United States District Court,D. Utah,Central Division.

Alice CLARK, et al., Plaintiffs,

v.

Robert WILKIN, Defendant.

June 10, 2008.

MEMORANDUM DECISION AND ORDER DENYING DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT

TED STEWART, District Judge.

This matter is before the Court on Defendant’s Motion for Partial Summary Judgment Regarding Punitive Damages. Defendant asks the Court to enter summary judgment in his favor on Plaintiffs’ claim for punitive damages, arguing no reasonable jury could find that Defendant’s conduct was willful and malicious or manifested knowing and reckless disregard. As set forth below, the Court will deny Defendant’s Motion and strike the hearing set for June 11, 2008.

I. STANDARD OF REVIEW

Summary judgment is proper if the moving party can demonstrate that there is no genuine issue of material fact and it is entitled to judgment as a matter of law.In considering whether genuine issues of material fact exist, the Court determines whether a reasonable jury could return a verdict for the nonmoving party in the face of all the evidence presented.The Court is required to construe all facts and reasonable inferences in the light most favorable to the nonmoving party.

SeeFed.R.Civ.P. 56(c).

See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Clifton v. Craig, 924 F.2d 182, 183 (10th Cir.1991).

See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Wright v. Southwestern Bell Tel. Co., 925 F.2d 1288, 1292 (10th Cir.1991).

II. BACKGROUND

This negligence case arises from an automobile accident on April 1, 2005, at approximately 2:30 a.m. on a remote stretch of Interstate-15 near mile post 239-between Nephi and Santaquin, Utah-where the speed limit is 75 mph. Defendant Robert Wilkin was driving a large truck and pulling an eight-foot-wide trailer that was manufactured in 1960. David Nypower was driving a car in which Plaintiff Alice Clark occupied the passenger seat. The car collided with the back of Defendant’s trailer, killing Mr. Nypower and injuring Plaintiff Clark. Plaintiff Clark and the heirs of Mr. Nypower brought this action against Defendant, seeking compensatory and punitive damages.

In a statement given to law enforcement officers, Defendant indicated that he was traveling between 50 and 55 mph at the time of the accident due to a mechanical problem with his truck.According to Defendant’s expert, Defendant was most likely traveling at approximately 44 mph. Defendant did not have his hazard lights illuminated before the accident occurred.

Docket No. 119, Ex. I.

Id., Ex. D, at 35.

Id., Ex. A, at 72.

Shortly after the accident, but before any emergency personnel or law enforcement officers arrived, Defendant left the scene of the accident. Police found Defendant and his vehicle at a freeway exit several miles north of the accident site. According to the police report, Defendant initially denied any involvement or knowledge of the accident.Only after officers discovered damage to the trailer and parts from the other car lodged in the trailer’s undercarriage did Defendant admit to having knowledge of the accident.Defendant was issued a citation for numerous safety violations, including an “Inoperable left trailer signal”; “Inoperable lamps. Two left side tail lamps”; and “No triple ID lights on trailer.”

Id., Ex. I.

Id.

Id., Ex. B.

The Parties present conflicting evidence as to how many lights were functioning on the rear of Defendant’s trailer at the time of the accident. Trooper Brierly, the Utah highway patrolman who inspected Defendant’s trailer and issued the citation testified that two of the three lights on the left rear were inoperable, that there was no left signal, and only one reflector.0 In his deposition, Plaintiff’s expert testified that only two of the six lights on the trailer-both the inner most tail lights-were lit at the time of the accident and that both of those lights were dim.1It is undisputed that the rear of the trailer had no retroreflective tape.

0.Docket No. 92 Ex. C, at 27-28.

1.Docket No. 119, Ex. G, at 12-13.

A little more than seven months before the accident, Defendant was issued a citation for multiple safety violations while operating his 1960 trailer in Provo, Utah. Among those violations were the following: “[m]issing lens or lighting assembly = no rear I.D.s”; “[d]efective brake lamp(s) LEFT”; and “[d]efective turn signal(s) LEFT REAR.”Defendant also testified in his deposition that he “was aware” that his trailer was required to have retroreflective tape across the entire width of its rear-end.2

2.Id., Ex. A, at 57.

III. DISCUSSION

Defendant claims that he is entitled to summary judgment on Plaintiffs’ punitive damages claim, arguing no reasonable jury could find that Defendant’s conduct was willful or malicious or exhibited knowing and reckless disregard for the rights of others.

Claims for punitive damages in Utah are governed by Section 78-18-1 of the Utah Code. According to Subsection (1)(a),

Except as otherwise provided by statute, punitive damages may be awarded only if compensatory or general damages are awarded and it is established by clear and convincing evidence that the acts or omissions of the tortfeasor are the result of willful and malicious or intentionally fraudulent conduct, or conduct that manifests a knowing and reckless indifference toward, and a disregard of, the rights of others.3

3.Utah Code Ann. § 78-18-1(1)(a).

This standard is met where the defendant knows or should know “that [his] conduct would, in a high degree of probability, result in substantial harm to another, and the conduct must be highly unreasonable conduct, or an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.”4“Simple negligence will never suffice as a basis upon which [punitive] damages may be awarded.”5

4.Behrens v. Raleigh Hills Hosp., Inc., 675 P.2d 1179, 1187 (Utah 1983) (internal quotations and citation omitted); see also Gleave v. Denver & Rio Grande W. R.R. Co., 749 P.2d 660, 670-71 (Utah Ct.App.1988) (applying factors listed in Behrens); Boyette v. L.W. Looney & Son, Inc., 932 F.Supp. 1344, 1347 (D.Utah 1996) (same).

5.Behrens, 675 P.2d at 1186.

The punitive damages standard is ‘fact specific,’ such that the determination as to whether punitive damages are awarded is ‘within the sound discretion and province of the jury.’“ 6 However, where “reasonable minds could not differ in concluding” that the evidence does not meet this standard, “the court should eliminate the issue of punitive damages as a matter of law.”7In making this determination, the court “must always have in mind the purpose of such damages:”8“punishing and deterring outrageous and malicious conduct which is not likely to be deterred by other means.”9

6.Mark VII Fin. Corp. v. Smedley, 792 P.2d 130, 134 (Utah Ct.App.1990) (quoting Johnson v. Rogers, 763 P.2d 771 (Utah 1988) and Biswell v. Duncan, 742 P.2d 80, 86 (Utah Ct.App.1987)).

7.Biswell, 742 P.2d at 87.

8.Miskin v. Carter, 761 P.2d 1378, 1380 (Utah 1988).

9.Id. (quoting Behrens, 675 P.2d at 1186).

In this case, there are disputed issues of fact as to whether Defendant acted with knowing and reckless disregard for the rights of others, precluding summary judgment on Plaintiff’s claim for punitive damages. A jury could reasonably find that on the night of the accident Defendant was operating a large truck pulling a semi-trailer at approximately 30 mph below the speed limit on a remote stretch of Interstate-15 at 2:30 a.m. without the necessary reflective devices on the rear of the trailer and without illuminating the trailer’s hazard lights, despite his knowledge that the trailer did not have the required reflective devices and was otherwise noncompliant with federal law. Based on these facts a jury could also reasonably find by clear and convincing evidence that Defendant acted with knowing and reckless disregard for the rights of others.

Part 393 of the Federal MotorCarrier Safety Regulations, found in Chapter III of Title 49, governs the parts and accessories required on a “commercial motor vehicle,” 0 including vehicle lighting, reflective devices, electrical equipment, brakes, windows, fuel systems, etc. The regulations at issue in this case concern lighting and reflective devices.

0. The Parties both assume in their respective memoranda that Defendant’s trailer is a “commercial motor vehicle” for purposes of the regulations under Part 393.

Section 393. 11 outlines the requirements for “lighting devices” and reflectors “by type of commercial motor vehicle.”1However, this section also clarifies that “[m]otor vehicles placed in operation on or before March 7, 1989, must meet either the requirements of [the Federal MotorCarrier Safety Regulations] or part 571 of this title in effect at the time of manufacture.”2Thus, the lighting requirements for Defendant’s Williamsen trailer are governed by the regulations in force at the time of its manufacture-1960.

1.49 C.F.R. § 393.11 (2004).

2.Id.

In 1960, the regulations governing Defendant’s trailer were found in Chapter I Part 193 of Title 49, a predecessor of current Part 393 .3 At that time, 49 C.F.R. § 193.14 required that “[e]very semi-trailer or full trailer 80 inches or more in overall width” have on its rear “one red tail lamp; one red or amber stop lamp; two red clearance lamps, one at each side; [and] two red reflectors, one at each side.”4The 1960 MotorCarrier Safety Regulations did not require rear triple identification lights. The requirement that trailers more than 80 inches wide have rear triple identification lights was first imposed in a 1960 regulation that did not become effective until July 1, 1961.5

3. The Federal Motor Vehicle Safety Standards, found in Part 571 of Title 49, first came into existence in 1967 as Part 255 of Title 23. 32 Fed.Reg. 2408, 2408-09, 2411-13 (Feb. 3, 1967).

4.17 Fed.Reg. 4423, 4432 (May 15, 1952).

5.25 Fed.Reg. 9837, 9839, 9845 (Oct. 14, 1960).

Although the general requirements for lighting and reflective devices for Defendant’s trailer are governed by the regulations in effect in 1960, 49 C.F.R. § 393.13 requires that “[a]ll trailers and semi-trailers manufactured prior to December 1, 1993, which have an overall width of [80 inches] or more and a gross vehicle weight rating of [10,001 pounds] or more … must be equipped with retroreflective sheeting or an array of reflex reflectors that meet the requirements of [that] section.”6Section 393.13 requires that the rear of the trailer have either retroreflective sheeting extending horizontally across the entire rear width of the trailer and in both the upper-left and upper-right corners or an array of reflex reflectors, each not more than 4 inches apart, in the same pattern.7

6.49 C.F.R. § 393.13(a) (2004).

7.Id. at § 393.13(b)-(d).

A jury could reasonably find that Defendant’s trailer was not compliant with federal regulations for lighting and reflective devices. It is undisputed that Defendant’s trailer did not have the required retroreflective tape or array of reflex reflectors on its rear-end. Additionally, Trooper Brierly testified that Defendant’s trailer was missing one of the required reflectors on the left side of its rear.

A jury could also reasonably find that Defendant was aware of the requirements for lighting and reflective devices. As per his deposition testimony, and the August 2004 citation, Defendant was clearly aware that his trailer was subject to federal regulations concerning proper lighting and reflective devices. More important, Defendant specifically testified that he was aware of the retroreflective tape requirements.

Finally, a jury could reasonably find that Defendant chose to operate his trailer without proper reflective devices at speeds of approximately 30 mph below the 75 mph speed limit on a remote stretch of Interstate-15 at 2:30 a.m. without flashing his hazard lights. Defendant’s expert testified that Defendant was traveling at approximately 44 mph. Defendant has admitted that he did not illuminate his hazard lights.

Based on the forgoing, a jury could reasonably find that Defendant knew or should have known that his decision to operate the truck and trailer on the night of the accident was highly unreasonable and was highly likely to result in substantial harm to another. Accordingly, there are disputed issues of material fact as to whether Defendant acted with knowing and reckless disregard for the rights of others. The Court will, therefore, deny Defendant’s Motion for Partial Summary Judgment on the issue of punitive damages.

Further, the Court notes that Plaintiff has carefully outlined Defendant’s alleged post-accident conduct in fleeing the scene of the accident and then lying to law enforcement officers about his involvement. Defendant argues that this evidence is irrelevant and should be disregarded for purposes of Defendant’s Motion.

As recently clarified by the Tenth Circuit in Sims v. Great American Life Insurance Co,8 whether evidence in a diversity case is relevant and, therefore, admissible is governed by Federal Rule of Evidence 401.9However, the relevancy determination under Rule 401 is guided, in part, by substantive state policy.0According to Rule 401, “ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”1

8.469 F.3d 870 (10th Cir.2006).

9.Id. at 880-82.

0.Id. at 881-82.

1. Of course, “[t]he standard is not stringent; it is aimed at each ‘brick’ of evidence potentially making a wall and not every witness ‘mak[ing] a home run.’ ”United States v. Yazzie, 188 F.3d 1178, 1189 (10th Cir.1999) (quoting Fed.R.Evid. 401 advisory committee’s note).

This definition requires a dual inquiry: (1) whether the evidence is probative or factually relevant to the proposition asserted (i.e., whether the evidence tends to make the existence of that fact more or less probable), and (2) whether the proposition for which the evidence is offered is properly provable in the case (i.e., the fact is material-of consequence-to the question of state law). The first inquiry is a procedural question of evidence law and the second is a substantive question regarding the materiality of the evidence.2

2.Sims, 469 F.3d at 881 (footnote and citations omitted).

Under the second inquiry, “a fact may be ‘of consequence’ in a diversity action only if substantive state policy so allows.”3

3.Id. at 881.

The Parties have not cited-nor has the Court’s research yielded-any substantive Utah law on whether evidence of post-accident conduct may be “of consequence” to the determination of a punitive damages claim arising from an automobile accident.4Although evidence of flight by itself is not enough to support a claim for punitive damages,5“it is generally held that evidence of the failure of an operator of the vehicle to stop and render aid after the accident, in connection with other evidence, may be considered by the jury in assessing punitive damages.”6The Court finds that the Utah Supreme Court would adopt this rule.7

4. Although Defendant points to the case of Fisher v. Trapp, 748 P.2d 204 (Utah Ct.App.1988), that case is not helpful to the question before the Court. In Trapp, the Utah Court of Appeals upheld a trial court’s exclusion of flight evidence on the issue of negligence where the potential prejudice of the evidence outweighed its probative value. Id. at 206-07.Contrary to Defendant’s contentions, the Trapp court did not hold that flight evidence could never be relevant to the issue of negligence in an automobile accident, but rather that the trial court in that case did not err in excluding the evidence based on its potential for prejudice. More important, the Trapp court did not consider whether post-accident conduct may be relevant to a claim for punitive damages.

5.See Freeman v. Anderson, 279 Ark. 282, 651 S.W.2d 450, 452-53 (Ark.1983) (upholding exclusion of “evidence that the appellee left the scene of the accident as a basis for an award of punitive damages” in the absence of other circumstances indicating “conscious indifference”).

6.Forquer v. Pinal County, 22 Ariz.App. 266, 526 P.2d 1064, 1067-68 (Ariz.Ct.App.1974) (emphasis added); see also Jones v. Cruzan, 33 P.3d 1262, 1264 (Col.Ct.App.2001) (upholding admission of evidence that defendant fled scene of accident on issue of punitive damages); 17 Am.Jur. Proof of Facts § 311 (“The rule seems to be that failure to stop after an accident is not of itself evidence sufficient to support punitive damages, but along with all the accompanying facts and circumstances of the accident may be used to show that that portion of the defendant’s conduct that constituted the proximate cause of the accident was willful and wanton or grossly negligent.”).

7.Johnson v. Riddle, 305 F.3d 1107, 1118 (10th Cir.2002) ( “When the federal courts are called upon to interpret state law, the federal court must look to the rulings of the highest state court, and, if no such rulings exist, must endeavor to predict how that high court would rule.”). The result would be the same if federal law were applied. The Tenth Circuit, applying Federal Rules of Evidence 401, 402, 403, and 404(b), has upheld the admissibility of post-accident conduct for purposes of determining the defendant’s state of mind prior to and at the time of an automobile accident. Bergeson v. Dilworth, 959 F.2d 245, at *3-4 (10th Cir.1992) (unpublished decision).

Applying this rule in the context of Rule 401, Defendant’s post-accident conduct, particularly his fleeing the scene of a serious accident in which he was involved and subsequently telling law enforcement officers that he was not involved in the accident and knew nothing about it, is relevant to his state of mind on the night of the accident when viewed in connection with his decision to operate the trailer under the conditions described above. Whether any potential prejudice resulting from this evidence substantially outweighs its probative value under Federal Rule of Evidence 403 is a question “best undertaken at the trial itself.”8Accordingly, Defendant’s post-accident conduct also weighs in favor of denying Defendant’s Motion for Partial Summary Judgment.

8.See Adams v. Ameritech Servs., Inc., 231 F.3d 414, 428 (7th Cir.2001).“[W]hile it is not unheard of to exclude evidence under Rule 403 at the summary judgment stage, normally the balancing process contemplated by that rule is best undertaken at the trial itself.”Id. (citation omitted).

III. CONCLUSION

For the reasons discussed above, it is hereby

ORDERED that Defendant’s Motion for Partial Summary Judgment Regarding Punitive Damages [Docket No. 91] is DENIED and the June 11, 2008 hearing is stricken.

ANNETT HOLDINGS, et al., Plaintiffs,

v.

CERTAIN UNDERWRITERS AT LLOYDS and Those Companies Severally Subscribing to Boeing Policy Number 509/JC487006, et al., Defendants.

June 12, 2008.

MEMORANDUM OPINION AND ORDER

JOAN H. LEFKOW, District Judge.

Plaintiffs, Annett Holdings, Inc. d/b/a TMC Transportation, Inc. and Yellowstone Trucking, Inc. filed their complaint for declaratory judgment in this court seeking, inter alia, a declaration that their liability for damages resulting from a truck accident is limited pursuant to a limitation of liability provision in a service contract between TMC and the Boeing Company. Defendants are various insurance companies that insured Boeing and that collectively paid the sum of 5.75 million dollars to cover damages that resulted from the accident. They are certain Underwriters at Lloyds and those Companies Severally Subscribing to Boeing Policy Number 509/JC487006, RLI Insurance Company, Great American Insurance Company, Tokio Marine & Nichido Fire Insurance Company, Fireman’s Fund Insurance Company, Royal & Son Alliance Insurance PLC, St. Paul Fire & Marine Insurance Company, Mitsui Sumimoto Insurance Company of America, XL Specialty Insurance Company, The Baloise Insurance Company, Ltd., Hartford Fire Insurance Company, and Zurich Global Corporate, UK Ltd. Defendants have filed counterclaims of breach of bailment or carrier obligations, negligence, and breach of contract. Defendants have filed motions to transfer this case to the Western District of Washington [# 14] and to dismiss this case due to a prior action pending [# 29]. For the following reasons, their motions will be denied.

This court has subject matter jurisdiction under 28 U.S.C. § 1337(a) because the issues raised in plaintiffs’ complaint arise under the Carmack Amendment, 49 U.S.C. § 14706.

I. Background

On February 1, 2006, TMC entered into a Freight/Transportation Services Agreement (“the Service Contract”) with Boeing pursuant to which it agreed to transport cargo for Boeing throughout the United States. Complaint ¶ 18; Response to Motion to Transfer at 3. The Service Contract included a limitation of liability provision that stated, “Liability of [TMC] for goods lost or damaged in transit shall be $2.50 per pound based on total weight of shipment.”Complaint ¶ 20. It also included a choice of law provision designating Washington law. Motion at 3. Pursuant to the Service Contract and to two Bills of Lading issued by Boeing, TMC arranged for the shipment of two new Boeing jet engines from a General Electric facility in Ohio to Boeing’s facilities in Tukwila, Washington. Motion, at 2; Complaint ¶¶ 21-22. On June 13, 2006, while transporting the jet engines from Ohio to Washington, a TMC truck was involved in an accident that defendants believe caused damage to the jet engines. Complaint ¶ 23.

The facts as stated here are stated solely for the purpose of resolving these motions. They are taken from the complaint and from the parties’ briefs, which are supported by affidavits and other documents, and they are undisputed except where specifically noted.

Defendants paid Boeing $5.75 million to cover the alleged damage to the engines. Complaint ¶ 24. They made a claim against TMC for recovery of that amount. Complaint ¶ 25. Plaintiffs denied liability beyond $50,000, which they computed pursuant to the limitation of liability provision in the Service Contract. Complaint ¶ 31; Response at 2. On November 13, 2007, defendants filed a demand for mediation against TMC with the American Arbitration Association (AAA). Complaint ¶ 28. A mediation was scheduled for March 4, 2008 in Washington. Motion at 3. Plaintiffs filed their complaint in this case on February 22, 2008.

Plaintiffs are Iowa corporations with their principal place of business in Des Moines, Iowa. Complaint ¶ 1. Defendant RLI Insurance Company is an Illinois corporation with its principal place of business in Peoria, Illinois. Complaint ¶ 3. The other defendants are incorporated and have their principal places of business in various states around the country (and the world, in the case of defendant Tokio Marine). Complaint ¶¶ 4-14. Defendants have not identified any of their number as Washington corporations or as having their principal place of business in Washington. Boeing is a Delaware corporation with its corporate headquarters in Chicago, Illinois. Boeing Homepage, http:// www.boeing.com/companyoffices/aboutus/ (last visited June 10, 2008); Vivas boeing Co., 486 F.Supp. 2D 726, 728 (N.D.Ill.2007).

II. Motion To Transfer

This motion to transfer venue is governed by 28 U.S.C. § 1404(a), which provides that “[f]or 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.”As a practical matter, “[t]he moving party must show that (1) venue is proper in this district; (2) venue [and jurisdiction are] proper in the transferee district; (3) the transferee district is more convenient for both the parties and witnesses; and (4) transfer would serve the interest of justice.”Gueorguiev v. Max Rave, LLC, 526 F.Supp.2d 853, 856 (N.D.Ill.2007) (citing Bryant v. ITT Corp., 48 F.Supp.2d 829, 832 (N.D.Ill.1999)). The moving party bears the burden of demonstrating that transfer is “clearly more convenient.” Heller Fin. Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1293 (7th Cir.1989) (quoting Coffey v. Van Dorn Iron Works, 796 F.2d 217, 219-20 (7th Cir.1986)). Since the weighing of factors for and against transfer necessarily involves a large degree of subtlety and latitude, the decision to transfer is committed to the sound discretion of the trial court. Coffey, 796 F.2d at 219;see also Van Dusen v. Barrack, 376 U.S. 612, 622, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964) (noting that the remedial purpose of § 1404(a) requires “individualized, case-by-case consideration of convenience and fairness”); N. Shore Gas Co. v. Salomon Inc., 152 F.3d 642, 648, n. 3 (7th Cir.1998). Each factor should be given the appropriate weight under the circumstances of the case. Gueorguiev, 526 F.Supp.2d at 857.

First, the court will address the first two factors in the test set out by Gueorguiev: whether venue is appropriate in the Northern District of Illinois and whether venue and jurisdiction are both appropriate in the Western District of Washington. Defendants do not dispute that venue is appropriate in the Northern District of Illinois, so that requirement is satisfied. In their opening brief in support of their motion, defendants discuss the appropriateness of venue and jurisdiction with respect to the plaintiffs in the Western District of Washington. They say, “This action could have been brought in the Western District of Washington because both Yellowstone and TMC have sufficient contacts with said district to subject them to personal jurisdiction there as if it were a separate state.”Motion at 7 (citing 28 U.S.C. § 1391(c) (“For purposes of venue under this chapter, a defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced.”)). As plaintiffs point out in their response, the relevant consideration, which the defendants have the burden to show, is whether venue and jurisdiction in Washington would have been appropriate as to the defendants when plaintiffs filed their complaint. Response, at 5 (citing, inter alia, RWM Kinetics Enterprises, Inc. v. Kinetic Concepts, Inc., 1996 WL 238753, at(N.D.Ill. May 7, 1996)).

In their reply, defendants cite cases that stand for the general proposition that “in many actions for declaratory judgment the realistic positions of the parties is reversed.”Reply at 4 (citing, inter alia, Debartolo v. Healthsouth Corp., 2006 WL 2989290, at(N.D.Ill. Oct.17, 2006) (explaining that subject matter jurisdiction over a declaratory judgment suit can be determined by examining what the nominal defendant’s claims would have been in the expected suit)). This doctrine applies to subject matter jurisdiction, however, not to personal jurisdiction, which is the relevant consideration. Defendants have not cited any authority for their proposition that on a motion to transfer a declaratory judgment action, the court should examine venue and personal jurisdiction according to the alignment of the expected suit by the nominal defendants. Moreover, defendants’ representation that “well before the present action was filed, counsel for Defendants proposed to consent to personal jurisdiction in Washington federal court,” is not supported by their citation, which merely shows that they had suggested discussing the possibility of agreeing on a Washington forum. Additionally, their argument that they would be subject to specific jurisdiction in Washington based solely on the fact that they are insurers for Boeing and for cargo transported to its facility in Washington is not supported by their citations to the facts or to the applicable law. Because the court does not have enough information to determine whether this case could have been brought by the plaintiffs in the Western District of Washington on February 22, 2008, the motion to transfer must be denied.

In the alternative, these new arguments raised by the defendants in their reply were waived. Black & Decker Inc. v. Robert Bosch Tool Corp., 2007 WL 108412, at * 11 (N.D.Ill. Jan.12, 2007) (citing Kelso v. Bayer Corp., 398 F.3d 640, 643 (7th Cir.2005) (arguments made for the first time in reply brief are waived leaving the non-movant no opportunity to respond)).

In the alternative, and for purposes of providing context for the motion to dismiss, the court will also address the factors of convenience and the interests of justice. “When evaluating the convenience of the parties and witnesses-a factor that is sometimes referred to as the private interests at stake-a district court considers: (1) the plaintiff’s choice of forum; (2) the situs of material events; (3) the relative ease of access to sources of proof; (4) the convenience of the witnesses; and (5) the convenience to the parties.”Washington Nat. Life Ins. Co. v. Calcasieu Parish School Bd., 2006 WL 1215413, at(N.D.Ill. May 2, 2006) (citing Coleman v. Bucheit, Inc., 2004 WL 609369, at(N.D.Ill. Mar.22, 2004) (citing Plotkin v. IP Axess, Inc., 168 F.Supp.2d 899, 902) (N.D.Ill.2001))). A declaratory judgment plaintiff’s choice of forum is entitled to some weight, but not as much as is given to a plaintiff in a non-declaratory judgment suit. Washington Nat. Life. Ins., 2006 WL 1215413, at(citing Hyatt Int’l Corp. v. Coco, 302 F.3d 707, 718 (7th Cir.2002)).

Plaintiffs’ choice of forum is entitled to some weight, but less than it would have been entitled to if they were not declaratory judgment plaintiffs or had brought suit in their home state of Iowa. Plaintiffs persuasively explain that they filed their complaint in Illinois because it was the closest state to Iowa where they were certain that the court would have personal jurisdiction over the defendants. While defendants focus on the fact that Boeing’s Commercial Airplanes Division is located in Washington, Motion at 3; Boeing Homepage, http://www. boeing.com/commercial/overview/index.html (last visited June 10, 2008), the court has noted that Boeing’s corporate headquarters is located in Chicago. None of the defendants have Washington as a home state, and in fact, Illinois is the home state of the defendant RLI. This factor weighs against granting the motion to transfer. For the same reasons, consideration of the convenience to the parties would also weigh against granting the motion.

The material events in this case are the pickup of the engines in Ohio and the crash in Illinois. The Service Contract was signed in Kansas and Missouri and the insurance contracts between defendants and Boeing were signed in Chicago. The engines were destined for Boeing’s facility in Washington. Although Boeing’s facility in Washington certainly had an important interest in the engines, this factor focuses on the “events” in the case, and the crash is certainly the most important event. This is bolstered by the defendants’ own contention that “[a] central issue to be determined in this case is whether or not the truck driver’s conduct-intentionally driving after becoming fatigued (for an additional 139 miles past three rest stops)-a charge to which the driver did plead guilty in court-constitutes gross negligence under Washington law….” Motion at 4. Resolution of this issue will require the court to consider testimony from witnesses located in Illinois. This factor weighs against granting the motion to transfer.

With regard to ease of access to sources of proof, defendants state in their motion only that “No quantum of documents or other sources of proof are located in Illinois. Instead, most of Boeing’s documents regarding, inter alia, damages applicable to this loss are presumably located in Washington. Furthermore, any corporate records Plaintiffs will rely on presumably will be found at their headquarters in Iowa. Therefore, Washington is clearly the most convenient forum with regard to access to proof.”Motion at 9 (citation omitted). Stating where documents might be located is insufficient to comply with their burden to show that transfer is “clearly more convenient.” The additional contentions included in defendants’ reply are similarly speculative and vague. Furthermore, defendants have not shown that any documents located in Washington could not be easily transported to Illinois. See Response at 8-9, n. 3 (citing cases). This factor weighs against granting the motion to transfer.

The witnesses in this case, as described by the parties, are the following:

The Boeing representative who attended an inspection of the damaged jet engines, who is located in Seattle, Washington;

Boeing’s document custodians, presumably located in Washington;

The insurance adjustor of the claim, located in Lynnwood, Washington;

The truck drivers, located in Oregon City, Oregon;

One of defendant’s expert witnesses, located in Northern California;

Officer Underwood, the Illinois State Police officer who arrived at the scene of the accident, located in Illinois;

Boeing employees who signed the Service Contract, located in Kansas and Missouri;

TMC employees who signed the Service Contract, located in Iowa;

A TMC employee who investigated the crash, located in Iowa;

Regardless of whether or not defendants have fulfilled their burden to show who these witnesses are and what the nature of their testimony will be, and even assuming all of their testimony will be important, there is no strong indication that either Washington or Illinois would be more convenient for the witnesses. Therefore, this factor weighs against granting the motion.

The final consideration is whether granting the motion to transfer would serve the interests of justice. Defendants generally argue that plaintiffs are forum shopping to avoid Washington state law and that they preemptively filed this case in bad faith when they had already agreed to go forward with the mediation. “Factors traditionally considered in an ‘interest of justice’ analysis relate to the efficient administration of the court system.”Coffey v. Van Dorn Iron Works, 796 F.2d 217, 221 (7th Cir.1986). For example, “[i]n a diversity action it is also considered advantageous to have federal judges try a case who are familiar with the applicable state law.”Id. Plaintiffs contend that they were not forum shopping, because “this lawsuit will be governed by the Carmack Amendment to the Interstate Commerce Act, which fully preempts any state laws regarding liability of carriers for loss or damage to cargo.”Response at 1. They also cite and attach communications between themselves and defendants in which they repeatedly notified defendants’ counsel that they did not believe they were obligated to participate in the mediation. Response at 14. It is not necessary for the court to determine at this juncture whether the Carmack Amendment completely preempts all state law because every other factor in the analysis of this motion to transfer has weighed against granting the motion, and if Washington law is ultimately found to apply, this court can interpret and apply it. Finally, the court has reviewed the communications between the parties provided by both sides and is not persuaded by defendants’ allegations that plaintiffs misrepresented their intentions regarding the mediation. For all of the reasons mentioned above, defendants’ motion to transfer will be denied.

III. Motion to Dismiss

Plaintiffs filed their declaratory judgment complaint in this case on February 22, 2008. On April 2, 2008 (approximately six weeks later), a group of insurance companies composed of the defendants in this case filed a complaint in the United States District Court for the Western District of Washington against the plaintiffs in this case alleging breach of duties under the Carmack Amendment as well as various tort and breach of contract claims under Washington law. Ex. D to Response to Motion to Dismiss. On April 29, 2008, defendants moved to dismiss this case under the “first-to-file” doctrine due to a “prior action pending” (the Washington complaint). On May 7, 2008, the defendants filed a motion in the Washington action in which they asked that court to defer the deadline to respond to plaintiffs’ motion to dismiss filed therein until after this court rules on all pending motions before it. On May 21, 2008, the Washington court entered an order staying that case. Ex. C to Response to Motion to Dismiss.

The parties agree that this case was filed before the Washington case. Defendants argue that although the Washington case was filed later in time, as an equitable matter it should be deemed the first-filed action and this case should then be dismissed as the second-filed action.

The standard governing the first-to-file rule was aptly stated by Judge St. Eve in Schwarz v. National Van Lines, Inc., 317 F.Supp.2d 829, 832-33 (N.D.Ill.2004):

When two similar actions are filed, the general rule favors the forum of the first-filed suit. MLR, LLC v. U.S. Robotics Corp., 2003 WL 685504,(N.D.Ill. Feb.26, 2003) (citations omitted); Barrington Group, Ltd. v. Genesys Software Systems, Inc., 239 F.Supp.2d 870, 873 (E.D.Wis.2003) (citing Warshawsky & Co. v. Arcata Nat. Corp., 552 F.2d 1257, 1263 (7th Cir.1977)). Under this “first to file” rule, district courts normally stay or transfer a federal suit “for reasons of wise judicial administration … whenever it is duplicative of a parallel action already pending in another federal court.”Serlin v. Arthur Andersen & Co., 3 F.3d 221, 223 (7th Cir.1993) (citations omitted); Barrington Group, 239 F.Supp.2d at 873 (citations omitted).

The Seventh Circuit, however, does not rigidly adhere to a “first to file” rule[.] Trippe Mfg. Co. v. American Power Conversion Corp., 46 F.3d 624, 629 (7th Cir.1995) (citations omitted). Second-filed actions may proceed where favored by the interests of justice. Tempco Elec. Heater Corp. v. Omega Eng’g, Inc., 819 F.2d 746, 749-750 (7th Cir.1987). Similarly, courts refuse to enforce the first to file rule where forum shopping motivated the first-filed action or the first-filed action constitutes an “improper anticipatory filing” made under threat of an imminent suit and asserting the mirror-image of that suit in another district. Barrington Group, 239 F.Supp.2d at 873;MLR, 2003 WL 685504 at(citations omitted).

The equitable factors to be considered in determining whether to find an exception to the first-to-file rule track those considered in ruling on a motion to transfer under 28 U.S.C. § 1404(a).Vanguard Products Group, Inc. v. Protex Int’l Corp., 2006 WL 695700,(N.D.Ill. March 14, 2006) (“the relevant equitable considerations to be considered are (1) jurisdiction over the parties; (2) judicial efficiencies and economies; (3) convenience to the parties; (4) availability and convenience of witnesses; and (5) the extent to which the declaratory judgment action filed in another forum is anticipatory and motivated by forum shopping.”); see also Schwarz, 317 F.Supp.2d at 833. Declaratory judgment actions should not always be characterized as anticipatory; and even if one is anticipatory, that does not alone warrant making an exception to the general first-to-file rule. Vanguard, 2006 WL 695700, at *6.

Defendants’ specific arguments are that plaintiffs did not have a good faith basis to dispute their contractual duty to mediate, permitted the planning of the mediation to proceed in bad faith, and filed the present action for the purpose of forum shopping. They contend, “a mediation was mutually scheduled for March 4, 2008, in Seattle, Washington …. Plaintiffs permitted the planning of the mediation to go forward. However, it appears they never harbored any intention of complying with their contractual duty; instead, on the eve of the scheduled mediation and without warning, they filed the instant action to avoid their obligations.”Motion to Dismiss at 6 (emphasis in original).

As discussed above, the court is not persuaded that plaintiffs misled the defendants regarding their intention to mediate. Plaintiffs cite six instances between November 20, 2007 and February 15, 2008 when they advised the defendants that they did not believe they had an obligation to mediate. For example, on January 7, 2008, plaintiffs advised, “Not to belabor this issue, but I want to remind everyone that we do not agree that there is an absolute obligation to engage in mediation under the circumstances of this case. As indicated in my prior letter, we are willing to identify a date in March for a possible mediation, but reserve the right to decline to participate in the mediation.”Response to Motion to Transfer at 14 (citing Exhibit G thereto).

Defendants next argue that plaintiffs have no good faith basis to refuse to mediate and that their filing of this complaint is itself proof of bad faith. They cite a mediation provision in the Service Contract and contend that they are subrogated to Boeing’s rights under that provision. Plaintiffs respond that they do not have a duty to mediate because they have already offered to pay $50,000 pursuant to the Service Contract and defendants do not have the right to coerce any further reimbursement from them. The parties disagree about whether defendants demanded that the mediation take place on their terms, contrary to the mediation provision’s requirement that it take place at a mutually agreed upon location, or whether plaintiffs were at fault for refusing to cooperate with the preparations.

It is not necessary for the court to determine whether there was a duty to mediate in this case because none of the other factors weigh heavily in favor of dismissal, and even if there was such a duty, the filing of a lawsuit cannot alone be sufficient for a finding of bad faith. Furthermore, defendants have decided to waive mediation and arbitration and proceed in court. Motion to Transfer at 6 n. 5. Finally, defendants argue that plaintiffs are forum shopping to avoid Washington law and Ninth Circuit law. For the reasons stated above, plaintiffs had legitimate reasons for filing their complaint in this court. The interests of justice do not favor dismissal and defendants’ motion to dismiss will be denied.

IV. Order

Defendants’ motions to transfer [# 14] or to dismiss [# 29] are denied. This case will be called for status on June 24, 2008 at 9:30 A.M.