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Rosenthal v. Unum Group

United States District Court, D. Massachusetts

March 12, 2018

ANNE R. ROSENTHAL, M.D., Plaintiff,



         Dr. Anne Rosenthal (“Plaintiff”) entered into an insurance contract with Unum Group (“Unum”) and Provident Life and Accident Insurance Company (“Provident Life”) (collectively referred to as “Defendants”) in 1992. She began receiving disability benefits under the insurance policy in 2014, until her benefits were denied. She brought the instant action in the District of Massachusetts against the Defendants for breach of contract (count I), breach of the covenant of good faith and fair dealing (count II), bad faith pursuant to 42 Pa.C.S.A. §8371 (count III), and unfair and deceptive acts and practices under Mass. Gen. Laws chapter 93A, § 9 (count IV). The Defendants subsequently filed a motion to transfer venue to the District of Kansas.


         Unum is a Delaware corporation with a principal place of business in Chattanooga, Tennessee. Provident Life is a Tennessee corporation with its principal place of business in Chattanooga, TN, with offices in a number of locations including Worcester, MA. Plaintiff currently resides in Kansas and has since 1999.

         Plaintiff originally purchased and was delivered an insurance policy (the “Policy”) by Defendants, while residing in Pennsylvania in 1992. Thereafter, Plaintiff moved to Arlington, Massachusetts where she lived at the time she increased her benefits under the Policy, effective May 1, 1998. In July of 1999, Plaintiff moved to Kansas where she worked as an orthopedic hand surgeon at Rockhill Orthopedic Specialists in Missouri.

         On June 19, 2014, Plaintiff was forced to stop working due to ocular impairments. She submitted a claim for benefits under the Policy on July 3, 2014. Defendants approved Plaintiff's claim in November 2014 and provided benefits through October 8, 2015, when they were terminated. Plaintiff filed a number of appeals, all of which were denied out of the Defendants Worcester, MA office. The Plaintiff filed this action and the Defendants subsequently filed the instant motion to transfer venue to the United States District Court, District of Kansas.

         Legal Standard

         “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” pursuant to 28 U.S.C §1404(a).[1] It is the moving party's burden to establish that “an adequate alternative forum exists and that considerations of convenience and judicial efficiency strongly favor litigating the claim in the second forum.” Iragorri v. International Elevator Inc., 203 F.3d 8, 12 (1st Cir. 2000). There is a strong presumption in favor of the plaintiff's choice of forum. Royal Bed & Spring Co. v. Famossul Industria e Comercio de Moveis Ltda., 906 F.2d 45, 52 (1st Cir. 1990). However, when the plaintiff's choice of forum has little or no connection to the operative facts of the case, such as the plaintiff being a nonresident of the chosen forum, the court may afford less weight to their choice. United States ex rel. Ondis v. City of Woonsocket, 480 F.Supp.2d 434, 436 (D.Mass.2007).

         Additional factors the court should consider are the convenience of the parties, the convenience and location of the material witnesses and documents, connection between the particular issues involved in the case and the forum state, the applicable law, and any relevant state or public interests that may be involved in the case. Momenta Pharm., Inc. v. Amphastar Pharm., Inc., 841 F.Supp.2d 514, 522 (D. Mass. 2012). The convenience and location of witnesses is probably the most important factor for the court to consider in a motion to transfer. Gemini Investors Inc. v. Ameripark, Inc., 542 F.Supp.2d 119, 126 (D. Mass. 2008). In analyzing the convenience of nonparty witnesses, the court should assess the number, nature, and quality of each potential witnesses' testimony and whether or not they can be compelled to testify. Id. The moving party bears the burden of specifying the importance of the named witnesses. Princess House, Inc. v. Lindsey, 136 F.R.D. 16, 21 (D. Mass. 1991). Merely shifting inconveniences between the parties is not sufficient to overcome the deference afforded to the plaintiff's choice of forum. Momenta Pharm., Inc., 841 at 522. (quoting Holmes Grp., Inc. v. Hamilton Beach/Proctor Silex, Inc., 249 F.Supp.2d 12, 18 (D.Mass.2002)).


         Convenience of Witnesses

         The parties' dispute who the material witnesses are in this case. It is the Defendants contention that five medical professionals and witnesses from Plaintiff's place of work, all of whom are located in Kansas or Missouri, [2] will be necessary to litigate this claim. The Plaintiff acknowledges that she will need to bring at least one medical professional from Kansas in order to litigate.[3] Because the underlying issue is whether or not Plaintiff was unlawfully denied benefits under the Policy, the Plaintiff's diagnosis, symptoms, potential treatment, recovery, and job responsibilities are material. Therefore, the testimony and documents provided by the health care professionals who examined the Plaintiff, which includes all of the stated Kansas medical witnesses, are necessary, as is the Plaintiff's employer.

         The Plaintiff argues that current and former employees of Defendant, all of whom live or work in Massachusetts, are material to this action. She asserts that employee witnesses are necessary to show that Defendants acted in bad faith and with deceptive practices. While testimony of some past and current employees may be material to this case, even at a cursory glance, it is highly improbable that testimony from ten employees, some of whom may have been involved in adjudicating Plaintiff's claim, is necessary.[4] Additionally, at least half of them are still employed by Defendants. Therefore, those witnesses can be secured to testify in Kansas. See Sigros v. Walt Disney World Co., 129 F.Supp.2d 56, 71 (D. Mass. 2001) (if “a court order or the persuasion of an employer who is a party to the action can secure the appearance of witnesses regardless of the location of forum, that factor diminishes in importance.”).[5]

         Access to Proof and ...

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