IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2016 Term
FILED
February 10, 2016
released at 3:00 p.m.
No. 15-0819 RORY L. PERRY, II CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA EX REL.
AMERICAN ELECTRIC POWER CO., INC.;
AMERICAN ELECTRIC POWER SERVICE CORPORATION;
OHIO POWER COMPANY; AND
DOUG WORKMAN,
Petitioners
V.
HONORABLE DAVID W. NIBERT,
JUDGE OF THE CIRCUIT COURT OF MASON COUNTY;
ESTATE OF BOBBY CLARY BY JOY CLARY, ADMINISTRATOR;
ESTATE OF LARRY LAUDERMILT BY HARRIET LAUDERMILT,
ADMINISTRATOR;
ESTATE OF FRED PARKER BY NANCY PARKER, ADMINISTRATOR;
ESTATE OF JAMES STEWART BY SHAWN STEWART, ADMINISTRATOR;
ESTATE OF JOAN WAMSLEY BY JOHN WAMSLEY, ADMINISTRATOR;
ESTATE OF JUDITH WRIGHT BY THOMAS WRIGHT, ADMINISTRATOR;
ROBERT ALLEN; LARRY ANGEL; JOSEPH BALL;
PAUL BRAMMER; ROBERT BRUCE; RONALD CAMPBELL;
ANTHONY CARDILLO; DAVID CARSEY; JAMES CHAPMAN;
RICK CLARY; GARY COOPER; CHARLES EHMAN;
ROBERT FRAZIER; DAVID JONES; RICHARD LAMBE;
TONYA LAVENDER; HARRIETT LAUDERMILT; PAUL MCDANIEL;
TAMMY MULLENS; TRACY MULLENS; JOHN POFF;
DON REES; ELTON RITCHIE; WILBUR ROBINSON;
MICHAEL SHAW; ROGER SHORT; IVA SISSON;
CARLOS STEPP; THERON SWISHER; ROY TAYLOR;
PAUL THOMAS; JOAN WAMSLEY; SHAREN WAMSLEY;
STEVEN WATSON; EDMOND WRIGHT; THOMAS WRIGHT;
TIANA ANGEL, BY TINA HUDSON, MOTHER AND NEXT FRIEND;
TINA HUDSON; JOYCE BARCUS; AUGUSTENE BRAMMER;
KACEY BURRIS; CHERYL CLARY; JANET REES;
DIANA WRIGHT; LARRY ANGEL, II; TERRI BOOTH;
SHAWN CARDILLO; AMY EDWARDS; JESSE EHMAN;
MELISSA HAYES; ALEXIS MULLENS; ELIZABETH PIERCE;
HANNA RAMSBURG; DARRIN REESE; CHRISTOPHER SHAW;
JOHN SISSON; ROBERT SISSON, JR.; KAREN TERRY;
DON WAMSLEY; ROBIN WAMSLEY; JACOB WATSON;
JEREMIAH WATSON; TERRI CARSEY; SUZANNE CHAPMAN;
DIAN MCDANIEL; BRENDA POFF; CHERYL SHAW;
ROBERT SISSON; VICKI TAYLOR; KAREN THOMAS; AND
SHEILA WATSON,
Respondents
Petition for Writ of Prohibition
WRIT DENIED
Submitted: January 13, 2016
Filed: February 10, 2016
Ancil G. Ramey Christopher J. Regan
James W. Turner J. Zachary Zatezalo
Jessica L. Wiley Laura P. Pollard
Steptoe & Johnson PLLC Bordas & Bordas, PLLC
Huntington, West Virginia Wheeling, West Virginia
Attorneys for the Petitioners L. David Duffield
Chad S. Lovejoy
Duffield, Lovejoy, Stemple & Boggs, PLLC
Huntington, West Virginia
Attorneys for the Respondents
JUSTICE DAVIS delivered the Opinion of the Court.
JUSTICES BENJAMIN AND LOUGHRY dissent and reserve the right to file separate
opinions.
SYLLABUS BY THE COURT
1. A circuit court’s decision to deny a motion to dismiss based upon forum
non conveniens will not be reversed unless the circuit court has abused its discretion.
2. “Under West Virginia Code § 56-1-1a (Supp. 2010), dismissal of a
claim or action on the basis of forum non conveniens presupposes at least two forums in
which the defendant is amenable to process; the statute furnishes criteria for choice between
them. In the event that the defendant is not amenable to process in any alternate forum,
dismissal of a claim or action under this statute would constitute error.” Syllabus point 8,
Mace v. Mylan Pharmaceuticals, Inc., 227 W. Va. 666, 714 S.E.2d 223 (2011).
3. “In considering ‘whether an alternate forum exists in which the claim
or action may be tried’ pursuant to West Virginia Code § 56-1-1a(a)(1) (Supp. 2010), an
alternate forum is presumed to ‘exist’ where the defendant is amenable to process. Such
presumption may be defeated, however, if the remedy provided by the alternative forum is
so clearly inadequate or unsatisfactory that it is no remedy at all. In such cases, the alternate
forum ceases to ‘exist’ for purposes of forum non conveniens, and dismissal in favor of that
forum would constitute error.” Syllabus point 9, Mace v. Mylan Pharmaceuticals, Inc., 227
W. Va. 666, 714 S.E.2d 223 (2011).
i
4. “By using the term ‘shall,’ the Legislature has mandated that courts must
consider the eight factors enumerated in West Virginia Code § 56-1-1a (Supp. 2010), as a
means of determining whether, in the interest of justice and for the convenience of the
parties, a claim or action should be stayed or dismissed on the basis of forum non
conveniens.” Syllabus point 5, State ex rel. Mylan, Inc. v. Zakaib, 227 W. Va. 641, 713
S.E.2d 356 (2011).
ii
Davis, Justice:
The petitioners herein, American Electric Power Co., Inc., et al. (collectively,
“AEP”), request this Court to issue a writ of prohibition to prevent the enforcement of an
order entered August 5, 2015, by the Circuit Court of Mason County. By that order, the
circuit court denied AEP’s motion to dismiss based upon forum non conveniens.1 Before this
Court, AEP contends that the circuit court erred by refusing to dismiss the underlying
complaint pursuant to the forum non conveniens statute, W. Va. Code § 56-1-1a (2008)
(Repl. Vol. 2012).2 Upon a review of the parties’ briefs, the record designated for appellate
consideration, and the pertinent authorities, we deny the requested writ of prohibition. In
summary, we find that the circuit court adequately considered and applied the statutory forum
non conveniens factors in refusing AEP’s motion to dismiss on such grounds.
1
The circuit court also issued a second order that was entered on August 5,
2015, denying AEP’s motion to dismiss pursuant to Rule 12(b)(6) of the West Virginia Rules
of Civil Procedure. AEP does not seek relief from this second order in the instant
proceeding.
2
For the relevant text of W. Va. Code § 56-1-1a (2008) (Repl. Vol. 2012), see
Section III, infra.
1
I.
FACTUAL AND PROCEDURAL HISTORY
The instant proceeding originated when the respondents herein, the estate of
Bobby Clary, by his administrator Joy Clary, et al. (collectively, “the Plaintiffs”), filed the
underlying action against AEP in the Circuit Court of Mason County on August 9, 2014. In
their complaint, the Plaintiffs sought damages for injuries they, or their family members,
have incurred as a result of their exposure to coal combustion waste from the General James
M. Gavin Power Plant, the General James M. Gavin Landfill, and associated facilities
(collectively, “Gavin Landfill”) in Gallipolis, Ohio. The Plaintiffs allege that they, or the
parties they represent, have developed numerous different types of cancer and/or other health
problems from their exposure to the coal waste. Specifically, the Plaintiffs claim that such
coal waste, or fly ash, contains a variety of toxic metals, including arsenic, mercury,
chromium, lead, uranium, cadmium, thallium, and molybdenum. Of the seventy-seven
named plaintiffs, approximately nine plaintiffs are West Virginia residents; the remaining
plaintiffs are primarily residents of Ohio and Kentucky, while a few reside in still other
states.
The Plaintiffs allege that AEP owns and/or operates3 the Gavin Landfill and
3
AEP disputes the Plaintiffs’ assertions as to its control over the Gavin
Landfill.
2
that its employee and named defendant below, Doug Workman (“Mr. Workman”),
specifically directed the employee plaintiffs to work in and around the coal waste and fly ash.
The Plaintiffs further allege that Mr. Workman failed to address concerns raised by the
employee plaintiffs questioning the safety of coal waste exposure, that they were not
provided with protective gear to minimize the effects of such exposure, and that AEP and
Mr. Workman intentionally concealed the hazardous effects of the coal waste and exposure
thereto. While the Gavin Landfill is located in Ohio, AEP conducts significant business in
West Virginia, and Mr. Workman is a West Virginia resident.
In response to the Plaintiffs’ complaint, AEP filed a motion to dismiss based
upon forum non conveniens. To support its motion, AEP contended that because most of the
Plaintiffs are not residents of West Virginia and because the Plaintiffs’ cause of action, i.e.,
exposure to coal waste and resultant injuries, accrued in Ohio, and not in West Virginia,
dismissal of the case pursuant to the forum non conveniens statute, W. Va. Code § 56-1-1a,
was proper. The Plaintiffs replied that any inconvenience resulting from pursuing their
claims in West Virginia, rather than in Ohio, was insignificant insofar as the geographical
distance between the West Virginia and Ohio courthouses is less than ten miles, the majority
of the defendants are amenable to suit in West Virginia, the Plaintiffs have all agreed to
litigate their claims in West Virginia, and the vast majority of the case’s witnesses are the
Plaintiffs, themselves, who have agreed to make themselves available for depositions and
3
courtroom testimony in West Virginia.
The circuit court held a hearing on AEP’s motion, and, by order entered August
5, 2015, refused AEP’s motion to dismiss based upon forum non conveniens. Applying each
of the statutory factors, and rendering findings of fact and conclusions of law as to each,4 the
circuit court determined that West Virginia is not such an inconvenient forum so as to require
trial of the case elsewhere. The court further expressed concern that dismissal of the case
would deprive West Virginia residents of their constitutional right to pursue their claims
against the defendants in a West Virginia and simultaneously treat nonresidents differently
by depriving nonresidents of rights afforded to West Virginia residents.5 Finally, the court
noted that, to the extent that Ohio law might govern the parties’ dispute, the court regularly
applies Ohio law in cases over which it presides given its proximity to the Ohio border.
From this adverse ruling, AEP seeks extraordinary relief from this Court to prohibit the
4
See Section III, infra, for further treatment of the circuit court’s order
analyzing the statutory forum non conveniens factors.
5
For this point, the circuit court relied upon this Court’s prior comments in
Morris v. Crown Equipment Corp., 219 W. Va. 347, 354, 633 S.E.2d 292, 299 (2006),
observing that “there is a strong constitutional disfavoring of the categorical exclusion of
nonresident plaintiffs from a state’s courts under venue statutes when a state resident would
be permitted to bring a similar suit.” We remind the circuit court, however, that
determination of a motion seeking dismissal upon forum non conveniens grounds is governed
by statute, rather than by our cases decided before the promulgation of said statute. See State
ex rel. Ford Motor Co. v. Nibert, 235 W. Va. 235, 240, 773 S.E.2d 1, 6 (2015) (cautioning
circuit court to base forum non conveniens ruling upon W. Va. Code § 56-1-1a rather than
cases predating statute’s adoption).
4
circuit court from enforcing its August 5, 2015, order.
II.
STANDARD FOR ISSUANCE OF WRIT
In this proceeding, AEP requests this Court to issue a writ of prohibition to
prevent the circuit court from enforcing its order which denied AEP’s motion to dismiss
based upon forum non conveniens. As an extraordinary remedy, this Court reserves the
granting of such relief to “really extraordinary causes.” State ex rel. Suriano v. Gaughan,
198 W. Va. 339, 345, 480 S.E.2d 548, 554 (1996) (internal quotations and citations omitted).
Accordingly, “[a] writ of prohibition will not issue to prevent a simple abuse of discretion
by a trial court. It will only issue where the trial court has no jurisdiction or having such
jurisdiction exceeds its legitimate powers.” Syl. pt. 2, State ex rel. Peacher v. Sencindiver,
160 W. Va. 314, 233 S.E. 2d 425 (1977). Moreover, “this Court will use prohibition . . . to
correct only substantial, clear-cut, legal errors plainly in contravention of a clear statutory,
constitutional, or common law mandate which may be resolved independently of any
disputed facts and only in cases where there is a high probability that the trial will be
completely reversed if the error is not corrected in advance.” Syl. pt. 1, in part, Hinkle v.
Black, 164 W. Va. 112, 262 S.E.2d 744 (1979), superseded by statute on other grounds as
stated in State ex rel. Thornhill Grp., Inc. v. King, 233 W. Va. 564, 759 S.E.2d 795 (2014).
5
Furthermore, we previously have recognized that cases involving venue
determinations entail a high probability of reversal if errors are not corrected at the outset
and, thus, are appropriate for extraordinary relief. See State ex rel. Huffman v. Stephens, 206
W. Va. 501, 503, 526 S.E.2d 23, 25 (1999) (“In the context of disputes over venue, such as
dismissal for forum non conveniens . . . a writ of prohibition is an appropriate remedy to
resolve the issue of where venue for a civil action lies, because the issue of venue has the
potential of placing a litigant at an unwarranted disadvantage in a pending action and relief
by appeal would be inadequate.” (internal quotations and citations omitted)).
When deciding whether the writ of prohibition should issue in a given case, we
have held as follows:
In determining whether to entertain and issue the writ of
prohibition for cases not involving an absence of jurisdiction but
only where it is claimed that the lower tribunal exceeded its
legitimate powers, this Court will examine five factors: (1)
whether the party seeking the writ has no other adequate means,
such as direct appeal, to obtain the desired relief; (2) whether the
petitioner will be damaged or prejudiced in a way that is not
correctable on appeal; (3) whether the lower tribunal’s order is
clearly erroneous as a matter of law; (4) whether the lower
tribunal’s order is an oft repeated error or manifests persistent
disregard for either procedural or substantive law; and (5)
whether the lower tribunal’s order raises new and important
problems or issues of law of first impression. These factors are
general guidelines that serve as a useful starting point for
determining whether a discretionary writ of prohibition should
issue. Although all five factors need not be satisfied, it is clear
that the third factor, the existence of clear error as a matter of
law, should be given substantial weight.
6
Syl. pt. 4, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996).
Furthermore, we have previously held that whether a case should be dismissed
based upon forum non conveniens grounds is best left to the discretion of the presiding
tribunal because such a determination is driven by the facts of a particular case. Thus, “[a]
circuit court’s decision to invoke the doctrine of forum non conveniens will not be reversed
unless it is found that the circuit court abused its discretion.” Syl. pt. 3, Cannelton Indus. v.
Aetna Cas. & Sur. Co. of America, 194 W. Va. 186, 460 S.E.2d 1 (1994). We also find the
converse to be true and therefore additionally hold that a circuit court’s decision to deny a
motion to dismiss based upon forum non conveniens will not be reversed unless the circuit
court has abused its discretion. See Cannelton, 194 W. Va. at 191, 460 S.E.2d at 6 (“‘The
forum non conveniens determination is committed to the sound discretion of the trial court.
It may be reversed only when there has been a clear abuse of discretion[.]’” (quoting Piper
Aircraft Co. v. Reyno, 454 U.S. 235, 257, 102 S. Ct. 252, 266, 70 L. Ed. 2d 419 (1981)
(additional citations omitted))).
Finally, to the extent that the doctrine of forum non conveniens has been
codified by statute, our consideration of the case sub judice also is guided by the standard of
review applicable to cases involving statutory interpretation: “Interpreting a statute or an
administrative rule or regulation presents a purely legal question subject to de novo review.”
7
Syl. pt. 1, Appalachian Power Co. v. State Tax Dep’t of West Virginia, 195 W. Va. 573, 466
S.E.2d 424 (1995). See also Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459
S.E.2d 415 (1995) (“Where the issue on an appeal from the circuit court is clearly a question
of law or involving an interpretation of a statute, we apply a de novo standard of review.”).
Mindful of these standards, we proceed to consider the parties’ arguments.
III.
DISCUSSION
The sole issue presented for our consideration and resolution herein is whether
the circuit court should have dismissed the Plaintiffs’ underlying lawsuit based upon forum
non conveniens. The Legislature has codified the common law doctrine of forum non
conveniens at W. Va. Code § 56-1-1a (2008) (Repl. Vol. 2012), which provides, in relevant
part:
(a) In any civil action if a court of this state, upon a
timely written motion of a party, finds that in the interest of
justice and for the convenience of the parties a claim or action
would be more properly heard in a forum outside this state, the
court shall decline to exercise jurisdiction under the doctrine of
forum non conveniens and shall stay or dismiss the claim or
action, or dismiss any plaintiff: Provided, That the plaintiff’s
choice of a forum is entitled to great deference, but this
preference may be diminished when the plaintiff is a nonresident
and the cause of action did not arise in this state. In determining
whether to grant a motion to stay or dismiss an action, or dismiss
any plaintiff under the doctrine of forum non conveniens, the
8
court shall consider:
(1) Whether an alternate forum exists in which the claim
or action may be tried;
(2) Whether maintenance of the claim or action in the
courts of this state would work a substantial injustice to the
moving party;
(3) Whether the alternate forum, as a result of the
submission of the parties or otherwise, can exercise jurisdiction
over all the defendants properly joined to the plaintiff’s claim;
(4) The state in which the plaintiff(s) reside;
(5) The state in which the cause of action accrued;
(6) Whether the balance of the private interests of the
parties and the public interest of the state predominate in favor
of the claim or action being brought in an alternate forum, which
shall include consideration of the extent to which an injury or
death resulted from acts or omissions that occurred in this state.
Factors relevant to the private interests of the parties include,
but are not limited to, the relative ease of access to sources of
proof; availability of compulsory process for attendance of
unwilling witnesses; the cost of obtaining attendance of willing
witnesses; possibility of a view of the premises, if a view would
be appropriate to the action; and all other practical problems that
make trial of a case easy, expeditious and inexpensive. Factors
relevant to the public interest of the state include, but are not
limited to, the administrative difficulties flowing from court
congestion; the interest in having localized controversies
decided within the state; 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;
(7) Whether not granting the stay or dismissal would
result in unreasonable duplication or proliferation of litigation;
and
9
(8) Whether the alternate forum provides a remedy.
....
(c) If the statute of limitations in the alternative forum
expires while the claim is pending in a court of this state, the
court shall grant a dismissal under this section only if each
defendant waives the right to assert a statute of limitation
defense in the alternative forum. The court may further
condition a dismissal under this section to allow for the
reinstatement of the same cause of action in the same forum in
the event a suit on the same cause of action or on any cause of
action arising out of the same transaction or occurrence is
commenced in an appropriate alternative forum within sixty
days after the dismissal under this section and such alternative
forum declines jurisdiction.
....
(e) A court that grants a motion to stay or dismiss an
action pursuant to this section shall set forth specific findings of
fact and conclusions of law.
We previously have interpreted the statutory codification of the doctrine of
forum non conveniens as follows:
Under West Virginia Code § 56-1-1a (Supp. 2010),
dismissal of a claim or action on the basis of forum non
conveniens presupposes at least two forums in which the
defendant is amenable to process; the statute furnishes criteria
for choice between them. In the event that the defendant is not
amenable to process in any alternate forum, dismissal of a claim
or action under this statute would constitute error.
Syl. pt. 8, Mace v. Mylan Pharms., Inc., 227 W. Va. 666, 714 S.E.2d 223 (2011). Thus,
[i]n considering “whether an alternate forum exists in
10
which the claim or action may be tried” pursuant to West
Virginia Code § 56-1-1a(a)(1) (Supp. 2010), an alternate forum
is presumed to “exist” where the defendant is amenable to
process. Such presumption may be defeated, however, if the
remedy provided by the alternative forum is so clearly
inadequate or unsatisfactory that it is no remedy at all. In such
cases, the alternate forum ceases to “exist” for purposes of
forum non conveniens, and dismissal in favor of that forum
would constitute error.
Syl. pt. 9, Mace, 227 W. Va. 666, 714 S.E.2d 223.
We further have recognized that,
[b]y using the term “shall,” the Legislature has mandated
that courts must consider the eight factors enumerated in West
Virginia Code § 56-1-1a (Supp. 2010), as a means of
determining whether, in the interest of justice and for the
convenience of the parties, a claim or action should be stayed or
dismissed on the basis of forum non conveniens.
Syl. pt. 5, State ex rel. Mylan, Inc. v. Zakaib, 227 W. Va. 641, 713 S.E.2d 356 (2011). See
also Syl. pt. 6, State ex rel. Mylan, Inc. v. Zakaib, id. (“In all decisions on motions made
pursuant to West Virginia Code § 56-1-1a (Supp. 2010), courts must state findings of fact
and conclusions of law as to each of the eight factors listed for consideration under
subsection (a) of that statute.”). Finally, as we noted in the preceding section, a circuit
court’s ruling on a motion to dismiss based upon forum non conveniens is reviewed for an
abuse of discretion. See Cannelton, 194 W. Va. at 191, 460 S.E.2d at 6 (observing that
court’s decision regarding forum non conveniens “‘deserves substantial deference’” (quoting
Piper Aircraft, 454 U.S. at 257, 102 S. Ct. at 266, 70 L. Ed. 2d 419) (additional citations
11
omitted)).
In rendering its ruling, the circuit court addressed each of the eight forum non
conveniens factors enumerated in W. Va. Code § 56-1-1a(a)(1-8) as it was required to do.
See Syl. pt. 5, Mylan, 227 W. Va. 641, 713 S.E.2d 356. AEP, however, argues that the circuit
court erred in refusing to find that forum non conveniens applies to require dismissal of the
instant proceeding. In reviewing the circuit court’s rulings, and the parties’ arguments with
respect thereto, we will retain the format employed by the circuit court so as to prevent
duplicative analyses of the eight statutory factors.
A. Factors 1, 3, and 8
The circuit court first considered factors 1, 3, and 8, specifically, (1) the
existence of an alternate forum, W. Va. Code § 56-1-1a(a)(1); (3) whether the alternate
forum can exercise jurisdiction over the parties, W. Va. Code § 56-1-1a(a)(3); and (8)
whether the alternate forum provides a remedy, W. Va. Code § 56-1-1a(a)(8). In its August
5, 2015, order, the circuit court concluded that,
[w]ith respect to Factors one, three and eight, regarding an
alternative forum, while the Court recognizes that Ohio exists as
an alternative forum, practically speaking, alternative forums
almost always exist, particularly in cases that involve border
States, and the Court is not persuaded that this is substantial
enough for the Defendants to overcome their heavy burden in
seeking dismissal of the Plaintiffs’ claims. The Court also notes
that while, on the one hand, the Defendants allege that Ohio
12
provides an alternative forum for this lawsuit, the Defendants
also allege that the Plaintiffs’ claims require[] dismissal under
the substantive law of that same Ohio forum, thereby calling
into question whether Ohio actually provides a true remedy for
the Plaintiffs’ claims.
AEP argues that, regarding factor one, even though the Plaintiffs conceded that
an alternate forum exists, the circuit court disregarded the same by opining that an alternate
forum “almost always exists.” Further AEP complains that the circuit court only mentions
and does not substantively address factor three regarding Ohio’s ability to exercise
jurisdiction over all of the parties named as defendants below. Finally, AEP contends, under
factor eight, that if remedies exist for the Plaintiffs’ claims, such remedies are available in
Ohio.
The Plaintiffs respond that the circuit court correctly ruled under factor one that
Ohio is not a suitable alternative forum, particularly where AEP contended, below, that if the
Plaintiffs’ claims were brought in Ohio, they would require dismissal on substantive grounds.
As to factor three, the Plaintiffs assert that because AEP and the other defendants are
licensed to and do transact substantial business in West Virginia, and derive substantial
income therefrom, it is not unjust to sue them in West Virginia. Finally, regarding factor
eight, the Plaintiffs contend that if there is a question as to the viability of their claims under
Ohio law, they are not guaranteed that that forum will provide them a remedy. Thus, they
13
argue, the circuit court correctly rejected Ohio as an alternative forum.
We begin our consideration of these first statutory factors by noting that the
forum non conveniens statute specifically directs that “the plaintiff’s choice of a forum is
entitled to great deference, but this preference may be diminished when the plaintiff is a
nonresident and the cause of action did not arise in this state.” W. Va. Code § 56-1-1a(a).
In the instant proceeding, we note that certain Plaintiffs are, in fact, West Virginia residents,
while most Plaintiffs are not residents of West Virginia. Moreover, it is undisputed that the
Plaintiffs’ causes of action arose in Ohio, where they were exposed to coal dust waste, not
in West Virginia. Thus, while entitled to deference, the deference accorded to the Plaintiffs’
choice of forum in West Virginia is necessarily diminished by these statutory considerations.
While it appears that an alternate forum exists insofar as the Plaintiffs may
bring their suit in the State of Ohio, and that the State of Ohio can exercise jurisdiction over
the Plaintiffs, the remedies available to the Plaintiffs in Ohio would be diminished if certain
of their claims are not substantively viable in that forum. Although an unfavorable change
in law does not automatically foreclose the availability of another forum, where “the remedy
provided by the alternative forum is so clearly inadequate or unsatisfactory that it is no
remedy at all,” Syl. pt. 8, Mace, 227 W. Va. 666, 714 S.E.2d 223, the “alternative” forum
ceases to exist for purposes of a forum non conveniens analysis. Insofar as AEP has not
14
borne its burden of establishing that Ohio’s substantive law would entertain the Plaintiffs’
claims such that their claims and resultant remedies against AEP would not be substantially
diminished, we conclude that the circuit court correctly determined that factors 1, 3, and 8
weigh in favor of retaining jurisdiction of this case in West Virginia.
B. Factor 2
The circuit court next considered factor 2: “[w]hether maintenance of the claim
or action in the courts of this state would work a substantial injustice to the moving party.”
W. Va. Code § 56-1-1a(a)(2). As to this factor, the circuit court ruled that,
[c]onsidering Factor two, the Court finds no substantial
injustice to the Defendants by maintaining this lawsuit in the
Plaintiffs’ chosen forum. The Defendants neither dispute that
Defendant, Doug Workman, is a West Virginia resident, nor that
the corporate Defendants are licensed to transact business in
West Virginia, nor that the Defendants regularly transact
business in West Virginia, through their ownership and/or
operation of coal-fired power plants in West Virginia, and
derive substantial revenue from their West Virginia business.
See W. Va. Code § 56-3-33(a)(l) [(2008) (Repl. Vol. 2012)].
AEP contends the circuit court erroneously relied upon the general venue
statute, W. Va. Code § 56-1-1 (2007) (Repl. Vol. 2012), and improperly focused upon the
amenability of AEP and the other defendants to personal jurisdiction in West Virginia.
Rather, AEP suggests that the fact that Ohio substantive law governs the Plaintiffs’ claims,
and that their claims may include issues of first impression, render Ohio a more appropriate
15
forum.
The Plaintiffs reply that maintenance of their claims in West Virginia would
not constitute a “substantial injustice” to AEP or the remaining defendants insofar as they are
either West Virginia residents or transact substantial business in this State. Moreover, the
Plaintiffs contend that AEP has failed to demonstrate the substantial injustice it would suffer
by maintenance of the Plaintiffs’ lawsuit in West Virginia so as to defeat their choice of
forum.
We agree with the circuit court’s determination that consideration of this
statutory factor militates in favor of West Virginia’s retention of jurisdiction of this case.
Unlike many of the forum non conveniens cases this Court has considered in recent years, the
vast majority of the parties moving for dismissal in the case sub judice have direct ties to the
State of West Virginia: most of the corporate defendants are incorporated and transact
business in West Virginia, and Mr. Workman resides in this State. Moreover, the site of the
alleged exposure is virtually equidistant from the two county courthouses at issue herein, and
is actually closer to the West Virginia tribunal: the Gavin Landfill is approximately ten miles
from the Mason County, West Virginia, courthouse, while the distance from the Gavin
Landfill to the Gallia County, Ohio, courthouse is approximately eleven miles. Finally, with
respect to AEP’s choice of law complaint, that issue is more appropriately addressed in the
16
context of factor 6 insofar as W. Va. Code § 56-1-1a(a)(6) specifically references “the
application of foreign law” in its enumeration of public policy factors to consider. Thus, we
concur with the circuit court’s assessment that factor 2 weighs in favor of maintaining
jurisdiction of the Plaintiffs’ claims in West Virginia.
C. Factors 4 and 5
The third grouping of statutory forum non conveniens factors that the circuit
court considered includes factor 4, the plaintiffs’ state of residence, W. Va. Code § 56-1
1a(a)(4), and factor 5, the state in which the cause of action accrued, W. Va. Code § 56-1
1a(a)(5). With respect to these factors, the circuit court found that
factors four and five essentially yield no practical advantage to
either side. While it is undisputed that the cause of action arose
in Ohio, it is similarly undisputed that this lawsuit involves West
Virginia resident-Plaintiffs and a West Virginia-resident
Defendant.
AEP argues that because only nine of the seventy-seven Plaintiffs are residents
of West Virginia, Ohio is the more appropriate forum in this case. Additionally, AEP
contends that the circuit court erroneously focused upon the fact that a West Virginia resident
is named as a defendant when the operative inquiry is the residency of the plaintiff(s).
Furthermore, AEP asserts that because the Plaintiffs’ cause of action arose in Ohio, Ohio is
the more appropriate forum and that the circuit court erred by discounting this factor.
17
The Plaintiffs respond that the circuit court correctly found that neither of these
factors substantially contributed to its determination in this case. Rather, because the statute
merely requires the numerous factors to be considered but does not afford any particular
factor more weight than another, and because several West Virginia residents are named as
parties to this case, the Plaintiffs assert that the circuit court properly determined that these
factors were not, in and of themselves, determinative of the appropriate forum in this case.
As to factor 4, we agree with the circuit court’s assessment that consideration
of this criterion affords no practical advantage to either side insofar as the Plaintiffs in this
case reside both in West Virginia and in other states. However, we find that the circuit court
abused its discretion in determining that factor 5 did not afford a practical advantage to the
movants herein because it erroneously gave greater weight to the residence of the defendants,
which is not included within the factor 5 criterion, rather than to the place where the cause
of action accrued, which is the entirety of the factor 5 consideration. Because the Plaintiffs’
causes of action accrued in the State of Ohio, and not in West Virginia, we find that
consideration of factor 5 weighs in favor of forum non conveniens dismissal and maintenance
of such claims in the State of Ohio’s tribunals.
18
D. Factor 6
Factor 6, set forth in W. Va. Code § 56-1-1a(a)(6), requires a balancing of the
“private interests of the parties and the public interest of the state” in determining whether
to grant or deny forum non conveniens relief. We will consider each of these tests in turn.
1. Parties’ private interests. W. Va. Code § 56-1-1a(a)(6) describes the
factor 6 balancing test and enumerates the private interests to be considered as follows:
Whether the balance of the private interests
of the parties and the public interest of the state
predominate in favor of the claim or action being
brought in an alternate forum, which shall include
consideration of the extent to which an injury or
death resulted from acts or omissions that
occurred in this state. Factors relevant to the
private interests of the parties include, but are not
limited to, the relative ease of access to sources of
proof; availability of compulsory process for
attendance of unwilling witnesses; the cost of
obtaining attendance of willing witnesses;
possibility of a view of the premises, if a view
would be appropriate to the action; and all other
practical problems that make trial of a case easy,
expeditious and inexpensive.
As to the private interest elements, the circuit court ruled that,
[w]ith respect to Factor six, the Court finds that the
private factors preponderate in favor of retaining jurisdiction in
the Plaintiffs’ chosen forum. . . .
The Court finds that access to sources of proof does not
predominate in the Defendants’ favor, and that the Defendants
have failed to offer anything more than conclusory allegations
19
on this factor. As the Defendants point out, the majority of
witnesses live in close proximity to the Gavin Landfill, which is
in close proximity to Mason County and this Court. The Court
is convinced that the vast majority of necessary witness
testimony and document collection can be as readily and
economically accomplished in West Virginia, as it could in
Ohio, using the established methods provided by the West
Virginia’s Rules of Civil Procedure. Certainly counsel for all
the parties take out-of-state depositions and obtain out-of-state
documents on a routine basis. Each state has well-established
and similar subpoena procedures that can be employed, if
necessary, to procure and compel out-of-state witness
appearances, if necessary, and gather evidence. The
Defendants, as parties, cannot complain about access to their
own property, documents or witnesses, when they are required
to permit the Plaintiffs’ [sic] access to the same under West
Virginia’s Civil Rules. Similarly, the vast majority of the
witnesses the Defendants will seek to discover are the actual
Plaintiffs, who are similarly required to make themselves, and
their relevant medical records, available to the Defendants. It is
also clear from the record that neither party’s experts will suffer
any prejudice by testifying in West Virginia versus Ohio.6
With respect to the Defendants’ argument regarding legal
expenses, the Defendants fail to identify any additional legal
expenses that would be incurred by litigating this case in West
Virginia. Again, the Defendants offer only a conclusory
statement that the “cost of obtaining the attendance of willing
witnesses is higher than it would be if the cases were being
litigated in Ohio,” but they offer no explanation as to how or to
what extent the litigation costs would be higher in this forum.
Abbott makes clear that a defendant seeking dismissal must
provide a detailed showing of the additional expenses incurred
by litigating in West Virginia, and the expenses must be
6
The Defendants did not raise any arguments regarding the enforceability of
any judgment entered by this Court. However, the Court finds no compelling reason to
believe that any judgment entered against the Defendants in this forum would not be
enforceable as to the Defendants named in the Plaintiffs’ lawsuit.
20
substantial. The Defendants have failed to provide such a
showing here, and the Court finds their argument on this point
to be unpersuasive, particularly given the close geographic
proximity between Mason County, West Virginia and the Gavin
Landfill, near which the Defendants admit that most of the
witnesses reside.
(Footnote in original).
AEP contends that a consideration of both the private and the public factors
predominate in favor of Ohio as the preferred forum to hear the Plaintiffs’ case. With regard
to the private factors, AEP argues that the alleged act or omission complained of occurred
in Ohio; many of the non-party witnesses reside in Ohio and will not be subject to
compulsory process in West Virginia; it will be more costly for Ohio witnesses to attend trial
in West Virginia; and it is possible that a West Virginia jury will have to be transported to
Ohio to view the site of the alleged injury, i.e., the Gavin Landfill.
The Plaintiffs reply that the circuit court correctly found maintenance of their
suit in West Virginia to be proper. With respect to the private factors, the Plaintiffs contend
that AEP has provided only conclusory allegations that Ohio is the more appropriate forum
under this analysis. Rather, the Plaintiffs assert that most of the witnesses in this case are
parties to this action; most of the tangible evidence involved in this case is in the possession
of the parties; and AEP and/or the other defendants own or operate the Gavin Landfill and,
thus, can provide access to the premises should a jury need to inspect them.
21
Reviewing the private interests of the parties as required by the first portion of
W. Va. Code § 56-1-1a(a)(6), we conclude that the circuit court did not abuse its discretion
in finding that West Virginia is the more appropriate forum under this test. Sources of proof
of the Plaintiffs’ injuries rest predominantly in the hands of the parties, as medical records
of the Plaintiffs or maintenance records of the defendants. The vast majority of the parties
in this case, however, either have submitted voluntarily to the jurisdiction of this State or are
subject to West Virginia’s jurisdiction by virtue of their residency or business status in this
State. Moreover, to the extent evidence resides in Ohio, or must be viewed in Ohio, as we
noted in Section III.B., supra, the difference in geographical distance between the West
Virginia and Ohio tribunals is negligible, and actually predominates in favor of West
Virginia. Moreover, most of the witnesses in this case will be the parties, themselves, who,
as noted, have, in the main, agreed to submit to jurisdiction in West Virginia. With the
exception of the sole Ohio corporate defendant, the private interests of the parties weigh
heavily in favor of maintenance of the Plaintiffs’ claims in West Virginia.
2. State’s public interest. W. Va. Code § 56-1-1a(a)(6) lists the factors to be
considered in the public interest test as follows:
Factors relevant to the public interest of the state include, but are
not limited to, the administrative difficulties flowing from court
congestion; the interest in having localized controversies
decided within the state; 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
22
duty[.]
Considering the public interest elements, the circuit court ruled that
[t]he Court similarly finds that the public factors also
weigh in favor of retaining jurisdiction in the Plaintiffs’ chosen
forum. The Court finds the Defendants’ argument that this
Court is too congested to preside over this action to be
unpersuasive. The statistics produced by the Defendants fail to
demonstrate any significant, compelling difference between the
number of Court filings in Mason County and Gallia County or
raise any particular concern that this Court is incapable of timely
or properly adjudicating this lawsuit. The Court is in the best
position to determine the manageability of its docket and finds
that it is more than capable of handling this matter.
The Court is not persuaded by the Defendants’ argument
that the citizens of Mason County, West Virginia have an
insufficient interest in deciding this controversy. As the
Plaintiffs have pointed out, exposure to coal combustion waste
is an issue that touches citizens on both sides of the Ohio River,
particularly those in Mason County, West Virginia, who work
and/or live in the shadow of four (4) of the Defendants’
coal-fired power plants. The Mason County Courthouse sits less
than 10 driving miles from the Gavin Landfill, which is closer
than the Defendants’ Phillip Sporn or Mountaineer coal-fired
power plants that are located in Mason County, West Virginia,
and AEP groups their plants on both sides of the Ohio River into
distinct regions, such that Defendants’ Region 1 includes the
Gavin plant, as well as the Mountaineer plant and other West
Virginia power plants. Finally, the Court is persuaded that
Mason County citizens have a sufficient interest in deciding an
action brought by their fellow Mason County resident, and other
West Virginia residents, against a Mason County Defendant
alleged to have materially misled workers regarding the
hazardous nature of the coal combustion waste to which they
were being exposed.
The Court finds the Defendants’ argument that they will
be substantially prejudiced in West Virginia by the lack of an
23
intermediate appellate Court to be unpersuasive, because
transfer to Ohio is arguably substantially prejudicial to the
Plaintiffs for that very same reason.
Finally, the court observed that,
[w]ith respect to choice of law, should Ohio law control on any
issues in this litigation, the Court is not especially daunted by its
application. As a Court that essentially sits on the border of
Ohio and West Virginia, this Court is regularly called upon to,
and does, apply Ohio law in cases litigated before this Court.
Regarding the public factors, AEP asserts that the Mason County Circuit Court
is more congested than that of the Gallia County court that would hear the Plaintiffs’ case;
all of the Plaintiffs’ claims arise from alleged exposure to coal waste in Ohio, not because
AEP and the remaining defendants operate facilities in West Virginia or near its border; the
novelty of the Plaintiffs’ claims and the fact that the case likely will involve certified
questions to the Ohio Supreme Court predominate in favor of Ohio being the preferred
forum; and West Virginia jurors should not be called upon to hear a case that arose in Ohio,
is governed by Ohio law, and has only nine West Virginia resident plaintiffs. Considering
all of these factors, AEP argues that Ohio is the more appropriate forum to hear the
Plaintiffs’ case.
With respect to the public factors, the Plaintiffs contend that they also weigh
in favor of Mason County as the appropriate forum. In this vein, the Plaintiffs note that the
24
Mason County circuit judge is in the best position to determine the congestion of his docket,
and he deemed it not to be too crowded to entertain this suit; moreover, the circuit court
observed that, because of its border location, it is familiar with and regularly applies the law
of the State of Ohio to cases over which it presides. Finally, the Plaintiffs suggest that the
prospective jurors in West Virginia have an interest in determining this case because they are
individuals who live in the shadow of the subject power plant, and similar power plants;
regularly experience the air pollution referenced in the case; and likely work at or know
someone who works at one of the defendants’ power facilities. Accordingly, the Plaintiffs
contend that the circuit court properly found West Virginia to be the appropriate forum when
weighing the private and public interest factors.
As with the private interests analysis, we conclude that the consideration of this
State’s public interest also weighs in favor of retention of the Plaintiffs’ claims in West
Virginia. We agree with the circuit court that it is in the best position to determine the weight
of its docket and to assess whether it would be overburdened by maintenance of this suit in
Mason County, West Virginia.7 Moreover, to the extent that the corporate defendants operate
coal-fired power plants both in Gallia County, Ohio, and Mason County, West Virginia, and
7
Moreover, to the extent that hearing a case of this magnitude might become
too burdensome for the presiding West Virginia tribunal, referral of the matter to this State’s
Mass Litigation Panel would ameliorate this concern. For further discussion of the Mass
Litigation Panel, see Section III.E., infra.
25
the coal waste generated by such power plants has adversely affected the residents of Mason
County, West Virginia, these citizens have an interest in deciding the instant controversy.
Furthermore, as we recognized in the case of State ex rel. Khoury v. Cuomo,
No. 15-0852, ___ W. Va. ___, ___ S.E.2d ___ (W. Va. Feb. __, 2016), when defendants seek
the benefits of this State through licensure, a corresponding public interest in ensuring that
they comply with their licensure requirements is created. By the same token, to the extent
that the corporate defendants herein are incorporated under the laws of this State or regularly
transact business within our borders, West Virginia’s citizens have a tremendous public
interest in monitoring and regulating their behavior to ensure it complies with the protections
they have been afforded by this State. Finally, that a choice of law analysis might require the
application of Ohio substantive law to the instant controversy is of no moment. In short, “the
mere fact that the court is called upon to determine and apply foreign law does not present
a legal problem of the sort which would justify the dismissal of a case otherwise properly
before the court.” Hoffman v. Goberman, 420 F.2d 423, 427 (3d Cir. 1970) (footnote
omitted). Therefore, we conclude that consideration of both the private interests and public
interest tests of factor 6 weigh in favor of West Virginia’s retention of jurisdiction over this
case.
26
E. Factor 7
The final statutory factor considered by the circuit court is “[w]hether not
granting the stay or dismissal would result in unreasonable duplication or proliferation of
litigation[.]” W. Va. Code § 56-1-1a(a)(7). In this regard, the circuit court ruled that,
[w]ith respect to the Defendants’ contention that
dismissal would not result in unreasonable duplication or
proliferation of litigation, the Court disagrees. As previously set
forth, W. Va. Code § 56-1-1 makes clear that dismissal of the
West Virginia Plaintiffs’ claims is prohibited. As such,
dismissal of the Ohio Plaintiffs’ claims would necessarily force
the filing of the same lawsuit in another forum, setting the stage
for massive duplication of effort and costs for the parties and
courts alike, as well as the strong possibility of inconsistent
rulings and outcomes. The Court finds that this factor also
preponderates in favor of retaining jurisdiction over this matter
in the Plaintiffs’ chosen forum.
AEP argues that the circuit court improperly based its analysis of this issue on
the general venue statute, W. Va. Code § 56-1-1, rather than the forum non conveniens
statute, W. Va. Code § 56-1-1a, which governs the resolution of this case. Thus, AEP
argues, whether the West Virginia plaintiffs can maintain their suit in West Virginia is not
the determinative issue; rather, the court should have considered whether West Virginia is
an inconvenient forum under W. Va. Code § 56-1-1a.
The Plaintiffs respond that the circuit court correctly ruled that it cannot
dismiss the West Virginia plaintiffs’ claims. As such, two different proceedings would be
27
required if the circuit court granted AEP’s forum non conveniens motion: one in West
Virginia, brought by the plaintiffs who are West Virginia residents, and one in Ohio, brought
by the remaining plaintiffs. These two, different proceedings would then proceed even
thought they both arose from the same coal waste exposure, at the same location, and involve
the same evidence and witnesses. The Plaintiffs contend that this is precisely the type of
duplicative litigation that W. Va. Code § 56-1-1a seeks to prevent and that the maintenance
of such a bifurcated proceeding could lead to inconsistent rulings and outcomes, as well as
the assertion of numerous claims of res judicata and collateral estoppel in the two
jurisdictions. Thus, the Plaintiffs argue that West Virginia is the more appropriate forum.
Upon consideration of the seventh factor of W. Va. Code § 56-1-1a(a), we
agree with the circuit court’s ultimate conclusion that dismissal of this action on forum non
conveniens grounds would undoubtedly result in duplicative litigation in multiple
jurisdictions. As noted previously, W. Va. Code § 56-1-1a(a) requires that “the plaintiff’s
choice of a forum is entitled to great deference,” which choice is diminished only where “the
plaintiff is a nonresident and the cause of action did not arise in this state.” For several of
the Plaintiffs in the case sub judice, their West Virginia residency entitles their chosen forum
to substantial deference. If the Plaintiffs’ case is bifurcated, and the resident Plaintiffs
maintain their claims in West Virginia while the remaining, nonresident Plaintiffs are
required to bring their claims in Ohio, it goes without saying that duplicative discovery will
28
be conducted and analogous legal arguments will be made, with no guarantee that the two
different tribunals will reach the same, or even similar, rulings. The potential for such
inconsistent decisions undercuts the very notions of justice for the parties and judicial
economy for the presiding tribunals.
Moreover, to the extent that the litigation may proliferate, due to the filing of
additional lawsuits alleging the same injuries resulting from exposure to coal waste, joinder
of additional plaintiffs, the complexity of the legal issues, or simply the intricacies of
discovery involving so many parties, West Virginia has in place a mechanism to handle cases
of this nature and magnitude: the Mass Litigation Panel. Although we recognize that,
generally, to constitute “mass litigation” there first must be a minimum of two or more civil
actions to consider such a transfer,8 we have recognized that, sometimes, a singular case may
qualify for mass litigation treatment. In University Commons Riverside Home Owners
Association, Inc. v. University Commons Morgantown, LLC, 230 W. Va. 589, 741 S.E.2d 613
(2013), we observed that
our Mass Litigation Panel was created to deal with cases
involving common questions of law or fact where large numbers
of individuals have been potentially harmed, physically or
economically. In re Tobacco Litigation, 218 W. Va. 301, 311,
624 S.E.2d 738, 748 [(2005)] (Starcher, J., concurring); W. Va.
8
See W. Va. Tr. Ct. R. 26.04(a) (defining “mass litigation” as “[t]wo (2) or
more civil actions pending in one or more circuit courts” that meet additional, enumerated
criteria).
29
Tr. Ct. R. 26.04. Therefore, because there is no mechanism in
the Act to deal with this type of case, and because we do have
a Mass Litigation Panel that was created to deal with cases
involving common questions of law and fact, we are compelled
to exercise our inherent authority pursuant to the Constitution of
West Virginia and deem this matter suitable for resolution under
Rule 26. As we have explained, “‘General supervisory control
over all intermediate appellate, circuit, and magistrate courts
resides in the Supreme Court of Appeals. W. Va. Const., art.
VIII, § 3.’ Syllabus Point 1, Carter v. Taylor, 180 W. Va. 570,
378 S.E.2d 291 (1989).” Syl. Pt. 2, Stern v. Chemtall, Inc., 217
W. Va. 329, 617 S.E.2d 876 (2005).
University Commons, 230 W. Va. at 596, 741 S.E.2d at 620. Because we find that the instant
lawsuit likewise would benefit from the Mass Litigation Panel’s facilitation of the
maintenance of multiple, similar claims alleging the same injuries by numerous plaintiffs, we
hereby invoke our inherent authority to refer the instant matter to the Mass Litigation Panel
for further proceedings. With respect to the balancing of interests under factor 7, we find
that consideration of this factor also preponderates in favor of the Plaintiffs’ choice of forum
in West Virginia.
In the final analysis, weighing all of the statutory factors of W. Va. Code § 56
1-1a(a) as required by both the statute, itself, and our prior holding in Syllabus point 5 of
Mylan, 227 W. Va. 641, 713 S.E.2d 356, we are left with the firm conviction that the circuit
court did not abuse its discretion in refusing AEP’s motion to dismiss based upon forum non
conveniens. On balance, we simply cannot conclude that “‘trial in the [Plaintiffs’] chosen
forum [of West Virginia] would establish . . . oppressiveness and vexation to [the]
30
defendant[s] . . . out of proportion to [the] [Plaintiffs’] convenience.’” Sinochem Int’l Co.
Ltd. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 429, 127 S. Ct. 1184, 1190, 167
L. Ed. 2d 15 (2007) (quoting American Dredging Co. v. Miller, 510 U.S. 443, 447-48, 114
S. Ct. 981, 985, 127 L. Ed. 2d 285 (1994)) (additional quotations and citations omitted).
IV.
CONCLUSION
For the foregoing reasons, the requested writ of prohibition is hereby denied.
Writ Denied.
31