Mills v. Aetna Fire Underwriters Insurance Company

• Decision Date: 11 June 1986
• Docket Number: No. 84-1439.,84-1439.
• Citation: 511 A.2d 8
• Parties: Marguerite C. MILLS, Appellant, v. AETNA FIRE UNDERWRITERS INSURANCE COMPANY, Appellee.
• Court: D.C. Court of Appeals

511 A.2d 8

Marguerite C. MILLS, Appellant, v. AETNA FIRE UNDERWRITERS INSURANCE COMPANY, Appellee.

No. 84-1439.

District of Columbia Court of Appeals.

Argued June 27, 1985.

Decided June 11, 1986.

Thersa M. Butler, with whom Arthur V. Butler, Wheaton, Md., was on brief, for appellant.

Theresa E. Cummins, for appellee.

Before MACK, BELSON, and ROGERS, Associate Judges.

BELSON, Associate Judge:

Appellant asserts that the trial judge abused his discretion in granting appellee's motion to dismiss her complaint on the ground of forum non conveniens and denying her motion for reconsideration. We are satisfied that if appellant has another jurisdiction in which to press her complaint, the balance of relevant factors clearly favors dismissal; therefore, we perceive no abuse of discretion by the trial court so long as that condition is satisfied. It is not clear, however, whether there is an alternative forum in which appellant may maintain her action. Therefore, we conclude that only a conditional dismissal is appropriate here. We vacate the order of dismissal and remand for further proceedings.

Appellant, Marguerite C. Mills, resided in Fredericksburg, Virginia, and owned a retail shoe store there. Mills entered into a commercial multiperil insurance contract in Virginia, written through an insurance agency located in Fredericksburg. The insurance policy was issued on December 15, 1977, for a term of 3 years, by appellee, Aetna Fire Underwriters Insurance Company (Aetna), a Connecticut corporation licensed to do business in Virginia and the District of Columbia.

On September 26, 1978, a fire broke out in a building adjoining Mills' store. Her store sustained fire and smoke damage. Mills submitted a claim in Virginia to Aetna for recovery of her loss. A dispute arose between the parties, however, about the monetary value of the loss.

Mills commenced this civil action on September 3, 1981, by filing a complaint against Aetna alleging breach of contract for failure to compensate her adequately for the damages to her store. Aetna moved to dismiss on the grounds of lack of personal jurisdiction and forum non conveniens. Judge Mencher conducted a hearing on the motion. He refused to dismiss the action for lack of personal jurisdiction. As to forum non conveniens, Judge Mencher described this as "a classic case and it doesn't belong in this court. . . ." He stated to Aetna's counsel that "I'd be glad to defer ruling on that to find out from your office whether or not you will waive any [s]tatute of [l]imitations problems," that might arise should Mills commence an action in Virginia. Aetna's counsel replied that "Aetna has no argument about defending this case[;] it's just legal costs to bring the whole case in the District of Columbia. . . ." She said that she would recommend Aetna waive the time bar and concluded: "I know what their position is, they have no reason to cut off this woman's claim." Judge Mencher then ruled that the motion for dismissal on the basis of forum non conveniens "is held in abeyance pending further notification of counsel."

More than 7 months later, Aetna again moved to dismiss for forum non conveniens. The motion made no mention of the "further notification" requested by Judge Mencher. After Mills submitted an opposition, Judge Murphy granted the motion.¹ Mills' subsequent motion for reconsideration and for vacation of the order of dismissal was denied without a hearing by Judge Murphy.² This appeal followed.³

I

We begin with a brief discussion of the doctrine of forum non conveniens. The decision whether to entertain an action or to dismiss it on the ground of forum non conveniens is entrusted to the sound discretion of the trial court and will be reversed on appeal only upon a clear showing of abuse of discretion. Forgotson v. Shea, 491 A.2d 523, 526 (D.C. 1985); DeMontmorin v. DuPont, 484 A.2d 582, 584 (D.C. 1984) (quoting Asch v. Taveres, 467 A.2d 976, 978 (D.C. 1983)); Arthur v. Arthur, 452 A.2d 160, 161 (D.C. 1982), and cases cited therein; Walsh v. Crescent Hill Co., 134 A.2d 653, 654, 656 (D.C. 1957); accord Piper Aircraft v. Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 266, 70 L.Ed.2d 419 (1981).

Trial court discretion is to be guided by enumerated "private interest factors" affecting the convenience of the litigants and "public interest factors" affecting the convenience of the forum. Piper, 454 U.S. at 241, 102 S.Ct. at 258 (citing Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 508-09, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947)). Factors relevant to the private interests of the litigants include: (1) the relative ease of access to sources of proof; (2) the availability of compulsory process for attendance of unwilling witnesses; (3) the cost of obtaining attendance of willing witnesses; (4) the possibility of viewing premises, if view would be appropriate to the action; (5) all other practical problems concerning the ease, expedition and expense of the trial; (6) the enforceability of a judgment once obtained; (7) evidence that the plaintiff attempted to vex, harass or oppress the defendant by his choice of forum, and (8) the relative advantages and obstacles to fair trial. Gilbert, 330 U.S. at 508, 67 S.Ct. at 843. Factors pertaining to the public interest include: (1) administrative difficulties caused by local court dockets congested with foreign litigation; (2) the local interest in having localized controversies decided at home; (3) the unfairness of imposing the burden of jury duty on the citizens of a forum having no relation to the litigation, and (4) the avoidance of unnecessary problems in conflict of laws and in the interpretation of the laws of another jurisdiction. Id., 330 U.S. at 508-09, 67 S.Ct. at 843. This court has long recognized the applicability of this list of factors. Carr v. Biomedical Applications of Washington, Inc., 366 A.2d 1089, 1092 (D.C. 1976).

A defendant who invokes the doctrine of forum non conveniens bears the burden of establishing a case for dismissal. Crown Oil & Wax Co. v. Safeco Insurance Co., 429 A.2d 1376, 1380 (D.C. 1981). As the Supreme Court explained in Gilbert, "unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed." 330 U.S. at 508, 67 S.Ct. at 843; accord, e.g., Forgotson, 491 A.2d at 526; DeMontmorin, 484 A.2d at 584; Asch, 467 A.2d at 978; Crown, 429 A.2d at 1380.

Defendants' burden, though onerous, is not insuperable. "[T]he trial court need not always respect a plaintiff's choice of forum." Consumer Federation of America v. Upjohn Co., 346 A.2d 725, 730 (D.C. 1975); District-Realty Title Insurance Corp. v. Goodrich, 328 A.2d 93, 95 (D.C. 1974) (citing Gilbert, 330 U.S. at 507, 67 S.Ct. at 842); Walsh, 134 A.2d at 654.

"[W]e have always considered important in determining the propriety of dismissal on forum non conveniens grounds whether the plaintiff is a resident of the District of Columbia." Washington v. May Department Stores. 388 A.2d 484, 486 (D.C. 1978). The strong presumption favoring plaintiff's choice of forum is even stronger when he is a District of Columbia resident. Id. When the plaintiff is from another jurisdiction, however, it is much less reasonable to assume that his choice of a District of Columbia forum is convenient. Cf. Piper, 454 U.S. at 256, 102 S.Ct. at 266 (discussing foreign plaintiffs in United States federal courts). Accordingly, such plaintiff's choice deserves less deference. Id. This is especially so where the defendant as well does not reside in the District of Columbia. See Curley v. Curley, 74 U.S. App.D.C. 163, 165, 120 F.2d 730, 732 (D.C. 1941) (District of Columbia courts are not required to take jurisdiction over matrimonial disputes when neither party is a domiciliary or resident of the District), cert. denied, 314 U.S. 614, 62 S.Ct. 114, 86 L.Ed. 494 (1941); accord Asch, 467 A.2d at 978; Haynes v. Carr, 379 A.2d 1178, 1180 (D.C. 1977) (per curiam); Clark v. Clark, 144 A.2d 919, 920 (D.C. 1958).

Where it is shown that neither party resides in the District and the plaintiff's claim has arisen in another jurisdiction which has more substantial contacts with the cause of action, the burden normally allocated to the defendant to demonstrate why dismissal is warranted for forum non conveniens rests instead upon the plaintiff to show why it is not. Nee v. Dillon, 99 U.S.App.D.C. 332, 239 F.2d 953 (1956) (District of Columbia courts should inquire why forum non conveniens should not be applied in cases, such as Nee, where the parties were not residents of the District of Columbia, the real property at issue was not located in the District, District law did not govern, and most witnesses were not District residents). In a similar vein, the District of Columbia Circuit has noted with respect to litigation growing out of an accident occurring in Norway:

At the least, a plaintiff who chooses [a competent but clearly inappropriate forum in which to bring suit] should be required to show some reasonable justification for his institution of the action in the forum state rather than in a state with which the defendant or the res, act or event in suit is more significantly connected.

Pain v. United Technologies Corp., 205 U.S.App.D.C. 229, 238, 637 F.2d 775, 784 (1980) (quoting Ginsburg, The Competent Court in Private International Law: Some Observations on Current View in the United States, 20 RUTGERS L.REV., 89, 100 (1965)) (emphasis added in Pain), cert. denied, 454 U.S. 1128, 102 S.Ct. 980, 71 L.Ed.2d 116 (1981).

In similar situations, this court has consistently followed the approach taken by the District of Columbia Circuit, often leading to dismissals of suits based on forum non conveniens.⁴ Moreover, in actions involving nonresident plaintiffs bringing claims arising outside the District of Columbia, this court has emphasized the decisiveness of the public interest in reducing the volume of cases on our overcrowed court ...