Future View, Inc. v. Criticom, Inc.

RUIZ, Associate Judge,

dissenting.

I respectfully dissent because I think a remand to the trial court for a full consideration of the private and public factors relevant to determination of a motion to dismiss for forum non conveniens is appropriate. As the majority correctly states, we review such decisions for abuse of discretion and we do not substitute our judgment for that of the trial court; we defer, however, only “once we are satisfied that the trial court took the proper factors into account.” Smith v. Alder Branch Realty Ltd. Partnership, 684 A.2d 1284, 1287 (D.C.1996). Therefore, “we pay particular attention to the reasons articulated by the trial court for [its] decision.” Id. We cannot conduct a meaningful review, and, in fact, will end up substituting our own judgment for that of the trial court, unless we know what factors the trial court considered and why it reached the decision it did.

The trial court’s order in this case reads in its totality as follows:

Upon consideration of defendants’ Motion to Dismiss, the opposition and the defendants’ reply thereto and it appearing that, for the reasons stated by the defendants that the substantial, material and overriding contacts regarding this case are in Maryland, that Maryland law controls and that the key, primary witnesses are in that jurisdiction and that the only contact [with] this jurisdiction is that the plaintiff is here, see Kaiser Foundation Health Plan v. Rose, 583 A.2d 156, 158 (D.C.1990), it is this day.... Ordered that the Motion to Dismiss based on the ground of Forum Non Conveniens is Granted.

In light of the trial court’s terse order and the absence of a hearing on the motion, the majority looks at the parties’ motions for and against dismissal on grounds of forum non conveniens to infer what the trial court must have determined in order to reach its decision to dismiss the complaint, notwithstanding that plaintiff, a District of Columbia corporation, chose to bring its lawsuit in the District of Columbia. We have said that “[t]he strong presumption favoring plaintiffs choice of forum is even stronger when [it] is a District of Columbia resident.” Mills v. Aetna Fire Underwriters Ins. Co., 511 A.2d 8, 10 (D.C.1986) (citing Washington v. May Dep’t Stores, 388 A.2d 484, 486 (D.C.1978)). The plaintiff in this case is a District of *435Columbia corporation with its business in the District of Columbia. Thus, defendants here have a heavy burden to show, not that Maryland would be a similarly convenient forum, or even a more convenient one, but that the District of Columbia is an inconvenient forum. I cannot conclude, based solely on the parties’ motions and without the benefit of the trial court’s thinking, that the trial court did not abuse its discretion in deciding, as it must have in order to dismiss the plaintiffs complaint, that the defendants met that heavy burden.

In affirming the trial court’s dismissal for fomm, non conveniens, the majority refers to the “labor intensive effort required ... at the Maryland community college,” the burden of requiring District of Columbia courts to construe Maryland law, and the convenience of witnesses, as sufficient to overcome the deference given to a District of Columbia plaintiffs choice of a District of Columbia forum.1 With respect to the first factor, the amount of work performed in Maryland, the majority acknowledges that the affidavit of plaintiff, Future View Inc’s (“FVI”) Chief Executive Officer, which was before the trial court, specifically stated that most of the work FVI performed under its subcontract with defendant CritiCom Inc. (“CCI”) — the contract that is at issue in this case — was performed in the District of Columbia. Nonetheless, the majority summarily concludes that “[i]n its discretion, however, the trial court could conclude that this quantity of work in the District of Columbia was outweighed by the more substantial and material quality of the installation work accomplished at the Maryland community college.”2 As this case was dismissed before any discovery had been conducted, and on the basis of written motions and supporting documents, there is nothing in the record that can lead this court to surmise that the trial court’s dismissal was based on a determination that the fact that the majority of the work performed by plaintiff in the District of Columbia was somehow “outweighed” by the “more substantial and material quality of the installation work accomplished” in Maryland— particularly as it is unclear whether the work performed in Maryland, which the majority presumes the trial court found to be more substantive, was performed by CCI under its prime contract with CCCC (which is not the subject of this lawsuit) or by FVI under the subcontract with CCI that is at issue in this case.3 Unless FVI’s affidavit is dismissed as inherently incredible (which the majority does not purport to do), the trial court’s statement in its order that “the only contact with this jurisdiction is that the plaintiff is here,” without some *436explanation of the trial court’s analysis of FYI’s affidavit, does not appear to be supported by the record. Or perhaps the trial court overlooked the plaintiffs affidavit on the significant amount of contract work performed in the District.

With respect to the second factor, the burden of requiring District of Columbia courts to construe Maryland law, we have expressly stated that the applicability of Maryland law should not be dispositive in deciding the proper forum as “our courts are not unfamiliar with the laws of Maryland.” Crown Oil and Wax Co. of Del. v. Safeco Ins. Co. of Am., 429 A.2d 1376, 1381 (D.C.1981). The third, and last, factor identified by the trial court’s order is that “primary witnesses” are in Maryland. At this preliminary stage of the litigation, when CCI has yet to assert a defense to FVI’s claims of breach of contract, it is difficult to know who potential, let alone primary, witnesses may be, as they have yet to be identified; at most we can assume that they will include employees of CCI and FVI, and, perhaps, of CCCC. Even assuming further, that CCI’s and CCCC’s employees reside in Maryland and FVI’s employees reside in the District of Columbia, facts which are not in the record, it is difficult to consider that it would be a significant inconvenience to require a CCI employee resident in a Maryland suburb of the District of Columbia to appear before a District of Columbia court. Any such inconvenience would necessarily have to be neutralized by the corresponding inconvenience (also slight) to an employee of FVI resident in the District of Columbia to appear before a Maryland court. Absent a case in which all the witnesses reside in one jurisdiction, or some other special circumstance, the convenience of witnesses simply is not a pressing factor as between trial in the District of Columbia and trial in a neighboring county in Maryland.

It may well be that, with further explanation from the trial court, a decision to dismiss for forum non conveniens would be sustainable. But on the state of the record before us, parts of which call into question some of the conclusions apparently reached by the trial court, we cannot affirm unless we can “conclude that the only permissible decision” is that the District of Columbia is an inconvenient forum. See Coulibaly, supra note 1, 728 A.2d at 605. In light of plaintiffs residency in the District of Columbia and plaintiffs affidavit that most of its work under the contract at issue was performed in the District of Columbia, this is hardly such a case.

For these reasons, I would reverse the dismissal for forum non conveniens and remand for a full consideration by the trial court of the relevant private and public factors in light of all the evidence in the record. See id. (noting that ordinarily “we would remand for an exercise of trial court discretion based upon proper factors” when the trial court has applied an incorrect legal standard or failed to consider all relevant factors).

. The trial court did not expressly refer to the other private and public factors we have identified as relevant: ease of access to the sources of proof, availability and cost of compulsory process, enforceability of any judgment obtained, and clearance of foreign controversies from congested dockets. See Coulibaly v. Malaquias, 728 A.2d 595, 600-01 (D.C.1999) (outlining relevant factors); Mills, 511 A.2d at 10 (same). Nor does the majority attempt to recreate the trial court's consideration, or account for non-consideration, of these factors.

. David Hanrahan, Chief Executive Officer of FVI, stated in his affidavit: “I would estimate that in excess of 75% of the work done in fulfillment of the contract between CCI and Charles County Community College ("CCCC”) was done by FVI, and more than two-thirds of FVI’s work was done in D.C.” This would mean that about half of the work called for under the contract between defendant CCI and CCCC was performed in the District of Columbia.

.The affidavit of Robert W. Winegard, Executive Vice President of CCI, does not dispute FVI’s estimate of the proportion of FVI’s work under the CCI-FVI subcontract performed in the District. Rather, Mr. Winegard states in his affidavit: "The parties [CCI and FVI] provided all equipment and services for CCCC in Maryland and all payments made to CritiCom were received from CCCC in Maryland.” This statement on its face refers only to the "equipment and services for CCCC” which, being in Maryland, were obviously also in Maryland; it does not refer to the work performed by FVI under the subcontract with CCI.