Ex parte Southern Ry. Co.

• Decision Date: 21 November 1989
• Parties: Ex parte SOUTHERN RAILWAY COMPANY, a corporation. (In re H.D. MINTZ v. SOUTHERN RAILWAY COMPANY, a corporation). 88-838 to 88-876.
• Court: Alabama Supreme Court

Page 1082

556 So.2d 1082

Ex parte SOUTHERN RAILWAY COMPANY, a corporation.

(In re H.D. MINTZ v. SOUTHERN RAILWAY COMPANY, a corporation).

88-838 to 88-876.

Supreme Court of Alabama.

Nov. 21, 1989.

Charles E. Sharp, Mac B. Greaves and Joel A. Williams of Sadler, Sullivan, Herring & Sharp and Robert D. Hunter of Lange, Simpson, Robinson & Somerville, Birmingham, for petitioner.

Clarence M. Small, Jr. and Norma Mungenast Lemley of Rives & Peterson and Courtney B. Adams of Burge & Wettermark, Birmingham, for respondent.

PETITION FOR WRIT OF MANDAMUS ^*

PER CURIAM.

The petitioners, CSX Transportation, Inc., Burlington Northern Railroad Company Illinois Central Gulf Railroad Company, Southern Railway Company, and Norfolk Southern Corporation, are all foreign corporations qualified to do business in Alabama, who were doing business by agent in Jefferson County, Alabama, at the time each of these suits was filed. The respondents are all persons who are nonresidents of Alabama; they are seeking monetary damages under the Federal Employers Liability Act, 45 U.S.C. §§ 51 et seq. (F.E.L.A.), for personal injuries suffered in accidents that occurred outside Alabama.

Each respondent filed a complaint in the Jefferson County Circuit Court after the Alabama legislature had made certain changes in the law relating to venue of actions. The petitioners, as defendants, moved to dismiss these complaints, asserting that dismissal was required either by Amendment 473 to the Ala. Const.1901, or in the alternative, by Act No. 87-182, Ala.Acts 1987. The trial judge denied the motions to dismiss, and the defendants then filed these petitions for writs of mandamus.

Three companion bills were introduced in the 1987 session of the Alabama legislature by the identical 60 co-sponsors. House Bill No. 24 passed the House on April 28, 1987, and the Senate on May 14, 1987, and became Act No. 87-164, Ala.Acts 1987. It proposed an amendment to Article XII, § 232, of the Constitution of 1901. On March 8, 1988, the voters of the State of Alabama approved that amendment to Article XII, § 232, of the 1901 Constitution of Alabama (proclaimed ratified April 1, 1988). Before the amendment, § 232 of the Alabama Constitution provided:

"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...." (Emphasis added.)

Amendment 473, amending § 232, deleted the language emphasized above and substituted the following emphasized language, so that after the amendment § 232 reads as follows:

"No foreign corporation shall do 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. Any foreign corporation, whether or not such corporation has qualified to do business in this state by filing with the secretary of state a certified copy of its articles of incorporation or association, may be sued only in those counties where such suit would be allowed if the said foreign corporation were a domestic corporation ...." (Emphasis added.)

House Bill No. 25 became Act No. 87-181, Ala.Acts 1987. It was approved on June 11, 1987, and it reads in its entirety as follows:

"AN ACT

"To provide that any court of general jurisdiction shall, for the convenience of parties and witnesses, or in the interest of justice, transfer a civil action to any other court of general jurisdiction in Alabama in which the civil action might properly have been filed; to provide that any such transferred action shall proceed as though it had been originally filed in the second court; to provide that the right to move for a change or transfer of venue pursuant to this Act is cumulative and in addition to the rights of a defendant under Alabama Code (1975) Section 6-3-20, Section 6-3-21 or Alabama Rules of Civil Procedure; to provide for the repeal of inconsistent laws or parts of laws; to provide for the severability of this Act; to provide that this act shall not apply to any civil action pending on its effective date; and to provide the manner in which this bill becomes law.

"Be It Enacted by the Legislature of Alabama:

"Section 1. Change or Transfer of Venue.

"(a) 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. Provided, however, this act shall not apply to cases subject to Section 30-3-5 of the Code of Alabama 1975.

"(b) The right of a party to move for a change or transfer of venue pursuant to this statute is cumulative and in addition to the rights of a party to move for a change or transfer of venue pursuant to Alabama Code (1975) Section 6-3-20, Section 6-3-21 or Alabama Rules of Civil Procedure Rule.

"Section 2. All other laws, or parts of laws, which are in any manner inconsistent with this Act are repealed to the extent that they are inconsistent with this Act.

"Section 3. If any section, clause, provision, or portion of this Act shall be held invalid or unconstitutional by any court of competent jurisdiction, such holding shall not affect any other section, clause, or provision of this Act which is not in and of itself invalid or unconstitutional.

"Section 4. This Act shall not apply to any civil action pending on the effective date of this Act.

"Section 5. This Act shall become effective immediately upon its passage and approval by the Governor, or upon its otherwise becoming law."

Act No. 87-181, Ala.Acts 1987, was codified as Code 1975, § 6-3-21.1.

House Bill No. 26 became Act No. 87-182, Ala.Acts 1987; it became law on June 11, 1987. It amended Code 1975, § 6-5-430, which before the passage of Act No. 87-182 read as follows:

"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."

Act No. 87-182 added the following provisos to § 6-5-430:

"... 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. Such dismissal may be conditioned upon the defendant or defendants filing with the court a consent (i) to submit to jurisdiction in the identified forum, or (ii) to waive any defense based upon a statute of limitations if an action on the same cause of action is commenced in the identified forum within 60 days of the dismissal."

Section 6-5-430, as amended by this Act retains the right of the courts of this state to adjudicate claims, either upon contract or upon tort, which arise outside the state against any person or corporation in any county in which jurisdiction over the defendant can be legally obtained. It requires the courts, however, to apply the doctrine of forum non conveniens in determining whether to accept or decline to take jurisdiction of any action based upon a claim arising outside the state. The application of the doctrine of forum non conveniens to a claim arising outside the State of Alabama is new to Alabama jurisprudence. This legislation requires the courts to apply this doctrine to all suits brought on a foreign cause of action, without regard to whether the defendant is a foreign corporation or a domestic corporation or whether the defendant is a resident of the State of Alabama or a non-resident. If the court, in its discretion, determines that the doctrine of forum non conveniens requires it, the court will decline to exercise its jurisdiction and dismiss the action.

Its companion act, Act No. 87-181, provides, not for the dismissal of the cause, but for the transfer of a civil action filed in an appropriate venue "for the convenience of the parties and witnesses, or in the interest of justice." § 6-3-21.1. This has application to causes of action whether they arise within the State of Alabama or outside the state, without regard to whether the defendant is a foreign corporation or a domestic corporation or whether the defendant is a resident of the State of Alabama or is a non-resident. This act contemplates proper venue in more than one Alabama county. It contemplates transfer of venue from a county in Alabama where venue is proper to another county within the state where venue is also proper, but more convenient for the parties and witnesses.

Both statutes proceed from the premise that the courts in which the plaintiff elects to bring suit have jurisdiction of the subject matter and have personal jurisdiction over the defendant. Section 6-5-430 merely requires the trial court to consider whether to accept or decline to take jurisdiction after applying the doctrine of forum non conveniens. After applying that doctrine, ...