Jenkins v. Smith, 83-679.

Citation535 A.2d 1367
Case DateOctober 21, 1985
CourtCourt of Appeals of Columbia District

Craig N. Goodrich, with whom Lee Calligaro, James C. Fontana, Washington, D.C., and Barry S. Landsberg, Los Angeles, Cal., were on brief, for appellants.

Hugh B. Gordon, with whom C. Alexander Hewes, Jr., Washington, D.C., was on brief, for appellees. William F. Causey, Rockville, Md., also entered an appearance for appellees.

Before PRYOR, Chief Judge, MACK, NEWMAN, FERREN, BELSON, TERRY, ROGERS, and STEADMAN, Associate Judges, and NEBEKER, Associate Judge, Retired.*


This is an appeal from an order of the Superior Court denying a motion to dismiss a civil action on the ground of forum non conveniens. The case was originally argued before a division comprised of Judges Newman, Terry, and Rogers. Thereafter the court sua sponte ordered the case to be reheard en banc and requested counsel, in supplemental memoranda and at oral argument, to address the question of whether the holding in Frost v. Peoples Drug Store, Inc., 327 A.2d 810, 812-813 (D.C. 1974), should be overruled. That holding permits an interlocutory appeal to be taken from a trial court order denying a motion to dismiss on the ground of forum non conveniens.

In a per curiam opinion, Jenkins v. Smith, 499 A.2d 128 (D.C. 1985) (en banc), this court unanimously affirmed the denial of the motion to dismiss. In addition, a majority of the court concluded that Frost should not be overruled and reaffirmed the holding in that case. Four judges dissented from the latter ruling. The court said then that one or more opinions would be issued at a later date.

In part I of Judge Terry's opinion which follows, the court sets forth its reasons for affirming the order of the Superior Court from which this appeal is taken. In part II of his opinion, Judge Terry, joined by three other judges (a minority of the en banc court), dissents from the refusal to overrule Frost. Thus the per curiam opinion, 499 A.2d 128, and part I of Judge Terry's opinion, infra, together constitute the opinion of the court.


TERRY, Associate Judge:

This action arose from the sale of a parcel of land in Ocean City, Maryland, to a limited partnership, several of whose members are parties to this appeal. Appellees, three limited partners, sued the three general partners, two of whom are appellants here,1 for breaches of common-law and statutory fiduciary duty, misrepresentation, fraud, conversion, and conspiracy. In their complaint they alleged that, after they had invested in the partnership on the basis of representations that the property would cost $400,000, a corporation controlled by appellant Jenkins secretly purchased the property for $300,000 and resold it to the partnership, dividing the $100,000 profit among the three general partners. After we reversed the trial court's dismissal of the complaint for lack of personal jurisdiction, Smith v. Jenkins, 452 A.2d 333 (D.C. 1982), appellants moved for dismissal on the ground of forum non conveniens. They now appeal from the denial of that motion. Finding no abuse of discretion by the trial court, we affirm its ruling.

A. The Pertinent Facts

Although appellees are all residents of the Washington area, only Hugh Smith actually lives in the District of Columbia; Alexander Hewes resides in McLean, Virginia, and Augmentation, Inc., is a Maryland corporation with its headquarters in Silver Spring, Maryland. Both appellants are Maryland residents. The partnership was formed in Maryland to purchase and develop the Ocean City property.

Appellants asserted below that "virtually all" of the witnesses at trial would be residents of the Eastern Shore of Maryland, "beyond the compulsory process of the court."2 They argued that Maryland law would govern the entire action because the partnership agreement stated that Maryland law would control any disputes arising from it, and that the District of Columbia had no interest in providing a forum for the litigants. Finally, they maintained that appellees' interests were already represented in a related Maryland lawsuit, in which their successor as general partner had filed a counterclaim against these appellants for breach of fiduciary duty, seeking to recover the same $100,000 profit involved here.3

Appellees disputed appellants' assertion concerning witness availability. They stated that all seven of their own witnesses had agreed to testify in the District of Columbia, and that only two were Maryland residents. They pointed out that the District of Columbia was the site of some of the alleged tortious conduct: co-defendant Bounds had entered the District to interest them in investing, and it was here that they purchased their shares and signed the partnership agreement. Thus they argued that, except for the counts alleging a breach of fiduciary duty, their claims would be governed by the law of the District of Columbia, not Maryland. Appellees also questioned Maryland's availability as an alternative forum. They noted that they were not parties to the suit filed in Wicomico County, and suggested also that the new general partner might not have standing to assert his counterclaim. Further, they contended that Maryland's statute of limitations barred an action of their own there.4

The trial judge denied the motion to dismiss. He found that a Maryland court would enjoy no advantage over a District of Columbia court in procuring witnesses. Moreover, since some of the alleged torts took place here and one of the plaintiffs (appellee Smith) was a District resident, he held that it was "not unreasonable" for the District to bear the expense of adjudicating their rights.5

B. The Applicable Law

Our starting point in any discussion of forum non conveniens in the District of Columbia is the governing statute. D.C. Code § 13-425 (1981) provides:

When any District of Columbia court finds that in the interest of substantial justice the action should be heard in an-other forum, the court may stay or dismiss such civil action in whole or in part on any conditions that may be just.

Under this statute, it is up to the court initially to determine whether "in the interest of substantial justice" the case should be heard elsewhere. If it so determines, the court in its discretion may stay or dismiss the action. We have repeatedly held that trial court rulings on forum non conveniens motions are entitled to receive considerable deference from this court. We will not reverse such a ruling unless presented with clear evidence that the trial court abused its broad discretion. E.g., Asch v. Taveres, 467 A.2d 976, 978 (D.C. 1983); Cockrell v. Cumberland Corp., 458 A.2d 716, 718 (D.C. 1983); Carr v. Bio-Medical Applications of Washington, Inc., 366 A.2d 1089, 1091-1092 (D.C. 1976). This deference, however, does not amount to carte blanche. Unlike our review of most acts of judicial discretion, see Johnson v. United States, 398 A.2d 354, 363-367 (D.C. 1979), our review of rulings on forum non conveniens motions includes an independent evaluation of the "private" and "public" factors enumerated in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-509, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947). See, e.g., Asch v. Taveres, supra, 467 A.2d at 979; Mobley v. Southern Ry., 418 A.2d 1044, 1048-1049 (D.C. 1980); Washington v. May Department Stores, 388 A.2d 484, 487 (D.C. 1978); Carr v. Bio-Medical Applications of Washington, Inc., supra, 366 A.2d at 1092-1093. The private factors include potential obstacles to a fair trial, including the relative ease of access to proof, the availability and cost of compulsory process, the enforceability of any judgment obtained, and evidence of vexatiousness or harassment. Gulf Oil Corp. v. Gilbert, supra, 330 U.S. at 508, 67 S.Ct. at 843; Carr v. Bio-Medical Applications of Washington, Inc., supra, 366 A.2d at 1092. The public factors are those affecting the District's own interests, including the congestion of its court dockets with foreign litigation, the imposition of jury duty on District residents for litigation in which the District has no concern, and the inappropriateness of calling on District of Columbia courts to construe the law of another jurisdiction. Gulf Oil Corp. v. Gilbert, supra, 330 U.S. at 508-509, 67 S.Ct. at 843; Carr v. Bio-Medical Applications of Washington, Inc., supra, 366 A.2d at 1092; cf. Kaiser-Georgetown Community Health Plan, Inc. v. Stutsman, 491 A.2d 502, 509-510 (D.C. 1985) (comparison of governmental interests may affect choice-of-law decision)

Another important factor, with ramifications both private and public, is the residence of the plaintiff. See Washington v. May Department Stores, supra, 388 A.2d at 486. In any case the plaintiff's choice of forum should ordinarily be honored. Gulf Oil, supra, 330 U.S. at 508, 67 S.Ct. at 843; Asch v. Taveres, supra, 467 A.2d at 978; Washington v. May Department Stores, supra, 388 A.2d at 486. When the plaintiff is a resident of this jurisdiction, the defendant who seeks dismissal faces a heavy task: "only under convincing circumstances . . . should a trial court in this jurisdiction dismiss on grounds of forum non conveniens a suit brought by a resident of the District of Columbia." Washington v. May Department Stores, supra, 388 A.2d at 487; accord, Asch v. Taveres, supra, 467 A.2d at 979.

It should come as no surprise, given the trial court's broad discretion, that only rarely have we reversed rulings either way on forum non conveniens motions, even though such rulings receive closer scrutiny than most exercises of trial court discretion. Indeed, only once in the last thirteen years, in District-Realty Title Insurance Corp. v. Goodrich, 328 A.2d 93 (D.C. 1974), has this court reversed the denial of such a...

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  • Atkins v. Indus. Telecommunications Ass'n, 93-CV-1101.
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    ...substantial questions of foreign law which might better be decided in the jurisdiction whose law is being applied. See Jenkins v. Smith, 535 A.2d 1367, 1369 (D.C.1987). Here the trial court, in resolving the Rule 12(b)(6) and the Rule 56 motions, was required to apply Virginia law on each o......
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    ...(citing Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949)). See also Jenkins v. Smith, 535 A.2d 1367 (D.C.1987) (en banc) (affirming Frost v. People's Drug Store, Inc., 327 A.2d 810, 812 (D.C.1974) (interlocutory appeal from denial of motion......
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    ... ... 1528 (1949) ... The full court reaffirmed that holding in 1985 by a five to four margin in Jenkins v. Smith, 499 A.2d 128 (D.C.1985) (en banc) (per curiam); see also Jenkins v. Smith, 535 A.2d ... ...
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