NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
RICHEL GARRETT et al.,
Plaintiffs/Appellants,
v.
SWIFT TRANSPORTATION CO. OF ARIZONA L.L.C.,
Defendant/Appellee.
No. 1 CA-CV 19-0840
FILED 9-15-2020
Appeal from the Superior Court in Maricopa County
No. CV2019-051741
The Honorable Cynthia J. Bailey, Judge Retired
AFFIRMED
COUNSEL
Beale Micheaels Slack & Shughart, PC, Phoenix
By K. Thomas Slack, Tracy A. Gromer
Counsel for Plaintiff/Appellant
Jones Skelton & Hochuli, PLC, Phoenix
By Phillip H. Stanfield, Jonathan P. Barnes, Jr., Clarice A. Spicker
Counsel for Defendant/Appellee
GARRETT, et al. v. SWIFT
Decision of the Court
MEMORANDUM DECISION
Chief Judge Peter B. Swann delivered the decision of the court, in which
Presiding Judge Jennifer B. Campbell and Judge Lawrence F. Winthrop
joined.
S W A N N, Chief Judge:
¶1 Richel Garrett appeals the superior court’s judgment
dismissing her wrongful death claim against Swift Transportation
Company of Arizona based on forum non conveniens. We affirm because the
court reasonably balanced the private and public interests.
FACTS AND PROCEDURAL HISTORY
¶2 A Swift employee drove a Swift tractor-trailer down a steep
grade in Idaho, failed to obey a stop sign, and collided with a vehicle driven
by Garrett’s son, killing him. Garrett’s son was a resident of Washington.
Garrett is a resident of Washington. Swift’s principal place of business is in
Arizona.
¶3 Garrett, on behalf of herself and the decedent’s father, filed a
wrongful death suit against Swift in Arizona. Swift moved to dismiss based
on forum non conveniens, arguing that Washington and Idaho were more
convenient fora, and agreed to submit to jurisdiction in either alternative
state.
¶4 The superior court granted the motion. In its ruling, the court
found that the plaintiffs are Washington residents, that most of the relevant
conduct occurred outside of Arizona, that it would be less expensive for the
parties to call the witnesses in either Washington or Idaho, and that public
interests, such as burdens on Arizona jurors considering a conflict that
occurred in another state and the burden on an Arizona court considering
a conflict of law analysis, favored either Washington or Idaho. The court
concluded that that the totality of factors “strongly favor[s] both
Washington and/or Idaho over Arizona for purposes of the litigation.” The
court denied Garrett’s motion for reconsideration.
¶5 In its final judgment, the court ordered as a prerequisite to
dismissal that Swift voluntarily consent to jurisdiction in either Washington
or Idaho. Further, the court ordered that the action could be reinstated in
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Decision of the Court
Arizona if there were no determination on the merits in Washington or
Idaho, and that the statute of limitations would be tolled for six months
following a final action of the alternative forum.
¶6 We have jurisdiction over Garrett’s appeal under A.R.S. § 12-
2101(A)(3). See Dunn v. FastMed Urgent Care PC, 245 Ariz. 35, 38, ¶ 9 (App.
2018) (“Dismissal pursuant to a forum-selection clause with leave to refile
in another state is an appealable order under A.R.S. § 12-2101(A)(3).”);
Dusold v. Porta-John Corp., 167 Ariz. 358, 361 (App. 1990) (holding that A.R.S.
§ 12-2101(A)(3)’s predecessor statute provided basis for appellate
jurisdiction to consider court’s order dismissing action and transferring to
another state for arbitration).
DISCUSSION
¶7 We review the dismissal of the action based on forum non
conveniens for abuse of discretion. Coonley & Coonley v. Turck, 173 Ariz. 527,
531 (App. 1993).
¶8 The primary goal of a forum non conveniens analysis is to
ensure a convenient location for trial. Piper Aircraft Co. v. Reyno, 454 U.S.
235, 249 (1981). Garrett’s right to choose her forum “should not be
disturbed except upon adequate showing.” First Nat’l Bank & Trust Co. v.
Pomona Mach. Co., 107 Ariz. 286, 290 (1971). When a plaintiff chooses his or
her home forum, courts may reasonably assume that the choice is
convenient. Piper, 454 U.S. at 255–56. But when a plaintiff chooses a foreign
forum, “this assumption is much less reasonable.” Id. As such, “a foreign
plaintiff’s choice deserves less deference.” Id. When “trial in the plaintiff’s
chosen forum imposes a heavy burden on the defendant or the court, and
where the plaintiff is unable to offer any specific reasons of convenience
supporting his choice,” dismissal based on forum non conveniens is
appropriate. Id. at 249.
¶9 To obtain a dismissal based on forum non conveniens, a
defendant must first show the availability of an adequate alternative forum.
Parra v. Cont’l Tire N. Am., Inc., 222 Ariz. 212, 215, ¶ 9 (App. 2009). Here,
Swift consented to jurisdiction in the alternative fora, and the court
appropriately conditioned dismissal on this basis. See Avila v. Chamberlain,
119 Ariz. 369, 372 (App. 1978) (holding that availability prong is satisfied
by dismissal conditioned on defendant’s stipulation to submit to
jurisdiction in alternative forum).
¶10 Next, the defendant must show that, after consideration of
both private and public interests, “on balance, the alternative forum is a
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Decision of the Court
more convenient place to litigate the case.” Coonley, 173 Ariz. at 532.
Private interests include access to sources of proof, availability and cost of
witness attendance, and other practical issues concerning trial
convenience. Cal Fed Partners v. Heers, 156 Ariz. 245, 246 (App. 1987). Public
interests include court congestion and burdens on Arizona jurors and the
court. Id. at 247.
¶11 We agree with the superior court that the private factors
strongly favor Washington or Idaho as the forum for trial. The plaintiffs
are Washington residents, and the collision occurred in Idaho. Further, all
crime scene investigators and all witnesses to the collision are located in
Idaho or Washington.1 Even if Swift did not identify specific roadway
design witnesses in support of its unsafe roadway design defense, 2 it was
reasonable for the court to assume that any local roadway design witnesses
were located in Idaho. The court reasonably found that it will be less
expensive to call the witnesses to trial in either Washington or Idaho. See
Coonley, 173 Ariz. at 533 (“Certainly, the relative expense favors Iowa as the
majority of witnesses are in that state.”). Moreover, most of the physical
evidence—including the Swift truck—is located in Idaho.
¶12 Garrett argues that the superior court failed to consider all
relevant private interest factors, such as the practical problem that both
sides hired Arizona attorneys and that Swift’s accident reconstruction
expert was from Arizona. But we assume that the court considered all
admissible evidence, see Fuentes v. Fuentes, 209 Ariz. 51, 55–56, ¶ 18 (App.
2004),there is no requirement that the court identify and consider every
factor, and the forum non conveniens standard is flexible, with each case
turning on its own unique facts, Piper Aircraft, 454 U.S. at 249–50. And
though we recognize that Swift’s corporate headquarters are located in
Arizona, the driver’s employment background check occurred in Arizona,
and copies of some electronic records are stored in Arizona, we do not
1 The superior court’s finding that all accident witnesses reside in
Idaho is contradicted by the record. But that error is immaterial because
these witnesses do not reside in Arizona and the court found that either
Idaho or Washington was a convenient alternative forum.
2 To the extent Garrett contends, as she did in her motion for
reconsideration, that the court erred in relying on the materiality of Swift’s
roadway design defense witnesses because Swift failed to assert this
defense in the driver’s related criminal trial, nothing precludes Swift from
asserting that defense in this civil action.
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Decision of the Court
reweigh the evidence. See id. at 257–61 (upholding dismissal based on
reasonable balancing of interests even though some evidence weighed
against dismissal). Though Garrett correctly states that the materiality
rather than the volume of evidence is most relevant, see Parra, 222 Ariz. at
216, ¶ 13, the record supports the court’s balancing of relevant material
evidence related to the private interest factors.
¶13 The identifiable public interests also strongly favor
Washington or Idaho. Washington’s strong interest stems from Garrett and
the decedent’s father being Washington residents, because Washington
residents have an interest in making their citizens whole for injuries arising
out of tortious conduct. Idaho’s strong interest stems from the accident
having occurred there and the fact that most witnesses and physical
evidence are in Idaho, and the fact that Idaho law would most likely apply.
Moreover, we agree with the superior court that “it is clearly possible that
Arizona would be called on to apply Idaho or Washington law,” and which
state’s law applies “is likely to be litigated vigorously on both sides given
the differences in available damages in each state.” See Garcia v. Gen. Motors
Corp., 195 Ariz. 510, 516, ¶ 20 (App. 1999) (holding that application of a
forum’s laws depends on which forum has the most significant relationship
to the issue). “The doctrine of forum non conveniens . . . is designed in part
to help courts avoid conducting complex exercises in comparative law,”
and “[t]he public interest factors points toward dismissal where the court
would be required to ‘untangle problems in conflict of laws, and in law
foreign to itself.’” Piper Aircraft, 454 U.S. at 251 (citation omitted).
¶14 Further, though Arizona jurors may have an interest in
regulating the actions of an Arizona corporation that sends trucks onto its
streets, we cannot say that the superior court abused its discretion by
finding that the public factors strongly favor Washington or Idaho. See
Lueck v. Sundstrand Corp., 236 F.3d 1137, 1147 (9th Cir. 2001) (holding that
though Arizona jurors may have an interest in defective products
manufactured in their forum by a corporate defendant, “this interest is
slight compared to the time and resources the . . . court in Arizona would
expend if it were to retain jurisdiction over this dispute”); Piper Aircraft, 454
U.S. at 260–61 (holding that though residents of corporate defendant’s
forum may have interest in deterring wrongful conduct, that interest alone
was insufficient to justify enormous judicial expense of resources and time).
Ultimately, even though Swift is an Arizona resident, public interest factors
strongly favor dismissal because Arizona’s connection with the litigation is
tenuous. See Coonley, 173 Ariz. at 533–34. When the only Arizona party
does not desire the Arizona court’s assistance, Arizona’s interest in the case
is not fundamental. Id. at 532.
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Decision of the Court
¶15 Garrett contends that the superior court failed to apply the
appropriate legal standard by placing the burden on her to prove that
Arizona had more evidence and a greater connection to the litigation than
the other states. The court’s ruling, however, expressly reflects that it
placed the burden on Swift to show that “on balance” the alternative fora
were more convenient places to litigate; further, the court expressly
recognized that the forum non conveniens doctrine is an exceptional tool and
must be employed sparingly.
¶16 Garrett also contends that Swift failed to provide sufficient
evidence or affidavits, and that the court based its ruling on erroneous
factual conclusions not supported by the evidence. But affidavits are not
required—the court just must have enough information to enable it to
identify and balance the parties’ interests. Piper Aircraft, 454 U.S. at 258–59.
The superior court was provided sufficient information from the pleadings
and documents in the record. Further, we detect no erroneous factual
conclusion made by the superior court that warrants reversal.
¶17 We hold that the superior court reasonably balanced the
relevant private and public factors and did not abuse its discretion in
dismissing this case based on application of forum non conveniens.
CONCLUSION
¶18 We affirm the superior court’s judgment for the reasons set
forth above. We award costs to Swift upon compliance with ARCAP 21.
AMY M. WOOD • Clerk of the Court
FILED: AA
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