United States District Court, W.D. North Carolina, Charlotte Division
MALCOLM H. WIENER, Plaintiff,
AXA EQUITABLE LIFE INSURANCE COMPANY LLC, Defendant.
MEMORANDUM AND ORDER
S. Cayer United States Magistrate Judge.
MATTER is before the Court on “Defendant's
Motion to Transfer [to the Southern District of New
York]” (document #10) and “Plaintiffs Motion to
Strike Reply Brief or.in the Alternative for Leave to File
Surreply …” (document #17), as well as the
parties' associated briefs and exhibits.
matter has been referred to the undersigned Magistrate Judge
pursuant to 28 U.S.C. § 636(b)(1) and is now ripe for
consideration. Having fully considered the arguments, the
record, and the applicable authority, the Court
denies Defendant's Motion to Transfer as
Court has considered all of the parties' briefs.
Accordingly, “Plaintiffs Motion to Strike Reply Brief
or in the Alternative for Leave to File Surreply
…” (document #17) is denied.
FACTUAL AND PROCEDURAL BACKGROUND
and 1987, Plaintiff purchased three universal life insurance
plans from Defendant. (the “Policies”). Plaintiff
is a Connecticut resident. Defendant is an international life
insurance company incorporated under New York law. Defendant
has an operations hub in Charlotte with over 500 employees.
Plaintiffs former employer had assumed responsibility for
paying the premiums on the Policies. The Policies lapsed in
2009 due to an oversight by Plaintiffs former employer.
Defendant subsequently approved Plaintiffs application for
reinstatement. In December 2013, Plaintiff received another
notice that the Policies had lapsed. After receiving the
notice, Plaintiff contacted Defendant and was advised to file
an application for reinstatement. Plaintiff filed the
application for reinstatement on December 23, 2013. In March
2014, Defendant advised Plaintiff that it had denied his
application for reinstatement based upon information provided
by his doctor. On May 13, 2015, Plaintiff filed an action
against Defendant and others styled Malcolm Wiener v. AXA
Equitable Life Insurance Company, David Hungerford, AXA
Advisors, LLC, and AXA Network, LLC, Civil Action No.
1:16-CV-04019 in the United States District Court for the
District of Connecticut. This action was ultimately
transferred to the Southern District of New York (the
“New York Action”). The claims alleged in the New
York Action center on Defendant's termination of the
Policies and specifically whether the appropriate notices
were sent to Plaintiff.
depositions in August and October 2017, Plaintiff discovered
that Defendant had disseminated inaccurate information about
his medical history to the Medical Information Bureau
(“MIB”) without his knowledge. MIB collects
medical information from life insurance applicants. Discovery
closed in the New York Action on December 22, 2017. The New
York Action remains pending.
present action involves some of the same parties and
operative facts as the New York Action. However, the gravamen
of Plaintiffs Complaint here involves Defendant's alleged
reporting of inaccurate medical information to MIB. Plaintiff
alleges that Defendant's underwriter reported the
inaccurate information to its Charlotte operations facility
who in turn reported it to MIB. Plaintiff alleges that this
inaccurate report to MIB has rendered him uninsurable.
January 25, 2018, Plaintiff filed this action alleging claims
for negligent misrepresentation, libel, negligence, and
unfair and deceptive trade practices based upon
Defendant's inaccurate report to MIB and his resulting
April 12, 2018, Defendant moved pursuant to 28 U.S.C. §
1404(a) to transfer this matter to the United States District
Court for the Southern District of New York for the
convenience of the parties and witnesses and in the interests
of justice. In support of its Motion, Defendant argues that
this action arises from the “same background
facts” as the New York Action and has already been the
subject of discovery there.
28 U.S.C. § 1404(a), a district court may “[f]or
the convenience of parties and witnesses, in the interest of
justice, ... transfer any civil action to any other district
or division where it might have been brought.” The
question of transfer under section 1404(a) is committed to
the sound discretion of the district court. See Stewart
Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988);
Brock v. Entre Computer Ctrs., Inc., 933 F.2d 1253,
1257 (4th Cir.1991).
Court must first determine whether the action could have been
brought in the transferee district. As the parties agree,
this action could have been brought in the Southern District
of New York.
venue in the transferee court is proper, as it is here, the
Court must then consider the following factors in deciding