Forum Not Agreeing

Tort lawyers come upon the issue of “forum not agreeing”[1] a couple times a year. A typical scenario: Innocence Jones, a resident of Bucksnort, Tennessee, is horrifically hurt while vacationing in Panama City, Florida. The harm was caused by a truck driven by an employee (Darren Ulysses Inkama) of CareLess LLC, a Delaware entity with significant operations in Orange Seed, Florida. CareLess is a large entity that does business in many states, including owning and operating a manufacturing plant with more than 100 employees in Nashville, Tennessee. CareLess has a registered agent for service of process in Nashville.

Innocence has had enough of Florida and does not care to return there to litigate a personal injury case. Innocence’s lawyer (Allison Uno Anderson or “A1A”) does not have a Florida law license, and the only trip she wants to make to Florida is to go on a condo-buying expedition to Destin after winning Innocence’s case.

Can Innocence file suit against CareLess in Circuit Court for Davidson County in Nashville, home of CareLess’s manufacturing plant and the location of its registered agent for service of process in Tennessee? Yes — there is probably personal jurisdiction over CareLess in Nashville.[2] But, assuming that the amount in controversy exceeds $75,000, exclusive of interest and costs (remember: Destin condo), CareLess likely will remove the action[3] to federal court, asserting jurisdiction under the federal diversity of citizenship statute.[4] CareLess will probably then file a motion to transfer the case to an appropriate Florida federal district court under 28 U.S.C. § 1404(a),[5] which allows the court to transfer venue “for the convenience of parties and witnesses.”

A1A’s vision of a beautiful condo in Destin is rapidly morphing into four weeks of timeshare in an aging Orlando resort, about all her referral fee for engaging a Florida lawyer to help Innocence will get her. In the depths of despair, A1A opens a new window on her computer (away from “Destin condos for sale”) and runs a search on “Darren Ulyssess Inkama” (hereinafter “DUI”). She discovers, to her amazement and glee, that DUI’s Facebook page indicates he has decided to move to — you guessed it — Nashville to be closer to family. In fact, he is still working for CareLess, now out of its Nashville facility.

A1A develops a plan: she will sue DUI and CareLess in the Circuit Court for Davidson County. Jurisdiction is present. Venue is appropriate. CareLess will not be able to remove the case to federal court because there is not complete diversity of citizenship (Plaintiff Innocence and Defendant DUI are citizens of Tennessee). Bam! Should she purchase a two- or three-bedroom condo?

Will the case stay in Tennessee? Maybe. While Tennessee does not have a statute similar to 28 U.S.C. § 1404(a) allowing a defendant to challenge venue selection on the grounds that it is not convenient for it to defend a suit there, there is Tennessee common law that permits dismissal of the action if it a court determines that the case “may be more suitably or conveniently tried elsewhere.”[6] The common law doctrine does not apply to intrastate which-is-a-more-convenient-venue fights (Memphis vs. Mountain City), but does apply when a defendant maintains that a case filed in Tennessee should be tried in another state notwithstanding the ability of Tennessee to assert jurisdiction over the defendant.

Assuming the trial court in Tennessee has jurisdiction over the action and an alternative forum is available, there are two sets of factors weighed by a court in ruling on a motion to dismiss for forum non conveniens. First, the “private” factors include the following:

(a) the enforceability of any judgment obtained;
(b) 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;
(c) possibility of view of premises, if view would be appropriate to the action; and
(d) all other practical problems that make trial of a case easy, expeditious and inexpensive.[7]

The reviewing court should “weigh relative advantages and obstacles to fair trial,” to ensure 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.”[8]

Second, the “public” factors:

Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation. In cases which touch the affairs of many persons, there is reason for holding the trial in their view and reach rather than in remote parts of the country where they can learn of it by report only. There is a local interest in having localized controversies decided at home. There is an appropriateness, too, in having the trial of a diversity case in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself.[9]

A defendant seeking dismissal has a “high burden” and “unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed.” A ruling on such a motion is subject to the discretion of the trial judge; appellate review utilizes an abuse of discretion standard.[10]

So, will Innocence and A1A be able to keep our hypothetical case in Tennessee? We do not have enough facts to know. Does Innocence’s health permit a trial in Florida? Were there witnesses to the event that reside in Florida? Will liability be disputed? Where was most of the medical care received? Will there be future care required and where will that be given? Are there any complicated issues of Florida law (because Florida law is likely to apply)?[11] The parties will need to gather these facts and more to present to the trial court.

The only thing we do know given the hypothetical: A1A should not put a non-refundable deposit on a Destin condo. And we did not need a hypothetical to know that.

Notes

  1. The English translation of the Latin “forum non conveniens.”
  2. The test to be applied to establish general jurisdiction over CareLess is found in First Cmty. Bank, N.A. v. First Tennessee Bank, N.A., 489 S.W.3d 369, 385 (Tenn. 2015).
  3. 28 U.S.C. Sec. 1441(b).
  4. 28 U.S.C. Sec. 1332.
  5. The provision reads as follows: “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented.”
  6. Zurick v. Inman, 426 S.W.2d 767, 769 (Tenn. 1968).
  7. Adopted from Pantuso v. Wright Med. Tech Inc., 485 S.W.3d 883, 888-89 (Tenn. App. 2015), which heavily relied upon Zurick, 426 S.W.2d at 772.
  8. Zurick at 772 (citations omitted).
  9. Id.
  10. Id. For a recent case applying these factors, review J. Alexander’s Holdings LLC v. Republic Services Inc., No. M2016-01526-COA-R3-CV (Tenn. Ct. App. May 12, 2017).
  11. See Hataway v. McKinley, 830 S.W.2d 53 (Tenn. 1992) for a discussion of Tennessee’s conflict of laws principles.

John Day JOHN A. DAY is a plaintiff’s personal injury and wrongful death lawyer with offices in Brentwood and Murfreesboro. He does not own a condo in Florida or anywhere else, and does not want one.

          | TBA Law Blog