Ex parte Illinois Cent. Gulf R. Co.

• Decision Date: 23 September 1988
• Parties: Ex parte ILLINOIS CENTRAL GULF RAILROAD COMPANY. (In re: Nelson KEENE v. ILLINOIS CENTRAL GULF RAILROAD COMPANY). Ex parte CSX TRANSPORTATION, INC. (In re: Kervin BALOM v. CSX TRANSPORTATION, INC.) 87-230, 87-6.
• Court: Alabama Supreme Court

Page 899

537 So.2d 899

Ex parte ILLINOIS CENTRAL GULF RAILROAD COMPANY.

(In re: Nelson KEENE v. ILLINOIS CENTRAL GULF RAILROAD COMPANY).

Ex parte CSX TRANSPORTATION, INC.

(In re: Kervin BALOM v. CSX TRANSPORTATION, INC.)

87-230, 87-6.

Supreme Court of Alabama.

Sept. 23, 1988.

Rehearing Denied Dec. 16, 1988.

L. Vastine Stabler, Jr., Michael C. Quillen, and Scott A. Spear of Cabaniss, Johnston, Gardner, Dumas & O'Neal, Birmingham, for petitioner CSX Transp., Inc.

Broox G. Holmes of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, and Oppenheimer, Wolff & Donnelly, St. Paul, Minn., for petitioner Illinois Cent. Gulf R. Co.

Clarence M. Small, Jr., and Norma Mungenast Lemley of Rives & Peterson, Birmingham, for respondent Kervin Balom.

Richard F. Sharrard of Pratt and Callis, East Alton, Ill., and Tyson & Tyson, Mobile, for respondent Nelson Keene.

Charles E. Sharp and Joel A. Williams of Sadler, Sullivan, Sharp & Stutts, Birmingham, for amici curiae Southern R. Co., Cent. of Georgia R. Co., and Burlington Northern R. Co.

Hobart A. McWhorter, Jr., and Joseph B. Mays, Jr., of Bradley, Arant, Rose & White, Birmingham, for amicus curiae Illinois Cent. Gulf R. Co., on behalf of CSX Trans., Inc.

PER CURIAM.

Petitioner Illinois Central Gulf Railroad ("I.C.G."), petitions for a writ of mandamus ordering the Circuit Court of Mobile County to grant I.C.G.'s motion to dismiss the action pending against it. Petitioner CSX Transportation, Inc. ("CSX"), petitions for a similar writ of mandamus to the Circuit Court of Jefferson County. Both motions to dismiss are based on the doctrine of forum non conveniens and a recent amendment to Ala.Code 1975, § 6-5-430, adopting that doctrine. These cases were consolidated because they involve similar factual situations and the same questions of law.

On May 12, 1987, Nelson Keene filed suit in the Circuit Court of Mobile County against I.C.G., a Delaware corporation, for personal injuries sustained in McComb, Mississippi. Likewise, the Balom action involves a suit against a foreign corporation for personal injuries sustained in another state. Liability in these actions is premised on the Federal Employers' Liability Act ("F.E.L.A."), 45 U.S.C. §§ 51 et seq. Section 56 of the F.E.L.A. provides as follows:

"Under this chapter an action may be brought in a district court of the United States, in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing such action. The jurisdiction of the courts of the United States under this chapter shall be concurrent with that of the courts of the several States."

As this section indicates, Alabama circuit courts have concurrent jurisdiction with federal courts under the F.E.L.A. That act expressly allows suit in any county where the defendant is doing business at the time of filing suit. The F.E.L.A. does not impose any convenience requirement regarding where a suit may be filed. Affidavits in support of the motions for dismissal indicate that the plaintiffs/respondents reside outside Alabama, that all necessary witnesses are in other states, and that no potential witnesses reside here.

The motions to dismiss for forum non conveniens were made pursuant to Ala.Code 1975, § 6-5-430, as amended June 11, 1987. That section provides in pertinent part:

"Whenever, either by common law or the statutes of another state or of the United States, a claim, either upon contract or in tort has arisen outside this state against any person or corporation, such claim may be enforceable in the courts of this state in any county in which jurisdiction of the defendant can be legally obtained in the same manner in which jurisdiction could have been obtained if the claim had arisen in this state; provided, however, the courts of this state shall apply the doctrine of forum non conveniens in determining whether to accept or decline to take jurisdiction of an action based upon such claim originating outside this state; and provided further that, if upon motion of any defendant it is shown that there exists a more appropriate forum outside this state, taking into account the location where the acts giving rise to the action occurred, the convenience of the parties and witnesses, and the interests of justice, the court must dismiss the action without prejudice." (Emphasis added.)

This section allows Alabama courts to dismiss an action under the doctrine of forum non conveniens, a procedure that was unavailable prior to the 1987 amendment.

The dispositive issue is whether a motion for dismissal made by a foreign corporation, based on the doctrine of forum non conveniens, is precluded by § 232 of the Constitution of the State of Alabama. Section 232, regarding foreign corporations doing business in Alabama, provides, in pertinent part:

"No foreign corporation shall do any business in this state without having at least one known place of business and an authorized agent or agents therein, and without filing with the secretary of state a certified copy of its articles of incorporation or association. Such corporation may be sued in any county where it does business, by service of process upon an agent anywhere in the state."

The first question to be addressed regards the ambit of § 232. Petitioners claim that § 232 merely imposes a jurisdictional restriction and that Ala.Code 1975, § 6-5-430, as amended, is a venue provision and is therefore not in conflict. This Court said in City Stores Co. v. Williams, 287 Ala. 385, 388, 252 So.2d 45, 48 (1971):

"The terms 'jurisdiction' and 'venue' are often confused and loosely used. In its pure sense 'jurisdiction' means the power of a court to entertain and consider a cause, and render a binding judgment therein. 'Venue' refers to the court in which for the sake of convenience or policy considerations the cause is to be tried. Pepperell Mfg. Co. v. Alabama National Bank, 261 Ala. 665, 75 So.2d 665 (1954).

"In its broadest sense and considering its historical background, Section 232 in its origin would appear to be concerned primarily with jurisdiction over a foreign corporation rather than the venue of an action, though the inclusion of the words in Section 232, that a foreign corporation may be sued 'in any county where it does business' partakes of venue.

"The loose use of 'venue' and 'jurisdiction' appears to result from the fact that in many of the cases the foreign corporation had qualified to do business in the state, or unquestionably was doing business in the state without qualifying to do so. No question of jurisdiction was really involved, only that of venue."

Justice Bouldin discussed the application of § 232 in Bolton v. White Motor Co., 239 Ala. 168, 194 So. 510 (1940). In that case the Court construed a provision of the Ala.Code of 1923 that purported to broaden venue opportunities against foreign corporations:

"The Constitution is self-executing, mandatory and restrictive; [it] limits the venue of an action against a foreign corporation which has qualified to do business in Alabama to a county where the corporation is doing business at the time of suit brought and service had. By its own force the Constitution strikes down the provision of the statute purporting to permit suits against a foreign corporation in a county where it was doing business at the time the cause of action arose. This clause of the statute is limited to actions against domestic corporations. Sullivan v. Sullivan Timber Co., 103 Ala. 371, 15 So. 941, 25 L.R.A. 543; General Motors Acceptance Corporation v. Home Loan & Finance Co., 218 Ala. 681, 120 So. 165; [ (1929) ] May, Sheriff et al. v. Strickland, 235 Ala. 482, 180 So. 93; [ (1938) ] Ex Parte Kemp et al., 232 Ala. 434, 168 So. 147. [ (1936) ]"

Bolton, 239 Ala. at 171, 194 So. at 51. Because § 232 of the Constitution of the State of Alabama is restrictive, the legislature was without authority to broaden venue against foreign corporations; therefore, the Court limited the application of the venue statute to domestic corporations.

Petitioners also contend that Alabama courts did not have in personam jurisdiction in suits against foreign corporations based on claims that arose in another state until the enactment of the predecessor to § 6-5-430 by the Alabama Legislature in 1907. (Acts 1907, Ex.Sess., No. 47, p. 67; Code 1923, § 5681.) They cite the following cases for that proposition: Central Railroad & Banking Co. v. Carr, 76 Ala. 388, 52 Am.Rep. 339 (1884), followed in, Louisville & N.R.R. v. Dooley, 78 Ala. 524 (1885); Iron Age Publishing Co. v. Western Union Tel. Co., 83 Ala. 498, 3 So. 449 (1887); Alabama Great Southern R.R. v. Chumley, 92 Ala. 317, 9 So. 286 (1890); Pullman Palace Car Co. v. Harrison, 122 Ala. 149, 25 So. 697 (1898); Dozier Lumber Co. v. Smith Isburg Lumber Co., 145 Ala. 317, 39 So. 714 (1905). A review of these cases reveals that they were based on theories of corporate presence that have long since been discarded. Collectively, they discuss whether an in personam action could be maintained against a foreign corporation under the relevant statutes.

Illustrative of this line of cases is Iron Age Publishing. In that case the Court said, "No sovereignty ... can extend its process beyond its own territorial limits, to subject either persons or property to its judicial decisions. Every exertion of authority of this sort beyond this limit is a mere nullity, and incapable of binding such person or property in any other tribunal." 83 Ala. at 506, 3 So. at 452, quoting J. Story, Conflict of Laws § 539.

Unlike the practice at the turn of the century, service of process can now be perfected by service on the registered agent of the foreign corporation, in accord with Rule 4 et seq., A.R.Civ.P. In personam jurisdiction exists when the agent has been served and the defendant has "sufficient contacts" with this state. The line of cases following ...