In re General Elec. Co.
| Decision Date | 05 December 2008 |
| Docket Number | No. 07-0195.,07-0195. |
| Citation | 271 S.W.3d 681 |
| Parties | In re GENERAL ELECTRIC COMPANY, et al., Relators. |
| Court | Texas Supreme Court |
Greg White, Naman, Howell, Smith & Lee LLP, Waco, TX, for Amicus Curiae-Goulds Pumps.
Michael John Ramirez, Kirkpatrick & Lockhart Preston Gates Ellis LLP, Dallas, TX, for Amicus Curiae-Crane Co.
Manuel Lopez, Shook, Hardy & Bacon, L.L.P., Houston, TX, for Amicus Curiae.
Although Austin Richards never lived or worked in Texas, he sued numerous defendants in Dallas County as a result of alleged exposure to asbestos at his jobsite in Maine. He alleged that he developed mesothelioma as a result of the exposure and that the defendants were liable to him because they produced or were involved in furnishing the asbestos. Several defendants moved for dismissal on the basis of forum non conveniens. The trial court denied the motions. At issue in this mandamus proceeding is whether the trial court abused its discretion by denying the defendants' motions to dismiss. We conclude that it did and conditionally grant mandamus relief.
Aside from a period of military service, Austin Richards lived in Maine his entire life. He worked in Maine for over thirty years as a mason handling pipe-covering insulation. In December 2005, he was diagnosed with mesothelioma. Richards1 and his wife (collectively "Richards") filed suit in Dallas County against General Electric and over twenty other companies, three of which are headquartered in Texas. Richards alleged that the defendants mined, processed, manufactured, sold, or distributed asbestos which caused or contributed to his disease. The case was transferred to the asbestos multi-district litigation court in Harris County. See TEX.R. JUD. ADMIN. 13.
Seven defendants moved for dismissal of Richards's suit based on forum non conveniens. See TEX. CIV. PRAC. & REM.CODE § 71.051. They argued that the suit had no connection to Texas and that Maine was an adequate alternative forum for the case. Richards responded that the trial court should deny the motions to dismiss because the defendants had not met their burden of proof regarding the section 71.051 factors. He especially emphasized that the defendants had not proved the existence of an adequate alternative forum in which the claim could be tried. Richards asserted that if his case were dismissed and he refiled in Maine, the case would be vulnerable to removal to federal court and if removed, it would be transferred to the federal Multi-District Litigation Court No. 875 (MDL 875) for pretrial proceedings. See In re Asbestos Prods. Liab. Litig., 771 F.Supp. 415, 422-24 (J.P.M.L.1991). Richards further argued that cases transferred to MDL 875 do not get tried and "virtually nothing happens to them at all." Richards urged that he was seriously ill from his disease and that if the Texas trial court declined to exercise jurisdiction, MDL 875 would not be adequate because he would not survive long enough to have his case tried.
At the hearing on the motion to dismiss, the judge asked whether the defendants would agree that they would not attempt to remove the case to federal court if he granted the motion to dismiss. Several defendants, including General Electric, did not agree to waive their removal rights. The judge sent a letter to the parties indicating that he would deny the motion to dismiss and expressing concern that if he granted the motion and the case were refiled in Maine, it would be removed to federal court and transferred to MDL 875 where it would "sit ... for several years." The judge wrote that his ruling on the motion might have been different if the defendants had waived their right of removal.
The defendants filed a motion to reconsider. They asserted that even if their motions to dismiss were granted and Richards refiled his case in Maine, removal to federal court was speculative, the criticisms of MDL 875 were unfounded as recent activity there refuted any argument that it did not provide an adequate remedy, and the court's ruling should not depend on the defendants' waiver of their removal rights. After another hearing, the trial court granted the motion to reconsider, set aside the letter in which he stated the grounds for his previous ruling, and denied the motion to dismiss without stating a reason.
Three defendants—General Electric, Warren Pumps, and Ingersoll-Rand (defendants)—seek mandamus relief directing the trial court to grant their motions to dismiss. They argue that on this record, the statutory forum non conveniens factors require dismissal.
After the parties submitted briefs in this case, we held that an adequate remedy by appeal does not exist when a motion to dismiss for forum non conveniens is erroneously denied. See In re Pirelli Tire, L.L.C., 247 S.W.3d 670, 679 (Tex.2007). Accordingly, mandamus relief is available in this case, if warranted. Id.
The defendants claim that the trial court had no discretion but to apply the factors found in the forum non conveniens statute and dismiss Richards's claim because those factors weigh in favor of a forum other than Texas. Richards argues that even considering the statutory factors, the trial court had discretion to determine whether a forum non conveniens dismissal would serve the interest of justice, which in this case it would not.
We review a trial court's decision about whether to dismiss a case on forum non conveniens grounds for an abuse of discretion. A court abuses its discretion if its decision is arbitrary, unreasonable, or without reference to guiding principles. In re Pirelli, 247 S.W.3d at 676.
The applicable forum non conveniens statute provides:
If a court of this state, on written motion of a party, finds that in the interest of justice and for the convenience of the parties a claim or action to which this section applies would be more properly heard in a forum outside this state, the court shall decline to exercise jurisdiction under the doctrine of forum non conveniens and shall stay or dismiss the claim or action. In determining whether to grant a motion to stay or dismiss an action under the doctrine of forum non conveniens, the court shall consider whether:
(1) an alternate forum exists in which the claim or action may be tried;
(2) the alternate forum provides an adequate remedy;
(3) maintenance of the claim or action in the courts of this state would work a substantial injustice to the moving party (4) the alternate forum, as a result of the submission of the parties or otherwise, can exercise jurisdiction over all the defendants properly joined to the plaintiff's claim;
(5) the balance of the private interests of the parties and the public interest of the state predominate in favor of the claim or action being brought in an alternate forum, which shall include consideration of the extent to which an injury or death resulted from acts or omissions that occurred in this state; and
(6) the stay or dismissal would not result in unreasonable duplication or proliferation of litigation.
TEX. CIV. PRAC. & REM.CODE § 71.051(b).
Prior to 2003, section 71.051 provided that a case brought by a United States resident "may" be stayed or dismissed under the doctrine of forum non conveniens. See Act of May 27, 1997, 75th Leg., R.S., ch. 424, § 1, 1997 Tex. Gen. Laws 1680. In 2003, the Legislature amended the statute. Among other changes, the amended statute provided that a trial court "shall" dismiss a claim or action if the court found that in the interest of justice and for the convenience of the parties a claim or action would be more properly heard in a forum outside Texas. Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 3.04, 2003 Tex. Gen. Laws 847, 854. Before the 2005 amendments the statute also provided that when determining whether to dismiss an action based on forum non conveniens, a trial court "may" consider the factors specified in section 71.051(b). Id. In 2005, the Legislature amended the statute to its current form. Act of May 30, 2005, 79th Leg., R.S., ch. 248, § 1, 2005 Tex. Gen. Laws 448. It now provides that when determining whether to dismiss an action based on forum non conveniens, a trial court "shall" consider the factors specified in section 71.051(b).
The defendants claim that the amended statute takes away much of a trial court's discretion in regard to forum non conveniens...
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