Cohane v. Arpeja-California, Inc.

• Decision Date: 17 March 1978
• Docket Number: No. 11611.,11611.
• Parties: Jarret N. COHANE, Appellant, v. ARPEJA-CALIFORNIA, INC., Appellee.
• Court: D.C. Court of Appeals

Page 153

385 A.2d 153

Jarret N. COHANE, Appellant, v. ARPEJA-CALIFORNIA, INC., Appellee.

No. 11611.

District of Columbia Court of Appeals.

Argued September 28, 1977.

Decided March 17, 1978.

Arnold Rochvarg, Washington, D. C., with whom Philip L. Cohan, Washington, D. C., was on brief, for appellant.

David Rein, Washington, D. C., for appellee.

Before KELLY, YEAGLEY and MACK, Associate Judges.

YEAGLEY, Associate Judge:

This appeal is from an order of the trial court dismissing a breach of contract action in midtrial on forum non conveniens grounds.¹ We find that under the circumstances of this case, dismissal was inappropriate.

Appellant Jarret N. Cohane, a salesman and resident of Delaware, brought suit against appellee Arpeja-California, Inc., a California corporation engaged in the business of manufacturing women's apparel. Appellant was employed by Arpeja-California as an independent agent and assigned to travel the area of eastern Pennsylvania, Maryland, Delaware, and Washington, D. C., selling the Young Edwardian line of Arpeja's clothing. He claimed that pursuant to his employment contract, as orally modified, he was entitled to certain commissions which appellee failed to pay.

On June 23, 1975, appellee filed a motion to dismiss the complaint on the grounds² that the trial court did not have personal jurisdiction over it and that the District of Columbia was an inappropriate forum.³ Appellee's motion was denied after a hearing before the Superior Court and a motion to reconsider was filed.⁴ After additional argument, the court again denied the motion to dismiss. Appellee did not appeal this ruling.

The parties then proceeded with discovery. Depositions were taken in California and the District of Columbia, and appellee submitted two sets of interrogatories to appellant. During the course of discovery, several motions were filed with the Superior Court.

The parties were called to trial on September 27, 1976. Cohane appeared with his counsel and a witness from Baltimore, Maryland. Appellee appeared in the person of its president and vice-president, both from California, together with counsel. Both sides announced "ready" and awaited assignment of a trial judge. Unfortunately, no cases were assigned for trial that day. At 5 p. m., the parties appeared before Judge William E. Stewart, Jr., who was sitting as motions judge. When Judge Stewart learned of the circumstances of the case he agreed to try it himself at 8 a. m. the following morning.

On the morning of September 28, 1976, the witnesses, parties and counsel appeared before Judge Stewart. In his opening argument, counsel for appellee contended that the court lacked jurisdiction and that the case should not be tried in this jurisdiction because of the nonresidency of the parties and the lack of any substantial relationship between the parties, the subject matter, and the District of Columbia. Cohane was then called to the stand and proceeded to give testimony.

At approximately 10:30 a. m., the court interrupted the direct examination of appellant and asked counsel for appellant to state his contentions as to which jurisdiction's law governed the interpretation of the contract and the claim for damages. Counsel's response was that he assumed the applicable principles to be the same in every jurisdiction. After a short recess, the court made oral findings of fact and conclusions of law which culminated in the dismissal of the action on grounds of forum non conveniens.

Judge Stewart subsequently made, pursuant to an order of this court, the following written findings of fact and conclusions of law:

FINDINGS OF FACT

1. Appellant is a resident of Wilmington, Delaware.

2. Appellee is a corporation organized under the laws of the State of California with its principal place of business in Los Angeles, California.

3. Neither of the parties maintained an office in the District of Columbia.

4. The original written contract was negotiated between the parties in Dallas, Texas but was executed in Wilmington, Delaware by Appellant and mailed to Appellee in Los Angeles. The original contract submitted in Dallas, Texas had been modified and/or clarified by discussions between the parties accomplished by long distance telephone from Wilmington, Delaware to Los Angeles, California.

5. The contract was for personal services to be performed by the Appellant in Pennsylvania, Delaware, Maryland and the District of Columbia and the supplying by Appellee of goods to retail outlets in those jurisdictions.

6. The relationship established by the contract and the parties thereto and its performance by the parties with the District of Columbia was minimal or insignificant.

7. The contentions of the Appellant would necessitate examination of and comparison with voluminous records of Appellee physically present in the court contained in large cartons, likely to require reference to the Auditor Master of the Court or some other form of accounting procedures.

8. Appellant's case, as described in the opening statement of counsel, was to include the presentation of his own testimony and that of a witness from Baltimore, Maryland and the utilization of his own records and those of Appellee. The Appellee's presentation was to include the testimony of two officers of the corporation and the records of the corporation both officers being residents of Los Angeles, California.

9. Though the record reveals that Appellee had previously filed a motion to dismiss and to quash service, which included a reliance upon the statute providing for the application of the doctrine of forum non conveniens in the District of Columbia, the principal thrust of that motion was directed to the issue of lack of jurisdiction. The previous judge, the Honorable DeWitt Hyde, passing upon said motion and denying same, did not have before him the total factual picture as developed early in this trial and found as factors hereinabove at the time of his ruling.

CONCLUSIONS OF LAW

I. By reason of the Findings of Facts numbered 1 through 4, the lack of any significant relationship between the District of Columbia and the parties and the subject matter of this litigation, the nature of the contract, the necessity of applying foreign law (Contract & Damages) to litigation requiring extensive examination of and computation of records and with judicial knowledge of the calendar in the overburdened Superior Court and giving recognition to the rights of citizens of the District of Columbia to have primary access to the court, the court concludes the Doctrine of Forum Non Conveniens should be applied and the case dismissed.

II. Though this court had jurisdiction, as previously determined by the denial of Appellee's motion to dismiss, the court was not foreclosed by the Law of the Case Doctrine from dismissing on Forum Non Conveniens under the totality of the circumstances herein.

I.

Appellant contends that the trial court's sua sponte dismissal of this action was an abuse of discretion. After careful analysis of the relevant factors, we find that the trial court erred in ordering the midtrial dismissal of appellant's claims on the grounds that the District of Columbia was an inappropriate forum.⁵

It is well settled in this jurisdiction that decisions on questions of forum non conveniens are committed to the sound discretion of the trial court and will be reversed on appeal only upon a clear showing of an abuse of discretion. E. g., Florida Education Association v. National Education Association, D.C.App., 354 A.2d 853, 854 (1976); Frost v. Peoples Drug Store, Inc., D.C.App., 327 A.2d 810, 813 (1974). This broad discretion is not unlimited, however, and this court will examine the trial court's action in light of well established criteria for applying the doctrine. Carr v. Bio-Medical Applications of Washington, Inc., D.C.App., 366 A.2d 1089, 1092 (1976); Dorati v. Dorati, D.C.App., 342 A.2d 18, 20 (1975). Foremost among those criteria is the principle that "unless the balance is strongly in favor of the defendant, the plaintiffs' choice of forum should rarely be disturbed." Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947).

This court carefully analyzed the factors to be considered in determining whether an action should be dismissed on forum non conveniens grounds in Carr v. Bio-Medical Applications of WAshington, Inc., supra at 1092. We said:

In the landmark case of Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), the Supreme Court identified two separate interests which must be considered in assessing a motion to dismiss for forum non conveniens — the private interest of the litigant, and the public interest. Factors relevant to the private interest concern the ease, expedition, and expense of the trial, and include the relative ease of access to proof; availability and cost of compulsory process; the enforceability of a judgment once obtained; evidence of an attempt by the plaintiff to vex or harass the defendant by his choice of the forum; and other obstacles to a fair trial. . . . Like-wise, the public interest is a relevant consideration in applying the doctrine. Factors related to the public interest include administrative difficulties caused by local court dockets congested with foreign litigation; the imposition of jury duty on a community having no relationship to the litigation; and the inappropriateness of requiring local courts to interpret the laws of another jurisdiction.

Usually when we review a forum non conveniens dismissal, the trial court's ruling has come in response to a pre-answer motion to dismiss. In such a case, the parties have not been put to the expense of discovery and the witnesses have not been brought to the forum for trial. Therefore, the appropriateness of dismissal is determined merely by weighing the factors outlined in Carr. See Dorati v. Dorati, supra. When, however, the parties and the...