Acapolon Corp. v. Ralston Purina Co., 74312

• Decision Date: 24 March 1992
• Docket Number: No. 74312,74312
• Citation: 827 S.W.2d 189
• Parties: ACAPOLON CORPORATION, Appellant, v. RALSTON PURINA COMPANY and Purina de Guatemala, S.A., Respondents.
• Court: Missouri Supreme Court

Page 189

827 S.W.2d 189

ACAPOLON CORPORATION, Appellant, v. RALSTON PURINA COMPANY and Purina de Guatemala, S.A., Respondents.

No. 74312.

Supreme Court of Missouri En Banc.

March 24, 1992.

Robert E. Kelly, Jr., David J. Ozeran, Los Angeles, for appellant.

Kenton E. Knickmeyer, William G. Guerri, Thomas F. Eagleton, St. Louis, for respondents.

John L. Crenshaw, Michael D. Quinlan, St. Louis, Rita E. Bleser, Chesterfield, Martin P. Zucker, St. Louis, for amicus curiae Mallinckrodt.

BLACKMAR, Judge.

The appellant is a corporation organized under the laws of the Republic of Guatemala. It filed suit against Ralston Purina Company, a Missouri corporation, and Purina de Guatemala, S.A. (PDGSA), a corporation of Guatemala, in the Circuit Court of the City of St. Louis, seeking in eight counts damages on account of allegedly defective and inadequate shrimp feed it purchased from PDGSA for use at its commercial shrimp farm in Guatemala. The trial court sustained Ralston's motion to dismiss under the doctrine of forum non conveniens, and also sustained PDGSA's motion to quash service. The Court of Appeals, Eastern District, reversed and remanded for trial, with one judge dissenting. We granted transfer because of the importance of the questions presented, and now affirm the judgment of the circuit court.

1. Forum non Conveniens

The doctrine of forum non conveniens permits dismissal even though jurisdiction and venue are proper. A plaintiff is not lightly to be deprived of the chosen forum but, when the facts of the case show substantial inconvenience, dismissal is appropriate. Besse v. Missouri Pacific Railroad Co., 721 S.W.2d 740 (Mo. banc 1986) cert. denied, 481 U.S. 1016, 107 S.Ct. 1894, 95 L.Ed.2d 501 (1987). A trial judge may decline to proceed with a case if firmly persuaded that trial in the forum would be substantially inconvenient and that an alternate forum is available. State ex rel. Chicago, Rock Island and Pacific Railroad Co. v. Riederer, 454 S.W.2d 36 (Mo. banc 1970). We accord deference to the trial court's conclusions in this regard and review only for abuse of discretion. Besse, 721 S.W.2d at 742.

This case has predominant foreign elements, and this fact distinguishes it from all other Missouri forum non conveniens cases. To date, our cases have dealt with forum non conveniens as it applies to suits between residents of different states. Other courts have held with some regularity that less deference is accorded the plaintiff's choice in a case brought by a foreign national and in which the bulk of the operative facts took place in a foreign nation. ¹ We believe that these holdings are sound, especially when the plaintiff has sought the benefit and protection of the corporation laws of another country. The rule is not actuated by xenophobia, but by concern for the convenience of the parties and the court.

We take the factual allegations in the affidavits and documentary evidence as true, giving credit to the plaintiff's submissions when there is conflict and resolving ambiguities in favor of the plaintiff. But we accept the uncontradicted factual statements in Ralston's affidavits. The plaintiff suggests that additional discovery might produce further evidence in support of its contention that Missouri is a convenient forum. A party who wants to introduce motion testimony in court or by deposition must apply to the trial court. The record shows ample notice of the hearing on the motion. The suggestion in the briefs comes too late.

Ralston is a Missouri corporation with its principal office in St. Louis. It is the sole beneficial owner of PDGSA and so has the ability to control it. In 1986 it entered into a ten-year technical assistance agreement with PDGSA in which it undertook to develop and supply formulas for animal food products and to provide further assistance on request by PDGSA. Ralston does not produce or sell shrimp feed, and does not supply the ingredients for PDGSA's product.

The plaintiff chose Guatemala as its place of incorporation. It produces shrimp commercially in that country, and purchases shrimp feed produced by PDGSA in Guatemala. When Acapolon contemplated the purchase of feed from PDGSA in 1986, its general manager met in Guatemala with two Ralston employees, one of whom was Noel Robyn, then a St. Louis resident who was vice president of Ralston's international division and one of the three directors of PDGSA. Robyn represented that he was in charge of PDGSA and would work with the plaintiff in supplying feed for its shrimp farm. After the visit, Robyn sent a letter to Acapolon offering to "provide assistance" as Acapolon proceeded with its shrimp raising operations.

The plaintiff began using feed from PDGSA in March of 1986 and continued to use it through June of 1988. When deficiencies appeared in its shrimp crop it consulted Robyn, who made a trip to Guatemala in an apparently unsuccessful attempt to resolve the plaintiff's concerns. Its principal officers, and the expert witnesses it expects to call, speak English as their primary language.

The plaintiff asserts that its primary claim for recovery is based on "products liability" for the defective design of the shrimp feed. It says that the shrimp feed was "designed" in St. Louis and relies on Noel Robyn's statement that "all decisions as to the content of the feed were made by Ralston Purina Company in St. Louis." This circumstance does not necessarily preclude application of the doctrine of forum non conveniens. See de Melo v. Lederle Laboratories, 801 F.2d 1058 (8th Cir.1986). There is no explicit demonstration that any witness who participated in the design or testing is now present in St. Louis. The plaintiff alleges, indeed, that Ralston's "shrimp expert" is a Texas resident.

The plaintiff, in all counts of its petition, seeks to "pierce the corporate veil" so as to make Ralston liable for the claimed damages. It asserts that it assumed at all times that Ralston and PDGSA were a single entity and that it was doing business directly with Ralston. This assertion, however, is inconsistent with the documents evidencing its purchases from PDGSA, which belie the contractual involvement of Ralston. A corporation, just as an individual, is entitled to the benefits of limited liability if it chooses to invest in the securities of other corporations and may exercise the control which inheres in stock ownership. ² It does not lose the benefits of limited liability by taking an active interest in the affairs of its subsidiary, by using its voting power to elect directors, or by entering into contracts with the subsidiary, so long as the corporate formalities are observed and the rules followed. The respect to be shown to the entity of a Guatemala corporation, moreover, is a pristine question of Guatemala law.

Riederer listed six factors for consideration in determining whether the doctrine of forum non conveniens should be applied:

... place of accrual of the cause of action, location of witnesses, the residence of the parties, any nexus with the place of suit, the public factor of the convenience to and burden upon the court, and the availability to plaintiff of another court with jurisdiction of the cause of action which affords him a forum for his remedy.

Riederer, 454 S.W.2d at 39. ³

Analysis of these factors supports the trial court's decision. The claim accrued in Guatemala and the damage occurred there. The witnesses to the production of the shrimp feed, and to the shrimp raising operation, are present in Guatemala. The plaintiff does not demonstrate that any material witness, expert or otherwise, now lives in Missouri. Robyn, with whom the plaintiff's officers dealt, is no longer employed by Ralston and lives in Florida. Ralston's residence and principal place of business is in Missouri, but the factor of residence of the defendant is not inevitably controlling. This is especially so when there are other, nonresident defendants. See Rozansky Feed Co., Inc. v. Monsanto Co., 579 S.W.2d 810 (Mo.App.1979).

We recognize that Besse v. Missouri Pacific Railroad Co., 721 S.W.2d 740 (Mo. banc 1986) cert. denied, 481 U.S. 1016, 107 S.Ct. 1894, 95 L.Ed.2d 501 (1987), allowed a FELA judgment to stand when location of the railroad's principal office was the only substantial local contact. Besse is distinguishable for several reasons. FELA law is established by Congress and must be applied uniformly by all states, see Besse, 721 S.W.2d at 741. Besse, therefore, presented no problem of choice of law or of the application of foreign law. Although Missouri courts are capable of hearing cases involving foreign law and requiring the use of interpreters, if necessary, those circumstances certainly make the trial more difficult.

Besse recognized that substantial inconvenience inevitably accompanies suits between residents of different jurisdictions, see Besse, 721 S.W.2d at 742. The great distance between Missouri and the site of the injury in Guatemala exacerbates the inconvenience. A forum is available in Guatemala, and Ralston has consented to subject itself to suit there, as is appropriate for a party seeking the benefit of the doctrine of forum non conveniens. ⁴

Acapolon complains that Guatemala is not an available alternative forum because that nation's courts cannot exercise jurisdiction over Ralston and would not provide a remedy for Acapolon's product liability claims. The plaintiff provides the affidavit of one of its principal officers, who asserts that he was advised by a Guatemala lawyer that the law of that country did not recognize "products liability" or "strict liability" actions. In so arguing, the plaintiff fails to give attention to the basic doctrines of conflict of laws. Even if the case were to proceed in Missouri, there is no assurance that Missouri law would be applied. There would, rather, be an analysis of the most significant circumstances touching the litigation to determine which law...