Norfolk and Western Ry. Co. v. Tsapis, No. 19788

• Court: Supreme Court of West Virginia
• Writing for the Court: MILLER
• Citation: 400 S.E.2d 239,184 W.Va. 231
• Decision Date: 06 December 1990
• Docket Number: No. 19788
• Parties: NORFOLK AND WESTERN RAILWAY COMPANY, a Corporation v. Honorable Callie TSAPIS, Judge of the Circuit Court of Brooke County.

Page 239

400 S.E.2d 239 184 W.Va. 231 NORFOLK AND WESTERN RAILWAY COMPANY, a Corporation
v.
Honorable Callie TSAPIS, Judge of the Circuit Court of Brooke County. No. 19788. Supreme Court of Appeals of
West Virginia. Dec. 6, 1990.

Page 240

[184 W.Va. 232] Syllabus by the Court

1. The common law doctrine of forum non conveniens is simply that a court may, in its sound discretion, decline to exercise jurisdiction to promote the convenience of witnesses and the ends of justice, even when jurisdiction and venue are authorized by the letter of a statute.

2. The common law principle of forum non conveniens is applicable only if, as a threshold matter, the forum court has jurisdiction and venue is proper under the statute. It presupposes at least two forums in which the defendant is amenable to process; the doctrine furnishes criteria for choice between them.

3. The common law doctrine of forum non conveniens is available to courts of record in this State. The doctrine accords a preference to the plaintiff's choice of forum, but the defendant may overcome this preference by demonstrating that the forum has only a slight nexus to the subject matter of the suit and that another available forum exists which would enable the case to be tried substantially more inexpensively and expeditiously. To the extent that Gardner v. Norfolk & Western Railway Co., 179 W.Va. 724, 372 S.E.2d 786 (1988), cert. denied, 489 U.S. 1016, 109 S.Ct. 1132, 103 L.Ed.2d 193, (1989), declined to apply this doctrine, it is overruled.

4. The doctrine of forum non conveniens is not triggered if there is no other available forum. Unavailability is brought about if the statute of limitations precludes the institution of another suit in another forum.

5. As a means of avoiding the statute of limitations problem, a trial court can, as a condition of dismissing a case, require the defendant to agree not to raise the defense of the statute of limitations when suit is filed in the alternative jurisdiction.

Fred Adkins and Luke A. Lafferre, Huddleston, Bolen, Beatty, Porter & Copen,

Page 241

[184 W.Va. 233] Huntington, for Norfolk & Western Ry. Co.

Jay T. McCamic, McCamic & McCamic, Wheeling, for Honorable Callie Tsapis.

MILLER, Justice:

In this original proceeding in prohibition, we are asked to reconsider that portion of our holding in Gardner v. Norfolk & Western Railway Co., 179 W.Va. 724, 372 S.E.2d 786 (1988), cert. denied, 489 U.S. 1016, 109 S.Ct. 1132, 103 L.Ed.2d 193 (1989), in which we declined to apply the doctrine of forum non conveniens to cases brought under the Federal Employers' Liability Act (FELA), 45 U.S.C. §§ 51-60. ¹

In Gardner, there were 103 FELA cases filed against the relator, the Norfolk and Western Railway Company, in the Circuit Court of Brooke County. Forty-three of the plaintiffs were West Virginia residents, and the remaining sixty were nonresidents. The relator asserts that since that time an additional 818 cases have been filed in the Circuit Court of Brooke County involving 174 West Virginia plaintiffs and 644 nonresident plaintiffs.

In December of 1989, the relator filed with the circuit court motions to dismiss the litigation involving nonresident plaintiffs and motions to transfer the cases of certain resident plaintiffs to other circuit courts. In the alternative, the relator moved to certify a number of questions to this Court in light of our decision in Gardner. After hearing the arguments of counsel, the circuit court, by orders dated August 1, 1990, denied the motions. The relator subsequently instituted this proceeding in prohibition.

In Gardner, we recognized that the liberal venue provisions of 45 U.S.C. § 56 enable FELA suits to be brought in any county where the defendant does business. ² Because the relator operates a portion of its railroad in Brooke County, it admitted in Gardner that it was subject to suit in Brooke County.

In Gardner, we traced in some detail the history of the FELA venue provisions. We also discussed the impact of several United States Supreme Court cases ³ dealing with the interrelationship of the Privileges and Immunities Clause of the United States Constitution ⁴ and the doctrine of forum non conveniens. In Gardner, we came to this conclusion regarding the availability of the doctrine in FELA cases:

"Relying upon Douglas [v. New York, N.H. & H.R.R. Co., 279 U.S. 377, 49 S.Ct. 355, 73 L.Ed. 747 (1929) ], the [Missouri ex rel. Southern Ry. Co. v.] Mayfield, [340 U.S. 1, 71 S.Ct. 1, 95 L.Ed. 3 (1950) ] court held that the states were not precluded from applying the principle of forum non conveniens to FELA actions merely because the FELA empowers state courts to entertain suits arising under it. Instead, '[a]ccording to its own notions of procedural policy, a State may reject, as it may accept, the doctrine [of forum non conveniens ] for all causes of action begun in its courts.' Id.

Page 242

[184 W.Va. 234] at 3, 71 S.Ct. at 2, 95 L.Ed. at 7 (emphasis added)." 179 W.Va. at 729, 372 S.E.2d at 791. (Emphasis in original).

A number of other courts have reached the same conclusion that the common law doctrine of forum non conveniens can be utilized to deny access to courts to nonresident plaintiffs in FELA cases in appropriate circumstances without running afoul of the Privileges and Immunities Clause. Price v. Atchison, Topeka & Santa Fe Ry. Co., 42 Cal.2d 577, 268 P.2d 457, 43 A.L.R.2d 756, cert. denied, 348 U.S. 839, 75 S.Ct. 44, 99 L.Ed. 661 (1954); Great N. Ry. Co. v. Superior Court, 12 Cal.App.3d 105, 90 Cal.Rptr. 461 (1970), cert. denied sub nom. Curtin v. Superior Court, 401 U.S. 1013, 91 S.Ct. 1254, 28 L.Ed.2d 550 (1971); Mobley v. Southern Ry. Co., 418 A.2d 1044 (D.C.App.1980); Southern Ry. Co. v. McCubbins, 196 So.2d 512 (Fla.App.1967); Wieser v. Missouri Pac. R.R. Co., 98 Ill.2d 359, 74 Ill.Dec. 596, 456 N.E.2d 98 (1983); Gonzales v. Atchison, Topeka & Santa Fe Ry. Co., 189 Kan. 689, 371 P.2d 193 (1962); Maynard v. Chicago & N.W. Ry. Co., 247 Minn. 228, 77 N.W.2d 183 (1956); Missouri Pac. Ry. Co. v. Tircuit, 554 So.2d 878 (Miss.1989); State ex rel. Chicago, Rock Island & Pac. R.R. Co. v. Riederer, 454 S.W.2d 36 (Mo.1970); Vargas v. A.H. Bull S.S. Co., 25 N.J. 293, 135 A.2d 857 (1957), cert. denied, 355 U.S. 958, 78 S.Ct. 545, 2 L.Ed.2d 534 (1958); State ex rel. Southern Pac. Transp. Co. v. Frost, 102 N.M. 369, 695 P.2d 1318 (1985); Williams v. Seaboard Air Line R.R. Co., 9 A.D.2d 268, 193 N.Y.S.2d 588 (1959); Atchison, Topeka & Santa Fe Ry. Co. v. District Court, 298 P.2d 427 (Okla.), cert. denied, 352 U.S. 879, 77 S.Ct. 101, 1 L.Ed.2d 80 (1956); Rini v. New York Cent. R.R. Co., 429 Pa. 235, 240 A.2d 372 (1968); Norman v. Norfolk & W. Ry. Co., 228 Pa.Super. 319, 323 A.2d 850 (1974). See Annot., 60 A.L.R.3d 964 (1974).

In Gardner, we pointed out that a number of states had adopted the common law doctrine of forum non conveniens, and we discussed the principles set out in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), stating that the doctrine

"is simply that a court may, in its sound discretion, decline to exercise jurisdiction, to promote the convenience of witnesses and the ends of justice, even when jurisdiction and venue are authorized by the letter of a statute.... Gilbert, 330 U.S. [at] 507, 67 S.Ct. [at] 842, 91 L.Ed. [at] 1062.... See also Black's Law Dictionary 589 (5th ed. 1979). The common-law principle of forum non conveniens is applicable only if, as a threshold matter, the forum court has jurisdiction and venue is proper under the statute. Gilbert, 330 U.S. at 504, 67 S.Ct. at 841, 91 L.Ed. at 1060. 'In all cases in which the doctrine of forum non conveniens comes into play, it presupposes at least two forums in which the defendant is amenable to process; the doctrine furnishes criteria for choice between them.' Id. at 506-07, 67 S.Ct. at 842, 91 L.Ed. at 1061." 179 W.Va. at 729, 372 S.E.2d at 791. (Citations omitted).

Following the Gilbert analysis, we identified two general considerations upon which the doctrine rests--the interest of the public in the prompt and efficient administration of justice and the private interests of the parties to the litigation. Both of these interests were discussed at some length in Gardner, again using the Gilbert matrix:

"Included among the private interests of the litigants are: the relative ease of access to sources of proof; the availability of compulsory process for the attendance of unwilling witnesses and the cost of obtaining the attendance of willing witnesses; the possibility of a view of property, if such a view would be appropriate in the action; the enforcibility [sic ] of any judgment; and all other practical problems that make a trial of a case easy, expeditious and inexpensive.

"The public interests include the relative congestion of the respective courts' dockets; the burden of imposing jury duty upon the citizens of a community which has no or very little relation to the litigation; the local interest in having localized controversies decided at home; and the advantages of conducting a trial

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[184 W.Va. 235] in a forum familiar with the applicable law and of avoiding conflicts of law. Gilbert, 330 U.S. at 508-09, 67 S.Ct. at 843, 91 L.Ed. at 1062-63." 179 W.Va. at 729-30, 372 S.E.2d at 791-92.

The various factors set out in % iGilbert are notexhaustive and were supplemented in Piper Aircraft...