Case 4:16-cv-00294-ALM Document 42 Filed 10/14/16 Page 1 of 4 PageID #: 649
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`United States District Court
`EASTERN DISTRICT OF TEXAS
`SHERMAN DIVISION
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`RHONDA C. PLATT
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`v.
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`BRIENNE LEE NASH, STEPHEN
`THOMAS PLATT, BANNER LIFE
`INSURANCE COMPANY
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`MEMORANDUM OPINION AND ORDER
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`Pending before the Court is Defendants Brienne Lee Nash (“Brienne”) and Stephen
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`Civil Action No. 4:16-CV-00294
`Judge Mazzant
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`Thomas Platt’s (“Stephen”) Motion to Dismiss or Transfer (Dkt. #17). After reviewing the
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`relevant pleadings, the Court finds that the motion should be granted.
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`BACKGROUND
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`Plaintiff Rhonda C. Platt (“Plaintiff”) is the second wife and widow of Raymond Platt
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`(“Raymond”) (Dkt. #9 at p. 1). Defendants Brienne and Stephen are Raymond’s children from a
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`prior marriage (Dkt. #9 at p. 1). In 2006, Raymond purchased a $750,000 life insurance policy
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`(the “policy”) from Defendant Banner Life Insurance Company (“Banner Life”) (Dkt. #9 at p. 2).
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`Raymond named Plaintiff as the sole beneficiary of the policy (Dkt. #9 at p. 2).
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`In June 2015, Raymond was diagnosed with cirrhosis of the liver and was hospitalized in
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`Texas on multiple occasions from June to November 2015 (Dkt. #9 at p. 3–4). On November 20,
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`2015, Raymond was discharged from Plano Medical Center and flew to Virginia to live with
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`Brienne (Dkt. #9 at p. 3; Dkt. #17 at p. 5). On December 23, 2015, Raymond electronically
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`changed the policy so that Rhonda became a 30 percent beneficiary of the policy, Brienne
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`became a 40 percent beneficiary of the policy, and Stephen became a 30 percent beneficiary of
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`Case 4:16-cv-00294-ALM Document 42 Filed 10/14/16 Page 2 of 4 PageID #: 650
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`the policy (Dkt. #9 at p. 5; Dkt. #17 at p. 17). Raymond died on December 26, 2015 (Dkt. #9 at
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`p. 5).
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`On February 11, 2016, Plaintiff sent Brienne a letter threatening to file suit if she did not
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`disavow any claim to the proceeds of the policy (Dkt. #17, Exhibit 8). On February 29, 2016,
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`Brienne’s counsel stated he would respond to Plaintiff’s letter shortly (Dkt. #21 at p. 4). On
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`March 17, 2016, Brienne and Stephen filed suit against Plaintiff and Banner Life in the Western
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`District of Virginia seeking a declaration that the changes Raymond made to the policy are valid
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`and binding (Dkt. #17, Exhibit 9). On April 25, 2016, Plaintiff filed her Original Petition in the
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`Collin County District Court (Dkt. #1, Exhibit 1). On May 5, 2016, Brienne and Stephen filed a
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`Notice of Removal (Dkt. #1). On June 5, 2016, Plaintiff filed an Amended Complaint (Dkt. #9)
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`seeking a declaration that the changes to the policy are null and void and alleging 1) undue
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`influence; 2) constructive fraud; and 3) breach of fiduciary duty. On June 28, 2016, Brienne and
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`Stephen filed a Motion to Dismiss or Transfer (Dkt. #17). On July 15, 2016, Plaintiff filed a
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`response (Dkt. #21).
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`LEGAL STANDARD
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`“The Fifth Circuit adheres to the general rule that the court in which an action is first
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`filed is the appropriate court to determine whether subsequently filed cases involving
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`substantially similar issues should proceed.” Huntsman Corp. v. Int'l Risk Ins. Co., No. CIV.A.
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`1:08-CV-029, 2008 WL 1836384, at *5 (E.D. Tex. Apr. 22, 2008) (citing Save Power Ltd. v.
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`Syntek Fin. Corp., 121 F.3d 947, 950 (5th Cir. 1997)). A second-filed court plays a limited role
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`when presented with a motion to transfer or stay based on the first-to-file rule. See Cadle Co. v.
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`Whataburger of Alice, Inc., 174 F.3d 599, 605 (5th Cir. 1999). This role is to decide whether the
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`moving party in the second-filed court has demonstrated a “substantial overlap” between the two
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`Case 4:16-cv-00294-ALM Document 42 Filed 10/14/16 Page 3 of 4 PageID #: 651
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`suits. Id. If the moving party satisfies this overlap requirement, the second-filed court allows the
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`first-filed court to “resolve the question of whether both [cases] should be allowed to proceed.”
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`Id. “Therefore, the first-to-file rule not only determines which court may decide the merits of
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`substantially similar issues, but also establishes which court may decide whether the second suit
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`filed must be dismissed, stayed or transferred and consolidated.” Huntsman, 2008 WL 1836384,
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`at *5 (citations omitted).
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`The first-to-file rule does not apply where the first suit is brought in anticipation of the
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`second suit. See American Reliable Ins. Co. v. Arrington, 269 F. Supp. 2d 758, 760 (S.D. Miss.
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`2003); California Sec. Co-op, Inc. v. Multimedia Cablevision, Inc., 897 F. Supp. 316, 319 (E.D.
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`Tex. 1995). However, “the question of whether the first-filed action was an improper
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`anticipatory filing is for the first-filed court to determine.” Huntsman, 2008 WL 1836384, at *5
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`(citing Street v. Smith, 456 F. Supp. 2d 761, 768 (S.D. Miss. 2006)).
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`ANALYSIS
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`Here, the first action was filed on March 17, 2016 in the Western District of Virginia
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`(Dkt. #17, Exhibit 9). As the second-filed court, the Court’s limited role is to determine whether
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`there is substantial overlap between the two suits. The Court finds that there is, as both suits
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`seek to determine whether the changes made to the policy are valid and enforceable. Plaintiff
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`argues that the first-to-file rule is inapplicable because the first suit was an anticipatory filing
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`(Dkt. #21 at p. 3). However, the question of whether the first-filed action was an improper
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`anticipatory filing is for the Western District of Virginia, as the first-filed court, to determine.
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`See Huntsman, 2008 WL 1836384, at *5 (citing Street v. Smith, 456 F. Supp. 2d 761, 768 (S.D.
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`Miss. 2006)).
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`Case 4:16-cv-00294-ALM Document 42 Filed 10/14/16 Page 4 of 4 PageID #: 652
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`CONCLUSION
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`It is therefore ORDERED that the Motion to Dismiss or Transfer (Dkt. #17) is hereby
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`GRANTED and this case is transferred to the United States District Court for the Western
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`District of Virginia, Roanoke Division.
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