Rabago v. Kan. City S., Inc., ED 107163
| Decision Date | 15 October 2019 |
| Docket Number | No. ED 107163,ED 107163 |
| Parties | Jose RABAGO, et al., Appellants, v. KANSAS CITY SOUTHERN, INC., et al., Respondents. |
| Court | Missouri Court of Appeals |
John F. Garvey Jr, Michael Gross, 8235 Forsyth Blvd, Suite 1100 St. Louis, MO 63105, 231 So. Bemiston, Suite 250, Saint Louis, MO 63105, for appellant.
Jeffrey J. Simon, 4801 Main St. Ste.1000, Kansas City, MO 64112, Michael T. Raupp, 5306 Fairway Road, Fairway, KC 66205, James F. Monafo, 190 Carondelet Plaza, Ste. 600 St. Louis, MO 63135, for respondent.
Before Gary M. Gaertner, Jr., P. J., Lisa P. Page, J., and Robin Ransom, J.
Jose Rabago, et al., ("Appellants") appeal from the judgment of the trial court dismissing their civil case against Kansas City Southern, Inc. ("KCS"), Kansas City Southern de Mexico, S.A. ("KCSM"), and Kansas City Southern Railway Company ("KCSR") (together, "Defendants") under the doctrine of forum non conveniens. The trial court did not abuse its discretion in finding Missouri to be an inconvenient forum. However, the trial court did abuse its discretion in finding Mexico to be an available forum, in light of Defendants' indication that they would challenge Mexico’s jurisdiction over certain Appellants' claims as past the Mexican statute of limitations, when the claims are not precluded by Missouri law. We reverse and remand in accordance with this opinion.
On February 13, 2015, a freight train owned by KCSR and operated by KCSM collided with a bus at a railroad crossing in Anahuac, Nuevo Leon, Mexico, resulting in the injury or death of multiple passengers, all Mexican citizens. In February 2016, fourteen Appellants filed a petition for compensatory and punitive damages in Missouri against Defendants, asserting claims of negligence, wrongful death, and alter-ego liability. Appellants alleged KCS is a transportation holding company incorporated in Delaware with its headquarters in Missouri that owns and controls railroad investments in the United States of America and in Mexico, including, as relevant to this appeal, KCSR and KCSM. Appellants argued KCS exercised such control and dominion over KCSR and KCSM that the three companies should be treated as a single entity. Because KCS and KCSR are Missouri Corporations, Appellants asserted venue was proper and convenient in Missouri pursuant to Section 508.010.5(3), RSMo. (cum supp. 2016).
Defendants raised the issue of forum non conveniens in their answers to Appellants' original petition as a defense.1 On January 27, 2017, KCS and KCSR filed a motion to dismiss for forum non conveniens , arguing Mexico was a more convenient forum because the cause of action accrued in Mexico and all witnesses were located in Mexico. KCS and KCSR requested an evidentiary hearing after an opportunity to conduct discovery on the matter. On January 12, 2018, over forty-five additional Appellants filed a motion for leave to intervene for joinder as plaintiffs, which Defendants opposed as time-barred under Mexico’s two-year statute of limitations for personal injury cases. After a hearing, the trial court granted the motion for leave to intervene for joinder. In their subsequent Third Amended Petition, Appellants re-asserted their claims of negligence, wrongful death, and alter-ego liability.
In March 2018, Defendants each filed another motion to dismiss for forum non conveniens. After an evidentiary hearing, the trial court granted Defendants' motions and dismissed Appellants' Third Amended Petition. The trial court found that forum in Missouri was inconvenient because it would be oppressive to Defendants and would place an undue burden on Missouri courts, and that Mexico was an available forum. This appeal follows.
In their sole point on appeal, Appellants argue the trial court abused its discretion in granting Defendants' motions to dismiss on the basis of forum non conveniens because Defendants failed to meet their burden to show Appellants' venue choice was manifestly inconvenient for them or that there was an available and adequate alternative forum to hear Appellants' claims. We agree.
The trial court has great discretion in determining whether a forum is convenient and another more appropriate forum is available, and we review the court’s ruling on a motion for forum non conveniens merely for an abuse of that discretion, viewing the evidence in the light most favorable to the ruling. Anglim v. Mo. Pac. R.R. Co. , 832 S.W.2d 298, 302-03 (Mo. banc 1992) ; Chandler v. Multidata Sys. Int'l Corp. , 163 S.W.3d 537, 546 (Mo. App. E.D. 2005). An abuse of discretion occurs when the trial court’s ruling is so against the logic of the circumstances or is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. Chandler , 163 S.W.3d at 546. When, however, reasonable persons could differ about the propriety of the action taken by the trial court, we will not find an abuse of discretion. Id.
The doctrine of forum non conveniens permits a trial court to dismiss an action "when the facts of the case show substantial inconvenience" and "so long as there is an alternate forum available," even if venue and jurisdiction are proper. Acapolon Corp. v. Ralston Purina Co. , 827 S.W.2d 189, 191, 194 (Mo. banc 1992). Initially, we note Appellants argued during oral arguments that the trial court abused its discretion in dismissing their petition under a theory of forum non conveniens without first addressing Section 508.010.5(3), which provides that when a plaintiff is injured in a foreign country in connection with railroad operations, venue is proper where the defendant’s registered agent is located: here, St. Louis County. However, the propriety of venue is a separate inquiry from the trial court’s application of the doctrine of forum non conveniens. While a plaintiff may bring suit in any venue allowed by law, the right of choice is not absolute, and the suit is subject to dismissal if it is filed in a forum that is manifestly inconvenient. See Besse v. Mo. Pac. R.R. Co. , 721 S.W.2d 740, 742 (Mo. banc 1986). The trial court was not required to consider the issue of venue in determining whether the requested forum was convenient and thus did not abuse its discretion in failing to address Section 508.010.5(3) in its judgment.
In determining whether to apply the doctrine of forum non conveniens , trial courts are directed to consider six main factors: (1) the place of accrual of the cause of action, (2) the location of witnesses, (3) the residence of the parties, (4) any nexus with the place of suit, (5) the public factor of the convenience to and burden upon the court, and (6) the availability to Appellants of another court with jurisdiction over the cause of action that would afford a forum for remedy. Anglim , 832 S.W.2d at 302 (). The trial court is not required to give primary consideration to any one factor but is tasked with weighing the evidence and credibility of the witnesses in making its determination depending on the individual facts of each case. See id. at 302-03. Further, in cases brought by foreign nationals where the bulk of the operative facts took place in a foreign nation, less deference is afforded the plaintiff’s choice of forum. Acapolon , 827 S.W.2d at 192. In the situation where the injury is caused in a foreign country to a non-U.S. citizen, the consensus is that "a case with substantial international factors is best litigated in the venue in which the preponderance of the operative facts took place." Id. at 194. Nevertheless, "[i]n determining whether a foreign forum is available, consideration must be given to whether the foreign forum could and would adjudicate the controversy." State ex rel. Rashid v. Drumm , 824 S.W.2d 479, 504 (Mo. App. E.D. 1992). The doctrine of forum non conveniens is appropriate only where there is "an alternate forum available." Acapolon , 827 S.W.2d at 194.
The trial court analyzed each of the six factors in a very thorough judgment.
While the record supports the trial court’s conclusion that Missouri is an inconvenient forum, the record did not show another forum was available to all Appellants, due to Defendants indication that it would challenge Mexico’s jurisdiction over the Appellants who joined the suit in January 2018 as past Mexico’s statute of limitations for personal injury cases.
Regarding the trial court’s conclusion that Missouri was substantially inconvenient, we agree the first five favors all favor dismissal pursuant to the doctrine of forum non conveniens. First, the claim accrued in Mexico because the damage occurred there. See Chandler , 163 S.W.3d at 550. Appellants sought damages for alleged negligence and wrongful death stemming from the 2015 accident that occurred in Mexico, injuring or killing Mexican citizens, and involving a bus owned and operated by a Mexican company and a train operated by a Mexican company that is the subsidiary of a U.S. company. While Appellants argue on appeal that KCS’s corporate control of KCSM and KCS policies "accrued" in Missouri, this Court has previously rejected the similar argument that a cause accrues "where the ‘wrong complained of was committed.’ " Id. Rather, this Court held that "a cause of action accrues when and originates where damages are sustained and capable of ascertainment." Id. Here, the damages accrued in Mexico, even if, as Appellants allege, the underlying cause of the damages arose in part from actions taken in Missouri, and thus the trial court did not abuse its discretion in so finding.
Second, the vast majority of the witnesses that could testify to the elements necessary to establish Appellants' claims for negligence, intentional tort, and wrongful death are located in Mexico. All of the Appellants are located in either Mexico or Texas, the witnesses to...
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