Rothluebbers v. Obee

• Decision Date: 06 August 2003
• Docket Number: No. 22528., No. 22527
• Citation: 668 N.W.2d 313,2003 SD 95
• Parties: Guenther and Maria ROTHLUEBBERS, Plaintiffs and Appellees, v. Hanspeter OBEE and Agrar Tour GMBH, Defendants and Appellants. Christl Jacob, Individually, and as Personal Representative for the Estate of Horst Jacob, Plaintiffs and Appellees, v. Hanspeter Obee and Agrar Tour GMBH, Defendants and Appellants.
• Court: South Dakota Supreme Court

668 N.W.2d 313

2003 SD 95

Guenther and Maria ROTHLUEBBERS, Plaintiffs and Appellees, v. Hanspeter OBEE and Agrar Tour GMBH, Defendants and Appellants.

Christl Jacob, Individually, and as Personal Representative for the Estate of Horst Jacob, Plaintiffs and Appellees, v. Hanspeter Obee and Agrar Tour GMBH, Defendants and Appellants.

Nos. 22527, 22528.

Supreme Court of South Dakota.

Argued April 30, 2003.

Decided August 6, 2003.

Robert Gusinsky and Craig A Pfeifle of Lynn, Jackson, Schultz & Lebrun, Rapid City, South Dakota, Attorneys for plaintiffs and appellees.

Robert C. Riter, Jr. of Riter, Rogers, Wattier & Brown, Pierre, South Dakota, Attorneys for defendant and appellant Hanspeter Obee.

David A. Gerdes of May, Adam, Gerdes, & Thompson, Pierre, South Dakota, Attorneys for defendant and appellant Agrar Tour GMBH.

VON WALD, Circuit Judge.

[¶ 1.] Hanspeter Obee and Agrar Tour GMBH (hereinafter Obee and Agrar) appeal a circuit court decision denying their motions to dismiss actions relating to a motor vehicle accident occurring in the State of South Dakota brought by Guenther and Maria Rothluebbers and Christl Jacob (hereinafter Rothluebbers and Jacob) on the grounds of forum non conveniens and due process. We affirm.

FACTS AND PROCEDURAL HISTORY

[¶ 2.] For purposes of this appeal, the facts of the case are largely undisputed.¹ On June 14, 2001, a one-vehicle accident occurred in Pennington County, South Dakota near Ellsworth Air Force Base. The vehicle, a passenger van rented from Enterprise Rent-A-Car, was driven by Obee, a German resident. Obee was the director of a tour group from Germany traveling from Chicago, Illinois to Salt Lake City, Utah. The tour, organized by a German company Agrar, was agricultural in nature and had two planned stops in South Dakota in Pierre and Spearfish. All of the tour participants entered into the tour agreement in Germany, the country in which they were all residents. The tour participants were originally to be transported by motor coach, but, due to low tour enrollment numbers, the tour director rented two vans in Chicago. Obee was driving one of the vans. While driving on Interstate 90, Obee either fell asleep, was distracted or the van was pushed off the road by a gust of wind. The van collided with parked construction equipment in a closed left lane of the highway and rolled.

[¶ 3.] At the time of the accident there were nine people in the van: Obee and his wife, Edit von Eerdo; Horst Jacob and his wife, Christl; Guenther Rothluebbers and his wife, Marie; Heinrich Bode and his wife, Rosemarie; and, John Rudolph. As a result of the accident, many of the passengers were injured and Horst Jacob died. All of the injured tour participants were treated at medical facilities in Rapid City, South Dakota.

[¶ 4.] Rothluebbers later brought a claim against Obee and Agrar in Pennington County for injuries they sustained in the accident. Christl Jacob also brought a claim against Obee and Agrar in Pennington County for the injuries she sustained and also for the wrongful death of her husband, Horst. On August 28, 2002, the circuit court entered an order in the Rothluebbers' case denying Obee and Agrar's motion to dismiss on the grounds of forum non conveniens and due process. A similar order was entered in the Jacob case. Petitions for intermediate appeals to this Court were filed in both cases on September 5, 2002 and intermediate appeal was granted by order of this Court.

ISSUES

Whether the circuit court erred in ruling that the claims made by Rothluebbers and Jacob in Pennington County should not be dismissed due to the common law doctrine of forum non conveniens.

Whether the circuit court erred in ruling that exercising jurisdiction over Obee and Agrar did not offend traditional notions of fair play and substantial justice in violation of the Due Process Clauses of the state and federal Constitutions.

STANDARD OF REVIEW

[¶ 5.] The standard of review for denial of a motion to dismiss based upon the doctrine of forum non conveniens has been set forth as follows:

A trial court has broad discretion in deciding a motion to dismiss based on forum non conveniens and that decision will be overturned only for abuse of discretion. Reid-Walen v. Hansen, 933 F.2d 1390, 1394 (8th Cir.1991). Abuse of discretion occurs when the district court does not hold the defendants to their burden of persuasion on all the elements of the forum non conveniens analysis, fails to consider the relevant public and private interest factors established in Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981), or clearly errs in weighing the Piper Aircraft factors. Reid-Walen, 933 F.2d at 1394.

EFCO Corp. v. Aluma Systems USA, Inc., 268 F.3d 601, 603 (8th Cir.2001).

ANALYSIS AND DECISION

FORUM NON CONVENIENS

[¶ 6.] Rothluebbers and Jacob argue that the common law doctrine of forum non conveniens does not exist in South Dakota. They cite the admiralty case of American Dredging Co. v. Miller, 510 U.S. 443, 114 S.Ct. 981, 127 L.Ed.2d 285 (1994)(holding state court not required to implement or adopt doctrine of forum non conveniens in courts of its state) in support of their argument. However, that case is in direct conflict with South Dakota law and is therefore unpersuasive.²

[¶ 7.] SDCL 1-1-24 provides, "[i]n this state the rules of the common law ... are in force, except where they conflict with the will of the sovereign power." There is no indication that the common law doctrine of forum non conveniens conflicts in any way with a federal or state statute, or the Constitution. There is also no indication that this Court has ever refused to adopt the doctrine in this context. Consequently, the doctrine of forum non conveniens is alive and well in the State of South Dakota. Therefore, we discuss the applicability of that doctrine to these facts.

[¶ 8.] The doctrine of forum non conveniens has long been recognized by the United States Supreme Court:

"when an alternative forum has jurisdiction to hear [a] case, and when trial in the chosen forum would `establish ... oppressiveness and vexation to a defendant... out of all proportion to plaintiff's convenience,' or when the `chosen forum [is] inappropriate because of considerations affecting the court's own administrative and legal problems,' the court may, in the exercise of its sound discretion, dismiss the case," even if jurisdiction and proper venue are established.

American Dredging Co., 510 U.S. at 447-448, 114 S.Ct. 981 (quoting Piper Aircraft, 454 U.S. at 241, 102 S.Ct. 252). "Forum non conveniens is a discretionary doctrine which vests in the district courts the power to abstain from the exercise of jurisdiction `even where authorized by statute if the litigation can more appropriately be conducted in a foreign tribunal.'" Estate of Rick v. Stevens, 145 F.Supp.2d 1026, 1035 (N.D.Iowa 2001) (quoting DeMelo v. Lederle Labs., 801 F.2d 1058, 1060 (8th Cir. 1986)).

[¶ 9.] The principles that govern a motion to dismiss on forum non conveniens grounds are well settled in the eighth circuit and relevant to the discussion here. The threshold inquiry is whether "there is an adequate alternative forum available in which the dispute can be resolved." Rick,145 F.Supp.2d at 1036. To attempt to establish an alternative forum Obee and Agrar offered the affidavit of Gerrett Hoher indicating that a German court of law could be a proper venue in this dispute. As support for that proposition, the trial court was cited numerous sections of the German Code of Civil Procedure purportedly establishing jurisdiction in Germany.³ There was no dispute below that Germany offers an alternate forum and, therefore, the first prong of the inquiry is met in this case.

[¶ 10.] After meeting the first prong, a court must next balance "a number of factors in order to determine whether they outweigh the deference ordinarily attended to the plaintiff's choice of forum." Id. The United Stated Supreme Court, in the case Gulf Oil v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), enumerated a list of factors which must be considered in ruling on motions predicated on the doctrine of forum non conveniens. "To guide trial court discretion, the Court provided a list of `private interest factors' affecting the convenience of the litigants, and a list of `public interest factors' affecting the convenience of the forum." Piper Aircraft, 454 U.S. at 241, 102 S.Ct. 252 (citing Gilbert, 330 U.S. at 508-509, 67 S.Ct. 839).

[¶ 11.] The factors set forth in Gilbert pertaining to the private interests of the litigant include:

the "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."

Id. at n. 6 (quoting Gilbert, 330 U.S. at 508, 67 S.Ct. 839). Whereas, the public interest factors used in determining the forum's convenience include:

the administrative difficulties flowing from court congestion; the "local interest in having localized controversies decided at home"; the interest in having the trial of a diversity case in a forum that is at home with the law that must govern the action; the avoidance of unnecessary problems in conflict of laws, or in the application of foreign law; and the unfairness of burdening citizens in an unrelated forum with jury duty.

Id.

[¶ 12.] It is also important to acknowledge that there is a strong presumption in favor of the plaintiff's choice of forum. This presumption should be overcome only "when the private and public interest factors clearly point toward trial in the alternative forum" and the presumption applies with less force when the plaintiff or parties are foreign. Piper, 454 U.S. at 255, 102 S.Ct. 252 (emphasis...