State ex rel. Burlington Northern R. Co. v. District Court of Eighth Judicial Dist. Court, 94-100

• Citation: 891 P.2d 493,270 Mont. 146
• Decision Date: 25 October 1994
• Docket Number: No. 94-100,94-100
• Parties: STATE of Montana, ex rel., BURLINGTON NORTHERN RAILROAD COMPANY, a corporation, Relator, v. The DISTRICT COURT OF the EIGHTH JUDICIAL DISTRICT COURT, Cascade County, and Honorable John M. McCarvel, Respondents. . Heard
• Court: United States State Supreme Court of Montana

Page 493

891 P.2d 493

270 Mont. 146

STATE of Montana, ex rel., BURLINGTON NORTHERN RAILROAD COMPANY, a corporation, Relator, v. The DISTRICT COURT OF the EIGHTH JUDICIAL DISTRICT COURT Cascade County, and Honorable John M. McCarvel, Respondents.

No. 94-100.

Supreme Court of Montana.

Heard Oct. 25, 1994.

Submitted Oct. 25, 1994.

Decided March 2, 1995.

Kurt W. Kroschel (argued), Dennis Nettiksimmons, Kroschel & Yerger, Billings, for relator.

C. Marshall Friedman, St. Louis, MO, Lynn D. Baker, Newton McCoy (argued), Hartelius, Ferguson & Baker, Great Falls, for Iddings.

Don M. Hayes, Herndon, Hartman, Sweeney & Halverson, Billings, for DuPont de Nemours & Co.

L.D. Nybo, Nybo, Conklin & LeVeque, Great Falls, for SSI/Mobley Co.

Randy Cox, Boone, Karlberg & Haddon, Missoula, Sue Ann Love, Great Falls, Montana Defense Trial Lawyers, amici.

Patricia O'Brien Cotter, Cotter & Cotter, Great Falls, Lawrence Anderson, Great Falls, Montana Trial Lawyers Ass'n, amici.

Robert M. Knight, Helena S. Maclay, Knight, Maclay & Masar, Missoula, amici.

NELSON, Justice.

This case comes before us on Relator Burlington Northern's (BN) application for a writ of supervisory control. BN requests that we order the District Court to dismiss, without prejudice, Plaintiff Anthony Iddings' (Plaintiff) Federal Employers' Liability Act (FELA or the Act) complaint seeking monetary damages for an injury occurring in the course and scope of his employment with BN. BN contends that dismissal is appropriate under the doctrine of forum non conveniens. We hold that dismissal on those grounds is not warranted and, accordingly, decline to issue the requested writ.

ISSUES

Four general issues are raised by the parties and are discussed by the parties and by amici. We restate these issues as follows:

I. Did the District Court err in failing to dismiss this case on the grounds of forum non conveniens because of the substantial increase in imported FELA cases in Montana?

II. Has the Montana Supreme Court applied the doctrine of forum non conveniens in non-FELA cases, and if so, must the doctrine now be applied in FELA cases?

III. Is it appropriate to apply the doctrine of forum non conveniens to the instant case?

IV. What is the effect of the Privileges and Immunities Clause on this litigation?

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff's claim arose out of an incident in May of 1989, in Wyoming when he was allegedly injured in the course and scope of his employment with BN by being exposed to herbicides from spraying operations at the rail yard. Plaintiff is neither a citizen nor a resident of Montana.

Plaintiff filed his FELA complaint under 45 U.S.C. § 51, et seq., in the Eighth Judicial District Court, Cascade County, Montana, on April 27, 1992. On May 26, 1992, BN filed a motion to, alternatively, dismiss the complaint on the basis of the doctrine of forum non conveniens, or to change the place of trial.

By stipulation, BN's motion was stayed until the U.S. Supreme Court decided Burlington Northern v. Ford (1992), 504 U.S. 648, 112 S.Ct. 2184, 119 L.Ed.2d 432, which related to the railroad's motion for a change of place of trial based on equal protection grounds. The parties, nevertheless, agreed that discovery in the instant case would proceed. In May 1993, BN brought a third party complaint against E.I. DuPont de Nemours & Company, Inc. (DuPont) and SSI/Mobley Company, Inc. (SSI), contending negligence in the spraying operation which allegedly injured Plaintiff. In the course of their defense, DuPont and SSI joined BN's motion to dismiss Plaintiff's complaint for forum non conveniens and, subsequently, also filed their own motion to dismiss BN's third party complaint and amended third party complaint on the same grounds. BN's motion to dismiss Plaintiff's complaint for forum non conveniens was heard on January 26, 1994, and on February 15, 1994, the District Court entered its written order denying the motion. On March 7, 1994, BN filed a notice of application for writ of supervisory control. We accepted original jurisdiction, ordered briefs and, on October 25, 1994, heard oral argument. The Montana Trial Lawyers Association, Montana Defense Trial Lawyers and Robert M. Knight and Helena S. Maclay filed briefs, amicus curiae.

DISCUSSION

I.

Did the District Court err in failing to dismiss this case on the grounds of forum non conveniens because of the substantial increase in imported FELA cases in Montana?

BN contends that the District Court erred by not exercising its discretion to grant its motion to dismiss, because of what it claims is evidence of a substantial increase in the filing of out-of-state FELA cases in Montana, especially in Cascade County. As authority, BN cites, among others, our decision in Haug v. Burlington Northern R. Co. (1989), 236 Mont. 368, 770 P.2d 517, for the proposition that:

[t]he common law doctrine of forum non conveniens allows a court to "resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute." Under the doctrine, a court may decline to exercise its jurisdiction when it believes that the action may be more appropriately and justly tried elsewhere.

Haug, 770 P.2d at 521, citing Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 507, 67 S.Ct. 839, 842, 91 L.Ed. 1055, 1062. Moreover, BN argues that, "a court is free to decide the availability of the principle of forum non conveniens in FELA suits according to its own local law," providing that the local law is not applied in a discriminatory fashion, citing Missouri v. Mayfield (1950), 340 U.S. 1, 5, 71 S.Ct. 1, 8, 95 L.Ed. 3.

Plaintiff, on the other hand, maintains that filings of non-resident FELA cases in the State of Montana since 1988, have neither overburdened the court system in this state nor "clogged" the dockets of Cascade County so as to call for the implementation of forum non conveniens. Additionally, Plaintiff maintains that BN's statistics are deceptive, and that many of the cases listed as filed since 1988, are cases wherein the "plaintiffs are actually residents of the State of Montana, ... or have substantial contacts with the State of Montana, in that they were treated by physicians located within the state."

The issue of trial courts' refusal to apply the doctrine of forum non conveniens in FELA cases filed in Montana has been considered by this Court on a fairly regular basis over the last three and one-half decades--largely because our prior cases have indicated a willingness to reexamine this issue if there was a substantial increase in such filings. Because there was no evidentiary hearing before or findings by the District Court on BN's data, we take no position on the validity or interpretation of the numbers and statistics offered by the Railroad . Notwithstanding, we conclude that the numbers, whether accurate or inaccurate, are not dispositive of this Issue and that the time has come to clarify, once and for all, the law to be applied henceforth in Montana with regard to the application of the doctrine of forum non conveniens in FELA cases filed in this State.

To put our decision in context, a review of our prior case law is necessary. We first substantively considered this issue in Bracy v. Great Northern Railway Company (1959), 136 Mont. 65, 343 P.2d 848. There, the plaintiff, injured in Washington, filed his FELA case in district court in Silver Bow County, Montana. Defendant's appeal included a claim that the district court erred in failing to dismiss plaintiff's complaint on forum non conveniens grounds because the accident occurred in Washington and all the witnesses resided there. Defendant requested that we "settle the question as to whether the doctrine has application in this state." Bracy, 343 P.2d at 850. Expressing doubt as to whether the doctrine had any application in Montana, we declined to resolve this "academic question," and simply observed that whether the doctrine applies in a given case rests in the discretion of the trial court and that on the basis of the affidavits and counter-affidavits filed, the trial court did not abuse its discretion in denying defendant's motion to dismiss on forum non conveniens grounds. Bracy, 343 P.2d at 850.

A few years later, this issue again surfaced in State ex rel. Great Northern Railway v. District Court (1961), 139 Mont. 453, 365 P.2d 512. That case, factually akin to Bracy, was also filed in Silver Bow County and came before this Court as an original proceeding from the trial court's denial of the railroad's motion to dismiss the injured employee's FELA action on forum non conveniens grounds. Great Northern, 365 P.2d at 512. As additional support for its position, the Railroad argued that the district court's failure to dismiss non-resident FELA cases "has resulted in an increasing number of cases being filed in Silver Bow County, constituting a hardship upon both the Railroad Company and the [county] taxpayers ..." Great Northern, 365 P.2d at 513. Without analyzing plaintiff's contentions which, among others, included FELA choice of venue and state public policy/"open court" arguments, we acknowledged our ability to accept or reject the forum non conveniens doctrine and noted its purpose in requiring litigants to avail themselves of the trial forum in their residence. Great Northern, 365 P.2d at 513. Having those considerations in mind, but declining to "establish the rule," we concluded that the numbers of cases filed in Silver Bow County did not indicate a trend of importing non-resident FELA litigation. However, the numbers argument having been raised, we warned that we would reexamine this issue if there were substantial increases in filings of those type of cases. Great Northern, 365 P.2d at 514.

LaBella v. Burlington Northern, Inc. (1979), 182 Mont. 202, 595 P.2d 1184, followed eighteen years later. That case involved an appeal from a Lewis and Clark County district court order...