Norfolk and Western Ry. Co. v. Williams

• Decision Date: 02 March 1990
• Docket Number: No. 890450,890450
• Citation: 389 S.E.2d 714,239 Va. 390
• Parties: NORFOLK AND WESTERN RAILWAY COMPANY v. Nickolas C. WILLIAMS. Record
• Court: Virginia Supreme Court

Page 714

389 S.E.2d 714

239 Va. 390

NORFOLK AND WESTERN RAILWAY COMPANY v. Nickolas C. WILLIAMS.

Record No. 890450.

Supreme Court of Virginia.

March 2, 1990.

William T. Prince, Joan F. Martin (Williams, Worrell, Kelly, Greer & Frank, Norfolk, on briefs), for appellant.

Raymond H. Strople (Willard J. Moody, Sr., Moody, Strople & Kloeppel, Portsmouth, on brief), for appellee.

Present: All the Justices.

LACY, Justice.

Nickolas C. Williams was employed by Norfolk and Western Railroad (N & W) as a clerk in the Caller's Office in Roanoke, Virginia. On April 7, 1984, the chair in which Williams was working fell backwards. Subsequently Williams filed an action in the Circuit Court of the City of Portsmouth against N & W under the Federal Employers' Liability Act (FELA), 45 U.S.C. §§ 51-60 (1982), for injuries allegedly resulting from his fall from the chair. N & W moved to transfer the case to the Circuit Court of the City of Roanoke. That motion was denied. After a three-day trial, the jury returned a verdict in favor of Williams for $713,000. N & W moved to set aside the verdict and renewed its motion to transfer the case. The trial court denied N & W's motions and entered judgment on the verdict on January 12, 1989. We granted N & W an appeal.

Although N & W assigned a number of errors, we need address but one: whether the trial court erred in refusing to grant N & W's motion to transfer the case under § 8.01-265, the forum non conveniens statute.

N & W's motion for transfer of venue was addressed to the sound discretion of the trial judge, and his action in denying the motion cannot be reversed unless the record affirmatively reflects an abuse of discretion. Shifflett v. Commonwealth, 221 Va. 760, 771-72, 274 S.E.2d 305, 312 (1981). Here, after review of the record, statutes, and principles pertinent to the doctrine of forum non conveniens, we conclude that the refusal of the trial court to transfer this cause to the Circuit Court of the City of Roanoke constituted an abuse of discretion.

Venue statutes generally afford a plaintiff a choice of appropriate forums. The choice insures that the plaintiff will be able to prosecute his cause, and usually allows him to choose a place which he considers most suitable. However, the common law and, subsequently, legislative bodies recognized that

the open door may admit those who seek not simply justice but perhaps justice blended with some harassment. A plaintiff sometimes is under temptation to resort to a strategy of forcing the trial at a most inconvenient place for an adversary, even at some inconvenience to himself.

Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507, 67 S.Ct. 839, 842, 91 L.Ed. 1055 (1947). To guard against abuse of the latitude afforded by the venue statutes, judges were vested with the discretion to change the location of the trial in favor of a location more convenient to the parties and witnesses, one free of any taint of prejudice, or one which would better serve the ends of justice.

The Virginia statutes likewise offer a plaintiff the choice of forum in which to bring his action. Additionally, the Virginia General Assembly has incorporated the doctrine of forum non conveniens into the Virginia venue statutes by stating specifically that those statutes are intended to allow actions to be tried in courts which are "convenient to the parties and witnesses." Code § 8.01-257. A case properly filed in one court may be transferred to another "fair and convenient forum" on a showing of good cause. Code § 8.01-265.

The transfer decision is within the court's discretion, and, as with other discretionary acts, there is no clear formula which can be mechanically applied. Circumstances ordinarily considered in motions to transfer on the basis of forum non conveniens include

relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive.

Gulf, 330 U.S. at 508, 67 S.Ct. at 843. The General Assembly has provided additional guidance by defining "good cause" as including but not limited to "the avoidance of substantial inconvenience to the parties or the witnesses." Code § 8.01-265.

Careful consideration of the facts, a balancing of the competing interests, and an analysis of the appropriate principles must be undertaken in each case. The forum chosen as a result of this process should be one which insures the ability of the plaintiff to prosecute his cause free from any suggestion of abuse of the venue provisions.

The circumstances of this case, as reflected in Williams' motion for judgment, showed that he was an employee of N & W injured "in the regular course of his duties at the 24th Street Caller's Office, in Roanoke, Virginia." Williams alleged that N & W "regularly and systematically conducts affairs or business activities within the City of Portsmouth, Virginia." The pleading also indicated that the defendant N & W could be served through its registered agent located in Roanoke.

In making its decision, the court also considered the objection to venue and motion to transfer in which N & W argued that Roanoke was the preferred forum. N & W pointed out that the accident occurred in Roanoke and "did not arise out of any of the affairs or business activities of the defendant within the City of Portsmouth." Furthermore, N & W asserts that "no connection exists between said accident or cause of action and any business of Norfolk and Western Railway Company within the jurisdiction" of the Portsmouth Circuit Court. Stating that trial of the cause in Portsmouth would not be convenient to either the parties or the witnesses, N & W informed the court that all of the known potential liability witnesses were from Roanoke and all of the known potential medical witnesses "reside or practice in the Roanoke area, except a physician selected by plaintiff's counsel, who practices in Richmond, Virginia."

A hearing on the motion to transfer was held but was not transcribed. While we do not know precisely what arguments were made to the court, on brief Williams acknowledges that "as [the record] stood then," N & W presented argument regarding the number of witnesses who would have to travel from Roanoke to Portsmouth for the trial.

Based on these proceedings, the trial court entered an order denying N & W's motion to transfer, holding that N & W failed to show "good cause or substantial inconvenience that would justify the exercise of discretion to transfer this proceeding from the forum selected by the plaintiff."

Williams sets out a number of considerations justifying the trial court's action as a proper exercise of discretion. First and foremost, he asserts that the plaintiff's choice of forum is entitled to great deference. Citing Boyd v. Grand Trunk W. R. Co., 338 U.S. 263, 265, 70 S.Ct. 26, 27, 94 L.Ed. 55 (1949), he asserts that the choice of venue in a FELA action is a "substantial right" and proposes that the presumption in favor of the...