IN THE UNITED STATED DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ROBERT E. COLE Attorney For Plaintiff

ROBERT E. COLE, P.C.

ATTORNEY I.D. NO. 73263

437 CHESTNUT STREET, SUITE 218

PHILADELPHIA, PA 19106

(215) 922-2050

___________________________________

OWEN J. ROGAL, D.D.S., P.C. :

d/b/a THE PAIN CENTER

501-07 SOUTH 12TH STREET

PHILADELPHIA, PA 19147

Plaintiff :

V. : NO. 05-6074

SKILSTAF, INC. :

P.O. BOX 729

ALEXANDER CITY, AL 35011

Defendant :

___________________________________

ORDER

AND NOW, this day of , 2006, upon

consideration of defendant's Motion to Transfer Venue and

plaintiff’s Reply thereto and the memorandum of law filed in

support thereof, it is hereby ORDERED and DECREED that the

Motion to Transfer Venue is DENIED.

BY THE COURT:

_________________________

 J.

Case 3:06-cv-00711-MHT-WC Document 10 Filed 04/03/2006 Page 1 of 15 Case 2:05-cv-06074-JCJ Document 10 Filed 04/03/2006 Page 1 of 15

IN THE UNITED STATED DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ROBERT E. COLE Attorney For Plaintiff

ROBERT E. COLE, P.C.

ATTORNEY I.D. NO. 73263

437 CHESTNUT STREET, SUITE 218

PHILADELPHIA, PA 19106

(215) 922-2050

___________________________________

OWEN J. ROGAL, D.D.S., P.C. :

d/b/a THE PAIN CENTER

501-07 SOUTH 12TH STREET

PHILADELPHIA, PA 19147

Plaintiff :

V. : NO. 05-6074

SKILSTAF, INC. :

P.O. BOX 729

ALEXANDER CITY, AL 35011

Defendant :

___________________________________

PLAINTIFF OWEN J. ROGAL, D.D.S., P.C.’S REPLY IN OPPOSITION TO

DEFENDANT SKILSTAF, INC.'S MOTION TO TRANSFER VENUE

Plaintiff Owen J. Rogal, D.D.S., P.C., d/b/a The Pain

Center, by and through its undersigned counsel, does hereby

respond to defendant's Motion and avers as follows:

1. The plaintiff in this matter is Owen J. Rogal, D.D.S.,

P.C., d/b/a The Pain Center, a corporation with principal place

of business being located at 501-07 South 12th Street,

Philadelphia, PA 19147.

Case 3:06-cv-00711-MHT-WC Document 10 Filed 04/03/2006 Page 2 of 15 Case 2:05-cv-06074-JCJ Document 10 Filed 04/03/2006 Page 2 of 15

2. Defendant Skilstaf, Inc. is an Alabama corporation and

insurance provider/plan administrator with its headquarters and

principal place of business located at P.O. Box 729, Alexander

City, AL 35011.

3. This matter commenced in October, 2005 in Philadelphia

County, PA and was removed to this Court on or about November of

2005.

4. This matter concerns plaintiff medical provider’s

allegations of non-payment of medical bills by defendant

incurred by patient/insured Dennis Berry.

5. Patient/insured Dennis Berry has assigned his

rights/benefits in this matter to plaintiff.

6. Defendant filed the instant Motion to Transfer Venue

to Alabama upon grounds of convenience for defendant.

7. In a previous Motion presently pending before the

Court, defendant raised issue of forum non conveniens under

Federal Rule 12(b)(3).

8. Defendant withdrew its arguments as to forum non

conveniens therein.

9. Defendant has registered as a foreign business to

conduct business in the Commonwealth of Pennsylvania. By way of

further definition, please see Exhibit “A” attached hereto and

made by reference a part hereof, Pa Department of State filing

evincing same.

Case 3:06-cv-00711-MHT-WC Document 10 Filed 04/03/2006 Page 3 of 15 Case 2:05-cv-06074-JCJ Document 10 Filed 04/03/2006 Page 3 of 15

 10. Per 42 Pa.C.S. § 5301, said registration establishes

defendant’s personal jurisdiction in the Commonwealth of

Pennsylvania.

 11. Defendant may be found in the eastern district of

Pennsylvania for purposes of determining venue.

 12. Plaintiff and witnesses therefor are located in the

eastern district of Pennsylvania.

 13. Patient/insured Dennis Berry resides at 117 Timberlake

Lane, Clarksboro, NJ 08020, approximately seventeen (17) miles

from this District Court.

 14. Defendant has made payments on the health/benefits

plan at issue herein to plaintiff in this forum.

 15. Defendant’s records and documentation regarding this

matter may be produced in this forum.

 16. Plaintiff and defendant’s counsel are located in this

forum.

 17. Forum selection clauses in contracts consenting to

jurisdiction in a particular forum do not provide exclusive

jurisdiction in that particular forum.

 18. Plaintiff did not consent to jurisdiction in the

instant matter in an Alabama forum.

Case 3:06-cv-00711-MHT-WC Document 10 Filed 04/03/2006 Page 4 of 15 Case 2:05-cv-06074-JCJ Document 10 Filed 04/03/2006 Page 4 of 15

 19. Patient/insured Dennis Berry did not consent to

jurisdiction in the instant matter in an Alabama forum.

WHEREFORE, plaintiff respectfully requests that this

court deny defendant’s Motion to Transfer Venue.

 

 REC6159______________________________

Date Robert E. Cole, Esquire

Attorney for Plaintiff

Atty. I.D. No. 73263

437 Chestnut Street, Suite 218

Philadelphia, PA 19106

(215) 922-2050

Case 3:06-cv-00711-MHT-WC Document 10 Filed 04/03/2006 Page 5 of 15 Case 2:05-cv-06074-JCJ Document 10 Filed 04/03/2006 Page 5 of 15

IN THE UNITED STATED DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ROBERT E. COLE Attorney For Plaintiff

ROBERT E. COLE, P.C.

ATTORNEY I.D. NO. 73263

437 CHESTNUT STREET, SUITE 218

PHILADELPHIA, PA 19106

(215) 922-2050

___________________________________

OWEN J. ROGAL, D.D.S., P.C. :

d/b/a THE PAIN CENTER

501-07 SOUTH 12TH STREET

PHILADELPHIA, PA 19147

Plaintiff :

V. : NO. 05-6074

SKILSTAF, INC. :

P.O. BOX 729

ALEXANDER CITY, AL 35011

Defendant :

___________________________________

PLAINTIFF OWEN J. ROGAL, D.D.S., P.C.’S BRIEF IN OPPOSITION TO

DEFENDANT SKILSTAF, INC.’S MOTION TO TRANSFER VENUE

I. INTRODUCTION

As to the specific issues addressed in Defendant’s motion

to dismiss, these issues are addressed herein below.

II. FACTS

The plaintiff in this matter is Owen J. Rogal, D.D.S.,

P.C., d/b/a The Pain Center, a corporation with principal place

of business being located at 501-07 South 12th Street,

Philadelphia, PA 19147. Defendant Skilstaf, Inc. is an Alabama

corporation and insurance provider/plan administrator with its

Case 3:06-cv-00711-MHT-WC Document 10 Filed 04/03/2006 Page 6 of 15 Case 2:05-cv-06074-JCJ Document 10 Filed 04/03/2006 Page 6 of 15

headquarters and principal place of business located at P.O. Box

729, Alexander City, AL 35011. Additionally, defendant is

registered as a foreign business in the Commonwealth of

Pennsylvania.

This matter commenced in October, 2005 in Philadelphia

County, PA and was removed to this Court on or about November of

2005. This matter concerns plaintiff medical provider’s

allegations of non-payment of medical bills by defendant

incurred by patient/insured Dennis Berry. Said patient/insured

assigned his rights/benefits to plaintiff herein.

III. ARGUMENT

A. Standard of Review

In determining whether a transfer of action would be for

the convenience of parties and witnesses and in the interest of

justice, a federal district court is vested with wide

discretion. Plum Tree, Inc., v. Stockment, 488 F.2d 754 (3d

Cir. 1973). When deciding whether to order a discretionary

transfer, the Third Circuit requires this Court to consider the

private and public interests protected by the language of §

1404(a). Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d

Cir. 1995). The private interests include: plaintiff's forum

preference as manifested in his original choice; the defendant's

preference; whether the claim arose elsewhere; the convenience

of the parties as indicated by their relative physical and

Case 3:06-cv-00711-MHT-WC Document 10 Filed 04/03/2006 Page 7 of 15 Case 2:05-cv-06074-JCJ Document 10 Filed 04/03/2006 Page 7 of 15

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 records, similarly

limited to the extent that the files could not be produced in

the alternative forum. Id. The public interests include: the

enforceability of the judgement; 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 polices of the fora; and the

familiarity of the trial judge with the applicable state law in

a diversity case. Id. The burden of establishing the need for

a transfer rests on the defendant. Jumara v. State Farm Ins.

Co., 55 F.3d 873, 879 (3d Cir. 1995).

In ruling on defendant's motion to transfer, "the

plaintiff's choice of venue should not be lightly disturbed."

Jumara, 55 F.3d at 879. The issue of venue "must be approached

with the broad Congressional policy favoring free access to

federal courts in mind." Trustees of the Nat'l Elevator Indus.

Pension, Health Benefit & Educ. Funds v. Ramchandani, 1999 U.S.

Dist. LEXIS 3182, No. Civ. A. 98-6108, 1999 WL 179748 at *1

(E.D.Pa. Mar. 12, 1999) (Giles, C.J.) (quoting Turner v. CF & I

Steel Corp., 510 F. Supp. 537, 542 (E.D.Pa. 1981)). The weight

given to a plaintiff's choice of forum is even greater when the

Case 3:06-cv-00711-MHT-WC Document 10 Filed 04/03/2006 Page 8 of 15 Case 2:05-cv-06074-JCJ Document 10 Filed 04/03/2006 Page 8 of 15

plaintiff resides in the chosen forum. See, e.g. Trustees of the

Nat'l Elevator Indus. Pension, Health Benefit & Educ. Funds v.

Ramchandani, 1999 U.S. Dist. LEXIS 3182, No. Civ. A. 98-6108,

1999 WL 179748 at *1 (E.D.Pa. Mar. 12, 1999) (Giles, C.J.);

DiMark Marketing, Inc. v. Louisiana Health Serv. and Indemnity

Co., 913 F. Supp. 402, 408 (E.D.Pa. 1996).

In determining whether venue is proper, the Court is guided

by the Third Circuit's ruling that a plaintiff's choice of forum

is of paramount concern and should not be lightly disturbed.

Shutte v. Armco Steel Corp., 431 F.2d 22, 25 (3d. Cir. 1970).

While § 1404(a) "gives the district courts discretion to decide

a motion to transfer based on an individualized, case-by-case

consideration of convenience and fairness, such motions are not

to be liberally granted." Dinterman v. Nationwide Mut. Ins.

Co., 26 F. Supp. 2d 747, 749 (E.D. Pa. 1998). The burden of

establishing the need for transfer rests with the defendant.

Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995).

Further, transfer of venue which merely shifts the

inconvenience associated with choice of venue from defendants to

plaintiff is insufficient to warrant a transfer of venue under

28 U.S.C. § 1404(a). Trustees of the Nat'l Elevator Indus.

Pension v. Ramchandani, 1999 U.S. Dist. LEXIS 3182 (E.D. Pa.

Mar. 12, 1999) (Giles, C.J.).

Case 3:06-cv-00711-MHT-WC Document 10 Filed 04/03/2006 Page 9 of 15 Case 2:05-cv-06074-JCJ Document 10 Filed 04/03/2006 Page 9 of 15

ERISA maintains a broad policy of providing "ready access

to the Federal Courts." 29 U.S.C. § 1001(b); see Turner v. CF&I

Steel Corp., 510 F. Supp. 537, 542 (E.D. Pa. 1981) (quoting

Bonin v. Am. Airlines, Inc., 621 F.2d 635, 636, n.1 (5th Cir.

1980) ("A potential ERISA plaintiff is granted a wide choice of

Federal court venue.")). Johnston v. Exelon Corp., 2005 U.S.

Dist. LEXIS 4723; 35 Employee Benefits Cas. (BNA) 1634 (2005).

B. Defendant has failed to sustain its burden of proof to

support transfer of the instant matter to Alabama

federal court

Initially, Section 502(e)(2) of ERISA, 29 U.S.C. §

1132(e)(2), governs the determination of venue under the Act:

Where an action under this subchapter is brought in a district

court of the United States, it may be brought in the district

where the plan is administered, where the breach took place, or

where a defendant resides or may be found, and process may be

served in any other district where a defendant resides or may be

found.

In the instant matter, plaintiff admits that the plan at

issue herein is administered in Alabama. Plaintiff avers that

the breaches can only be considered to have occurred in

Philadelphia. This Court has stated, "The Third Circuit has

provided no guidance for deciding where a breach of an ERISA

plan takes place." Keating v. Whitmore Mfg. Co., 981 F. Supp.

890, 892 (E.D. Pa. 1997) (Van Antwerpen, J.) Johnston v. Exelon

Case 3:06-cv-00711-MHT-WC Document 10 Filed 04/03/2006 Page 10 of 15 Case 2:05-cv-06074-JCJ Document 10 Filed 04/03/2006 Page 10 of 15

Corp., 2005 U.S. Dist. LEXIS 4723; 35 Employee Benefits Cas.

(BNA) 1634 (2005).

However, another district court has ruled in the exact

scenario as follows, “In action brought by medical services

provider as assignee of plan participant's benefits against outof-state welfare benefit plan to enforce payments for services

rendered, proper venue was found to be where alleged breach of

contract occurred, namely, where medical services were rendered

for which assignee was seeking reimbursement”. Ingalls Memorial

Hosp. v Northeastern Center, Inc.,(1991, ND Ill) 1991 US Dist

LEXIS 1956.

Further, it cannot be disputed that defendant has

registered as foreign business with the Pennsylvania Department

of State. See Exhibit “A” attached hereto and made by reference

a part hereof.

42 Pa.C.S. § 5301 reads in pertinent part:

(a) GENERAL RULE. --The existence of any of the following

relationships between a person and this Commonwealth shall

constitute a sufficient basis of jurisdiction to enable the

tribunals of this Commonwealth to exercise general personal

jurisdiction over such person, or his personal

representative in the case of an individual, and to enable

such tribunals to render personal orders against such

person or representative:

(2) Corporations.—

(i) Incorporation under or qualification as a

foreign corporation under the laws of this

Commonwealth.

Case 3:06-cv-00711-MHT-WC Document 10 Filed 04/03/2006 Page 11 of 15 Case 2:05-cv-06074-JCJ Document 10 Filed 04/03/2006 Page 11 of 15

Personal jurisdiction by statutory authority attached to

defendant herein upon registration of its foreign business in

Pennsylvania, which preceded the filing of the instant

Complaint. Given same, it can only be concluded that defendant

may be found in Pennsylvania for purposes of proper venue

determination under ERISA.

As indicated by caselaw above, defendant bears the burden

to establish the need for transfer. Of course, plaintiff

medical provider is a duly registered business concern in

Eastern Pennsylvania and has filed the instant action in this

jurisdiction. All medical treatment rendered to patient/insured

Dennis Berry was provided at plaintiff’s offices in

Philadelphia, PA. All witnesses related to plaintiff hail from

the Philadelphia area. Patient/insured Dennis Berry hails from

Clarksboro, NJ, less than twenty (20) miles from this District

Court. Plaintiff’s and defendant’s counsel are likewise located

in Philadelphia, PA. While defendant has long secured local

counsel herein, transfer of venue to Alabama would visit a

serious and significant economic hardship upon plaintiff to

proceed with this matter in that jurisdiction.

As a final consideration, defendant makes much of the forum

selection clause contained in the group health plan at issue

here (Defendant’s Exhibit “C”). As is obvious, plaintiff is not

a party to said writing. Further, patient/insured Dennis Berry

Case 3:06-cv-00711-MHT-WC Document 10 Filed 04/03/2006 Page 12 of 15 Case 2:05-cv-06074-JCJ Document 10 Filed 04/03/2006 Page 12 of 15

did not execute said document either. Finally, this Court has

stated with regard to forum selection clauses in contracts,

"Where parties enter into a contract and merely consent to

jurisdiction in a particular forum, they do not preclude the

jurisdiction of other forums." Polsky v. Hall City Centre

Associates Ltd. Partnership, 1989 U.S. Dist. LEXIS 4942, 1989 WL

48109, at *3 (E.D.Pa. 1989). See Pep Boys-Manny, Moe & Jack v.

American Waste Oil Servs. Corp., 1997 U.S. Dist. LEXIS 9089,

1997 WL 367048, at *7 (E.D.Pa. 1997) (forum selection clause

consenting to jurisdiction in Pennsylvania did not provide

exclusive jurisdiction).

While plaintiff avers that neither it nor patient/insured

Dennis Berry consented to Alabama jurisdiction in this matter,

the forum selection clause cited by defendant does not confer

exclusive jurisdiction upon this matter in Alabama.

Finally, it is quite obvious that defendant would

choose to defend this matter in its home jurisdiction of

Alabama. However, under the ERISA statute for determining

venue and 29 U.S.C.S. §1404, defendant has failed to

provide any factual basis for transfer other than as a

means to shift inconvenience to plaintiff. This is legally

insufficient to support defendant’s burden of proof. As

such, plaintiff submits that venue in the Eastern District

of Pennsylvania is entirely appropriate in this matter.

Case 3:06-cv-00711-MHT-WC Document 10 Filed 04/03/2006 Page 13 of 15 Case 2:05-cv-06074-JCJ Document 10 Filed 04/03/2006 Page 13 of 15

IV. CONCLUSION

In conclusion, for the foregoing reasons, Plaintiff

respectfully requests that this Honorable Court enter the

attached Order Denying Defendant’s Motion to Transfer Venue.

 

 REC6159______________________________

Date Robert E. Cole, Esquire

Attorney for Plaintiff

Atty. I.D. No. 73263

437 Chestnut Street, Suite 218

Philadelphia, PA 19106

(215) 922-2050

Case 3:06-cv-00711-MHT-WC Document 10 Filed 04/03/2006 Page 14 of 15 Case 2:05-cv-06074-JCJ Document 10 Filed 04/03/2006 Page 14 of 15

IN THE UNITED STATED DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ROBERT E. COLE Attorney For Plaintiff

ROBERT E. COLE, P.C.

ATTORNEY I.D. NO. 73263

437 CHESTNUT STREET, SUITE 218

PHILADELPHIA, PA 19106

(215) 922-2050

___________________________________

OWEN J. ROGAL, D.D.S., P.C. :

d/b/a THE PAIN CENTER

Plaintiff :

V. : NO. 05-6074

SKILSTAF, INC. :

Defendant :

___________________________________

CERTIFICATE OF SERVICE

Robert E. Cole, Esquire, attorney for plaintiff, hereby

verifies that on the date below, he served upon Jeanne L.

Bakker, Esquire, attorney for defendant above, a true and

correct copy of the foregoing Reply to Motion to Transfer Venue

and accompanying documents by first class mail, postage prepaid

to the following address:

Montgomery McCracken et al.

123 South Broad Street

Philadelphia, PA 19109

 

 REC6159______________________________

Date Robert E. Cole, Esquire

Attorney for Plaintiff

Atty. I.D. No. 73263

437 Chestnut Street, Suite 218

Philadelphia, PA 19106

(215) 922-2050

Case 3:06-cv-00711-MHT-WC Document 10 Filed 04/03/2006 Page 15 of 15 Case 2:05-cv-06074-JCJ Document 10 Filed 04/03/2006 Page 15 of 15