ROBERT W. GETTLEMAN, District Judge.
In a span of two months, plaintiff Daniel B. Nicholas, on behalf of himself and all others similarly situated, filed this putative class action against defendant Conseco Life Insurance Company challenging defendant's 2011 cost of insurance ("COI") rate scales in its universal life insurance policies, hired a former federal judge as a mediator, and negotiated a settlement with defendant whereby a nationwide class would be certified and all class members would be permanently barred and enjoined from filing, commencing, continuing, prosecuting or receiving benefits or other relief from any other lawsuit based on or relating to the claims alleged in the instant case.
On April 4, 2012, after a conference call to the court placed by counsel for plaintiff and defendant, plaintiff wrote to the court asking it to certify a nationwide settlement class, appoint plaintiff as a class representative, appoint plaintiff's counsel as lead counsel, directing notice to the class, preliminarily approving a class-wide settlement, and issuing a preliminary injunction enjoining all other actions based on the allegations in the instant complaint and enjoining all persons from filing or prosecuting a class action (including by amending a pending action to include class allegations) on behalf of non-excluded class members based on or relating to the allegations of the complaint. Excepted from the proposed preliminary injunction was the continued limited prosecution of a virtually identical class action already pending in the Central District of California in which that court had already certified two subclasses of California policy holders and had under advisement a motion to certify a nationwide class.
Dr. Celedonia Yue ("Dr. Yue"), the named plaintiff in
Dr. Yue has moved to intervene as a matter of right under Fed. R. Civ. P. 24(a)(2), which provides that upon timely motion the court must permit anyone to intervene who:
To prevail on her motion to intervene as a matter or right, Dr. Yue must establish that: (1) the motion is timely; (2) she claims an interest relating to the property or transaction at issue; (3) disposition of the action as a practical matter may impede or impair her ability to protect that interest; and (4) her interest is not represented adequately by the existing parties to the suit.
First, her motion is timely. The instant case is only three months old and her motion was filed only two days after plaintiff filed the amended complaint. There had been no activity in the case until then, and Dr. Yue would have no way to determine if her interest were being adequately represented until the parties (only after being ordered by the court) made their proposed settlement public.
Next, Dr. Yue obviously has an interest in the action, and neither plaintiff nor defendant has argued differently. She is a putative class member and named plaintiff in a virtually identical action that was already pending when the instant action was filed. The proposed settlement seeks to bar her from prosecuting her motion in
Those interests will, of course, be impaired by a resolution in the instant action. For example, the proposed order seeks a ban on informing class members of their option to opt out and join the
Plaintiff and defendant argue that there is no need for Dr. Yue to intervene because she has a right as an absent class member to object to the proposed settlement and to appeal the denial of that objection. "A member of a class in a class action suit, even if not a named party, can challenge a settlement that will bind him."
All of that is correct, of course, but Dr. Yue seeks to intervene before a class is certified to object to the certification. Unless she is a party or member of a preliminarily certified class she has no standing to be heard. Under plaintiff and defendant's theory, she must wait until a class is certified and a hearing on preliminary approval of the settlement before she can object. Because there are no parties in the case objecting to the nationwide class, no one is protecting her interests. And unlike in
Dr. Yue seeks to transfer this action to the Central District of California where
As an initial matter, the court rejects Conseco's "Catch-22" argument that Dr. Yue cannot move to transfer unless she is allowed to intervene, but once intervention is allowed, an intervener waives all right to object to venue. The court agrees that absent intervention Dr. Yue, as a non-party, would have no standing to seek a transfer.
Under 28 U.S.C. § 1404(a) the court may for the convenience of parties and witnesses, in the interest of justice transfer any civil action to another district where it might have been brought. Transfer is appropriate if venue is proper in the transferor district, venue and jurisdiction would be proper in the transferee court, and transfer will serve the convenience of parties and witnesses in the interest of justice.
In the instant case, venue is proper in the Northern District of Illinois, and venue and jurisdiction is proper in the Central District of California. The only question is whether transfer would serve the convenience of parties and witnesses and the interest of justice. The court concludes that it does.
The decision to transfer requires "flexible and individualized analysis based on the circumstances of a particular case, and the weight to be afforded each factor is within the discretion of the district court, which is afforded wide discretion in deciding whether to transfer.
Because the instant action is brought on behalf of a nationwide class, the court agrees with Dr. Yue that the normally considered private factors — (1) plaintiff's choice of forum; (2) situs of material events; (3) the relative ease of access to sources of proof; (4) convenience of parties and; (5) convenience of witnesses — are all really non-factors. As Dr. Yue notes, considering the issues, a trial is unlikely, leaving convenience of parties and witnesses largely irrelevant. Plaintiff did file the instant action in his home forum, but in nationwide class action cases plaintiff's choice of forum is entitled to little weight.
The interest of justice, however, strongly favors transfer. Protecting and advancing the interest of justice is the "most compelling factor warranting transfer under § 1404(a)."
Here, there is related (substantially identical) litigation pending in the Central District of California. There is already pending in
Finally, plaintiff and defendant both suggest that Dr. Yue's motions to intervene and then to transfer are just a thinly veiled effort to improperly torpedo or scuttle
This court is confident that Judge Matz will objectively and skillfully examine any proposed settlement in the best interest of the class. No single litigant can "torpedo" or "scuttle" a settlement or usurp the judicial role in approving or disapproving a proposed class-wide resolution of the instant dispute. For these reasons, the court grants Dr. Yue's motion to transfer to the Central District of California.
For the reasons described above, the motion to intervene (Doc. #15) and motion to transfer (Doc. #18) are granted. This action is transferred to the Central District of California.