State ex rel. Burlington Northern R. Co. v. District Court of Eighth Judicial Dist. In and For Cascade County, s. 87-223

• Decision Date: 03 December 1987
• Docket Number: Nos. 87-223,87-234,s. 87-223
• Citation: 44 St.Rep. 2003,229 Mont. 325,746 P.2d 1077
• Parties: STATE of Montana, ex rel., BURLINGTON NORTHERN RAILROAD COMPANY, a corporation, Relator, v. DISTRICT COURT OF the EIGHTH JUDICIAL DISTRICT, In and For the COUNTY OF CASCADE, et al. Respondents. STATE of Montana, ex rel., BURLINGTON NORTHERN RAILROAD COMPANY, a corporation, Relator, v. DISTRICT COURT OF the THIRTEENTH JUDICIAL DISTRICT of the State of Montana, In and For the COUNTY OF YELLOWSTONE, et al. Respondents.
• Court: Montana Supreme Court

Page 1077

746 P.2d 1077

229 Mont. 325

STATE of Montana, ex rel., BURLINGTON NORTHERN RAILROAD

COMPANY, a corporation, Relator, v. DISTRICT COURT OF the EIGHTH JUDICIAL DISTRICT, In and For

the COUNTY OF CASCADE, et al. Respondents.

STATE of Montana, ex rel., BURLINGTON NORTHERN RAILROAD

COMPANY, a corporation, Relator, v. DISTRICT COURT OF the THIRTEENTH JUDICIAL DISTRICT of the

State of Montana, In and For the COUNTY OF

YELLOWSTONE, et al. Respondents.

Nos. 87-223, 87-234.

Supreme Court of Montana.

Submitted Aug. 11, 1987.

Decided Dec. 3, 1987.

Crowley Law Firm, Bruce R. Toole, Moulton Law Firm, K. Kent Koolen, Billings, for relators.

William G. Jungbauer, Minneapolis, Minn., John W. Larson, Missoula, David B. Kiker, Aurora, Colo., Wright, Tolliver & Guthals, Robert S. Fain, Billings, for respondents.

SHEEHY, Justice.

In cause no. 87-223, Burlington Northern Railroad Company as relator petitions for a writ of supervisory control directed to the District Court, Eighth Judicial District, the Hon. Thomas M. McKittrick and the Hon. John M. McCarvel, presiding judges therein, ordering dismissal of two causes of action pending in that court.

In cause no. 87-234, Burlington Northern Railroad Company as relator has petitioned for a writ of supervisory control directed to the District Court of the Thirteenth Judicial District, and to the Hon. Diane G. Barz, the presiding judge therein, ordering dismissal of two causes of action pending in that court.

In each of the pending petitions in this Court, relator contends that the district judges in each of the causes should have dismissed the same on the basis of forum non conveniens. Because the issues involved are the same, with almost identical arguments being made in each case, we have ordered that the petitions be consolidated for purposes of our consideration and opinion.

The first issue raised by the respondents is that the applications filed by Burlington Northern Railroad are insufficient in law for the issuance of writs of supervisory control. In each of these proceedings the jurisdictional requisites for the issuance of writs of supervisory control are inextricably interwoven with the merits of the applications for such writs. Since we have determined in each cause that a writ of supervisory control should not issue, we do not rule directly on the jurisdictional question.

In cause no. 87-223, the application of Burlington Northern is supported by documents in two causes now pending in the District Court, Eighth Judicial District, Cascade County. One is the case of Shirley Elaine Houser v. Burlington Northern Railroad Company, in which the Hon. Thomas M. McKittrick is the presiding district judge. The other is Charles M. O'Brien v. Burlington Northern Railroad Company, in which the Hon. John M. McCarvel is the presiding district judge. In each of those causes, Burlington Northern has filed motions for dismissal on the basis of forum non conveniens, and in each of the said causes, the respective judges have denied such motions to dismiss.

In cause no. 87-234, it appears that there are pending in the District Court, Thirteenth Judicial District, Yellowstone County, before the Hon. Diane G. Barz, the presiding district judge, two causes of action. One is that of Andrew Samms v. Burlington Northern Railroad Company and the other is Gary D. Epple v. Burlington Northern Railroad Company. In each of those pending causes of action in the Yellowstone County District Court, Burlington Northern has filed motions to dismiss on the basis of forum non conveniens. In each cause, the Hon. Diane G. Barz, as presiding district judge has denied said motions.

In each of the foregoing pending District Court actions, it is alleged by relator, and not refuted, that the accidents giving rise to the claims against the railroad occurred in a state other than the State of Montana; that the plaintiffs are residents in a state other than Montana; that all factual witnesses are residents of states other than the State of Montana; that the plaintiffs are represented by counsel from a state other than the State of Montana; and, that the addition of these cases to the District Court's docket imposes an unnecessary burden on the judicial resources and the taxpayers of the State of Montana, as well as an unnecessary impediment to litigants who do reside in Montana and whose counsel are also Montana residents.

In addition to the four cases pending in the District Court, above cited, the applications show that there is further pending in District Courts three additional causes of action: Averill v. BN, cause no. 85-200, Second Judicial District; Lang v. BN, cause no. 65477, Fourth Judicial District; and, Cheney v. BN, cause no. 86-319, Sixth Judicial District.

All of these pending actions in the district courts have been brought against Burlington Northern under the provisions of the Federal Employers Liability Act and the Federal Safety Appliance Act (45 U.S.C. Sec. 1-60).

It is clear that the District Courts before us have jurisdiction of FELA cases under 45 U.S.C. Sec. 56. The federal statute provides that an action may be brought in a district court of the United States, in the district of the residence of the defendant, the district in which the cause of action arose, or in which the defendant railroad shall be doing business at the time of commencing the action. Further, "the jurisdiction of the courts of the United States under this chapter shall be concurrent with that of the courts of the several states."

On four previous occasions, Burlington Northern, or its predecessor, Great Northern Railway Company, has importuned this Court for an application of the doctrine of forum non conveniens in FELA cases. Bevacqua v. Burlington Northern (1979), 183 Mont. 237, 598 P.2d 1124; LaBella v. Burlington Northern (1979), 182 Mont. 202, 595 P.2d 1184; State ex rel. Great Northern Ry. Co. v. District Court (1961), 139 Mont. 453, 365 P.2d 512; Bracy v. Great Northern Ry. Co. (1959), 136 Mont. 65, 343 P.2d 848.

In State ex rel. Great Northern Ry. Co. v. District Court, supra, it appeared that 18 FELA cases had been filed in the District Court in Silver Bow County in 11 years. This Court said there in denying a dismissal on the ground of forum non conveniens:

... We do state, however, that if a substantial increase in this type of litigation is called to our attention in the future we will re-examine the situation in light of what we have herein stated.

139 Mont. at 457, 365 P.2d at 514.

In LaBella v. Burlington Northern, supra, we had a case where the District Court dismissed a FELA case upon the grounds of forum non conveniens. This Court reversed in LaBella, stating:

We fully recognize that the state is not constrained by federal law to reject the doctrine of forum non conveniens in FELA actions. However, we find the policy favoring the injured railroad worker's choice of forum to be highly persuasive. This, in addition to the state's "open court policy" compels this Court to hold the doctrine of forum non conveniens inapplicable to FELA suits filed in Montana District Courts. We repeat the...