362 F.3d 1133 (9th Cir. 2003), 02-35116, Murphy v. Schneider National, Inc.

Docket Nº:02-35116.
Citation:362 F.3d 1133
Party Name:Charles E. MURPHY, Plaintiff-Appellant, v. SCHNEIDER NATIONAL, INC., a Wisconsin Corporation; Trane Company, a Wisconsin corporation; American Standard Inc., a Delaware Corporation; and Schneider Specialized Carriers, Inc., Defendants-Appellees.
Case Date:November 21, 2003
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1133

362 F.3d 1133 (9th Cir. 2003)

Charles E. MURPHY, Plaintiff-Appellant,

v.

SCHNEIDER NATIONAL, INC., a Wisconsin Corporation; Trane Company, a Wisconsin corporation; American Standard Inc., a Delaware Corporation; and Schneider Specialized Carriers, Inc., Defendants-Appellees.

No. 02-35116.

United States Court of Appeals, Ninth Circuit

November 21, 2003

Argued and Submitted Sept. 9, 2003.

Amended March 22, 2004.

Page 1134

[Copyrighted Material Omitted]

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Montgomery W. Cobb, Cobb & Bossé, LLP, Portland, OR, for the plaintiff-appellant.

Wade R. Kennon, The Gilroy Law Firm, P.C., Portland, OR, for defendant-appellee Schneider.

James N. Westwood, Leta E. Gorman, Stoel Rives LLP, Portland, OR, for defendant-appellee Trane.

Appeal from the United States District Court for the District of Oregon; Ancer L. Haggerty, District Judge, Presiding. D.C. No. CV-01-00028-HA.

Before: ALDISERT, [*] HALL, and GOULD, Circuit Judges.

ORDER

The opinion published at 349 F.3d 1224 (9th Cir. 2003) is amended to add the following footnote at the end of the second sentence in Part III.C:

A forum non conveniens motion, as opposed to a motion to transfer based on 28 U.S.C. § 1404(a), is appropriate in this case because, if the forum selection clause is enforced, Murphy will be forced to litigate against Schneider in a Wisconsin state court, rather than in a federal court. See 5A Charles Alan Wright and Arthur R. Miller, Federal Practice and Procedure, § 1352 (2d ed.) ("A federal court will resort to the pre-1948 motion to dismiss for forum non conveniens in those instances which the alternative forum is a state court ....").

A judge of this court sua sponte called for en banc reconsideration. The call failed to receive a majority vote of the active, non-recused judges. No further petition for rehearing or rehearing en banc

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will be accepted in this case. The Clerk is ordered to issue the mandate forthwith.

IT IS SO ORDERED.

OPINION

GOULD, Circuit Judge:

Plaintiff Charles E. Murphy was injured on premises owned by Defendant Trane Company ("Trane") while Murphy was working as a long haul trucker for Defendant Schneider National, Inc. ("Schneider"). Murphy filed a personal injury action against Schneider and Trane in the United States District Court for the District of Oregon, based on diversity of citizenship. Schneider filed a motion to dismiss the action for improper venue, asserting that venue was proper only in Wisconsin state court because of the forum selection clause in Murphy's employment contract with Schneider. Trane also filed a motion, asserting that Murphy's claims against Trane should be dismissed based on forum non conveniens if the district court enforced the forum selection clause between Murphy and Schneider. The district court enforced the forum selection clause and granted Trane's motion to dismiss based on forum non conveniens. Murphy appeals the dismissal of his action against Schneider and Trane. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we vacate in part and remand.

I

Murphy is a long haul truck operator and a resident of Oregon since 1995. In 1992 he began working for Schneider as a hauler. Murphy's employment with Schneider was pursuant to a 31 page employment contract that, in paragraph 35, contained the following forum selection clause:

Governing Law: Forum.

This agreement shall be governed by and construed in accordance with the laws of the State of Wisconsin and all suits with respect hereto shall be instituted exclusively in the Circuit Court of Brown County, Wisconsin. Independent Contractor consents to the exercise of jurisdiction by this court and the vesting of venue therein. INDEPENDENT CONTRACTOR WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS AND CONSENTS TO ALL SUCH SERVICE OF PROCESS IN THE MANNER AS PROVIDED IN PARAGRAPH 26, ABOVE.

Murphy has not been formally educated beyond the tenth grade. When Murphy first signed the employment contract with Schneider, two months after he began working for Schneider, he was told that the terms of the contract were not negotiable and that he was required to sign the contract if he wanted to work for Schneider. Each year Murphy signed a new contract with a similar forum selection clause.

On or about January 24, 2000, Murphy was injured while picking up a load of air conditioners for Schneider in Lexington, Kentucky, on the premises of Defendant Trane. Murphy sued Trane and Schneider in the United States District Court for the District of Oregon on May 9, 2001. Both the First Amended Complaint and Second Amended Complaint allege that Trane negligently breached its duty to maintain safe working conditions and that Schneider failed to maintain a policy of workers compensation insurance covering Murphy's injuries as required by Oregon's Employers Liability Act. Or.Rev.Stat. § 654.305 et seq. Trane denied liability, but asserted cross-claims against Schneider for indemnification if liable.

On May 18, 2001, Schneider answered Murphy's complaint and asserted as an affirmative defense: "Venue is not proper within this district. The action should be dismissed or, in the alternative, transferred

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to the district appropriate for actions arising in Lexington, Kentucky." On May 30, 2001, Schneider filed a motion to dismiss the claims against it because of the forum selection clause in the employment contract between Murphy and Schneider. The motion was based on Fed.R.Civ.P. 12(b)(3) and 28 U.S.C. § 1406(a). Trane then filed a motion to dismiss, asserting that the district court should dismiss claims against Trane on grounds of forum non conveniens if the district court granted Schneider's motion to dismiss.

In response to Schneider's motion, Murphy submitted an affidavit in which he stated that he has been unable to work since his injury, that the truck he used for his work had been repossessed, and that he and his wife live on about $2,234 per month in disability payments. Murphy's affidavit further provided that he and his wife have no disposable income, incur $200-300 per month in credit card bills, and make minimum payments on the credit card bills. Because of his financial situation, Murphy stated that he "could not afford to maintain this case if it were in a Wisconsin court," and also that he could not tolerate sitting during an auto trip to Wisconsin. Murphy also argued that if Schneider's claim were dismissed based on the forum selection clause, Murphy's claim against Trane could still go forward in the United States District Court for the District of Oregon, and therefore dismissing Schneider's claim would exacerbate Murphy's financial difficulty by requiring him to litigate against Schneider in Wisconsin and Trane in Oregon.

Schneider challenged Murphy's factual assertion that his disability precluded travel, citing Murphy's medical records. First, Dr. Thomas Hartkop specified that Murphy was disabled from January 24, 2000 to February 16, 2000, at which point Murphy was to start physical therapy. Second, Dr. Jeffrey Louie evaluated Murphy. On April 5, 2000, Dr. Louie restricted Murphy to "[l]ight duties, full time," with the written restriction of "[n]o tarping, not to lift over 20 [lbs.]." On August 21, 2000, Dr. Louie stated that Murphy was unable to return to work pending an MRI and a follow-up appointment. On September 27, 2000, Dr. Louie again restricted Murphy to light full-time duty, with written restrictions of"[n]o lifting over 30 pounds" and "no tarping." Finally, on January 3, 2001, Dr. Louie wrote to Dr. Hartkop stating that Murphy was able to drive but could not tarp.

The district court granted both Schneider's and Trane's motions to dismiss. The district court rejected Murphy's assertions that forcing him to litigate in Wisconsin state court would effectively deny him his day in court. The district court also determined that keeping the lawsuit in the District of Oregon would waste both judicial and individual resources because plaintiff would have to litigate against...

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