State ex rel. Southern Pacific Transp. Co. v. Frost, 15152

• Decision Date: 04 February 1985
• Docket Number: No. 15152,15152
• Citation: 1985 NMSC 12,695 P.2d 1318,102 N.M. 369
• Parties: STATE of New Mexico, ex rel. SOUTHERN PACIFIC TRANSPORTATION COMPANY, Petitioner, v. Hon. Stanley F. FROST, Respondent.
• Court: New Mexico Supreme Court

Page 1318

695 P.2d 1318

102 N.M. 369

STATE of New Mexico, ex rel. SOUTHERN PACIFIC TRANSPORTATION

COMPANY, Petitioner, v. Hon. Stanley F. FROST, Respondent.

No. 15152.

Supreme Court of New Mexico.

Feb. 4, 1985.

Rehearing Denied March 6, 1985.

[102 NM 369] White, Koch, Kelly & McCarthy, David F. Cunningham, William Booker Kelly, Santa Fe, for petitioner.

Johnson & Lanphere, Eric D. Lanphere, Albuquerque, for AT & SF amicus curiae.

Ortega & Snead, Arturo Ortega, Albuquerque, for respondent and real parties in interest.

Sarah Michael Singleton, Jones, Gallegos, Snead & Wertheim, J.E. Gallegos, Santa Fe, for amicus curiae League of United Latin American Citizens of New Mexico, Image de Nuevo Mexico and Hispano Chamber of Commerce of Las Vegas, New Mexico.

OPINION

STOWERS, Justice.

Petitioner, Southern Pacific Transportation Co. (Southern Pacific), filed a petition for writ of prohibition, writ of mandamus, or writ of superintending control stating that the district court's denial of its timely motion for a change of venue and subsequent order to proceed to jury trial in Guadalupe County violates its due process rights granted under the Fourteenth Amendment of the United States Constitution.

The issue we determine is whether the district court erred in denying the motion for a change of venue.

Albert J. Elevario (Elevario) brought this action in the district court of Guadalupe County seeking damages against Southern Pacific for personal injuries he claimed were suffered while under Southern Pacific's employ. Elevario filed the claim under the Federal Employers' Liability Act (FELA), 45 U.S.C. Sections 51 to 60 (1976). See N.M. Const. art. XX, Sec. 16 and art. XXII, Sec. 2; see also Bourguet v. Atchison, Topeka & Santa Fe Railroad, 65 N.M. 200, 334 P.2d 1107 (1958). He subsequently filed a demand for a twelve person jury.

Southern Pacific then filed a timely motion for a change of venue requesting that the court change the venue outside the Fourth Judicial District on the ground that Southern Pacific could not obtain a fair and impartial trial in San Miguel, Mora, or Guadalupe Counties. Alternatively, Southern Pacific sought dismissal of the action without prejudice based on the doctrine of forum non conveniens. Southern Pacific submitted live testimony, affidavits, and exhibits in support of its contention that it could not receive a fair trial; however, the district court denied the motion. The district court subsequently amended its order to allow Southern Pacific to seek an interlocutory appeal. The Court of Appeals denied Southern Pacific's application for an interlocutory appeal and Southern Pacific filed this petition.

The FELA confers concurrent jurisdiction on the state and federal courts over causes of action arising under it. It further provides for venue where the defendant resides, is doing business, or the cause of action arose. 45 U.S.C. Sec. 56 (1976). These generous venue provisions, however, do not preclude application of the doctrine of forum non conveniens in the appropriate case. Although the plaintiff's choice of forum should be given a great deal of deference, this consideration is not absolute. Foster v. Chicago & North Western Transportation Co., 102 Ill.2d 378, 80 Ill.Dec. 746, 466 N.E.2d 198 (1984). A forum that has no significant factual connections to the cause of action should not try the case. Id.

This Court previously discussed the doctrine of forum non conveniens in Buckner v. Buckner, 95 N.M. 337, 622 P.2d 242 (1981). In Buckner we quoted from the leading case, Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947). In Gulf, the United States Supreme Court described factors to be weighed in determining whether the doctrine should be invoked:

Important considerations are 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. There may also be questions as to the enforcibility of a judgment if one is obtained. The court will weigh relative advantages and obstacles to fair trial. It is often said that the plaintiff may not, by choice of an inconvenient forum, "vex," "harass," or "oppress" the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy. But unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed. (Footnote omitted.)

Id. at 508, 67 S.Ct. at 843. Although the doctrine has generally been applied in interstate cases, the principles and rationale underlying its application are as valid on an intrastate as on an interstate basis. Torres v. Walsh, 98 Ill.2d 338, 74 Ill.Dec. 880, 456 N.E.2d 601 (1983).

A review of the factors involved in this case indicate that the accident occurred in Tucumcari, which is in Quay County. The plaintiff was originally treated by doctors in Tucumcari, and many of the witnesses reside in Tucumcari. Moreover, if a view of the premises of the accident is appropriate, that also would occur in Quay County. Most, if not all, of the significant factual connections to the cause of action are in Quay rather than Guadalupe County. For this reason, we determine that the case should be transferred to Quay County on the basis of forum non conveniens.

Our disposition of this case on the basis of forum non conveniens makes it unnecessary to determine whether proceeding to trial in Guadalupe County violates Southern Pacific's constitutional rights. Nevertheless, allegations that a non-resident defendant is unable to receive a fair trial in the Fourth Judicial District concern this Court. The evidence regarding eleven jury verdicts in personal injury cases in Guadalupe County which was obtained by surveying jury verdicts from January 1968 through December 1982 does not furnish a sufficient basis to conclude that non-resident defendants cannot receive a fair trial in that county.

Several of the personal injury cases involved FELA actions. Because of the significant difference in the burden of proof required for FELA cases than for ordinary negligence cases, FELA cases cannot be considered...