Massachusetts Bay Insurance Company v. Christian Funeral Directors, Inc. et al

MOTION to Dismiss for Lack of Jurisdiction or in the alternative Motion to Decline exercise of jurisdiction on behalf of all individually named defendants

W.D. Tenn.April 20, 2017

1 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION _______________________________________________________________________ MASSACHUSETTS BAY INSURANCE COMPANY, Plaintiff, Case No: 2:17-cv-02103-JTF-cgc vs. CHRISTIAN FUNERAL DIRECTORS, INC.; JOE JOHNSON, CLEMENTE BUTTS, JEANNIE WILBURN, RODNEY FIELDS, NORMAN GROVE, LAQUITA JONES, JACQUELYN BONDS, DANECIA EDWARDS, ERICA WILLIAMS, ELIJAH PARTEE, ELLA STEWART, JIMMIE H. STEVENS, JR., VICKIE STEVENS, AARON BRIGHT, REGINA SIMMONS, YANCIE MCCRUISTON, OTTO DAVIS, SR., ANNICE CROWDER, MICHAEL JAMES, REBECCA WILLIAMS, WILLINE FINLEY, JOSEPH HAYES, SANDRA WRIGHT, ETTA RICKMAN, JAMES ALLEN, JR., ERIC ALLEN, TAMARERA KELLY-MALONE, NITA FOREMAN, IRMA BUTLER, TANYA ROBINSON, LINDA SARGENT, IVEZEEN JACKSON CRAWFORN, HELEN YOUNG, ERNEST TAYLOR, JR., KASHIF MCCRACKEN, LINDA VALENTINE BENSON, LESTER VALENTINE, JR., FREDDIE VALENTINE, LAVITTA VALENTINE, BELINDA MERRIWEATHER, TAVIS JONES, BRENDA VALENTINE, LAWANDA BOSWELL, MACK VALENTINE, LISA SMITH, ANDRE ALEXANDER, TRENA BOLTON, DWIGHT ALEXANDER, WILLIE MAE HENRY, JOE MORROW, BERNICE MORROW, ANITA PARKER, TORY SHEPHERD, WILLIE BROOKS, GARY BROOKS, DOROTHY JAMES, TOMEKE MICKENS, FAITH EVANS, KEVIN HARPER, JASON TUCKER, VERNADA TUCKER, SHUNTERRI JONES, KILYUS PATTERSON, STARNITRA PATTERSON, KENYATTA PATTERSON, DIANN CRITE, DEBRA PENDLETON, GERALDINE COLLINS, JOHN K. EVAN, WILL MAE JONES LONG, LOUIS LONG, JR., IVORY SHARROD, SHIRLEY WILLIAMS, AUDREY CLARK, JANICE LOWE, FREDERICK WALKER, JANEL WILLIAMS, JANE HENDERSON, ROSIE HENDERSON, RUBESTA TAYLOR, EBONY COOK, NATHANIEL DEAN, ROSEMARY DENTON, TRANELL GIPSON, WILLIE MAE BUTTS, Case 2:17-cv-02103-JTF-cgc Document 18 Filed 04/20/17 Page 1 of 15 PageID 424 2 EUNICE PHILLIPS, CHRISTOPHER ARNOLD, BELINDA GRADY, SYLVIA GARNER, SHERICA BONNER, WILLY WELLS, JR., BETTY SMITH, ROSIE MILLER, WILLIAM COBBS, TRINA WALLACE, ANNETTE FRANKLIN, LINDA DAVIS, JAMES JEAN, LILLIAN SMITH, DEVIN BROOK, MELVIN EASLEY, TONI TAYLOR, SHIRLEY TAYLOR, NIKESHA GORDON, DELORES MOSS, PATRICK PAYNE, JANET ALEXANDER, GLENN ALEXANDER, TRACEY HOLMES, YOLANDA M. HERRING, ROBERT HERRING, JR., BOBBIE JEAN JOHNSON, BETTY REED, CEDRIC KEARNEY, ALRENZO ROBINSON, BINTON BARNES, QUINNIE BURKES LARRY WHITELOW, GREGORY JOHNSON, LAWANDA ALEXANDER, MONROE ALEXANDER, EVERETTE ALEXANDER, JOHN LANE, LILLIAN SMITH, CARL BLACK, RISONIA BLACK, DEBRA ALLEN, ALISHA BELL, TERESA ROBINSON, FARLISHA BRATCHER, MARQUITA BROWNLEE, LINDER CAIN, LANTREKE T. CHAMBERS, L.C. CANNON, RALPH RAY CROSS, CHERYL CROSS, TAJUANA DAVISON, JOHNNIE L. DAVIS, DEVORNIA FLYNN, WILLIE HAILEY, DEANDRE HAILEY, AISHA HIGGINS, MONISHA HIGGINS, BESSIE L. FRANKLIN, MELISSA KING LESURE, SYLVIA HARRIS, CYNTHIA HILL, ROOSEVELT HODGE, ANGELIQUE JOHNSON, RODNEY CARPENTER, YULL CARPENTER, IZELIA KING, ETHEAL LEWIS, WESLEY MOORE, CINDY RECTOR, CARLA MOTEN, ANNETTE REED, RONRICO REED, ANNIE REMBLE, DONAL STARKS, JACQUELINE GARRETT, GLENN STARKS, EDDIE STARKS, BRANDI NEELY STEVENSON, BRIENNA NEELY, LINDA WALLACE, DANIEL WALLACE, TERRY WALLACE, MARGARET DOWELL, CIARA YOUNG, LU BIRDIA YOUNG, RACHEAL WILLIAMS, VERA MILTON, JEFFREY LAVON TURNER, AMON ANDERSON, CURTIS WILSON, JR., ANDRES PILCHER, SHARON PILCHER, CHALAUNDRA COLEMAN, AVE MARIE KIMBLE and ANTOINE HAWKINS, for themselves and all others similarly situated, Defendants. MOTION TO DISMISS OR IN THE ALTERNATIVE MOTION SEEKING COURT TO DECLINE EXERCISE OF JURISDICTION IN THIS MATTER This action arose out of a Complaint filed on behalf of Massachusetts Bay Insurance Company seeking declaratory judgment and other relief against Defendants Christian Funeral Case 2:17-cv-02103-JTF-cgc Document 18 Filed 04/20/17 Page 2 of 15 PageID 425 3 Directors, Inc. (“Christian Funeral Directors”), all named Plaintiffs as well as all unnamed Plaintiffs (hereinafter “Individual Defendants / Galilee Plaintiffs”) in the Galilee Memorial Gardens class action currently pending in Chancery Court of Shelby County, Tennessee. By way of this Motion, all Individual Defendants hereby move this Honorable Court for entry of an Order dismissing the Complaint for lack of personal jurisdiction or in the alternative to decline to exercise jurisdiction over this action and dismiss the declaratory judgment without prejudice. I. FACTS AND PROCEDURAL POSTURE Individual Defendants / Galilee Plaintiffs named in the Wofford matter (hereinafter “Wofford Class Action) filed a class action lawsuit against numerous funeral homes, including Defendant Christian Funeral Directors alleging among other things that defendant funeral homes wrongly abandoned the remains of Individual Defendants’ / Galilee Plaintiffs’ loved ones at an unlicensed cemetery, Galilee Memorial Gardens from January 1, 2011 until the cemetery was closed by the State of Tennessee in 2014. A number of other lawsuits, both seeking class action and individual complaints, were filed after the Wofford Class Action. The Individual Defendants / Galilee Plaintiffs named in this declaratory judgment make up only a portion of the purported number of burials at issue in the Wofford Class Action which is estimated to be in excess of 1200 bodies. The Wofford Class Action lawsuit alleges that the cemetery used improper methods in disposing of human remains, including burying multiple bodies in a single grave and crushing caskets with a back hoe in order to make room for more burials in a grave. It is further alleged that Defendant Funeral Homes, including Christian Funeral Directors breached their duties owed to Plaintiffs by delivering bodies to an unregistered cemetery and failing to supervise the final disposition of their loved ones, among other allegations. Case 2:17-cv-02103-JTF-cgc Document 18 Filed 04/20/17 Page 3 of 15 PageID 426 4 The original Wofford Class Action complaint was filed in February 2014 in Chancery Court. After significant discovery and extensive motion practice was completed, in November 2015, the Trial Court entered a detailed order granting class certification.1 A large number of Defendant Funeral Homes, including Christian Funeral Directors, appealed that ruling to the Tennessee Court of Appeals. On appeal, the funeral home defendants raised the following issues: 1) whether the Trial Court lacked subject matter jurisdiction; 2) whether Plaintiffs lack standing to bring this class action; 3) whether an arbitration clause contained in some funeral contracts with NJ Edwards entities defeats communality for purposes of class action; and 4) whether the Trial Court abused its discretion and erred in granting class certification. In an order filed by the Tennessee Court of Appeals on March 29, 2017, the Court of Appeals held that the Trial Court had concurrent subject matter jurisdiction to adjudicate all of Plaintiffs’ claims; that Plaintiffs have standing to bring the class action lawsuit; that MJ Edwards’ arbitration clause was previously declared to be unconscionable and unenforceable; and finally that there was no abuse of discretion by the trial court in its decision to certify the class in that case. Based upon the Court of Appeals ruling, all parties identified in this matter, with the exception of the individual plaintiffs in the Coleman and Kimble matter, are included within the definition for class participants in the Galilee matter pending before the Chancery Court.2 Over three years after Christian Funeral Directors was named in the original class action, Plaintiff, Massachusetts Bay Insurance Company, for the first time now, seeks declaratory 1 Discovery included depositions of all Funeral Home Defendants and all named Plaintiffs. In addition, hundreds of interrogatories and request for production of documents were propounded and answered. Significant briefing and oral argument was conducted on all Defendant’s Motion to Dismiss, as well as, the issue of class certification. 2 In the Complaint for Declaratory Relief, Plaintiff identifies eight (8) individual lawsuits pending in several state court in Shelby County, Tennessee. However, based upon the Court of Appeals order affirming the class certification, all plaintiffs, other than Chalaundra Coleman and Maria Kimble are included within the certified class in Wofford. Those two individual plaintiffs were buried prior to the class period of January 1, 2011. It should be noted that those plaintiffs are represented by Nahon Saharovich and Trotz law firm. Nahon Saharovich and Trotz have announced to the trial court that their eligible plaintiffs will be participating in the Wofford Class Action. Case 2:17-cv-02103-JTF-cgc Document 18 Filed 04/20/17 Page 4 of 15 PageID 427 5 judgment declaring that Business Owners Insurance Policy (No. ODY-5054806) issued to Christian Funeral Directors for successive policy periods from February 10, 2010 to February 18, 2013 provides no coverage for the actions asserted in the Galilee class action and that Massachusetts Bay Insurance Company has no duty to defend or indemnify in connection with the Galilee class action. Undersigned counsel was appointed by the Chancery Court to serve as lead and liaison counsel for the certified class in the Wofford Class Action. Based upon the recent decision by the Tennessee Court of Appeals, Counsel will be moving forward with the litigation in the very near future.3 Individual Defendants / Galilee Plaintiffs file this Motion seeking entry of an Order dismissing the Complaint for Declaratory Judgment for lack of diversity jurisdiction or in the alternative for this court to decline to exercise jurisdiction over this matter. II. LEGAL ANALYSIS A. MOTION TO DISMISS Plaintiff, Massachusetts Bay Insurance Co., Inc. filed this declaratory judgment action based upon, in part, diversity of citizenship (28 U.S.C. Sec. 1332), alleging that the matter in controversy exceeds the sum of $75,000 exclusive of interest and cost and is between citizens of different states. In the Complaint, it is alleged that Yancie McCruiston is an individual residing and domiciled in Tennessee. (See Complaint Para. 18). However, Mr. McCruiston is a resident of and domiciled in the State of Massachusetts. (See attached Exhibit A). The Plaintiff, Massachusetts Bay Insurance Co., alleges in the complaint that it is a Massachusetts corporation 3 It should be noted that all discovery has been completed in Chancery Court and there are a number of pending Motions for Summary Judgment filed by both sides pending argument and ruling by the Court. Plaintiffs will be seeking a new trial date as soon as the parties reconvene with Chancellor Kyle. Case 2:17-cv-02103-JTF-cgc Document 18 Filed 04/20/17 Page 5 of 15 PageID 428 6 with its principal place of business in Massachusetts, and it is a citizen of Massachusetts. (See Complaint Para. 1). Based upon this fact, diversity jurisdiction is lacking in this court due to the fact that the parties are not completely diverse. As such, the matter must be dismissed. B. MOTION SEEKING THIS COURT TO DECLINE JURISDICITION Plaintiff, Massachusetts Bay Insurance Company seeks entry of a judgment in this matter pursuant to the Declaratory Judgment Act, 28 U.S.C. §§2201-2202. The Declaratory Judgment Act grants district court discretionary jurisdiction over actions within its purview. Specifically, 28 U.S.C. §2201 provides that a court “may declare the rights and other legal relations of any interested party seeking such declaration” (emphasis added); Bituminous Cas. Corp. v. J&L Lumber Co., 373 F.3d 807, 812 (6th Cir. 2004) (citing Brillhart v. Excess Ins. Co., 316 U.S. 491, 494 (1942)). “District courts possess discretion in determining whether and when to entertain an action under the Declaratory Judgment Act, even when the suit otherwise satisfies subject matter jurisdiction.” Wilton v. Seven Falls Co., 515 U.S. 277, 282, 115 S. Ct. 2137, 132 L. Ed. 2d 214 (1995). The Wilton Court, noted that it has “repeatedly characterized the Declaratory Judgment Act as ‘an enabling Act, which confers a discretion [sic] on the courts rather than an absolute right upon the litigant,’” and thus [w]hen all is said and done, we have concluded ‘the propriety of declaratory relief in a particular case will depend upon a circumspect sense of its fitness informed by the teaching and experience concerning the functions and extent of federal judicial power.’ Id. at 287 (quoting Public Serv. Comm’n of Utah v. Wycoff Co., 344 U.S. 237, 241-43, 73 S. Ct. 236, 97 L. Ed. 291 (1952)). “In the declaratory judgment context, the normal principle that federal courts should adjudicate claims within their jurisdiction yields to considerations of Case 2:17-cv-02103-JTF-cgc Document 18 Filed 04/20/17 Page 6 of 15 PageID 429 7 practicality and wise judicial administration.” Wilson, 515 U.S. at 288. While this statutory discretion is broad, the Appellate Courts have determined it not to be unbounded. The Supreme Court left it to the circuit courts of appeal to define the circumstances under which district courts appropriately may refuse to exercise jurisdiction over declaratory judgment actions. The Sixth Circuit was first to do so and set forth specific guidance to district courts faced with the decision of whether to hear a declaratory judgment claim. The Sixth Circuit has directed district courts to consider the following: (1) whether the declaratory action would settle the controversy; (2) whether the declaratory action would serve a useful purpose in clarifying the legal relationship in issue; (3) whether the declaratory remedy is being used merely for the purpose of “procedural fencing” or “to provide an arena for a race for res judicata”; (4) whether the use of a declaratory action would increase friction between our federal and state courts and improperly encroach upon state jurisdiction; and (5) whether there is an alternative remedy which is better or more effective. Grand Trunk W. R.R. Co. v. Consol. Rail Corp., 746 F.2d 323, 326 (6th Cir. 1984). A closer look at each of the Grand Trunk factors supports dismissal of the matter. The first two factors of the Grand Trunk analysis are “closely related,” and as a result courts frequently consider them together. Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 557 (6th Cir. 2008). As such, we will follow suit. 1. The Declaratory Judgment does not Settle the Controversy nor Clarifying the Legal Relations This declaratory judgment seeks clarification of insurance coverage only. Plaintiff seeks a declaration that there is no coverage for anyone buried after February 2013, no coverage for any emotional damages and that it has no duty to defend or indemnify Christian Funeral Directors in the underlying state court action. Case 2:17-cv-02103-JTF-cgc Document 18 Filed 04/20/17 Page 7 of 15 PageID 430 8 In terms of whether a declaratory judgment would settle the controversy, would a declaratory judgment resolve the entire disagreement between the parties, and not merely a discrete part of a larger dispute? Scottsdale, 513 F.3d at 554-55. In the case at bar, the declaratory judgment would not resolve all disagreements between the parties. While a declaration might clarify some of Massachusetts Bay Insurance Company duties and responsibilities toward Christian Funeral Directors in the pending Galilee matter, the declarations sought would not completely remove Massachusetts Bay from the lawsuit and would provide no guidance to any of the numerous issues of liability and damages currently pending in the underlying state court proceeding. For example, Massachusetts seeks declaration that the policy provides no coverage and thus have no duty to defend or indemnify in connection with any claims in the underlying action regarding decedents who died or were sent to Galilee after February 18, 2013. (See Complaint for Declaratory Relief, Para. 243). That declaration would in no way resolve the issues of liability and coverage associated with all of the decedents buried prior to that date. A closer look at the burials indicates that the large majority of decedents were buried at Galilee prior to the declaration date. As such, all issues related to liability and coverage of those decedents families who buried loved ones prior to February 18, 2013 would remain. It would be left up to the state court matter to determine those issues irrespective of this Court’s ruling. Furthermore, no matter if Massachusetts Bay is successful in their attempt to evade some financial responsibility, the issues currently before the state court will remain in contention, especially as to Christian Funeral Directors. The state court lawsuit includes claims not addressed by the declaratory judgment, including breach of contract, equitable relief, and tort that this declaratory action will not address. As such, the first Grand Trunk factor weighs in Case 2:17-cv-02103-JTF-cgc Document 18 Filed 04/20/17 Page 8 of 15 PageID 431 9 favor of declining to exercise jurisdiction in this case. See U.S. Fire Ins. Co. v. Albex Aluminum, Inc., 161 Fed. App’x 562, 564-65, 2006 WL 41185m at *3 (6th Cir. Jan. 6, 2006)(per curiam) (upholding a finding that the Grand Trunk factor was not met when the declaratory judgment would not address anything at issue in the underlying state court litigation); Allstate Ins. Co. v. Mercier, 913 F.2d 273, 278 (6th Cir. 1990) (holding that the first Grand Trunk factor was not met in a situation in which the insurer was not a named party in the underlying state court litigation against the insured), abrogated on other grounds by Wilton v. Seven Falls Co., 515 U.S. 277, 289-90 (1995). Next, but closely related, the Court must determine whether the declaratory judgment would clarify the legal relationship at issue between the parties. This second factor “is based upon a desire for the declaratory judgment to provide a final resolution of the discrete dispute presented.” Scottsdale, 513 F.3d at 557. It is clear that this declaratory action will not resolve all of the issues between the parties. As set forth above, numerous unrelated claims exist between the parties as well as the fact that many of the families who are brought before this Court buried loved ones prior to February 13, 2013. Therefore, this factor weighs against the exercise of jurisdiction, because as with the previous factor, the state court is equally able to clarify the legal relationships at issue. Finally, Individual Defendants / Galilee Plaintiffs would note that Plaintiff Massachusetts Bay Insurance Company seeks to bind them by way of this action as it relates to coverage against funeral home defendant, Christian by naming each of the identified plaintiff to this suit. However, this declaratory judgment fails to include any of the unnamed class members who are not presently named in the underlying lawsuit.4 Furthermore, until all potential class members 4 By attempting to include all unnamed Wofford class Plaintiffs as defendants to this lawsuit, Massachusetts Bay Insurance Company potentially could be defeating diversity jurisdiction. At the present time, it is unclear if any of Case 2:17-cv-02103-JTF-cgc Document 18 Filed 04/20/17 Page 9 of 15 PageID 432 10 have been identified, those parties are not presently before this court and any judgment by this court would be arguably non-binding against those parties. It should be noted that to date, Christian Funeral Directors have refused to identify all of the decedents they delivered to Galilee Memorial Gardens for burial during the class period. Once again, by failing to name all of the decedents herein, they continue to hide relevant information from this Court and the parties involved in the class litigation. No one is in a better position to know how many decedents are actually affected by the actions of Christian Funeral Directors and thus potentially covered under claims by Massachusetts Bay Insurance Co. than themselves. However, they continue to hide that fact from this court and elsewhere. 2. The Declaratory Judgment Action appears to be Procedural Fencing or a Race for Res Judicata Under the third factor, the Court seeks to determine whether the declaratory judgment action is motivated by “procedural fencing.” AmSouth Bank V. Dale, 386 F.3d 763, 788 (6th Cir. 2004); see also Tempco Elec. Heater Corp. v. Omega Eng’g Inc., 819 F.2s 746, 750 (7th Cir. 1987) (a federal declaratory judgment “is not a prize to the winner of the race to the courthouse”). Disposition of this factor usually turns upon the motive of the party seeking the declaratory judgment. Federal courts generally take a “dim view” of a declaratory plaintiff – who is the defendant in corresponding state litigation – seeking a declaratory judgment solely for the purpose of obviating jurisdiction in the state court. AmSouth, 386 F.3d at 788. Frequently, this issue of bad faith arises when the declaratory plaintiff somehow misleads the defendant into the unnamed class members are residents of the state of Massachusetts. If any of them are, diversity jurisdiction would be defeated. Those unnamed class members would be bound by jurisdiction of this Court which ultimately did not exist. The expert witness for the State of Tennessee Receiver of the Cemetery has opined that the cemetery records are unreliable. As such, it may be some time until all known parties can be identified and jurisdiction can be assured. Case 2:17-cv-02103-JTF-cgc Document 18 Filed 04/20/17 Page 10 of 15 PageID 433 11 believing that no declaratory judgment action would be filed, or that settlement negotiations were ongoing. See e.g. AmSouth, 386 F.3d at 790 (finding bad faith because of “affirmative representations” designed to “lull [the opposing parties] into believing that amicable negotiation was still possible”); Columbia Pictures Indus., Inc. v. Schneider, 435 F. Supp. 742, 747-48 (S.D.N.Y. 1977). While no negotiations have been instituted with Massachusetts, undersigned counsel presented themselves to class counsel as attorneys for another defendant, Travelers Insurance and sought to engage counsel in settlement negotiations. During that time period, it was learned that Travelers has coverage for Christian Funeral Directors beginning in February 2013. However, the rights and obligations of Travelers is not before this court either. Furthermore, Plaintiff’s decision to file a declaratory judgment action with this Court does seem to be an attempt to circumvent Class Counsel’s chosen forum for the litigation.5 Tennessee Code Annotated Sec. 29-14-101 et seq. provides Massachusetts Bay Insurance Co. with a similar remedy within the Chancery Court of Shelby County wherein the Wofford matter persists and is being actively litigated. That Court is intimately familiar with the facts and circumstances surrounding the litigation, including but not limited to the state receivership, the status of the other pending matters, class certification and the issues to be determined within the litigation. It makes little to no sense, other than forum shopping, to attempt to have another court enter into this complex litigation over three (3) years later when there are no impediments to having all of the issues raised in this matter heard before the same tribunal. 5 In the Wofford Class Action, as well as a number of other pending civil matters in State Court, Counsel retained by Massachusetts to defend Christian Funeral Homes. In those matters, Christian has expended a significant amount of the Court and Plaintiffs time defending against the allegations set forth in the Wofford Complaint, including but not limited to arguing that Christian owed no duty to Wofford class plaintiffs and even if they did owe a duty, Christian was not responsible for any damages potentially incurred. Case 2:17-cv-02103-JTF-cgc Document 18 Filed 04/20/17 Page 11 of 15 PageID 434 12 3. The Declaratory Judgment Action will likely increase friction between Federal and State Courts In Wilton, the Supreme Court noted that “where another suit involving the same parties and presenting opportunity for ventilation of the same state law issues is pending in state court, a district court might be indulging in ‘gratuitous interference’” if it decided to exercise jurisdiction over the declaratory action. Wilton, 515 U.S. at 283 (quoting Brillhart, 316 U.S. at 395). Ordinarily, it would be uneconomical as well as vexatious for a federal court to proceed in a declaratory judgment suit where another suit is pending in state court presenting the same issues, not governed by federal law, between the same parties.” Brillhart, 316 U.S. at 495. To aid in the analysis of whether a declaratory action would increase the friction between federal and state courts, the Sixth Circuit has developed three additional sub-factors to be considered: (1) Whether the underlying factual issues are important to an informed resolution of the case; (2) Whether the state trial court is in a better position to evaluate those factual issues than is the federal court; and (3) Whether there is a close nexus between the underlying factual and legal issues and state law and/or public policy, or whether federal common or statutory law dictates a resolution of the declaratory judgment action. Scottsdale, 513 F.3d at 560 (citing Bituminous, 373 F.3d at 814-15). The underlying factual issues are important to the resolution of this case. Further, the state court is in a much better position to evaluate those factual issues than is this Court since the state court has entertained the underlying litigation since 2013. See Docket Sheet. In the course of the underlying litigation, the state court will have addressed the factual issues; for this Court to likewise do so would increase friction between federal and state court. In addition, this case was brought exclusively pursuant to the Court’s diversity jurisdiction, and neither federal common law nor federal statutory law will dictate the resolution of this action. Also, this action Case 2:17-cv-02103-JTF-cgc Document 18 Filed 04/20/17 Page 12 of 15 PageID 435 13 likely increases the possibilities of serious judicial inconsistencies in the interpretations of the facts and the law. Finally, the Court in Shelby County will be asked to address specific state law, equitable and public policy issues related to the disposition of human remains, including but not limited to the rights and responsibilities of the parties as it relates to the cemetery, the remains and damages related therein. As such, because the state court is in the best position to determine all of the facts at issue in the underlying case, including the facts associated with this claim, and no federal law will dictate the result in this case or the underlying case, the fourth Grand Trunk factor weighs heavily in favor of declining to exercise jurisdiction in this case. 4. Other Alternatives and Preferable Remedies are Available to the Declaratory Judgment Action Plaintiff Plaintiff can pursue alternative and preferable remedies. A district court should abstain from exercising jurisdiction over a declaratory action “’if an alternative remedy is better or more effective.’” Scottsdale, 513 F.3d at 562 (quoting Grand Trunk, 746 F.2d at 326). One such alternative remedy the court should consider is the ability to file a comparable action in state court. Scottsdale, 513 F.3d at 562. In this instance, Plaintiff could seek a declaration of its duties in the Tennessee state court in which the underlying actions is pending. T.C.A. Sec. 29- 14-101 and T.R.C.P. 57 provide a clear and concise avenue for the Plaintiff Declaratory Judgment Action to proceed. The Sixth Circuit has previously stated that “actions for an advance determination…should normally be filed, if at all, in the court that has jurisdiction over the litigation which gives rise to the indemnity problem.” Manley, Bennett, McDonald & Co. v. St. Paul Fire &Marine Ins. Co., 791 F.2d 460, 463 (6th Cir. 1986). As such, the fifth and final Grand Trunk factor weighs heavily in favor of declining to exercise jurisdiction in this case as well. Case 2:17-cv-02103-JTF-cgc Document 18 Filed 04/20/17 Page 13 of 15 PageID 436 14 CONCLUSION Wherefore premises considered, Individual Defendants / Galilee Plaintiffs respectfully request this Honorable Court enter an Order dismissing the matter for lack of diversity jurisdiction. Alternatively, individual Defendants / Galilee Plaintiffs respectfully request that this Honorable Court enter an Order refusing to accept jurisdiction in this matter for reasons set forth herein. Respectfully submitted, /s/ Howard B. Manis Howard B. Manis 40 South Main, Suite 1700 Memphis, TN 38103 (901) 523-1222 hmanis@cochranfirm.com Attorney for Defendants /s/ Kathryn E. Barnett Kathryn E. Barnett (BPR#15361) MORGAN & MORGAN-NASHVILLE, PLLC 810 Broadway Suite 105 Nashville, TN 37203 Phone: (615) 490-0943 kbarnett@forthepeople.com CERTIFICATE OF CONSULTATION Pursuant to local rules, undersigned counsel consulted with Counsel for Plaintiff regarding this Motion. At the present time, Plaintiff was unable to consent to the Motion but would continuing evaluating the merits of the motion moving forward. /s/ Howard B. Manis Howard B. Manis Case 2:17-cv-02103-JTF-cgc Document 18 Filed 04/20/17 Page 14 of 15 PageID 437 15 CERTIFICATE OF SERVICE I, Howard B. Mans, do hereby affirm that a true and correct copy of the foregone Motion has been served electronically through the Court ECF system, via e-mail and via U.S. Mail, postage pre-paid to the following parties: Jonathan Stewart Russell Reviere Rainey Kizer Butler Reviere & Bell P.O. Box 1147 209 East Main Street Jackson, TN 38302-1147 Patrick D. Crandell Collins Einhorn Farrell PC 4000 Town Center 9th Floor Southfield, MI 48075 Thomas R. Branch Archibald & Halmon, PC Falls Building 22 North Front Street, Suite 790 Memphis, TN 38103 This the 20th day of April, 2017. /s/ Howard B. Manis Howard B. Manis Case 2:17-cv-02103-JTF-cgc Document 18 Filed 04/20/17 Page 15 of 15 PageID 438 Case 2:17-cv-02103-JTF-cgc Document 18-1 Filed 04/20/17 Page 1 of 1 PageID 439