Borger v. Polaris Indus.
| Decision Date | 16 March 2022 |
| Docket Number | 81764 |
| Court | Nevada Supreme Court |
| Parties | JOHN BORGER; AND SHERRI BORGER. Appellants, v. POLARIS INDUSTRIES, INC., Respondent. |
UNPUBLISHED OPINION
ORDER OF AFFIRMANCE
This is an appeal from a district court order dismissing a products liability action. Eighth Judicial District Court, Clark County;' Kathleen E. Delaney, Judge.
Appellants John and Sherri Borger (collectively, "the Borgers") appeal from a district court order dismissing their products liability action for forum non conveniens. In October 2016, while vacationing at Lake Havasu, Arizona Sherri Borger was severely injured in an off-road vehicle accident.' The Borgers, who lived in Minnesota at the time of the accident, had rented the off-road vehicle shortly before the accident from Sandbar Powersports, LLC, a Nevada company operating in Arizona. While the family was driving in the vehicle, it rolled, pinning Sherri's right arm above the elbow and nearly severing it. Lake Havasu's fire department and emergency medical services, the Lake Havasu police department, and the Mohave County Sheriffs Office all responded to the accident. Sherri was initially flown to Havasu Regional Medical Center in Arizona and then transferred that same day to University Medical Center (UMC) in Las Vegas, where her arm was amputated.[1] The vehicle was designed, tested, and manufactured in Minnesota by Polaris Industries, Inc., a Minnesota company, who sold it to an Arizona dealership. Sandbar's vehicle rental agreement, which the Borgers signed, stated that the agreement and any disputes arising from it would be governed by Arizona law.
In March 2017, the Borgers sued Sandbar in Nevada, and Sandbar filed a counterclaim. In November 2017, the Borgers amended the complaint to include claims against Polaris for product liability design and marketing defects, breach of warranty and negligent design and marketing. Sandbar thereafter reached a settlement agreement with the Borgers, and in January 2019. Polaris moved to dismiss for forum non conveniens. Polaris argued that because Sandbar had settled, the Borger's case was entirely about the vehicle's design and manufacture. Polaris pointed out that it had not yet produced any documents, nor had any of its representatives been deposed or expert discovery conducted. Polaris argued that the case no longer had connections to Nevada and explained that it would be difficult to compel key witnesses to testify unless trial proceeded in Arizona.
The district court granted Polaris's motion to dismiss for forum non conveniens. The Borgers appeal.
NRS 13.050 allows a court, upon a party's motion, to move the trial's location when doing so would be convenient for the witnesses and promote the ends of justice. In deciding a motion to dismiss for forum non conveniens, the court must consider three factors: (1) "the level of deference owed to the plaintiffs forum choice," (2) "whether an adequate alternative forum exists," and (3) whether dismissal is warranted given public and private interest factors.[2] Provincial Gov't of Marinduque v. Placer Dome, Inc., 131 Nev. 296, 300-01, 350 P.3d 392, 396 (2015) (internal quotation marks omitted). Dismissal is appropriate where exceptional circumstances exist and the factors "weigh strongly in favor of another forum." Id. at 301, 350 P.3d at 396 (internal quotation marks omitted). We review a district court's order dismissing an action for forum non conveniens for an abuse of discretion. Id. at 300, 350 P.3d at 395-96. An abuse of discretion occurs where the decision is "arbitrary, fanciful, or unreasonable, or where no reasonable [person] would take the view adopted by the trial court." Imperial Credit v. Eighth Judicial Dist. Court, 130 Nev. 558, 563, 331 P.3d 862, 866 (2014) (alternation in original) (internal quotation marks) omitted)).
We conclude the district court did not abuse its discretion under I these facts. Although the Borger's choice of forum is entitled to deference[3]the other two Placer Dome factors weigh heavily in favor of dismissal here.[4]The Borgers did not include claims against Polaris until over eight months after they filed their initial complaint and over a year after the accident, and the record shows that minimal, if any, discovery has been conducted as to the specific claims against Polaris.[5] The Borgers do not reside in Nevada and the record suggests that none of the key witnesses reside in Nevada. We determine the following to be persuasive: (1) the vehicle was designed, tested, and manufactured in Minnesota; (2) the vehicle was sold to an Arizona dealership, the Borgers rented the vehicle in Arizona and agreed Arizona law would control in the event of any dispute; (3) the accident occurred in Arizona; (4) the first responders were from Arizona; and (5) Sherri was initially treated at an Arizona hospital. Therefore, all of the witnesses testifying to the accident's immediate aftermath, as well as to the vehicle's design, testing, manufacture, and upkeep, reside outside Nevada.[6]
Sherri's treatment at UMC is not the subject of this dispute, and because Sandbar has been dismissed from the case, the case no longer has ties to Nevada.[7] Arizona is therefore an adequate alternative forum for the case, and both public and private interests weigh in favor of dismissal, whereas nothing remains to tie the case to Nevada, there are substantial ties to Arizona, and Arizona is a convenient forum for the accident's witnesses. In this complex product liability case that will undoubtedly require extensive testimony and many expert witnesses, we cannot say the district court's decision was arbitrary, fanciful, or unreasonable.[8] See Imperial Credit, 130 Nev. at 563, 331 P.3d at 866. Accordingly, we
ORDER the judgment of the district court AFFIRMED.
"Dismissal for forum non conveniens is appropriate only in exceptional circumstances when the factors weigh strongly in favor of another forum." Provincial Gov't of Marinduque v. Placer Dome, Inc., 131 Nev. 296, 301, 350 P.3d 392, 396 (2015) (emphasis added) (internal quotation marks omitted). Further, "[a] motion . . . based on forum non conveniens must be supported by affidavits so that the district court can assess whether there are any factors present that would establish such exceptional circumstances." Mountain View Recreation, Inc. v. Imperial Commercial Cooking Equip. Co., 129 Nev. 413, 419, 305 P.3d 881, 885 (2013) (emphasis added). "General allegations regarding inconvenience or hardship are insufficient because [a] specific factual showing must be made." Id. (alteration in original) (internal quotation marks omitted). And we have opined that a party's or its employees' convenience is irrelevant when considering such motions. Id. at 419 n.4, 305 P.3d at 885 n.4 ().
This court has established a clear framework to determine whether a case shall be dismissed for forum non conveniens. We review a district court's application of the framework for an abuse of discretion, Placer Dome, 131 Nev. at 300, 350 P.3d at 395-96, and disregarding the affidavit requirement in the framework, or adding an entirely new standard concerning a plaintiffs preference, constitutes an abuse of that discretion. For these reasons, I respectfully dissent.
NRS 13.050(2)(c) provides that "[t]he court may, on motion or stipulation, change the place of the proceeding ., . [w]hen the convenience of the witnesses and the ends of justice would be promoted by the change.' We have established a three-part test for district courts to consider "[w]hen deciding a motion to dismiss for forum non conveniens." Placer Dome, 131 Nev. at 300-01, 350 P.3d at 396. First, the "court must. . . determine the level of deference owed to the plaintiffs forum choice." Id. at 300, 350 P.3d at 396. Second, "a district court must determine whether an adequate alternative forum exists." Id. at 301, 350 P.3d at 396 (internal quotation marks omitted). And third, "[i]f an adequate alternative forum does exist, the court must then weigh public and private interest factors to determine whether dismissal is warranted." Id.
In the first instance, Polaris has not met the evidentiary burden necessary for the district court to decide its motion to dismiss for forum non conveniens. It is undisputed that the affidavit supporting Polaris's motion to dismiss did not address the hardships or convenience of its witnesses, or exceptional circumstances to warrant dismissal, as required under Mountain View. See Mountain View, 129 Nev. at 419, 305 P.3d at 885. Instead, Polaris argues that the affidavit requirement '"is a matter of form over substance," and that 'the record already contained most of the facts speaking to Nevada's three-part test." Similarly, the majority also dismisses this issue by concluding, without analysis, that "the district court could reasonably conclude that the evidence strongly favored litigation in Arizona even without more specific allegations of hardship." Majority, ante at 3 n.2. But this is not what Mountain View requires! Mountain View clearly requires an affidavit be attached to a forum non conveniens motion to dismiss that demonstrates specific instances of inconvenience or hardship. 129 Nev. at 419, 305 P.3d at 885.
The only affidavit that Polaris provided was from Blake Anderson a "Senior Project Engineer" at Polaris. Anderson merely attested generally to the facts contained in the motion to dismiss, the headquarter location of Polaris, the model of off-road vehicle involved, and where the vehicle was manufactured and sold. Anderson did not attest as to why Arizona is more convenient. The fact that Polaris...
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