NO. 94-100
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
STATE OF MONTANA, EX REL.,
BURLINGTON NORTHERN RAILROAD
COMPANY, a corporation,
Relator,
THE DISTRICT COURT OF THE EIGHTH
JUDICIAL DISTRICT COURT, CASCADE COUNTY,
and HONORABLE JOHN M. MCCARVEL
Respondents.
ORIGINAL PROCEEDING
COUNSEL OF RECORD:
For Relator:
Kurt W. Kroschel (argued), Dennis Nettiksimmons,
Kroschel & Yerger, Billings, Montana
For Plaintiff:
C. Marshall Friedman, St. Louis, Missouri, Lynn D.
Baker, Newton McCoy (argued), Hartelius, Ferguson &
Baker, Great Falls, Montana (Iddings)
For Third-Party Defendants:
Don M. Hayes, Herndon, Hartman, Sweeney & Halverson,
Billings, Montana (DuPont de Nemours & Co.); L.D.
Nybo, Nybo, Conklin & LeVeque, Great Falls, Montana
(SSI/Mobley Co.)
For Amici:
Randy Cox, Boone, Karlberg & Haddon, Missoula,
Montana, Sue Ann Love, Great Falls, Montana (Montana
Defense Trial Lawyers); Patricia O'Brien Cotter,
Cotter & Cotter, Great Falls, Montana, Lawrence
Anderson, Great Falls, Montana (Montana Trial
Lawyers Association); Robert M. Knight, Helena S.
Maclay, Knight, Maclay & Masar, Missoula, Montana
Heard: October 25, 1994
Submitted: October 25, 1994
Decided: March 2, 1995
Filed:
Justice James C. Nelson delivered the Opinion of the Court.
This case comes before us on Relator Burlington Northern's
(BN) application for a writ of supervisory control. BN requests
that we order the District Court to dismiss, without prejudice,
Plaintiff Anthony Iddings' (Plaintiff) Federal Employer's Liability
Act (FELA or the Act) complaint seeking monetary damages for an
injury occurring in the course and scope of his employment with BN.
BN contends that dismissal is appropriate under the doctrine of
forum non conveniens. We hold that dismissal on those grounds is
not warranted and, accordingly, decline to issue the requested
writ.
ISSUES
Four general issues are raised by the parties and are
discussed by the parties and by amici. We restate these issues as
follows:
I. Did the District Court err in failing to dismiss this case
on the grounds of forum non conveniens because of the substantial
increase in imported FELA cases in Montana?
II. Has the Montana Supreme Court applied the doctrine of
forum non conveniens in non-FELA cases, and if so, must the
doctrine now be applied in FELA cases?
III. Is it appropriate to apply the doctrine of forum non
conveniens to the instant case?
IV. What is the effect of the Privileges and Immunities Clause
on this litigation?
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff's claim arose out of an incident in May of 1989, in
Wyoming when he was allegedly injured in the course and scope of
his employment with BN by being exposed to herbicides from spraying
2
operations at the rail yard. Plaintiff is neither a citizen nor a
resident of Montana.
Plaintiff filed his FELA complaint under 45 U.S.C. § 51, et.
seq., in the Eighth Judicial District Court, Cascade County,
Montana, on April 27, 1992. On May 26, 1992, BN filed a motion to,
alternatively, dismiss the complaint on the basis of the doctrine
of forum non conveniens, or to change the place of trial.
By stipulation, BN's motion was stayed until the U.S. Supreme
Court decided Burlington Northern v. Ford (1992), _ U.S. _, 112
S.Ct. 2184, 119 L.Ed.2d 432, which related to the railroad's motion
for a change of place of trial based on equal protection grounds.
The parties, nevertheless, agreed that discovery in the instant
case would proceed. In May 1993, BN brought a third party complaint
against E.I. DuPont de Nemours & Company, Inc. (DuPont) and
SSI/Mobley Company, Inc. (SSI), contending negligence in the
spraying operation which allegedly injured Plaintiff. In the
course of their defense, DuPont and SSI joined BN's motion to
dismiss Plaintiff's complaint for forum non conveniens and,
subsequently, also filed their own motion to dismiss BN's third
party complaint and amended third party complaint on the same
grounds. BN's motion to dismiss Plaintiff's complaint for forum
non conveniens was heard on January 26, 1994, and on February 15,
1994, the District Court entered its written order denying the
motion. On March 7, 1994, BN filed a notice of application for
writ of supervisory control. We accepted original jurisdiction,
ordered briefs and, on October 25, 1994, heard oral argument. The
3
Montana Trial Lawyers Association, Montana Defense Trial Lawyers
and Robert M. Knight and Helena S. Maclay filed briefs, amicus
curiae.
DISCUSSION
Did the District Court err in failing to dismiss this case on
the grounds of forum non conveniens because of the substantial
increase in imported FELA cases in Montana?
BN contends that the District Court erred by not exercising
its discretion to grant its motion to dismiss, because of what it
claims is evidence of a substantial increase in the filing of out-
of-state FELA cases in Montana, especially in Cascade County. As
authority, BN cites, among others, our decision in Haug v.
Burlington Northern R. Co. (1989), 236 Mont. 368, 770 P.2d 517, for
the proposition that:
[tlhe common law doctrine of forum non conveniens allows
a court to "resist imposition upon its jurisdiction even
when jurisdiction is authorized by the letter of a
general venue statute." Under the doctrine, a court may
decline to exercise its jurisdiction when it believes
that the action may be more appropriately and justly
tried elsewhere.
Hauq, 770 P.2d at 521, citing Gulf Oil Corp v. Gilbert (1947), 330
U.S. 501, 507, 67 S.Ct. 839, 842, 91 L.Ed 1055, 1062. Moreover, BN
argues that, "a court is free to decide the availability of the
principle of forum non conveniens in FELA suits according to its
own local law," providing that the local law is not applied in a
discriminatory fashion, citing Missouri v. Mayfield (1950), 340
U.S. 1, 5, 71 S.Ct. 1, 8, 95 L.Ed. 3.
Plaintiff, on the other hand, maintains that filings of non-
4
resident FELA cases in the State of Montana since 1988, have
neither overburdened the court system in this state nor ~~cloggedl~
the dockets of Cascade County so as to call for the implementation
of forum non conveniens. Additionally, Plaintiff maintains that
BN's statistics are deceptive, and that many of the cases listed as
filed since 1988, are cases wherein the "plaintiffs are actually
residents of the State of Montana, . . or have substantial
contacts with the State of Montana, in that they were treated by
physicians located within the state."
The issue of trial courts' refusal to apply the doctrine of
forum non conveniens in FELA cases filed in Montana has been
considered by this Court on a fairly regular basis over the last
three and one-half decades--largely because our prior cases have
indicated a willingness to reexamine this issue if there was a
substantial increase in such filings. Because there was no
evidentiary hearing before or findings by the District Court on
BN's data, we take no position on the validity or interpretation of
the numbers and statistics offered by the Railroad.
Notwithstanding, we conclude that the numbers, whether accurate or
inaccurate, are not dispositive of this Issue and that the time has
come to clarify, once and for all, the law to be applied henceforth
in Montana with regard to the application of the doctrine of forum
non conveniens in FELA cases filed in this State.
To put our decision in context, a review of our prior case law
is necessary. We first substantively considered this issue in
Bracy v. Great Northern Railway Company (1959), 136 Mont. 65, 343
5
P.2d 848. There, the plaintiff, injured in Washington, filed his
FELA case in district court in Silver Bow County, Montana.
Defendant's appeal included a claim that the district court erred
in failing to dismiss plaintiff's complaint on forum non conveniens
grounds because the accident occurred in Washington and all the
witnesses resided there. Defendant requested that we "settle the
question as to whether the doctrine has application in this state."
Bracy, 343 P.2d at 850. Expressing doubt as to whether the
doctrine had any application in Montana, we declined to resolve
this "academic question," and simply observed that whether the
doctrine applies in a given case rests in the discretion of the
trial court and that on the basis of the affidavits and counter-
affidavits filed, the trial court did not abuse its discretion in
denying defendant's motion to dismiss on forum non conveniens
grounds. m, 343 P.2d at 850.
A few years later, this issue again surfaced in State ex rel.
Great Northern Railway v. District Court (1961), 139 Mont. 453, 365
P.2d 512. That case, factually akin to Bracy, was also filed in
Silver Bow County and came before this Court as an original
proceeding from the trial court's denial of the railroad's motion
to dismiss the injured employee's FELA action on forum non
conveniens grounds. Great Northern, 365 P.2d at 512. As
additional support for its position, the Railroad argued that the
district court's failure to dismiss non-resident FELA cases "has
resulted in an increasing number of cases being filed in Silver Bow
County, constituting a hardship upon both the Railroad Company and
6
the [county] taxpayers . " Great Northern, 365 P.Zd at 513.
Without analyzing plaintiff's contentions which, among others,
included FELA choice of venue and state public policy/"open court"
arguments, we acknowledged our ability to accept or reject the
forum non conveniens doctrine and noted its purpose in requiring
litigants to avail themselves of the trial forum in their
residence. Great Northern, 365 P.2d at 513. Having those
considerations in mind, but declining to "establish the rule," we
concluded that the numbers of cases filed in Silver Bow County did
not indicate a trend of importing non-resident FELA litigation.
However, the numbers argument having been raised, we warned that we
would reexamine this issue if there were substantial increases in
filings of those type of cases. Great Northern, 365 P.2d at 514.
LaBella v. Burlington Northern, Inc. (19791, 182 Mont. 202,
595 P.2d 1184, followed eighteen years later. That case involved
an appeal from a Lewis and Clark County district court order
dismissing on forum non conveniens grounds, the FELA complaint of
a non-resident worker injured in the state of Washington. While
the district judge concluded that, under Bracv and Great Northern,
it was within his discretion to dismiss plaintiff's complaint
because of forum non conveniens, we framed and resolved the issue
on appeal much more narrowly. "The issue on appeal is whether a
District Court of this state may dismiss a FELA action because it
deems itself an inconvenient forum. We hold that it may not."
LaBella, 595 P.2d at 1185.
Facing squarely for the first time the relation of forum non
7
conveniens to FELA actions, we discussed at length the remedial
purposes of the Act along with its legislative history and
interpretive precedent under federal case law requiring liberal
construction of the Act in favor of the injured worker. LaBella,
595 P.2d at 1186-87. We also acknowledged federal authority to the
effect that I' [nl otwithstanding the strong policy favoring
plaintiffs' forum selection" under the Act, such actions were
transferable under 28 U.S.C. 5 1404(a), and that a state court
could dismiss a FELA case on forum non conveniens grounds
"[alccording to its own notions of procedural policy," citing Ex
parte Collett (1949), 337 U.S. 55, 69 S.Ct. 944, 93 L.Ed 1207, 10
ALR 2d 921, and Mayfield. LaBella, 595 P.2d at 1187.
While recognizing our ability to adopt the doctrine of forum
nOI3 conveniens in non-resident FELA cases, we, nevertheless,
unequivocally declined to do so. We first pointed out that this
state's public policy, dictated by Article II, Section 16, of our
Constitution, requires that our courts "shall be open to every
person, and speedy remedy afforded for every injury to person,
property or character." We noted that constitutional right was
unrestricted by reference to citizenship or residence and that any
such qualification could not pass muster under the Privileges and
Immunities Clause of Article IV, Section 2 of the United States
Constitution. LaBella, 595 P.2d at 1187. We then cited § 49-l-
204, MCA, which mandates equality of rights and duties for United
States citizens who are not citizens of Montana; and we found
"highly persuasive" the policy favoring the injured railroad
8
worker's choice of forum.
From that analysis we were compelled "to hold the doctrine of
forum non conveniens inapplicable to FELA suits filed in Montana
District Courts." LaBella, 595 P.2d at 1187. Moreover, we pointed
out that we had not been confronted with the application of forum
non conveniens in non-FELA cases and that our decision neither
denied nor recognized the existence of the doctrine "in cases where
there is no strong policy favoring plaintiffs' forum selection."
LaBella, 595 P.2d at 1187. Having said all that, we, inexplicably,
again mentioned OUT warning from Great Northern concerning
reexamination of this issue in the event of a substantial increase
in this type of litigation. LaBella, 595 P.2d at 1187.
In the same year we handed down our decision in LaBella, 1979,
we decided one other case involving the forum non conveniens/FELA
issue. In Bevacqua v. Burlington Northern, Inc. (1979), 183 Mont.
237, 598 P.2d 1124, a non-resident FELA case filed and subsequently
dismissed in Cascade County on forum non conveniens grounds, we
reversed the district court citing LaBella and Montana's "open
door" (open court) policy. Bevacaua, 598 P.2d at 1125.
Similarly, eight years later in State ex rel. Burlington
Northern v. Dist. Ct., Eighth Jud. Dist. (1987), 223 Mont. 325, 746
P.2d 1077, another non-resident FELA case filed in Cascade County,
the relator again raised the issue of county taxpayer funding and
judicial resources being utilized in cases where the plaintiff's
injury occurred in another state and where counsel and the fact
witness had no connection with Montana. Burlinqton Northern, 746
9
P.2d at 1078-79. Referencing our decisions, in Bracy, Great
Northern, LaBella and Bevacaua, and acknowledging that filing out-
of-state FELA cases in Montana may constitute forum shopping,
Burlinston Northern, 746 P.2d at 1080, we, nevertheless, rejected
BN's statistics as failing to demonstrate a "substantial increase"
in FELA cases "so as to show an intolerable burden on this state in
maintaining its 'open door' policy and meeting the obvious
intention of the federal statute [supporting the FELA plaintiff's
ability to choose his foruml." Burlinaton Northern, 746 P.2d at
1080.
Finally, our most recent consideration of this issue was in
two consolidated cases filed in Cascade County. Haug v. Burlington
Northern and Lay v. Burlington Northern (1989), 236 Mont. 368, 770
P.2d 517 (the consolidated cases being cited as Hauq). While both
FELA cases, Hauq and Lay were factually somewhat different than the
previously discussed cases as those all involved the plaintiff
being injured out-of-state. In w, both plaintiffs were injured
in Montana--Haug in Park County and Lay in Lewis and Clark County.
Hauq, 770 P.2d at 518. In arguing that Montana's venue statutes
required that the two cases be transferred to the respective
counties where the injuries occurred, BN maintained that Cascade
County, having no connection with either lawsuit, was not a proper
place for trial. ~auq, 770 P.2d at 518.
We disagreed. First, overruling McAlear v. Kasak (1987), 225
Mont. 113, 731 P.2d 908, we determined that §§ 25-2-115, 25-2-
118 (7.), 25-2-122 and 25-z-201, MCA (1985), permitted plaintiff the
10
choice of filing his tort claim against the non-resident defendant,
BN, in either the county where the tort was committed or in any
county of this state. Hauq, 770 P.2d at 519. Next, treating the
issue as one of first impression, we held that our statutory
interpretation was also applicable to FELA cases. Hauq, 770 P.2d
at 520. In so holding, we again acknowledged that venue in FELA
cases is properly left to the practice of the forum, but,
notwithstanding, we focused on the policy arguments expressed in
LaBella and Montana's "open door" policy in reaching our
conclusion. Hauq, 770 P.2d at 520.
We then addressed the issue of whether the trial court is
empowered to change the place of trial of FELA actions in light of
the doctrine of forum non conveniens and the Montana venue
statutes. Hauq, 770 P.2d at 521. By way of dicta, we first
observed that the doctrine had been "codified" in 5 25-Z-201(2) and
(3), MCA. Hauq, 770 P.2d at 521. Noting that our previous
discussions of forum non conveniens in FELA cases had not made
reference to our statutory scheme or to the "codification of that
doctrine," we again however, focused on the rationale and policies
of our prior cases--i.e., Montana's "open court" or "open door"
policy, the policy favoring the FELA plaintiff's choice of forum,
the policy of liberally interpreting the Act to effect its remedial
purposes--and the failure to demonstrate any substantial increase
in imported FELA litigation. Haug, 770 P.2d at 521. Determining
that our "foregoing case analysis under the doctrine of forum non
conveniens applies equally to the provisions allowing a court to
11
change the place of trial in 5 25-Z-201, MCA," we then held that
"in FELA cases neither the doctrine of forum non conveniens, nor
the right to change the place of trial contained in § 25-z-201,
MCA, is available." Hauq, 770 P.2d at 522.
From a close reading of our cases starting with Bracv and
concluding with Hauq, several clearly identifiable rules and
rationale emerge as regards claims of improper or inconvenient
venue in FELA actions filed in Montana:
First, we have acknowledged that under federal case law, venue
in FELA actions filed in state court is left to the practice of the
forum state and that a state is not compelled to entertain FELA
cases brought in its courts, but can reject, as it may accept, the
doctrine of forum non conveniens for all causes of action begun in
its courts, providing that it does so on a nondiscriminatory basis.
See, Great Northern, LaBella, Burlinqton Northern and Hauq.
Second, we have neither accepted nor rejected the application
of forum non conveniens in non-FELA cases and we have neither
denied nor recognized the existence of that doctrine in cases where
there is no strong policy favoring plaintiff's forum selection.
See, Bracv, LaBella, Burlinston Northern and Hauq. In that regard
BN argues that we have accepted the doctrine of forum non
conveniens in non-FELA cases, citing Application of Bertelson
(1980), 189 Mont. 524, 617 P.2d 121 (child custody action);
Columbia Falls Alum. v. Hindin/Owne/Engelke (1986), 224 Mont. 202,
728 P.2d 1342 (contract action); and Simmons v. State (1983), 206
Mont. 264, 670 P.2d 1372 (negligence action). We disagree. None
12
of these cases dealt with the application of forum non conveniens,
but instead, dealt with the issue of the propriety of jurisdiction.
Montana has yet to apply the common law doctrine of forum non
conveniens in any non-FELA case, and, obviously, this case does not
resolve that issue one way or the other.
Third, we have uniformly refused to allow application of the
common law doctrine of forum non conveniens in FELA cases, whether
the injury occurred in Montana or in some other state and
regardless of the residence or citizenship of the plaintiff. See,
Bracv, Great Northern, LaBella, Bevacqua, Burlinqton Northern, and
Hauq.
Fourth, while we have seemingly left the door open to
reexamine the application of forum non conveniens to non-resident
FELA cases filed in Montana in the event of substantial increases
in filings of those types of cases, (See, Great Northern, LaBella,
Bevaccfua, Burlinqton Northern and Hauq), we have, at the same time,
uniformly rejected application of the doctrine to such cases
because:
1. under federal case law FELA is to be given a liberal
construction in favor of injured railroad employees so that it may
accomplish its humanitarian and remedial purposes; See, LaBella,
Bevacqua, and Hauq;
2. we have found "highly persuasive" the policy favoring the
injured worker's choice of forum, (See, LaBella, Burlinqton
Northern and Hauq), even if that choice of forum involves forum
shopping, Burlinqton Northern, 746 P.2d at 1080. (Moreover, while
13
not discussing the application of the doctrine of forum non
conveniens to FELA cases, but consistent with that prior case law,
we recently reemphasized our commitment to "the strong national
policy favoring a plaintiff's selection of forum in actions brought
under the Federal Employer's Liability Act." Ford v. Burlington
Northern R. Co. (1991), 250 Mont. 188, 197 819 P.2d 169, 175
affirmed _ U.S.-, 112 s.ct. 2184, 119 L.Ed.2d 432);
3. Montana maintains an "open court" or "open door" policy,
in that our Constitution requires that our courts shall be open to
every person, unrestricted by residence or citizenship, and a
speedy remedy shall be afforded for every injury to person,
property or character. (See, LaBella, Bevacqua, Burlinqton
Northern, and HauQ); and
4. section 49-l-204, MCA, mandates that United States
citizens who are not Montana citizens are, nevertheless, entitled
to the same rights and duties as citizens of this State. (See,
LaBella).
Fifth, even under Montana's venue statutes, we have rejected
the application of the doctrine of forum non conveniens in FELA
cases. Hauq, 770 P.2d at 522. In that regard, while dicta in Hauq
states that the doctrine of forum non conveniens was "codified" in
§ 25-2-201, MCA, Hauq 770 P.2d at 521, we do not reaffirm here that
such statement is necessarily correct. Suffice it to say, that
while § 25-2-201(2) and (3), MCA, clearly authorize a district
court to change the place of trial from one Montana county to
another Montana county--an interpretation consistent with the
actual facts before this Court in Haug and m--we do not construe
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that statute as providing authority for a