United States District Court, District of Arizona
ALLSTATE PROPERTY AND CASUALTY INSURANCE CO., et al., Plaintiffs,
CARLENE TOMLINSON, et al., Defendants.
H. RUSSEL HOLLAND UNITED STATES DISTRICT JUDGE
Motion to Dismiss, Transfer, or Stay
Defendant Carlene Tomlinson moves to dismiss plaintiffs’ complaint, or in the alternative to transfer this matter to New Jersey state court or to stay this matter until the New Jersey state court proceedings are final. This motion is opposed. Oral argument was requested but is not deemed necessary.
Plaintiffs are Allstate Property and Casualty Insurance Company and Allstate Indemnity Company. Defendant is Carlene Tomlinson.
On June 2, 2012, Tomlinson was injured when she was struck by a 2007 Chevrolet Trailblazer driven by Christian Barrientos-Conde. On November 8, 2013, Tomlinson filed suit against Barrientos-Conde, Chelsea Jensen, and others in New Jersey state court. Tomlinson asserted a negligent entrustment claim against Jensen, alleging that “Jensen physically handed the keys to the 2007 Chevrolet Trailblazer to Christian Barrientos-Conde who was visibly intoxicated at the time....” Tomlinson also asserted an “encouragement of wrongful behavior” claim against Jensen, alleging that “Jensen ... substantially encouraged or assisted Barrientos-Conde in his voluntary consumption of alcohol and operation of the vehicle while intoxicated.”
On April 14, 2014, Tomlinson filed an amended complaint in the New Jersey state court action, in which she asserted the same two claims against Jensen as well as additional claims against Jensen based on New Jersey’s social host statute and Dram Shop Law. On May 21, 2014, Tomlinson filed a second amended complaint in New Jersey state court in which she asserted the same four claims against Jensen and for the first time, a declaratory judgment act claim against Allstate Fire & Casualty Insurance Company. Tomlinson sought a declaration that Jensen was covered under her mother’s Allstate homeowners, automobile, and landlord policies for the claims that Tomlinson had asserted against Jensen.
On September 4, 2014, plaintiffs commenced the instant action, in which they seek a declaration that no coverage is available for Jensen under her mother’s homeowners and landlord policies and that they have no duty to defend or indemnify Jensen under either policy.
On September 12, 2014, Tomlinson filed a third amended complaint in New Jersey state court. Tomlinson asserted the same four claims against Jensen, but her declaratory judgment claim was now asserted against Allstate Fire & Casualty Insurance Company and Allstate Property and Casualty Insurance Company. Tomlinson acknowledged that as of July 29, 2014, Allstate was providing a defense for Jensen under her mother’s automobile policy,  but Tomlinson continued to seek a declaration that Jensen was covered under her mother’s homeowners and landlord policies.
On October 2, 2014, Tomlinson voluntarily dismissed the Allstate defendants from the New Jersey state court action. Tomlinson’s attorney avers that the decision to dismiss the Allstate defendants was made after he spoke “with local New Jersey counsel for Allstate.” He further avers that he made this decision “because I was unsure whether the facts as presently known at the time would give rise to an actual claim for coverage under the subject policies (homeowners and renters) without engaging in further discovery.”
On October 9, 2014, plaintiff’s counsel notified Tomlinson’s counsel that the instant action had been filed. Tomlinson was served with plaintiffs’ complaint in December 2014.
Tomlinson’s counsel avers that since October 2014, “the parties in the New Jersey action have exchanged a substantial amount of paper discovery, including the exchange of documents and Answers to Interrogatories, and taken numerous depositions.” Jensen’s deposition was to be taken on May 7, 2015. Trial of the New Jersey action is currently set for October 18, 2015.
Tomlinson now moves to dismiss plaintiffs’ complaint or in the alternative, to transfer this case to New Jersey state court or to stay this action pending ...