Bourke v. Grey Wolf Drilling Co.

• Decision Date: 31 July 2013
• Docket Number: No. S–12–0258.,S–12–0258.
• Citation: 305 P.3d 1164
• Parties: Kelvin BOURKE, Appellant (Plaintiff), v. GREY WOLF DRILLING COMPANY, LP, now known as Precision Drilling Company, LP, Appellee (Defendant).
• Court: Wyoming Supreme Court

305 P.3d 1164

Kelvin BOURKE, Appellant (Plaintiff),

v.GREY WOLF DRILLING COMPANY, LP, now known as Precision Drilling Company, LP, Appellee (Defendant).

No. S–12–0258.

Supreme Court of Wyoming.

July 31, 2013.

Representing Appellant: Hampton M. Young, Jr., Attorney at Law, Casper, Wyoming.

Representing Appellee: Amanda W. Wiley of Taylor Anderson, LLP, Denver, Colorado.

Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, JJ.

DAVIS, Justice.

[¶ 1] Appellant Kelvin Bourke sued his former employer Grey Wolf Drilling Company, LP, for fraud and wrongful termination in the Seventh Judicial District Court. Unbeknownst to Bourke, Grey Wolf had been sold to a foreign corporation, Precision Drilling,¹ which affected the venue of this action under Wyoming Statute § 1–5–107. Precision Drilling was not a resident of Wyoming as Grey Wolf had been. Precision Drilling moved to dismiss the case for improper venue and failure to state a claim upon which relief could be granted. The district court granted the motion on both grounds.

[¶ 2] Bourke claims that the district court erred in dismissing his complaint for improper venue, and that his claims were summarily dismissed when he should have been granted leave to amend his complaint. We affirm the district court's dismissal for improper venue, but we conclude that the court erred as a matter of law when it reached the merits of the case after determining that it had to be dismissed on venue grounds. We accordingly reverse and remand for entry of a dismissal without prejudice based only upon improper venue.

ISSUES

[¶ 3] Appellant states the issues as follows:

A. Whether the venue outlined in Wyo. Stat. § 1–5–107 is mandatory, requiring a case filed in the improper County be dismissed.

B. Whether or not the Court abused its discretion by denying Plaintiff's Motion to Amend.

[¶ 4] We believe the issues are more aptly summarized as follows:

1. Was venue proper in Natrona County?

2. If venue was not proper, should the district court have transferred the case to a proper venue?

3. Did the district court err as a matter of law in reaching the merits of a motion to dismiss on W.R.C.P. 12(b)(6) grounds after it determined that the case had to be dismissed on venue grounds?

FACTS

[¶ 5] Appellant Bourke lived in Carbon County and worked as a motorman on a drilling rig operated by Grey Wolf in Lincoln County. The rig's deck or floor hand did not report for work on August 13, 2007, and Bourke had to perform his duties as well as his own. The crew was “tripping pipe” that day, i.e., placing sections of drill pipe back into the wellbore after removing them. The sections of pipe weighed approximately one ton, and they tended to swing as they were pulled up by the draw works (winch) in the derrick.

[¶ 6] Bourke claims that he was hit by a joint of pipe and seriously injured because he was required to work without assistance from the missing deck hand. He also contends that he was not properly trained in the use of a “tail rope” used to control the pipe, and that the tail rope was tied off so as to make it ineffective to prevent the pipe from swinging.

[¶ 7] Bourke's complaint alleges that he reported the accident to Grey Wolf the day it happened, that a worker's compensation report of injury was completed, and that he expected the company to submit the report to the Wyoming Workers' Safety and Compensation Division (the Division). The company did not in fact submit a report of injury to the Division at that time, and Bourke alleges that co-employee witnesses to the report were told not to provide any statements concerning the claimed injury.

[¶ 8] Bourke continued to work with no restrictions for several months after he claims he was injured. Grey Wolf then fired Bourke for smoking in an unauthorized area on November 13, 2007. His complaint alleges that on December 3, 2007, Grey Wolf forwarded the form Bourke had filled out the day after the accident to the Division, noting that it was “unsure” if he had been injured on the job or not. The Division denied the claim.

[¶ 9] Bourke filed suit in the Seventh Judicial District on August 8, 2011, five days before the statute of limitations for negligence and fraud found in Wyoming Statute § 1–3–105(a)(iv) would have expired. He alleged negligence against other rig workers named only as “Does,” and fraud and wrongful termination against Grey Wolf. None of the coworkers were ever identified.

[¶ 10] Service was attempted at the Casper address reflected in the Wyoming Secretary of State's records for the Grey Wolf limited partnership, but the company no longer had an office there because it had been bought out by Precision Drilling. Bourke amended his complaint to add Precision Drilling as a party, and then amended his complaint a second time to allege additional facts regarding negligence and wrongful termination. He served Precision Drilling's agent for process both times.

[¶ 11] Precision Drilling responded by filing a motion to dismiss under Wyoming Rules of Civil Procedure 12(b)(3) and 12(b)(6). It claimed that venue was improper under Wyoming Statute § 1–5–107² because Precision Drilling is a foreign corporation and Bourke failed to file suit where he resided (Carbon County) or where the cause of action arose (Lincoln County) as required by that statute. It also claimed that Bourke failed to state a claim upon which relief could be granted because his fraud claim was not pled with particularity, and because he failed to allege that he was fired for exercising a protected right in his retaliatory discharge claim.

[¶ 12] Bourke filed a response to the motion to dismiss and a motion for change of venue. He asserted that the case should be transferred to a different venue under W.R.C.P. 40.1(a) rather than dismissed as Precision Drilling had asked if in fact it was improperly venued. He also asked the court for leave to amend his complaint to cure the deficiencies Precision Drilling identified, but he failed to file a proposed third amended complaint or to specify how he would amend the existing pleading in the motion for leave to amend.

[¶ 13] The district court held a hearing on all motions, and ultimately entered a written order providing as follows: ³

1. Precision Drilling's Motion to Dismiss is Granted as it relates to the arguments of Rule 12(b)(3). [Improper venue]

2. Precision Drilling's Motion to Dismiss is Granted as it relates to the arguments of Rule 12(b)(6). Specifically, the Court finds that Plaintiff failed to state claims for fraud and retaliatory discharge.

3. Plaintiff's Motion for Change of Venue and Plaintiff's Motion to Amend are Denied.

4. Judgment is hereby entered in favor of Defendant Precision Drilling Company, LP, and against Plaintiff Kelvin Bourke.

This appeal was timely perfected.

STANDARD OF REVIEW

[¶ 14] We generally review a district court's ruling on a request for a change of venue for an abuse of discretion, meaning that we will affirm the district court where it could have reasonably concluded as it did. See, e.g., Sundance Mountain Resort, Inc. v. Union Tel. Co., 2007 WY 11, ¶ 7, 150 P.3d 191, 194–95 (Wyo.2007); Burnham v. Coffinberry, 2003 WY 109, ¶ 5, 76 P.3d 296, 298 (Wyo.2003); McGhee v. Rork, 978 P.2d 577, 579 (Wyo.1999); Little v. Kobos ex rel. Kobos, 877 P.2d 752, 757–58 (Wyo.1994); In re Wilson's Estate, 397 P.2d 805, 810 (Wyo.1964).

[¶ 15] This case also requires that we interpret Wyoming's venue statutes and determine other legal issues. We review questions of law de novo without deference to the district court's determinations. In re MN, 2007 WY 189, ¶ 4, 171 P.3d 1077, 1080 (Wyo.2007) (citation omitted).

DISCUSSION

Propriety of Dismissing for Lack of Venue

Permissive or Mandatory Nature of § 1–5–107

[¶ 16] In civil cases, venue “refers to the county, district, or other geographical location in which, for the sake of fairness, convenience, or other commanding policy considerations, a cause is to be tried.” State Farm Mut. Auto. Ins. Co. v. Kunz, 2008 WY 71, ¶ 14, 186 P.3d 378, 382 (Wyo.2008) (citation omitted) (internal quotation marks omitted).

[¶ 17] Bourke argues that § 1–5–107 is a “permissive” venue statute, meaning that the two possible venues listed in the statute are not exclusive. He points out that certain venue statutes require that specific types of actions “shall” be brought in particular counties. See, e.g.,Wyo. Stat. Ann. § 1–5–101 (LexisNexis 2013) (actions for recovery, partition or sale of real property under a mortgage, lien or encumbrance); § 1–5–104 (actions for recovery of a fine, against a public officer, or on the bond or undertaking of a public officer); § 1–5–108 (actions not otherwise provided for), and § 26–15–134 (cause of action against an insurer). Other venue statutes provide that a cause of action “may” be brought in certain counties. See, e.g., § 1–5–102 (action may be brought in any county where real property is located if it is situated in more than one county); § 1–5–103 (action for specific performance of a contract for sale of realty may be brought where any defendant resides); § 1–5–105 (action against domestic corporation may be brought where the corporation is “situate” or has its principal office or place of business); § 1–5–106 (action against a public carrier or railroad may be brought in any county through or into which the carrier or rail line passes). Bourke therefore contends that § 1–5–107 merely suggests appropriate counties where an action could be filed, but in fact means that the action could have been filed in any county because of the use of the word “may.”

[¶ 18] We have previously said that the word “may” is permissive, while “shall” is mandatory. Anderson v. Bd. of Cnty. Comm'rs of Teton Cnty., 2009 WY 122, ¶ 22, 217 P.3d 401, 407 (Wyo.2009); MN, ¶ 5, 171 P.3d at 1080. A comparison of the “may” and “shall” venue provisions reveals a clear distinction, however—in the comparatively few “shall be brought” provisions, an action can...