Gardner v. Norfolk and Western Ry. Co.

Decision Date07 July 1988
Docket NumberNo. CC977,CC977
Citation372 S.E.2d 786,179 W.Va. 724
PartiesJohn E. GARDNER, et al. v. NORFOLK AND WESTERN RAILWAY COMPANY, A Foreign Corporation.
CourtWest Virginia Supreme Court

Syllabus by the Court

The common-law principle of forum non conveniens and the similar state statute on removal of civil proceedings, W.Va.Code, 56-9-1 [1939], are not applicable to actions brought in the courts of this State under the Federal Employers' Liability Act, 45 U.S.C. §§ 51-60, as amended, in light of the strong policy favoring the plaintiffs' choice of forum in such cases and in light of the strong policy of W.Va. Const. art. III, § 17 providing access to the courts of this State.

Jeremy C. McCamic, Charleston, Paul L. Pratt, East Alton, Ill., for Gardner et al.

John C. Palmer, IV, Charleston, Cathy M. Armstrong, Wheeling, for Norfolk and Western Ry. Co.

McHUGH, Chief Justice:

This case is before this Court upon certified questions from the Circuit Court of Brooke County, West Virginia ("the trial court"). 1 We have reviewed the petition, the trial court's rulings on the certified questions and the briefs and oral argument of counsel. We affirm in part, reverse in part and remand for further proceedings.

I

The plaintiffs below are 103 employees of the defendant railroad, Norfolk and Western Railway Company ("N & W"), a foreign corporation qualified to do business in this State. N & W is incorporated under the laws of the Commonwealth of Virginia and its principal office is located in Roanoke, Virginia. Its chief officer and other officers reside in Virginia. N & W is a wholly owned subsidiary of Norfolk Southern Corporation, also a Virginia corporation. N & W owns 184 acres of land in Brooke County, West Virginia, over which it operates one of its main east-west lines, with the daily passage of its trains. N & W thus admits that it does business in Brooke County, West Virginia, one of the northern counties of this State. It also has facilities in some of the southern counties of this State and in other states.

Sixty of the plaintiffs are nonresidents of West Virginia. Forty-three of the plaintiffs are residents of West Virginia. The resident plaintiffs reside in southern counties of this State, namely, Mercer, McDowell, Mingo, Logan and Wayne Counties. All of the plaintiffs have sustained either traumatic injuries, such as orthopedic injuries, or moderate to severe occupational hearing loss. These injuries allegedly occurred while the plaintiffs were performing their duties as employees of N & W. 2 With respect to the claims involving hearing loss, both the resident and nonresident plaintiffs have been exposed throughout their employment with N & W to high level noise pollution from various track machinery, apparently inside and outside West Virginia, although the situs of these injuries is not presently known. The plaintiffs do not allege that they have been exposed to noise pollution in Brooke County, West Virginia. With respect to the claims involving traumatic injuries, nearly all of such injuries occurred outside West Virginia. At least one of the nonresident plaintiffs sustained a traumatic injury in McDowell County, West Virginia, one of the southern counties of this State. None of the traumatic injuries were sustained in Brooke County, West Virginia.

None of the fact witnesses or expert witnesses reside in Brooke County, West Virginia. Some of the expert witnesses reside in other counties of West Virginia, for example, Ohio and Kanawha Counties. N & W has a rule of employment which requires coemployees, who would be fact witnesses, to attend court at the direction and expense of N & W. 3

The plaintiffs brought their actions in the Circuit Court of Brooke County, West Virginia, under the provisions of the Federal Employers' Liability Act ("the FELA"), specifically, 45 U.S.C. § 56 (1982), which provides that a FELA case may be brought, among other places, in a federal or state court in any federal district in which the defendant is doing business. 4

The defendant moved to dismiss the actions on the ground of forum non conveniens. The trial court, requiring a "reasonable relationship" to be shown so as to maintain the actions in Brooke County, denied the motion to dismiss the actions with respect to those cases in which the plaintiffs were residents of West Virginia but granted the motion to dismiss the actions with respect to those cases in which the plaintiffs were not residents of West Virginia at the time the actions were filed. The trial court, without stating its reasons on the record, subsequently denied the defendant's motion, under W.Va.Code, 56-9-1 [1939], to transfer the actions of the West Virginia residents to the circuit courts of the counties in which those plaintiffs resided. 5

Finally, the trial court, upon motion of the parties, certified questions to this Court concerning (1) the applicability to FELA cases of the common-law principle of dismissing a case because of the selection of a forum non conveniens (an inconvenient forum) and (2) the propriety in FELA cases of transferring venue intrastate under a state statute. 6

We agree with the trial court that the FELA actions of the West Virginia residents should not have been dismissed and that their actions should not have been transferred to the circuit courts of the counties in which those plaintiffs resided at the time the actions were brought. We disagree with the trial court's ruling that the FELA actions of the nonresident plaintiffs should have been dismissed. In short, all of the actions should be heard by the Circuit Court of Brooke County, West Virginia.

II
A.

Originally, the venue of an action under the Federal Employers' Liability Act ("the FELA"), 45 U.S.C. §§ 51-60 (1982), was limited by a general federal venue statute to the federal district(s) in which the defendant was an "inhabitant." Baltimore & O.R.R. v. Kepner, 314 U.S. 44, 49, 62 S.Ct. 6, 8, 86 L.Ed. 28, 31 (1941). Since 1910, a special federal venue statute for FELA actions, now codified as 45 U.S.C. § 56 (1982), see supra note 4, provides for venue in a federal or state court in the federal district(s) in which (1) the defendant resides, or (2) does business or (3) the cause of action arose. Thus, a FELA action is without question transitory. The language of the special federal venue statute for FELA actions was deliberately chosen to enable the plaintiff to bring a FELA action against the defendant at any place in any state where the defendant is actually carrying on business, if the plaintiff chooses to file his action there. Id. at 50, 62 S.Ct. at 8, 86 L.Ed. at 31-32.

In 1947, Congress rejected a proposed amendment to the FELA venue statute which would have limited venue to the federal district(s) in which the plaintiff resided or in which the cause of action arose; under this rejected amendment, only if process could not be served in either of the above places could an action be brought where the defendant was doing business.

The Supreme Court of the United States has stated: "The right to select the forum granted in [45 U.S.C. § 56] is a substantial right." Boyd v. Grand Trunk W.R.R., 338 U.S. 263, 266, 70 S.Ct. 26, 28, 94 L.Ed. 55, 58 (1949). 7

In Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), the leading case on forum non conveniens, but not involving a FELA action, the court made this remark:

It is true that in cases under the Federal Employers' Liability Act we have held that plaintiff's choice of a forum cannot be defeated on the basis of forum non conveniens. But this was because the special venue act under which those cases are brought was believed to require it.

330 U.S. at 505, 67 S.Ct. at 841, 91 L.Ed. at 1061, citing Kepner and Miles, see supra note 7, which actually involved collateral attacks on venue by seeking injunctions from other courts. Moreover, transfers of FELA actions may now be made in federal courts under 28 U.S.C. § 1404(a), enacted in 1948, after Gilbert.

In contrast to this dictum in Gilbert are the holdings in two FELA cases, namely, Douglas v. New York, N.H. & H.R.R., 279 U.S. 377, 49 S.Ct. 355, 73 L.Ed. 747 (1929), and Missouri ex rel. Southern Ry. v. Mayfield, 340 U.S. 1, 71 S.Ct. 1, 95 L.Ed. 3 (1950). In Douglas, Mr. Justice Holmes, writing for the court, held that the FELA "does not purport to require State Courts to entertain suits arising under it, but only to empower them to do so, so far as the authority of the United States is concerned." 279 U.S. at 387, 49 S.Ct. at 356, 73 L.Ed. at 752. "[T]here is nothing in the Act of Congress that purports to force a duty upon such [state] Courts [to entertain FELA actions] as against an otherwise valid excuse [, such as a state statute construed to allow a court to dismiss, under the principle of forum non conveniens, any foreign cause of action against a foreign corporation brought by any nonresident or by another foreign corporation]." Id. at 388, 49 S.Ct. at 356, 73 L.Ed. at 752.

The Douglas court also held that a state, with respect to access to its courts, may, without offending the privileges-and-immunities clause, distinguish between residents and nonresidents, as long as nonresident citizens of the state and nonresident noncitizens are treated the same. 8 "A distinction of privileges according to residence [as opposed to citizenship] may be based upon rational considerations.... There are manifest reasons for preferring residents in access to often overcrowded Courts, both in convenience and in the fact that broadly speaking it is they who pay for maintaining the Courts concerned." Id. at 387, 49 S.Ct. at 356, 73 L.Ed. at 752.

In Mayfield, Mr. Justice Frankfurter, writing for the court, held that "neither of these cases [Kepner and Miles, see supra note 7] limited the power of a State to deny access to its courts to persons seeking recovery...

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