCE COMPANY LIMITED, Third-Party Defendant. CALFED INC. and XCF ACCEPTANCE CORPORATION, as successor by merger to CALFED, INC., Third-Party Plaintiffs, -against- KPMG PEAT MARWICK McLINTOCK, Third-Party Defendant.


The opinion of the court was delivered by: CARTER

 CARTER, District Judge

 Defendant and third-party plaintiff XCF Acceptance Corp., as successor by merger to CalFed, Inc. ("CalFed"), brought this amended second third-party complaint *fn1" against KPMG, an English accounting partnership, for breach of contract, negligence, and indemnification and contribution. CalFed now moves for transfer to the United States District Court for the Central District of California, pursuant to 28 U.S.C. § 1404(a).

 Background *fn2"

 CalFed alleges that in the mid-1980s, CalFed, a federally chartered savings and loan association headquartered in Los Angeles, California, decided to invest in an insurance company in the London market. CalFed consulted with its California accountants and auditors Peat Marwick Main & Co. ("PMM"). In consultation with PMM and its English affiliate, third-party defendant KPMG, CalFed developed an association with Weavers, an experienced London underwriter. KPMG was the auditor for Weavers and for other companies underwritten by Weavers ("the Stamp companies" or "the Stamp"). KPMG suggested, and CalFed agreed, that KPMG would be the auditors and accountants for Anglo American Insurance Company Limited ("Anglo"), the freestanding insurance company that CalFed would form as a subsidiary. CalFed entered into an agency agreement with Weavers to administer and oversee the freestanding insurance company subject only to oversight by KPMG. CalFed claims it engaged KPMG to perform complete and independent audits of the proposed company, to render business advice concerning the London insurance market, to report to CalFed, PMM, and Anglo any market problems that affect CalFed's investment, and to advise CalFed on potential investments in related companies.

 CalFed sold Anglo to plaintiffs in February, 1990. The main action arose when plaintiffs sued CalFed in December, 1992 *fn3" for breach of warranty and negligent misrepresentation regarding warranties in the sales agreement between Cal Fed and plaintiffs. *fn4"

 Cal Fed argues that it reaffirmed the representations and warranties in the agreement in reliance on the advice and counsel of KPMG; that KPMG assisted and advised CalFed (a) on representations and warranties required by CalFed as seller, *fn5" and (b) in negotiating certain provisions of the sales agreement; that KPMG reviewed the proposed sales agreement; that after the agreement was executed, upon request by CalFed and pursuant to its engagement, that KPMG cooperated with plaintiffs and plaintiffs' accountants in performing due diligence; that KPMG advised CalFed on Anglo's financial statement, Anglo's reserves for UK tax liability and the recognition of profits, and the impact of foreign tax credits on CalFed; and that KPMG refused CalFed's requests and demands to assist CalFed in defending itself against plaintiffs' claims.

 CalFed therefore brought claims in an amended second third-party action *fn6" for breach of contract, negligence, and indemnification or contribution against KPMG for breaching its:

 
obligation to act in good faith, to reasonably cooperate with CalFed in respect of its auditing and accounting work and, as necessary and appropriate, to explain, support and defend KPMG's work concerning the matters undertaken in the engagement, particularly given the absence of any financial or operating staff of the subsidiary, and the complete control by Weavers of the combined affairs and assets of [its] entire [client base] including CalFed's subsidiary. (Am. 2d Third-Party Compl. P 10).

 Threshold Questions

 I. Plaintiff as Movant

 CalFed moves for transfer under 28 U.S.C. § 1404(a), which provides:

 
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.

 The movant carries the burden of establishing that transfer should be granted. *fn7" Here, the motion to transfer has been made by the plaintiff, CalFed. While this is unusual, the plaintiff is not precluded from seeking transfer even though it had the original choice of forum. Fairfax Dental (Ireland) Ltd. v. S.J. Filhol Ltd., 645 F. Supp. 89, 90-91 (E.D.N.Y. 1986), aff'd on other grounds, 11 F.3d 1071 (Fed. Cir. N.Y. 1993). Consequently, the usual presumptions as to plaintiff's choice of forum are not appropriate here. Harry Rich Corp. v. Curtiss-Wright Corp., 308 F. Supp. 1114, 1119 (S.D.N.Y. 1969) (Lasker, J.) (citing FordMotor Co. v. Ryan, 182 F.2d 329 (2d Cir. 1950)).

 The threshold question when deciding a § 1404(a) motion by a plaintiff is whether plaintiff has shown that a change in circumstance since the complaint was filed warrants a transfer. This is a sensible rule since the plaintiff initially has the choice of forum. Fairfax Dental, 645 F. Supp. at 92 (citing Harry Rich Corp. 308 F. Supp. at 1118 (when plaintiff is movant under § 1404(a), he must show a change in circumstance since filing the suit)); Gipromer v. SS Tempo, 487 F. Supp. 631, 632 (S.D.N.Y. 1980) (MacMahon, J.).

 Courts have previously considered a change in circumstance to be evidenced by a state court ruling making a defendant amenable to suit in the transferee state, Harry Rich Corp., 308 F. Supp. at 1118, and the pendency of a related action filed by plaintiff in the transferee district, Fairfax Dental, 645 F. Supp. at 92. Courts have not transferred upon motion by the plaintiff when the forum is no longer acceptable to plaintiff due to plaintiff's lack of diligence. See Spar, Inc. v. Information Resources Inc., 956 F.2d 392, 394-95 (2d Cir. 1992) (finding that plaintiff had ample time to bring the action within the limitations period and that plaintiff sought to avoid a statute of limitations defect through a transfer of venue); Harem-Christensen Corp. v. M.S. Frigo Harmony, 477 F. Supp. 694, 698 (S.D.N.Y. 1979) (Knapp, J.) (denying transfer where the plaintiffs showed no change in circumstance; rather, the plaintiffs, late in the proceedings, realized that they had mistakenly brought the action in wrong forum).

 Neither party has addressed this threshold question. However, the court believes a change of circumstances sufficient to satisfy this requirement might be found in the successful completion of the court-ordered mediation process and the resulting settlement agreement between CalFed and plaintiffs. *fn8" The court ordered the parties to undergo mediation on November 4, 1994, after CalFed filed the second third-party complaint.

 Although CalFed does not address the change in circumstance requirement directly, it rests its argument for transfer primarily upon the settlement agreement. *fn9" CalFed argues that because the parties resolved the main action, a laudable feat, the court must preserve the parties' efforts and intent by transferring the second third-party action and that such transfer is in the interest of justice. Otherwise, both parties to the agreement may opt to nullify it and thereby cause the commencement of two major litigation actions (the main action and the third-party action). Alternatively, the two parties may decide to accept the settlement agreement and CalFed could then voluntarily dismiss its third-party action against KPMG and refile in California. If that happens, CalFed fears that the potential applicability of California's statute of limitations may bar its claims because the third-party action has been pending in this district since July, 1994.

 The court recognizes that the settlement agreement is a self-imposed constraint on CalFed and not one binding on the court. Where CalFed chooses to fence itself in, it cannot cast the court as the gatekeeper faced with two choices: transfer or doom. Moreover, CalFed is not completely barred by California's statute of limitations if faced with filing anew in California. The indemnification claim would survive; a claim for indemnification or contribution does not accrue until CalFed pays the settlement amount to plaintiff. *fn10" CalFed would be barred from asserting its negligence claim, *fn11" however, and possibly the breach of contract claim. *fn12" Lastly, CalFed's characterization of a potential limitations bar, perhaps solely affecting the negligence claim, is not absolute. CalFed may litigate here in New York *fn13" or in England.

 The court also may grant a § 1404(a) motion by a plaintiff if the court believes that it would be in the interests of justice to do so, even if CalFed can show no change in circumstance. CalFed directs the court to Gipromer v. SS Tempo, 487 F. Supp. 631 (S.D.N.Y. 1980) (MacMahon, J.), where the court decided that the transfer requested by the plaintiff was appropriate although the plaintiff could show no change in circumstances after the filing of the complaint. In that case, the court relied on Corke v. Sameiet M.S. Song of Norway, 572 F.2d 77 (2d Cir. 1978), where the Second Circuit reversed a dismissal based on lack of personal jurisdiction and ordered transfer where plaintiff had chosen the wrong forum. The Second Circuit court did not cite any change of circumstance but instead balanced relative hardships--including a clear limitations bar if plaintiff were to file a new action--entailed in granting or denying transfer. After balancing the hardships to the parties before it, the Gipromer court transferred the case because it would serve the interest of justice since a dismissal would subject the plaintiff to a statute of limitations bar in Maine.

  KPMG is incorrect that Spar, Inc. v. Information Resources, Inc., 956 F.2d 392 (2d Cir. 1992) requires a different result. Firstly, the Circuit panel declined to accept the Fourth Circuit's analysis, not the Corke court's analysis, that "in all cases in which there is a procedural bar to suit in the transferor district, but not in the transferee district, the action should be transferred." Id. at 394. Secondly, while the Circuit court denied the transfer request by plaintiffs who failed to timely pursue their claim and failed to research the applicable statute of limitations, the court reaffirmed that the guiding principle behind the decision to transfer is whether the decision is "in the interests of justice." Id. at 395.

 In addition, KPMG refutes CalFed's reliance on Gipromer and Corke and points out that transfer was premised on § 1406 rather than § 1404(a). However, "a district court need not elect between [§ 1404(a) and § 1406(a)]; it 'has power to transfer the case even if there is no personal jurisdiction over the defendants, and whether or not venue is proper in [the] district, if a transfer would be in the interest of justice.'" Fresca v. Arnold, 595 F. Supp. 1104, 1105 (E.D.N.Y. 1984).

 KPMG also argues that CalFed decidedly chose this forum at least twice in the past--to file the complaint and the amended complaint. CalFed decidedly chose to bring an action against KPMG to recoup any damages paid out to the plaintiffs when CalFed filed its complaint in New York nearly one year after the alleged breach by KPMG. In other words, KPMG argues, the settlement agreement has not raised anew the issue of a procedural bar because CalFed knew that California would be its best place to file the suit since it knew where the convenience of witnesses lay and knew that personal jurisdiction over KPMG in New York was not a certainty because KPMG was not a party to the sales agreement. The question becomes whether the court should overlook the fact that the plaintiff chose this forum and that now, because of the parties' litigation strategies, the interest of justice necessitates transfer.

 In this case, the court finds that the settlement negotiations and the agreement are a sufficient change in circumstance to warrant the court's consideration of a § 1404(a) motion by third-party plaintiff CalFed. *fn14" The court is pleased with the mostly successful efforts of the parties to resolve their dispute through negotiation rather through litigation even more protracted than it currently appears. Furthermore, the interests of justice--the court's role in ordering mediation--lend support to consideration of the transfer motion. Thus, if CalFed satisfies the remaining requirements for transfer, the court will grant this motion--in the interests of justice.

 II. Could the Action Have Been Brought In Transferee District

 To transfer under § 1404(a), the movant must show that the action at bar could have been brought in the proposed transferee district. CalFed must show that venue is proper in the Central District of California and that the district has personal jurisdiction over KPMG on the date of the commencement of this claim. Wils v. Schulman, No. 91-2078, 1991 U.S. Dist. LEXIS ...


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