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Security Mutual Life Insurance Company of New York v. Shapiro

September 11, 2009

SECURITY MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, PLAINTIFF,
v.
KENNETH A. SHAPIRO, AS TRUSTEE OF THE ROBERT BANGERT IRREVOCABLE LIFE INSURANCE TRUST DATED APRIL 5, 2007, AND THE ROBERT BANGERT IRREVOCABLE LIFE INSURANCE TRUST DATED APRIL 5, 2007, DEFENDANT.



The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge

DECISION and ORDER

I. INTRODUCTION

Plaintiff commenced this action in New York state court seeking a declaration that the life insurance policy it issued to the Robert Bangert Irrevocable Life Insurance Trust Dated April 5, 2007 was "void ab inito, rescinded, cancelled, void and set aside." Compl. p. 10 (attached to Not. of Removal, dkt. #1). Defendants removed this action to federal court based on diversity jurisdiction, see Not. of Removal, dkt. #1, and now move to dismiss the action for lack of personal jurisdiction over the defendants and improper venue, or, in the alternative, to transfer venue to the United State District Court for the Northern District of Georgia. See Motion, dkt. # 13. For the reasons that follow, Defendants' motion is denied.

II. STANDARDS OF REVIEW

When the Court is presented with a motion to dismiss for lack of personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2), Plaintiff "bears the burden of establishing that the court has jurisdiction over the defendant." Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 208 (2d Cir. 2001). "If the court chooses to rely on pleadings and affidavits, the plaintiff need only make a prima facie showing of personal jurisdiction over defendant." CutCo Indus., Inc. v. Naughton, 806 F.2d 361, 364 (2d Cir. 1986). "[I]f the court holds an evidentiary hearing... the plaintiff must demonstrate personal jurisdiction by a preponderance of the evidence." Id.

Personal jurisdiction over a defendant in a diversity action is determined by the law of the forum in which the court sits. Arrowsmith v. United Press International, 320 F.2d 219, 223 (2d Cir. 1963) (en banc). Although... the plaintiff has the ultimate burden of establishing jurisdiction over a defendant by a preponderance of the evidence... until an evidentiary hearing is held, it need make only a prima facie showing by its pleadings and affidavits that jurisdiction exists.... Those documents are construed in the light most favorable to plaintiff and all doubts are resolved in its favor.

Id. at 365; see also DLJ Mortgage Capital, Inc. v. Cameron Financial Group, Inc., 2007 WL 4325893, at * 3 (S.D.N.Y. Dec. 4, 2007).*fn1

The Court employs the same standard of review on a Rule 12(b)(3) dismissal motion alleging improper venue as it does on a Rule 12(b)(2) motion. Gulf Ins. Co. v. Glasbrenner, 417 F.3d 353, 355 (2d Cir. 2005).

A motion to transfer venue on the grounds of inconvenience to the parties and witnesses is governed by 28 U.S.C. § 1404(a). This 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.

28 U.S.C. § 1404(a).

In addressing a motion pursuant to Section 1404(a), the Court should consider the following factors: (1) the plaintiff's choice of forum, (2) the convenience of witnesses, (3) the location of relevant documents and relative ease of access to sources of proof, (4) the convenience of the parties, (5) the locus of operative facts, (6) the availability of process to compel the attendance of unwilling witnesses, and (7) the relative means of the parties.

D.H. Blair & Co., Inc. v. Gottdiener, 462 F.3d 95, 106-07 (2d Cir. 2006). "A balance of these factors will identify the more appropriate forum." Employers Ins. of Wausau v. Fox Entertainment Group, Inc., 522 F.3d 271, 275 (2d Cir. 2008). The party seeking transfer bears the burden of demonstrating that transfer is warranted.

III. BACKGROUND

The following relevant facts are taken from complaint, the documents attached to the complaint, and the ...


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