Ex Parte Indiana Mills & Mfg., Inc.

• Decision Date: 05 December 2008
• Docket Number: 1070229.
• Citation: 10 So.3d 536
• Parties: Ex parte INDIANA MILLS & MANUFACTURING, INC., and McNeilus Truck and Manufacturing, Inc. (In re Marcy Johnson, as personal representative of the estate of James Johnson, deceased v. McNeilus Truck and Manufacturing, Inc., et al.).
• Court: Alabama Supreme Court

10 So.3d 536

Ex parte INDIANA MILLS & MANUFACTURING, INC., and McNeilus Truck and Manufacturing, Inc. (In re Marcy Johnson, as personal representative of the estate of James Johnson, deceased v. McNeilus Truck and Manufacturing, Inc., et al.).

1070229.

Supreme Court of Alabama.

December 5, 2008.

Charles A. Stewart III and Angela R. Rogers of Bradley Arant Rose & White L.L.P., Montgomery, for petitionerIndiana Mills & Manufacturing, Inc.; and R. Bruce Barze, Jr., and Steven R. Parker of Balch & Bingham LLP, Birmingham, for petitionerMcNeilus Truck and Manufacturing, Inc.

Ted L. Mann and Robert Potter of Mann, Cowan & Potter, P.C., Birmingham, for respondent.

Thomas M. O'Hara of McDowell Knight Roedder & Sledge, L.L.C., Mobile, amicus curiaeAlabama Defense Lawyers Association, in support of the petitioners.

SMITH, Justice.

Indiana Mills & Manufacturing, Inc.("IMMI"), and McNeilus Truck and Manufacturing, Inc.("McNeilus")(collectively "the petitioners"), petition for a writ of mandamus directing the Macon Circuit Court to transfer this action to the Lee Circuit Court on the basis of forum non conveniens.We grant the petition and issue the writ.

Facts and Procedural History

James Johnson worked for Sunflower Waste, LLC("Sunflower"), a waste-disposal company whose principal office is located in Tallapoosa County.On March 7, 2006, James was driving a garbage truck owned by his employer.While James was traveling on Marvyn Parkway in Lee County, the raised rear door of the truck struck an overhead railroad trestle.The truck crashed, and James was killed when he was ejected through the front windshield.

The Opelika police and fire departments responded to the scene of the accident.James's body was transported to the East Alabama Medical Center, and his death was investigated by the Lee County coroner.The garbage truck was towed to a Sunflower facility located in Lee County.

Subsequently, Marcy Johnson, James's widow, on behalf of James's estate, sued McNeilus, the manufacturer of the garbage truck, and IMMI, the manufacturer of the seat belts in the garbage truck, alleging, among other things, that the truck and its seat belts were defective.Additionally, Marcy sued three individuals who were employees of Sunflower at the time of the accident: Jack Conner, a maintenance manager; Russell Davis, an operations manager; and Van Forrester, a district manager, alleging that these individual defendants willfully breached a duty to provide James with a safe work environment and that they willfully removed, failed to install, or failed to maintain certain safety devices on the garbage truck and, in doing so, contributed to James's death.SeeAla.Code 1975, § 25-5-11.

The petitioners, joined by Conner, Davis, and Forrester, filed motions to transfer the case to the Lee Circuit Court based on the doctrine of forum non conveniens.The trial court denied the motion, and IMMI and McNeilus petition for mandamus relief.

Standard of Review

"`The proper method for obtaining review of a denial of a motion for a change of venue in a civil action is to petition for the writ of mandamus.'Ex parte National Sec. Ins. Co.,727 So.2d 788, 789(Ala.1998).A writ of mandamus is appropriate when the petitioner can demonstrate `(1) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.'Ex parte BOC Group, Inc.,823 So.2d 1270, 1272(Ala.2001).Additionally, this Court reviews mandamus petitions challenging a ruling on venue on the basis of forum non conveniens by asking whether the trial court exceeded its discretion.Ex parte Fuller,955 So.2d 414(Ala.2006);Ex parte Verbena United Methodist Church,953 So.2d 395(Ala.2006).Our review is limited to only those facts that were before the trial court.Ex parte Pike Fabrication, Inc.,859 So.2d 1089, 1091(Ala.2002)."

Ex parte Kane,989 So.2d 509, 511(Ala.2008).

Discussion

Alabama Code 1975, § 6-3-21.1(a), provides when a civil action must be transferred under the doctrine of forum non conveniens:

"With respect to civil actions filed in an appropriate venue, any court of general jurisdiction shall, for the convenience of parties and witnesses, or in the interest of justice, transfer any civil action or any claim in any civil action to any court of general jurisdiction in which the action might have been properly filed and the case shall proceed as though originally filed therein...."

(Emphasis added.)A party moving for a transfer under § 6-3-21.1 has the initial burden of showing, among other things, one of two factors: (1) that the transfer is justified based on the convenience of either the parties or the witnesses, or(2) that the transfer is justified "in the interest of justice."Ex parte Masonite Corp.,789 So.2d 830, 831(Ala.2001);Ex parte National Sec. Ins. Co.,727 So.2d 788, 789(Ala.1998).A party may show that either or both of these factors require a transfer.

There is no dispute that venue in this case is proper in both Macon County and Lee County.However, the petitioners argued in their motion for a change of venue and in their mandamus petition both that the convenience of the parties and witnesses required that the case be transferred to Lee County and that it was in the interest of justice to do so.We need not analyze the convenience of the parties and witnesses in this case, because we hold that the interest of justice requires a transfer.¹

The "interest of justice" prong of § 6-3-21.1 requires "the transfer of the action from a county with little, if any, connection to the action, to the county with a strong connection to the action."Ex parte National Sec. Ins. Co.,727 So.2d at 790.Therefore, "in analyzing the interest-of-justice prong of § 6-3-21.1, this Court focuses on whether the `nexus' or `connection' between the plaintiff's action and the original forum is strong enough to warrant burdening the plaintiff's forum with the action."Ex parte First Tennessee Bank Nat'l Ass'n,994 So.2d 906, 911(Ala.2008).Additionally, this Court has held that "litigation should be handled in the forum where the injury occurred."Ex parte Fuller,955 So.2d 414, 416(Ala.2006).Further, in examining whether it is in the interest of justice to transfer a case, we consider "the burden of piling court services and resources upon the people of a county that is not affected by the case and ... the interest of the people of a county to have a case that arises in their county tried close to public view in their county."Ex parte Smiths Water & Sewer Auth.,982 So.2d 484, 490(Ala.2007).The petitioners in this case are thus required to demonstrate "`that having the case heard in [Lee] County would more serve the interest of justice'" than having the case heard in Macon County.Ex parte First Tennessee Bank,994 So.2d at 909(quotingEx parte Fuller,955 So.2d 414, 416(Ala.2006)).

Marcy argues that the interest of justice does not require a transfer in this case to Lee County because none of the parties reside or are located in Lee County.Additionally, she notes that neither IMMI or McNeilus "have business relationships" in Lee County, whereas Sunflower conducts business in Macon County and Conner resides there.Finally, litigating the case in Lee County, Marcy contends, would be less convenient for the parties.²

We agree that this case certainly has a connection with Macon County — as Marcy notes, Conner resides there and Sunflower conducts business there.Additionally, it is true that none of the parties in this case actually resides in Lee County.However, we nevertheless hold that the overall connection between Macon County and this case is weak and that the connection between the case and Lee County is strong.

First and foremost, the accident occurred in Lee County.Lee County police and emergency personnel — the Opelika Police Department and the Opelika Fire Department — responded to the scene and investigated the accident.Additionally, Gene Manning, the chief deputy coroner of Lee County, investigated James's death.He testified in an affidavit that all the work he performed in connection with the investigation took place in Lee County.Additionally Danny Cotney, the assistant fire chief of the Opelika Fire Department, testified that the various records and documents generated by the department are located in Lee County.³

On the other hand, the "connection" or "nexus" with Macon County in this case is weak.No party but Conner resides or is located there.⁴Additionally, none of the relevant facts in this case actually involve Macon County.

In her dissent, Chief Justice Cobb suggests that this Court should defer to the trial court's decision.In Ex parte First Family Financial Services, Inc.,718 So.2d 658(Ala.1998), the plaintiff maintained that a transfer was not required "upon the proposition that `[t]ransfers under § 6-3-21.1 are within the discretion of the trial judge ... [and that a]trial court[should] give deference to the plaintiff's choice of venue."Under the venue system established by the Alabama Legislature, "the plaintiff has the initial choice of venue."718 So.2d at 659.This "choice" exists because, in many situations, Ala.Code 1975, § 6-3-7, would allow proper venue to exist in more than one county."Reading [§ 6-3-7] in isolation, one would not discern that the Legislature intended to limit the plaintiff's choice of forum.However, § 6-3-7 must be read in pari materia with other Code sections dealing with the same subject, i.e., venue....Accordingly, we must read § 6-3-7 in pari materia with § 6-3-21.1."718 So.2d at 659-60.

We held in First Family that the adoption of § 6-3-21.1"substantially modified the law relating to the venue of civil actions."718 So.2d at 660.Formerly, "`[t]he ability to transfer cases within Alabama for the...