Opinion issued March 24, 2020
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-19-00760-CV
———————————
IN RE CEVA GROUND US, LP., Relator
Original Proceeding on Petition for Writ of Mandamus
MEMORANDUM OPINION
Relator, CEVA Ground US, L.P., has filed a petition for writ of mandamus
challenging the trial court’s denial of relator’s motion to dismiss the underlying case
on forum non conveniens grounds.1 We conditionally grant the petition.
1
The underlying case is Geneva Sisco Timmons, Individually, Malinda Brown as
Representative of the Estate of Adrianne Laneal Sisco, Decedent, and Joseph
Donald Taylor, ANF to J.N.T. and J.M.T., Minors, cause number 2019-27415,
pending in the 164th District Court of Harris County, Texas, the Honorable Michael
Gomez presiding.
Background
The underlying suit concerns a fatal auto accident in Oklahoma on April 11,
2019, involving decedent Adrianne Laneal Sisco and Abno Salad Olow, an
employee of CEVA operating one of its vehicles.
One week later, Geneva Sisco Timmons, individually and purporting to act as
representative of Sisco’s estate, and Joseph Donald Taylor, as next friend of J.N.T.
and J.M.T., minors, filed the underlying suit against CEVA in Harris County, Texas.
Timmons is Sisco’s mother, Joseph Taylor is Sisco’s divorced spouse, and the
minors are Sisco’s daughters. Timmons, an Oklahoma resident, had petitioned an
Oklahoma probate court to be appointed as the personal representative of Sisco’s
estate, but had not been appointed as the representative before filing the suit.
Sisco’s father separately petitioned an Arkansas probate court to appoint
Armis Advisers as Special Administrator and Personal Representative of Sisco’s
estate. The Arkansas probate court appointed Armis Advisers as personal
representative. On May 2, 2019, attorney Malinda Brown requested that an
Oklahoma probate court appoint her as the personal representative of Sisco’s estate.
Armis Advisers intervened in the Oklahoma probate action to contest Brown’s
petition for appointment. The next week, Armis Advisers filed a separate wrongful
death and survival lawsuit against CEVA in Arkansas arising out of the same
accident as the Harris County, Texas lawsuit. Then, the Oklahoma probate court
2
appointed Brown as personal representative of Sisco’s estate. Brown, as the
representative of Sisco’s estate, was subsequently added as a plaintiff in an amended
petition filed in the Harris County case. Armis Advisers filed another suit against
CEVA in federal court in Oklahoma. The Arkansas and Oklahoma actions were later
voluntarily dismissed.
Prior to the dismissal of the Arkansas and Oklahoma actions, CEVA filed a
motion to abate the Harris County case pending resolution of which representative
properly represents Sisco’s estate and the proper forum for the suit. In conjunction
with its motion to abate, CEVA filed a motion to dismiss the Harris County case on
grounds of forum non conveniens, asserting that Oklahoma is the more convenient
forum. In support of its motion to dismiss, CEVA asserted that (1) suit could be
brought in Oklahoma; (2) Oklahoma provides an adequate remedy because, like
Texas, Oklahoma has statutes authorizing wrongful death and survival claims; (3)
key witnesses and persons with knowledge of relevant facts reside in Oklahoma and
could not be compelled to testify if the case were held in Harris County; (4) there is
no injustice to plaintiffs by requiring them to sue in Oklahoma; (5) public interest
favors dismissal in light of “[c]ourt congestion and the burdens of jury duty in Harris
County to resolve an accident centered in Oklahoma and involving Oklahoma law;”
(6) Oklahoma law will apply in the case; and (7) dismissal will not duplicate
litigation.
3
After a hearing, the trial court denied both the motion to abate and the motion
to dismiss for forum non conveniens. Following the voluntary dismissals of the
Arkansas and Oklahoma suits, only the Harris County suit remains pending. CEVA
requested that the trial court reconsider its denial of the motion to dismiss and the
trial court denied reconsideration. This mandamus petition challenging the denial of
the motion to dismiss followed. CEVA subsequently filed a motion requesting a
temporary stay of discovery in the underlying proceeding pending our ruling on the
mandamus petition. We granted the motion and ordered discovery in the proceeding
stayed pending our ruling.
Standard of Review
Mandamus is appropriate to remedy an improper denial of a motion to dismiss
for forum non conveniens. See In re Pirelli Tire, L.L.C., 247 S.W.3d 670, 679 (Tex.
2007). “An appeal is not adequate when a motion to dismiss on forum non
conveniens grounds is erroneously denied, so mandamus relief is available, if it is
otherwise warranted.” In re ENSCO Offshore Int’l Co., 311 S.W.3d 921, 923 (Tex.
2010) (orig. proceeding). “As a general rule, the forum non conveniens decision is
committed to the trial court’s sound discretion and may be set aside only for a clear
abuse of discretion.” In re Mahindra, USA Inc., 549 S.W.3d 541, 545 (Tex. 2018)
(citations omitted). “It may be reversed only when there has been a clear abuse of
discretion; where the court has considered all the relevant public and private interest
4
factors, and where its balancing of these factors is reasonable, its discretion deserves
substantial deference.” Quixtar Inc. v. Signature Mgmt. Team, LLC, 315 S.W.3d 28,
31 (Tex. 2010) (citation omitted).
Applicable Law
Section 71.051 of the Texas Civil Practice and Remedies Code governs
motions to dismiss for forum non conveniens in all actions for personal injury or
wrongful death. See In re Pirelli Tire, 247 S.W.3d at 674; In re Mantle Oil & Gas,
LLC, 426 S.W.3d 182, 187 (Tex. App.—Houston [1st Dist.] 2012, no pet.). Section
71.051(b) provides:
If a court of this state, on written motion of a party, finds that in the
interest of justice and for the convenience of the parties a claim or
action to which this section applies 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. In determining whether to grant a motion to stay or
dismiss an action under the doctrine of forum non conveniens, the court
shall consider whether:
(1) an alternate forum exists in which the claim or action may be tried;
(2) the alternate forum provides an adequate remedy;
(3) maintenance of the claim or action in the courts of this state would
work a substantial injustice to the moving party;
(4) 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 claims;
(5) 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
5
consideration of the extent to which an injury or death resulted from
acts or omissions that occurred in this state; and
(6) the stay or dismissal would not result in unreasonable duplication
or proliferation of litigation.
TEX. CIV. PRAC. & REM. CODE § 71.051(b); see also In re Mantle Oil & Gas, 426
S.W.3d at 187–88.
Section 71.051 does not require that the movant prove every statutory factor
or that every factor must weigh in favor of dismissal for the movant to be entitled to
relief. See In re Gen. Elec. Co., 271 S.W.3d 681, 687 (Tex. 2008); see also In re
Mantle Oil & Gas, 426 S.W.3d at 188. The statute also does not contain any language
placing the burden of proof on either party; instead, section 71.051 “simply requires
the trial court to consider the factors, and it must do so to the extent the factors
apply.” In re Gen. Elec., 271 S.W.3d at 687; see also In re Mantle Oil & Gas, 426
S.W.3d at 188.
If these statutory factors weigh in favor of the action being more properly
heard in a forum outside of Texas, then dismissal is required. See In re ENSCO, 311
S.W.3d at 924 (“The word ‘shall’ in the statute ‘requires dismissal . . . if the statutory
factors weigh in favor of the claim or action being more properly heard in a forum
outside Texas.’”) (quoting In re Gen. Elec., 271 S.W.3d at 686); see also In re
Mantle Oil & Gas, 426 S.W.3d at 188.
6
The doctrine of forum non conveniens affords great deference to the plaintiff’s
choice of forum. In re Pirelli Tire, 247 S.W.3d at 675; In re Mantle Oil & Gas, 426
S.W.3d at 188. But, as here, the doctrine “generally affords substantially less
deference to a nonresident’s forum choice.” In re Pirelli Tire, 247 S.W.3d at 675; In
re Mantle Oil & Gas, 426 S.W.3d at 188; see also Quixtar Inc., 315 S.W.3d at 31
(holding same in common-law forum non conveniens context and noting “that a
plaintiff is not a Texas resident speaks directly to a defendant’s burden” in
establishing propriety of dismissal).
The forum non conveniens doctrine recognizes “that the plaintiff’s choice
must sometimes yield in the public interest, and in the interest of fundamental
fairness.” In re Pirelli Tire, 247 S.W.3d at 675. Dismissal on forum non conveniens
grounds is appropriate when sufficient contacts between the defendant and the forum
state exist to confer personal jurisdiction, but the case itself has no significant
connection to the forum state. Id. at 675–76; In re Mantle Oil & Gas, 426 S.W.3d at
188–89. “It is fundamentally unfair to burden the people of Texas with the cost of
providing courts to hear cases that have no significant connection with the State.” In
re Pirelli Tire, 247 S.W.3d at 681 (quoting In re Smith Barney, Inc., 975 S.W.2d
593, 598 (Tex. 1998)).
7
Analysis
Plaintiffs filed suit in Harris County, Texas because CEVA’s corporate
headquarters is in Houston. Although the parties assert various arguments as to
which forum—Texas or Oklahoma—is appropriate, the central dispute here hinges
on the nature of the claims asserted in the underlying suit. CEVA asserts that the
underlying suit concerns fault for an auto accident in Oklahoma, while Plaintiffs
assert that the suit is focused on CEVA’s negligence in its hiring, training, and
supervision practices—all of which presumably originate from its headquarters in
Houston. A determination on this issue necessarily guides analysis of the Section
71.051(b) factors the trial court was required to consider in ruling on CEVA’s
motion to dismiss for forum non conveniens. For instance, if CEVA is correct that
the underlying suit is focused on the accident in Oklahoma, then the majority of
evidence and witnesses would be in Oklahoma. But if Plaintiffs are correct that the
suit is focused on alleged negligence of CEVA in its training, hiring, and its policies
and procedures, then evidence and pertinent witnesses would be located in CEVA’s
headquarters in Houston. Accordingly, before applying the section 71.051(b)
factors, we first examine the nature of the claims asserted in the underlying case. We
8
conclude that the record demonstrates that the suit is focused on the accident in
Oklahoma rather than actions taken at CEVA’s headquarters in Houston.
A. Waiver
CEVA asserts in its reply in support of its mandamus petition that Plaintiffs
waived the argument in their response that their claims concern allegations that
CEVA was negligent in its hiring, training, and supervision of the driver involved in
the accident. CEVA asserts that such claims were neither argued to the trial court
nor included in any of Plaintiffs’ pleadings, including Plaintiffs’ first amended
petition (the live pleading in the case). CEVA is correct that these claims are not
asserted in plaintiff’s petition, but incorrect that they were not argued in any pleading
before the trial court.
Plaintiffs’ First Amended Petition does not provide clear allegations of
negligence against CEVA beyond its being vicariously liable for its driver. The
relevant portion of the petition provides as follows:
6.1 At the time of the accident, CEVA GROUND US, L.P. was the
owner/operator of the tractor trailer being driven by one of its drivers.
At all times said driver while operating the tractor trailer was an
employee and/or agent of CEVA GROUND US, L.P. and was acting
within the course and scope of his employment. Therefore, CEVA
GROUND US, L.P. is vicariously responsible for the negligence of its
driver based on the theory of Respondeat Superior.
6.2 Plaintiffs further assert and allege that at the time of the collision
made the basis of this suit CEVA GROUND US, L.P. was guilty of
various acts and/or omissions, which collectively and severally
constituted negligence, which negligence was a proximate cause of the
9
injuries to ADRIANNE LANEAL SISCO, the physical pain and mental
anguish she suffered, her death, and of the damages suffered by
Plaintiffs.
Plaintiffs point to paragraph 6.2 of their petition as support for their argument that
the case involves claims against CEVA for negligent hiring, training, and
supervision practices. But, unlike the dismissed suits that were filed in Oklahoma
and Arkansas, the petition in this case does not contain any claims or allegations that
CEVA was negligent in its hiring, training, and supervision practices. Plaintiffs’
reliance on a vague assertion in their petition that CEVA “was guilty of various acts
and/or omissions, which collectively and severally constituted negligence” fails to
demonstrate that they are asserting claims against CEVA for alleged negligence in
its hiring, training, policies, and procedures.
Although Plaintiffs did not assert these claims in their petition, the record does
include a single instance in which Plaintiffs nevertheless argued to the trial court that
CEVA’s motion to dismiss should be denied because the case is about whether
CEVA was independently negligent in its hiring, training, polices, and procedures.
Specifically, Plaintiffs asserted the following in their brief opposing CEVA’s motion
to dismiss:
[T]he instant case is focused on the negligence of this Defendant
company in its training, hiring, and its policies and procedures—all of
which are presumably devised in and from its headquarters in Houston.
Therefore, the pertinent witnesses to prove and defend the case will be
10
individuals of the company located at their principal office in Houston,
Texas, and the information and documents located at that office. 2
This single argument is insufficient to demonstrate the merits of the proposition but,
because Plaintiffs at least raised the argument in their opposition brief, we decline
to hold that the argument is waived.
B. Nature of the Claims
Although inclusion of the argument in Plaintiffs’ opposition brief defeats
CEVA’s claim that the argument is waived, the lack of any claims or allegations of
negligent training, hiring, and supervision practices in the petition significantly
undermines Plaintiffs’ argument that the case is primarily about CEVA’s corporate
policies in Houston rather than the facts on the ground in Oklahoma. Moreover,
Plaintiffs did not argue at the hearing on CEVA’s motion to dismiss that the case
concerned claims against CEVA for negligent training, hiring, policies and
procedures emanating from its Houston headquarters. Instead, Plaintiffs’ counsel
acknowledged that the case centered on the accident in Oklahoma, arguing that
CEVA would not be significantly burdened by trying the case in Houston because
the case is “basically a rear-end case.” Specifically, counsel asserted:
So – but that’s one of the things that – again, if we’re looking at just the
18-wheeler driver and the trooper, I mean, I don’t see where there’s a
big burden on the defendants to be able to try their case here in Houston.
2
CEVA did not include Plaintiffs’ opposition brief in the record filed with its
petition, but the pleading was included in a supplemental record provided by
Plaintiffs.
11
I mean, it’s a simple – I mean, I hate to simplify it because it’s serious;
but it’s basically a rear-end case.
At the hearing, the only connection that Plaintiffs’ counsel alleged that the case had
with Texas was that CEVA’s headquarters is in Houston. Notably, the trial court
expressed concern about this being the sole connection to the State:
THE COURT: I agree, Counselor; but I’m just pointing that out.
There’s nothing here in Texas related to this case, except the fact that
these folks are—the principal office is here. And so, when that’s the
case and—well, it’s given no—usually somebody has a relation to—
the plaintiff is here. Somebody is—so, there is the forum non
convenience that the Court is generally not—so, this may—my concern
is it’s—it may be outside even the Court’s discretion. That’s the
problem I’m—the concern I’m having.
Despite the trial court expressing concern about the suit’s lack of connection to
Texas, Plaintiffs’ counsel did not argue that Plaintiffs’ claims were based on
allegations of negligence involving CEVA’s headquarters in Houston.
Both the record and the arguments before the trial court demonstrate that the
underlying case is centered on fault for the accident in Oklahoma, which CEVA
contests. Among other things, CEVA seeks to contest fault by introducing evidence
that (1) an eyewitness observed decedent’s car stopped on the highway, the
eyewitness honked her horn and slowed to alert the driver that what she was doing
was dangerous, and the eyewitness subsequently observed the truck strike the car;
(2) when informed of her daughter’s death, the decedent’s mother (an Oklahoma
resident) said that the decedent had recently “been sleeping in her vehicle” and might
12
“have been intoxicated;” and (3) Oklahoma toxicologists determined that the
decedent “had methamphetamine, amphetamine, and tetrahydrocannabinol in her
bloodstream.”
Accordingly, we conclude that the record clearly demonstrates that the case is
focused on the accident in Oklahoma rather than alleged negligence at CEVA’s
Houston office. The crux of the case and the direct cause of the injury was a vehicle
collision in Oklahoma. Any negligent training or supervision allegedly emanating
from CEVA’s office in Houston was, at most, a “remote cause.” See In re BPZ Res.,
Inc., 359 S.W.3d 866, 880 (Tex. App.—Houston [14th Dist.] 2012, orig.
proceeding); see In re Mantle, 426 S.W.3d at 197 (noting that, aside from general
contention that “big decisions” were made at relator’s headquarters in Houston,
plaintiffs failed to point to any specific negligent act or omission occurring in Texas
that was a proximate cause of injury).
C. Application of Section 71.051(b) Factors
Having determined that the underlying suit is focused on the automobile
accident in Oklahoma, we now evaluate the Section 71.051(b) factors to determine
whether the trial court abused its discretion in denying CEVA’s motion to dismiss
on forum non conveniens grounds. As discussed below, we conclude that the trial
court abused its discretion because the factors heavily weigh in favor of dismissal.
13
The only connection the suit has to Texas is that CEVA’s corporate
headquarters are in Houston. We have held that the location of a company’s
headquarters is, by itself, insufficient to defeat a motion to dismiss for forum non
conveniens. See In re XTO Energy, Inc., No. 01-17-00652-CV, 2018 WL 2246216,
*9–12 (Tex. App.—Houston [1st Dist.] May 17, 2018, orig. proceeding) (mem. op.).
Our decision in In re XTO Energy is instructive. In re XTO involved a lawsuit
brought in Harris County, Texas by non-residents involving injuries sustained from
a well fire in North Dakota. The plaintiffs alleged negligence claims against XTO,
which owned and operated the well, and Weatherford and KLX, which provided
equipment for the well. Id. at *2. The suit was filed in Texas because XTO,
Weatherford, and KLX had their principal places of business in Texas. Id. Plaintiffs
alleged that venue was appropriate in Harris County because “it is a county where a
substantial portion of the events and/or omissions giving rise to the subject claims
occurred, including critical operational and safety decisions that contributed to
and/or caused the accident made the basis of this lawsuit.” Id. at *1. The trial court
denied the defendants’ motion to dismiss for forum non conveniens and the
defendants filed a mandamus petition challenging the denial. Our Court granted
mandamus relief compelling the trial court to grant the motion to dismiss for forum
non conveniens because the location of the defendant companies’ principal places
14
of business was insufficient to overcome all of the other factors weighing in favor
of dismissal. We reach the same conclusion in this case.
1. An alternate forum exists in Oklahoma.
The first factor under Section 71.051 is whether an alternate forum exists for
trial. TEX. CIV. PRAC. & REM. CODE § 71.051(b)(1). Although a plaintiff initially has
the right to choose a forum, a plaintiff’s choice of forum is given “substantially less
deference” whenever the plaintiff is—as here—a non-resident of Texas. See Quixtar,
315 S.W.3d at 33; In re Pirelli Tire, 247 S.W.3d at 675; see also In re Friede &
Goldman, LLC, No. 01-18-00409-CV, 2019 WL 2041071, at *3 (Tex. App.—
Houston [14th Dist.] May 9, 2019, orig. proceeding) (mem. op.); In re Mantle, 426
S.W.3d at 188. An alternative forum exists if a defendant can be sued there. In re
ENSCO, 311 S.W.3d at 924. Oklahoma courts can exercise specific personal
jurisdiction over CEVA because the accident occurred in Oklahoma. See McKinnis
v. Kelly, 773 P.2d 772, 773 (Ok. Ct. App. 1989) (“We find that the operation of a
motor vehicle by a non-resident motorist on the roads and highways of this state,
when combined with an act or omission in this state in the operation of that motor
vehicle that causes injury to another, is a sufficient ‘minimum contact’ with the State
of Oklahoma so as to vest jurisdiction over a non-resident motorist in the District
Courts of this state.”); 12 OKLA. STAT. § 187 (“In addition to the other counties in
which an action may be brought against a nonresident of this state, an action where
15
all defendants are nonresidents of the state may be brought in the county where the
cause of action arose or in the county where the plaintiff or one of the plaintiffs
resides.”). Plaintiffs do not dispute that CEVA is amenable to process in Oklahoma
and that, therefore, Oklahoma is an available alternate forum. This first factor weighs
in favor of dismissal.
2. Oklahoma provides an adequate remedy.
The second factor is whether the alternate forum provides an adequate
remedy. TEX. CIV. PRAC. & REM. CODE § 71.051(b)(2). An alternate forum is
inadequate if the remedies that it offers are so unsatisfactory that they really are no
remedy at all. In re ENSCO, 311 S.W.3d at 924; In re Gen. Elec., 271 S.W.3d at
688. Comparative analysis of procedures in different forums is generally not
appropriate in a forum non conveniens analysis because comparison of the rights,
remedies, and procedures available in each forum requires complex exercises in
comparative law that the forum non conveniens doctrine is “designed to help courts
avoid.” In re ENSCO, 311 S.W.3d at 924–25 (quoting In re Gen. Elec., 271 S.W.3d
at 688). Thus, comparative analyses are relevant to the forum non conveniens
decision “only if a potential transfer would effectively result in no available remedy
at all.” Id. at 925; In re Gen. Elec., 271 S.W.3d at 688; see also In re Pirelli Tire,
247 S.W.3d at 678 (“That the substantive law of an alternative forum may be less
favorable to the plaintiff is entitled to little, if any, weight.”). Oklahoma, like Texas,
16
has a statute authorizing wrongful-death and survival claims. 12 OKLA. STAT. §§
1051, 1054. This is sufficient to provide an adequate remedy. See In re
Oceanografia, S.A. de C.V., 494 S.W.3d 728, 732 (Tex. 2016) (per curiam) (orig.
proceeding) (lesser remedies are acceptable unless “they really comprise no remedy
at all”); In re ENSCO, 311 S.W.3d at 925 (same). Plaintiffs do not dispute that
Oklahoma provides an adequate remedy. This second factor weighs in favor of
dismissal.
3. Maintaining the action in Texas would cause substantial injustice to
CEVA.
The third factor is whether litigating the case in Texas will result in substantial
injustice to the moving party. TEX. CIV. PRAC. & REM. CODE § 71.051(b)(3). “When
examining this factor, the trial court considers, among other things, the location of
relevant documents and evidence and whether a majority of witnesses may be
reached by compulsory process in Texas, which are also considerations under the
fifth factor—the balance of private interest factors.” In re Mantle, 426 S.W.3d at
192.
Location of relevant documents and evidence. As discussed, the suit is focused
on fault for the accident that occurred in Oklahoma. Relevant documents and
evidence regarding the accident are located in Oklahoma, not Texas. Among other
things, the toxicology screens and autopsy were conducted in Oklahoma. Moreover,
the Oklahoma Highway Patrol’s case files on the accident are in Oklahoma.
17
Location of witnesses. The suit is focused on fault for the accident that
occurred in Oklahoma. CEVA demonstrates that at least 13 witnesses reside in
Oklahoma, including the sole eyewitness, the plaintiffs themselves, investigating
officers, the attending medical personnel, and the autopsy and toxicology experts.
No witness identified by the parties resides in Texas. Maintaining the suit in Texas
would work a substantial injustice on CEVA because the great majority of witnesses,
including key witnesses, are in Oklahoma and are beyond the compulsory subpoena
power of the Texas trial court. Plaintiffs nevertheless contend that litigating in Texas
would not work a substantial injustice to CEVA because CEVA is headquartered
here. But our Court has rejected similar contentions. See In re XTO, 2018 WL
2246216, at *9; In re Mantle, 426 S.W.3d at 192-93.
We therefore conclude that the location of witnesses weighs in favor of
dismissal. See ENSCO, 311 SW.3d at 925 (“ENSCO argues, and we agree . . . that
the lack of compulsory process in Texas for reaching the great majority of witnesses
would be substantially unjust.”); In re Gen. Elec., 271 S.W.3d at 689 (holding that
this factor weighed strongly in favor of dismissal because witnesses with relevant
knowledge of the plaintiff’s asbestos exposure and damages were outside subpoena
power of Texas courts); In re XTO Energy, 2018 WL 2246216, at *7 (“When the
great majority of witnesses are not subject to compulsory process in Texas, litigating
a case in Texas can result in a substantial injustice to the defendant.”); In re Mantle,
18
426 S.W.3d at 192-93 (holding this factor weighed in favor of dismissal where the
subject accident occurred in Louisiana and significant witnesses with relevant
knowledge were located in Louisiana, outside the subpoena power of Texas courts);
In re BPZ Res., 359 S.W.3d at 875 (“The lack of compulsory process in Texas for
reaching the great majority of witnesses would be substantially unjust.”).
4. Oklahoma has jurisdiction over CEVA.
The fourth factor is whether the alternate forum may exercise jurisdiction
over all the defendants. TEX. CIV. PRAC. & REM. CODE § 71.051(b)(4). CEVA is the
only defendant in the suit. As discussed in our analysis of the first factor, Oklahoma
courts can exercise specific personal jurisdiction over CEVA because the accident
occurred there. See McKinnis, 773 P.2d at 773 (Ok. Ct. App. 1989); see also 12
OKLA. STAT. § 187. Plaintiffs do not dispute that Oklahoma has jurisdiction over
CEVA. This fourth factor weighs in favor of dismissal.
5. Balance of private and public interests favors litigating in Oklahoma.
The fifth factor is whether the balance of private and public factors
predominate in favor of the claim being heard in Oklahoma. TEX. CIV. PRAC. & REM.
CODE § 71.051(b)(5). We examine these private and public interest factors in turn
below.
a) Private Interest Factors
“The private interest considerations generally are considered to be the ease of
19
access to proof, the availability and cost of compulsory process, the possibility of
viewing the premises, if appropriate, and other practical problems that make trial
easy, expeditious, and inexpensive.” In re Gen. Elec., 271 S.W.3d at 691.
Ease of access to proof. Ease of access to proof favors Oklahoma because the
accident occurred there, the great majority of witnesses are there, and the toxicology
screens and autopsy were conducted there. Witnesses located in Oklahoma include
Oklahoma Highway Patrol officers who investigated the accident, an eyewitness,
EMT personnel who responded to the scene, the medical examiner who performed
the autopsy, the toxicologist who performed the toxicology screen on Sisco, and the
toxicologist who screened a blood sample taken from CEVA’s driver.
Cost of Compulsory Proof. “[B]ecause the majority of the pertinent evidence
and witnesses are in” Oklahoma, “the expense of litigating in Texas will be greater
than it would be to litigate in” Oklahoma. Vinmar Trade Fin. Ltd. v. Util. Trailers
de Mexico, S.A. de C.V., 336 S.W.3d 664, 677 (Tex. App.—Houston [1st Dist.] 2010,
no pet.). Moreover, most key witnesses reside in Oklahoma—beyond subpoena
power of a Texas court—but they could be subpoenaed to testify in Oklahoma.
Possibility of viewing the premises. Because the accident occurred in
Oklahoma, a jury view of the accident site, if needed, could easily be performed if
the trial were held in Oklahoma. Conversely, viewing the premises would be
20
impractical if the trial were held in Houston, requiring out-of-state travel and
accommodations.
We conclude that these private-interest factors weigh in favor of dismissal.
We next consider the public interest factors.
b) Public Interest Factors
“Generally, the public interest factors to be considered are administrative
difficulties related to court congestion, burdening the people of a community with
jury duty when they have no relation to the litigation, local interest in having
localized controversies decided at home, and trying a case in the forum that is at
home with the law that governs the case.” In re Gen. Elec., 271 S.W.3d at 691.
Court Congestion. Given the suit’s lack of connection with Texas, holding the
trial in Harris County would unduly add to court congestion. “Administrative
difficulties follow for courts when litigation is piled up in congested centers instead
of being handled at its origin.” In re Pirelli, 247 S.W.3d at 679 (quoting Gulf Oil
Corp. v. Gilbert, 330 U.S. 501, 508-09 (1947)). As the Texas Supreme Court has
recognized, “[i]t is fundamentally unfair to burden the people of Texas with the cost
of providing courts to hear cases that have no significant connection with the State.”
Id. at 681(quoting In re Smith Barney, 975 S.W.2d at 598). We conclude that, in
addition to the financial cost, hearing cases with no significant connection to Texas
21
similarly poses an unfair administrative cost by increasing congestion in an already
busy court system.
Jury Duty. Given the lack of connection, trying the case in Harris County
would also impose an undue burden on Harris County jurors. See id. at 679 (“As the
Supreme Court has stated, ‘[j]ury duty is a burden that ought not to be imposed upon
the people of a community which has no relation to the litigation.’”) (quoting Gulf
Oil Corp. 330 U.S. at 508-09). Moreover, the Harris County system has been
operating under a smaller temporary jury assembly system since Hurricane Harvey
flooded the jury plaza in 2017, making jury duty “increasingly unattractive to
potential jurors.” Samantha Ketterer, Battling the jury duty problem, where fewer
than 1 in 4 show up, HOUSTON CHRONICLE, Jan. 25, 2020,
https://www.houstonchronicle.com/news/houston-texas/houston/article/Battling-
the-jury-duty-problem-where-fewer-than-15010187.php.
Local interest in resolving local disputes. Because this case arises out of an
Oklahoma motor-vehicle accident, Oklahoma has a significant interest in ensuring
that the claims are properly determined under Oklahoma law, including its traffic
laws. This points to trying the case where it happened—in Oklahoma. See In re
Pirelli, 247 S.W.3d at 679 (finding public interests favored Mexican forum over
Texas where “[t]he safety of Mexican highways and products within the country’s
borders are also Mexican interests.”). Plaintiffs assert that there is a local interest in
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resolving the dispute in Texas because CEVA’s headquarters are in Texas. But
CEVA has nationwide operations and Oklahoma’s interest in the safety of
individuals within its borders and the conduct of companies doing business in the
State is greater than any interest Texas might have in the suit. See In re XTO Energy,
Inc., 2018 WL 2246216, at *9 (“North Dakota’s interest in the safety of individuals
who are working within its borders and the conduct of companies doing business in
the state is stronger than any interest Texas may have in this lawsuit simply because
the corporate defendants are located in Houston.”).
Governing law. Which state’s law governs an issue is a question of law for
the court to decide. Torrington Co. v. Stutzman, 46 S.W.3d 829, 848 (Tex. 2000). In
deciding choice-of-law issues, Texas courts use the “most significant relationship”
test from the Restatement. Id.; Schippers v. Mazak Properties, Inc., 350 S.W.3d 294,
300 (Tex. App.—San Antonio 2001, pet. denied). In a tort case, where the injury and
tortious behavior occurred, the domicile of the parties, and the place where the
relationship between the parties is centered are all relevant factors to consider.
Torrington Co., 46 S.W.3d at 848 (citing RESTATEMENT (SECOND) OF CONFLICT OF
LAWS § 145(2) (1971)). In such instances, the Restatement's “most significant
relationship test” includes a presumption in favor of applying the law of the place of
the injury. See RESTATEMENT (SECOND) OF CONFLICT OF LAWS §§ 145, 146; see also
Enter. Products Partners, L.P. v. Mitchell, 340 S.W.3d 476, 480 (Tex. App.—
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Houston [1st Dist.] 2011, writ dism’d). In this case, the injuries occurred in
Oklahoma and Plaintiffs have not rebutted the presumption that Oklahoma law
governs the dispute. Oklahoma trial courts and courts of appeals will be more
efficient and comfortable with determining and applying Oklahoma law. See
ENSCO, 311 S.W.3d at 928.
c) Weighing the Private and Public Interest Factors
Section 71.051(b)(5) requires a trial judge to balance the private and public
interests to determine whether those factors predominate in favor of the claim being
more properly heard in a forum outside Texas. In this case, both the private and
public interest factors weigh in favor of the underlying action being heard in
Oklahoma.
6. Dismissal Would Not Result in Unreasonable Duplication of Litigation.
The final factor we consider is whether the dismissal would result in
unreasonable duplication or proliferation of litigation. TEX. CIV. PRAC. & REM. CODE
§ 71.051(b)(6). The cases filed in Arkansas and Oklahoma have been dismissed.
Dismissing this case and requiring Plaintiffs to pursue their claims in a new case
filed in Oklahoma, where a probate court has appointed an estate representative,
would not duplicate litigation. This sixth factor weighs in favor of dismissal.
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Conclusion
When all section 71.051(b) factors in a case favor the conclusion that an
action would be more properly held in a forum outside Texas, as they do here,
the statute requires the trial court to grant motions requesting that it decline to
exercise its jurisdiction. In re Gen. Elec., 271 S.W.3d at 693-94. The trial court’s
denial of the CEVA’s motion to dismiss violated the forum non conveniens statute
and was an abuse of its discretion. Id.
For the forgoing reasons, we conditionally grant the petition for writ of
mandamus and direct the trial court to (1) vacate its order denying CEVA’s motion
to dismiss for forum non conveniens and (2) grant the motion to dismiss. We are
confident that the trial court will promptly comply, and our writ will issue only if it
does not. We dismiss any pending motions as moot.
Sarah Beth Landau
Justice
Panel consists of Chief Justice Radack and Justices Landau and Hightower.
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