United States District Court, D. New Hampshire
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.
JOSFEPH N. LAPLANTE UNITED STATES DISTRICT JUDGE
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 28
U.S.C. § 1404(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.
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
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, 223 F.3d
1, 11 (1st Cir. 2000) (quoting 28 U.S.C. § 1404(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.
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, 557 F.Supp.2d 216, 220
(D.N.H. 2008) (citing Auto Europe, LLC v. Conn. Indem. Co.,
321 F.3d 60, 64 (1st Cir. 2003)).
a Florida limited liability company with its principal place
of business in Miami, Florida. Covington is a New
Hampshire-registered insurance company with a principal place
of business in New Hampshire and an administrative office in
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. MSPA brings a nationwide
class action against Covington on behalf of harmed
outlines a “representative claim” against
Covington arising from an accident in Florida. MSPA alleges that
the 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. FHCP paid medical expenses to the injured
party, but MSPA argues that Covington was responsible for
these expenses under the MSP Act.
claims it is the assignee of FHCP. FHCP assigned certain
recovery rights to La Ley Recovery, Systems,
La Ley in turn purported to assign rights to
Florida Department of Financial Services was appointed
receiver of FHCP. 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.
previously brought an extremely similar lawsuit against
Covington that was removed to the Southern District of
Florida. MSPA Claims 1, LLC v. Covington Specialty Ins. Co.,
212 F.Supp.3d 1250 (S.D. Fla. 2016). 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. Id. at 1257-58. 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. Id. MSPA
argues here that it has standing as a result of the
moves to transfer this action to the Southern District of
Florida, Miami Division. In addition to the previous case
between these parties, Covington claims that MSPA 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
parties agree that this case “may have been
brought” in the proposed transferee district. See 28
U.S.C. § 1404(a). Indeed, MSPA previously filed suit
against Covington and the case was removed to the Southern
District of Florida. MSPA Claims 1, 212 F.Supp.3d 1250 (S.D.
therefore turns on whether it would promote “the
convenience of parties and witnesses, in the interest of
justice, ” 28 U.S.C. § 1404(a), which is assessed
by weighing private-interest and public-interest factors.
Jackson, 557 F.Supp.2d at 220. The private-interest factors
[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.
Id. (citing Coady, 223 F.3d at 11).
public-interest factors . . . 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.”
Id. at 223 (citing Coffey v. Van Dorn Iron Works,
796 F.2d 217, 220-221 (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, 557 F.Supp.2d at 220
(quoting Iragorri v. Int'l Elevator Inc., 203 F.3d 8, 12
(1st Cir. 2000). Both types of factors weigh in favor of
MSPA's choice of forum
is a strong presumption in favor of the plaintiff's
choice of forum.” Coady, 223 F.3d at 11 (citing Gulf
Oil Co. v. Gilbert, 330 U.S. 501, 508 (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,
166 F.Supp.3d 104, 108 (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, 2013 WL
1003432 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, 1994 WL 577266 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.”).
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 ...