Ex Parte Siemag Inc.Andex Parte Sandvik Mining And Constr. Usa

• Decision Date: 18 June 2010
• Docket Number: 2090016 and 2090134.
• Citation: 53 So.3d 974
• Parties: Ex parte SIEMAG, INC.andEx parte Sandvik Mining and Construction USA, LLC(In re Prince U. Hagler, Jr., et al.v.Jim Walter Resources, Inc., et al.).
• Court: Alabama Court of Civil Appeals

53 So.3d 974

Ex parte SIEMAG, INC.andEx parte Sandvik Mining and Construction USA, LLC(In re Prince U. Hagler, Jr., et al.

v.Jim Walter Resources, Inc., et al.).

2090016 and 2090134.

Court of Civil Appeals of Alabama.

June 18, 2010.

James B. Carlson and Christopher S. Berdy of Christian & Small LLP, Birmingham, for petitioner Siemag, Inc.James D. Newman and D. Andrew Stivender of Helmsing, Leach, Herlong, Newman & Rouse, P.C., Mobile, for petitioner Sandvik Mining and Construction USA, LLC.James C. King, Henry C. Wiley, Jr., and Justin L. Jones of King, Wiley & Williams, Jasper, for respondents Prince U. Hagler, Jr., and Catherine Hagler.PITTMAN, Judge.

Siemag, Inc. (“Siemag”), and Sandvik Mining and Construction USA, LLC (“Sandvik”), each seek a writ of mandamus compelling the Walker Circuit Court to vacate an order denying their motions to transfer to the Tuscaloosa Circuit Court a civil action brought in May 2007 by Prince U. Hagler, Jr., and his wife, who are both Walker County residents, against Siemag, Sandvik, and a number of other named and fictitiously named defendants stemming from a workplace injury to Hagler resulting in the amputation of both of his arms, which injury allegedly arose out of and in the scope of his employment with Jim Walter Resources, Inc. (“Jim Walter”). For the reasons specified herein, we deny both petitions.

The plaintiffs' complaint asserted a claim against Jim Walter under the Alabama Workers' Compensation Act, Ala.Code 1975, § 25–5–1 et seq., as well as tort claims against individual and corporate third parties who were allegedly also responsible for Hagler's injuries. Hagler and his wife alleged in the complaint that venue was proper in Walker County because, among other things, (a) two individual defendants who were co-employees of Hagler, Ken Russell and David Hicks, were Walker County residents; and (b) the plaintiffs resided in Walker County and all the corporate defendants did business by agent in Walker County. Jim Walter filed a motion to sever the workers' compensation claim from the action and filed a motion to dismiss or, in the alternative, to transfer the action to the Tuscaloosa Circuit Court, asserting that the plaintiffs' claims arose in Tuscaloosa County and that Jim Walter did no business by agent in Walker County. Other corporate defendants, including Siemag and Sandvik, thereafter filed motions to transfer the action to the Tuscaloosa Circuit Court on the grounds that Walker County was either an improper or an inconvenient forum. The plaintiffs filed a unified response to the motions to sever, dismiss, and transfer, contending that the action should proceed in the Walker Circuit Court.

On July 31, 2009, the Walker Circuit Court entered an order in which that court concluded that Walker County was a proper venue under Ala.Code 1975, §§ 6–3–2 and 6–3–7, and that a transfer of the action to the Tuscaloosa Circuit Court was not warranted on the basis of the convenience of parties and witnesses or in the interest of justice.¹ On September 11, 2009, 42 days after the entry of the Walker Circuit Court's order ( i.e., within the presumptively reasonable time for seeking an extraordinary writ as set forth in Rule 21(a)(3), Ala. R.App. P.), Siemag filed a petition for a writ of mandamus in the Alabama Supreme Court challenging the correctness of the trial court's order solely as it relates to the doctrine of forum non conveniens; the Alabama Supreme Court transferred Siemag's petition to this court, where it was assigned case no. 2090016. On October 28, 2009, this court called for answers and briefs from Siemag and the respondents, which have been filed.

On November 2, 2009, 94 days after the entry of the Walker Circuit Court's order ( i.e., well outside the presumptively reasonable time for seeking an extraordinary writ as set forth in Rule 21(a)(3), Ala. R.App. P.), Sandvik filed a mandamus petition in this court; after that petition was assigned case no. 2090134, this court, acting ex mero motu, consolidated that case with case no. 2090016. However, upon further review of the reasons offered by Sandvik for filing its petition outside the presumptively reasonable time (principally that it did not receive notice that Siemag had filed its mandamus petition until after the presumptively reasonable time for seeking review of the July 31, 2009, order had expired) does not state a sound basis for Sandvik's having delayed in seeking mandamus review on its own behalf. Unlike Rule 4, Ala. R.App. P., which allows a party to take a cross-appeal from a final judgment or an appealable interlocutory order within 14 days after any other's party's timely filed notice of appeal, there is no mechanism in Rule 21 that would allow a respondent to file a “cross-petition” after the expiration of the presumptively reasonable time for seeking review by a petition for an extraordinary writ. For that reason, Sandvik's petition in case no. 2090134 is denied as having been untimely filed.² We thus proceed to consider the merits of Siemag's petition.

“A petition for the writ of mandamus is the proper method by which to seek review of a denial of a motion for a change of venue. Ex parte Alabama Great Southern R.R., 788 So.2d 886 (Ala.2000). ‘Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner 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) properly invoked jurisdiction of the court.’ Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995) [An appellate court] reviews a petition for a writ of mandamus challenging a ruling on venue under an abuse-of-discretion standard. Id.

“ ‘The burden of proving improper venue is on the party raising the issue and on review of an order transferring or refusing to transfer, a writ of mandamus will not be granted unless there is a clear showing of error on the part of the trial judge.’ ”

“ Ex parte Finance America Corp., 507 So.2d 458, 460 (Ala.1987).”

Ex parte Scott Bridge Co., 834 So.2d 79, 80–81 (Ala.2002); accord Ex parte Cavalier Home Builders, L.L.C., 920 So.2d 1105, 1108 (Ala.Civ.App.2005). We further note that Ex parte Yocum, 963 So.2d 600 (Ala.2007), which also involved a challenge to a trial court's denial of a motion to transfer a civil action to a forum that was purportedly more convenient, notes that: (a) “[t]he trial court should give deference to the plaintiff's choice of a proper forum”; and (b) the “ ‘burden is on the party moving for the transfer to prove that the transferee forum is significantly more convenient than the plaintiff's chosen forum.’ ” 963 So.2d at 602 (quoting Ex parte Nichols, 757 So.2d 374, 378 (Ala.1999)).

In its petition and briefs, Siemag posits that the convenience of parties and witnesses would be served by a transfer of the case from Walker County to Tuscaloosa County, citing the location of the mine where Hagler's injury occurred and the relative remoteness of Walker County to air-transportation centers in Tuscaloosa and Birmingham. However, as Hagler and his wife point out in their brief, the prospect that any defendant's witnesses or corporate representatives having knowledge of facts pertinent to the plaintiffs' claims will be required to travel to Alabama by air is entirely speculative given the silence of the evidentiary record concerning the locations of those witnesses. Further, to the extent that any nonparty employees of the corporate defendants will be required to attend trial and to testify, any inconvenience to them “does not weigh heavily where ... their presence at trial can be secured by those defendants.” Ex parte Yocum, 963 So.2d at 602. Finally, we note that the plaintiffs filed several affidavits bearing on the convenience issue, including (a) Hagler's own affidavit, in which he testified that because of the loss of his arms he will require automotive transportation by family members from his home in Sumiton and that travel to Tuscaloosa, a distance of 75 miles, will present a greater hardship than travel to Jasper, a distance of 15 miles; and (b) the affidavit of Victor Argo, a Jefferson County resident and an eyewitness to Hagler's injury who testified that two individual defendants reside in Walker County and that it would be more convenient for him to attend a deposition and a trial in Walker County. Because the burden of demonstrating that Tuscaloosa County is significantly more convenient than the plaintiffs' chosen forum of Walker County rests upon the shoulders of Siemag, see Yocum 963 So.2d at 602, and because Siemag has not carried that burden, we reject the contention that the convenience of parties or witnesses compels a transfer here.

We next turn to the “interest of justice” prong of § 6–3–21.1, Ala. Code 1975, which Siemag also invokes. Analysis of that prong requires consideration of “ ‘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 Price, 47 So.3d 1221, 1225 (Ala.2010) (quoting Ex parte First Tennessee Bank Nat'l Ass'n, 994 So.2d 906, 911 (Ala.2008)). Stated another way, if a plaintiff's action has little, if any, connection to the chosen forum, it should be transferred in the interests of justice. See, e.g., Ex parte Verbena United Methodist Church, 953 So.2d 395, 400–01 (Ala.2006) (trial court acted outside its discretion in refusing to transfer action alleging defamation, invasion-of-privacy, and tort-of-outrage claims when only one of three defendants was domiciled in forum county, that defendant had received only one letter from the plaintiff demanding an investigation, and that defendant had agreed to the proposed transfer).

In this case, Hagler sustained injuries while working for Jim Walter in its # 4 mine, which is located near Brookwood,...