United States District Court, D. Delaware
Jennifer C. Wasson, Carla M. Jones, Potter Anderson &
Corroon LLP, Wilmington, DE; Matthew J. Schlesinger, Colin P.
Watson, Robert W. Jacques, Covington & Burling LLP,
Washington, District of Columbia - Attorneys for Plaintiff
Francis G.X. Pileggi, Eckert Seamans Cherin & Mellot,
LLC, Wilmington, DE; Ronald P. Schiller, Daniel J. Layden,
Hangley Aronchick Segal Pudlin & Schiller, Philadelphia,
PA - Attorneys for Defendant
NOREIKA, U.S. DISTRICT JUDGE
the Court is Defendant Travelers Casualty and Surety Company
of America's (“Defendant” or
“Travelers”) Motion to Transfer Venue. (D.I. 11).
Defendant moves pursuant to 28 U.S.C. § 1404(a) to
transfer this action to the Northern District of Illinois.
(Id.). Plaintiff Calamos Asset Management, Inc.
(“Plaintiff or “CAM”) opposes transfer.
(D.I. 38). For the reasons set forth below, Defendant's
motion to transfer will be denied.
BACKGROUND AND PROCEDURAL HISTORY
originally filed this insurance coverage action in Delaware
Superior Court on September 7, 2018, seeking coverage for
losses incurred as a result of shareholder proceedings in the
Delaware Court of Chancery. (See D.I. 1-1 ¶ 3).
In 2016, Plaintiff purchased three Directors & Officers
(“D&O”) insurance policies. (Id.
¶¶ 8-10). Plaintiff purchased a primary D&O
policy from XL Specialty Insurance Company (“XL”)
and a first-layer excess D&O policy from Continental
Casualty Company (“Continental”). (Id.
¶¶ 8-9). Plaintiff also purchased a second-layer
excess Directors & Officers (“D&O”)
policy (“the Travelers Policy”) from Defendant.
(Id. at ¶ 10). All three policies were for the
period of October 27, 2016 to October 27, 2017 (id.
¶¶ 8-10), with the Travelers Policy having an
“extended discovery period from February 21, 2017
through February 21, 2023 (D.I. 13 at 3). The Travelers
Policy “afford[ed] up to $10 million in coverage,
excess of [the] $20 million” provided by the primary
policy issued by XL Specialty Insurance Company and the
first-layer excess policy issued by Continental. (Id.;
see also D.I. 19 at 2).
December 19, 2016, Plaintiff “announced that it had
reached an agreement in principle to be taken private through
a transaction by which an affiliated entity would commence a
tender offer to acquire all of the outstanding shares of
CAM's Class A common stock” (“the
1-1 ¶ 37). Following its announcement, various
shareholders of Plaintiff brought suits in Delaware's
Court of Chancery, alleging breaches of fiduciary duty in
connection to the Merger and seeking appraisal under Section
262 of the General Corporation Law of the State of Delaware
(“the Underlying Proceedings”). (Id.
¶¶ 38, 40). Plaintiff seeks coverage from Defendant
from losses resulting from these Underlying Proceedings.
(Id. ¶ 3).
the institution of this action in Superior Court, Defendant
filed a parallel action on September 13, 2018 in the United
States District Court for the Northern District of Illinois,
seeking declaratory judgment that coverage is not available
under the Travelers Policy. (D.I. 13 at 8). On September 28,
2018, Defendant filed a Notice of Removal, removing this
action from Superior Court to this Court. (D.I. 1). Shortly
thereafter, on November 5, 2018, Defendant filed the instant
motion to transfer this case to the Northern District of
Illinois. (D.I. 11). On the same day, Plaintiff filed a
motion to enjoin Defendant from prosecuting the Northern
District of Illinois litigation. (D.I. 12). Since the
completion of the parties' briefing on both motions, the
parallel proceeding in the Northern District of Illinois has
been dismissed in favor of this action. See Travelers
Cas. & Sur. Co. of Am. v. Calamos Mgmt., Inc., No.
18-C-6280, D.I. 45 at 3-4 (N.D. Ill. Apr. 5, 2019).
courts have the authority to transfer venue “[f]or the
convenience of parties and witnesses, in the interests of
justice, . . . to any other district or division where it
might have been brought.” 28 U.S.C. § 1404(a).
However, “[a] plaintiff, as the injured party,
generally ha[s] been ‘accorded [the] privilege of
bringing an action where he chooses, ” Helicos
Biosciences Corp. v. Illumina, Inc., 858 F.Supp.2d 367,
371 (D. Del. 2012) (quoting Norwood v. Kirkpatrick,
349 U.S. 29, 31 (1955)), and this choice “should not be
lightly disturbed, ” Jumara v. State Farm Ins.
Co., 55 F.3d 873, 879 (3d Cir. 1995).
Third Circuit has recognized that:
“[i]n ruling on § 1404(a) motions, courts have not
limited their consideration to the three enumerated factors
in § 1404(a) (convenience of parties, convenience of
witnesses, or interests of justice), and, indeed,
commentators have called on the courts to ‘consider all
relevant factors to determine whether on balance the
litigation would more conveniently proceed and the interests
of justice be better served by transfer to a different
Jumara, 55 F.3d at 879 (citation omitted). The
Jumara court went on to describe twelve (12)
“private and public interests protected by the language
of § 1404(a).” Id. The private interests
“plaintiff's forum preference as manifested in the
original choice; the defendant's preference; whether the
claim arose elsewhere; the convenience of the parties as
indicated by their relative physical and financial condition;
the convenience of the witnesses - but only to the extent
that the witnesses may actually be unavailable for trial in
one of the fora; and the location of books and records
(similarly limited to the extent that the files could not be
produced in the alternative forum).”
Id. at 879 (citations omitted). The public interests
“the enforceability of the judgment; practical
considerations that could make the trial easy, expeditious,
or inexpensive; the relative administrative difficulty in the
two fora resulting from court congestion; the local interest
in deciding local controversies at home; the public policies
of the fora; and the ...