Kelvin Bourke v. Grey Wolf Drilling Company, LP, Now Known as Precision Drilling Company, LP
305 P.3d 1164
Wyo.2013Background
- Bourke worked on a Grey Wolf Drilling rig and alleged he was injured on the job, that Grey Wolf delayed/subverted workers’ compensation reporting, and that he was later wrongfully terminated in retaliation.
- Grey Wolf had been acquired by Precision Drilling, a foreign (Texas) corporation; Precision was not a Wyoming resident and Grey Wolf’s Casper office was no longer operational.
- Bourke filed suit in Natrona County (Seventh Judicial District) five days before the statute of limitations expired, alleging negligence (unnamed coworkers), fraud, and retaliatory discharge against Grey Wolf/Precision.
- Precision moved to dismiss for improper venue under Wyo. Stat. § 1-5-107 and for failure to state a claim under W.R.C.P. 12(b)(6) (including failure to plead fraud with particularity and failure to allege protected activity for retaliation).
- The district court granted Precision’s motion on both venue and merits grounds, denied Bourke’s motion to transfer venue and to amend, and entered judgment for Precision.
- The Wyoming Supreme Court affirmed dismissal for improper venue but held it was error to reach and dispose of the merits after concluding venue was improper; it vacated the 12(b)(6) dismissal and remanded for dismissal without prejudice based solely on venue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was venue proper in Natrona County under Wyo. Stat. § 1-5-107? | Bourke: §1-5-107 is permissive and does not limit filing to only plaintiff residence or place of injury; any county may suffice. | Precision: §1-5-107 limits venue to either where the cause arose or where plaintiff resides; Natrona is improper. | Court: §1-5-107 unambiguous; venue limited to plaintiff residence or place of injury; Natrona improper. |
| If venue improper, should court transfer rather than dismiss? | Bourke: Court should transfer under W.R.C.P. 40.1(a) or follow Larson principle favoring transfer over dismissal. | Precision: Dismissal under W.R.C.P. 12(b)(3) was proper; transfer not required and plaintiff shouldn’t be allowed to forum-shop. | Court: Wyoming has no statute authorizing transfer of improperly venued civil cases; Rule 40.1 arguments abandoned on appeal; dismissal was proper, but must be without prejudice. |
| May a court adjudicate merits (12(b)(6)) after deciding venue is improper? | Bourke: Court should not have reached merits; dismissal on venue must precede merits. | Precision: Joined venue and merits defenses in single motion; argued merits dismissal was permissible. | Court: It is legally improper to resolve merits after concluding venue is improper; must decide jurisdiction/venue threshold issues first. Merits dismissal vacated. |
| Was denial of leave to amend proper? | Bourke: He sought leave to amend to cure pleading defects (fraud particularity, retaliation). | Precision: Plaintiff did not file a proposed amended complaint or specify amendments; district court denied leave. | Court: Did not reach detailed abuse-of-discretion review of amendment denial on appeal; primary error was reaching merits after venue ruling—case remanded for dismissal without prejudice so amendment issue may be revisited in proper forum. |
Key Cases Cited
- Rock v. Lankford, 301 P.3d 1075 (Wyo. 2013) (statutory construction principles and in pari materia rule)
- State Farm Mut. Auto. Ins. Co. v. Kunz, 186 P.3d 378 (Wyo. 2008) (definition and purpose of venue)
- Anderson v. Board of County Commissioners of Teton County, 217 P.3d 401 (Wyo. 2009) (interpretation of permissive vs. mandatory statutory language)
- Arrowsmith v. United Press International, 320 F.2d 219 (2d Cir. 1963) (threshold jurisdiction/venue issues must be decided before merits; vacatur of merits dismissal when venue/jurisdiction unresolved)
- Matter of Larsen, 770 P.2d 1089 (Wyo. 1989) (discussion of venue vs. subject-matter jurisdiction and prior transfer practice)
- Sil-Flo Corp. v. Bowen, 402 P.2d 22 (Ariz. 1965) (venue error usually remedied by transfer where statute authorizes transfer)