Dow Chemical Co. v. Castro Alfaro

opinion Because court of appeals foregoing

conflicts decisions court, grant application we for writ and, hearing argu-

of error without oral

ment, majority of the court reverses the

judgment appeals of the court of and re-

mands this cause to the trial court for

proceedings opinion. consistent with this 133(b). Tex.R.App.P.

DOW CHEMICAL COMPANY and Petitioners, Company,

Shell Oil

Domingo CASTRO et ALFARO

al., Respondents.

No. C-7743. Supreme Court of Texas. Greenhill, Austin, Joe R. F. Walter Con- Samford, Houston, rad and Michael Russell March Ballanfant, Weintraub, Austin, J. Burt Rehearing May Overruled Houston, petitioners. Dallas, Siegel, respon- Charles S. dents.

OPINION RAY, Justice.

At issue in this cause is whether personal statutory right injury to enforce a wrongful death claim in the Texas precludes courts a trial court from dismiss- ing ground the claim on the of forum non appeals held that conveniens. The court authority Texas courts lack the to dismiss grounds on the of forum non conveniens. 751 S.W.2d 208. Because we conclude that legislature statutorily abolished in suits doctrine of forum brought under section 71.031 of the Texas Code, af- Civil Practice and Remedies we judgment appeals. firm the of the court of erally Consequently, their final divorce decree. an affirmative defense. obligation plead judicata res Bonita had no Alfaro, damages for the death Domingo Costa tain an action Castro a Rican or injury; of the employee and Standard resident Company, eighty-one (2) begun other state

Fruit and Costa in this the action brought provided by the laws of employees and their wives within the time Rican action; beginning and this state for the against Company Dow and suit Chemical Company. employees foreign Shell The claim Oil of a of a in the case citizen injuries treaty they personal country equal as a country, suffered the has rights on behalf exposure dibromochloropro- with the United States result of to of its (DBCP), citizens.2 pane pesticide by a manufactured Shell, (b) allegedly pertaining procedure and which was fur- to Dow All matters or employees prosecution nished to Fruit. The maintenance Standard courts of state are action in the this allegedly to DBCP suffered exposed sever- governed by the law of this state. including problems, sterility. medical al (c) rules of apply The court shall Alfaro sued Dow and Shell Harris un- appropriate substantive law County April district The court 1984. der the facts of the case. petition alleged amended that the court had 71.031 Tex.Civ.Prac. & Rem.Code Ann. § jurisdiction under 4678 of the Re- article (Vernon 1986). issue At is whether Following vised Statutes.1 unsuccessful language “may be enforced in the courts court, attempt to remove federal the suit to 71.031(a) permits a state” of Section Dow and Shell contested the relinquish jurisdiction trial to under years the trial court almost three after the the doctrine of forum non conveniens. suit, filing of the and contended in the statutory predecessors The of Section should alternative the case be dis- origi since 71.031 have existed 1913. under the missed doctrine of forum non nal the death law states whenever “[t]hat Despite finding jurisdic- conveniens. a personal injury or of a citizen of this State tion, the trial court dismissed the case having rights country equal treaty or of a ground of forum non conveniens. States on of its the United behalf 71.031 of Section the Civil Practice and citizens, may by or has been be caused provides: Remedies Code act, wrongful neglect or default ... such (a)An damages action for for the right may of action be enforced ... personal injury death or of a citizen of State_” 8, Apr. courts of this Act of state, States, or United of a 1913, 161, Leg., ch. 33d 1913Tex.Gen.Laws foreign country may be enforced in the Statutes, 338, 338-39, repealed by Revised state, although wrong- of this courts 2, 2419. Leg., 39th 1925 Tex.Rev.Civ.Stat. § act, neglect, causing ful or default passed expand Another to act was in 1917 injury place foreign or in a death takes right of action citizens of the United country, or state if: Mar. ch. 35th States. Act of (1)a foreign by Leg., repealed law the state or coun- 1917 Tex.Gen.Laws Statutes, Leg., 39th 1925 Tex. try gives or of this state main- Revised § justice Although said countries article 4678 was in effect the time courts of prosecution respectively, and defense originally brought, gov- this cause suit was liberty rights; they just and be at their shall erned section 71.031 of the Civil Practice and cases, advocates, employ, attor- to neys, in all change Code Remedies because no substantive agents description, whatever legislature’s intended recodification. was they may proper, shall think and whom 1.001(a) § Ann. See Tex.Civ.Prac. & Rem.Code enjoy respect rights privi- and in this same (Vernon Supp.1989). leges as native therein citizens. Commerce, Naviga- Treaty Friendship, agreed States 2. The United and Costa Rica Rica, tion, 10, 1851, July United States-Costa following: No, 916, 920, VII, para. art. 10 Stat. T.S. contracting high parties The citizens of the (a)(3) requires of sim- the existence Subsection reciprocally enjoy, shall receive and full treaty provisions before an action* ilar citizen protection persons prop- country perfect may for their be maintained of a open erty, under Section 71.031. and shall have free access usually expressed codi Rev.Civ.Stat. 2419. The statute was thus does not mean that the forum is one which it is fied in 1925 and amended in 1975. Revised whol- ly incompetent question. Statutes, deal with the Leg., 1925 sec. art. 35th plea significa- received wide 2, 1283, by Act Tex.Rev.Civ.Stat. amended tion, frequently and is stated in reference 29, 1975, 530, 2, May Leg., ch. 64th to cases which the Court consider 1381,1382, repealed by 1975 Tex.Gen.Laws proper justice it more for the ends Code, 959, Civil Practice and Remedies ch. parties remedy that the should seek their 9, 3242, Leg., 69th 1985 Tex.Gen.Laws in another forum. 3322. The 1975 amendment allowed Texas Id.; Barrett, 387, apply supra, By courts to the law of the state of see at n. 35. arising century, English Texas in actions article the end of the nineteenth under old “accepted courts had the doctrine of responded 4678. The amendment to this forum preventing non convenient as a means of Mustang court’s decision in Marmon v. process of the court’s when the Aviation, abuse which held that the doctrine of plaintiff’s choice of forum is vexatious and applied lex loci delicti article 4678. old unnecessary hardship works on the defen- Aviation, Inc., Mustang Marmon v. Barrett, supra, dant.” at 388. (Tex.1968); S.W.2d 182 see v. Gutierrez Collins, 312, (Tex. Blair, S.W.2d 317-18 n. 3 In Paxton a Wall Street law- 1979). yer, brought the term “forum non conve- niens” into American law with his article argued Dow and Shell before Court entitled, The Doctrine Forum Non Con- legislature that the did not intend to make Anglo-American venient Law. See guarantee section 71.031 a of an absolute Blair, generally, The Doctrine Forum brought enforce a suit Anglo-American Non Convenient dissent, provision. under that In his Jus- Law, (1929). Although 29 Colum.L.Rev. 1 agrees, concluding tice Gonzalez that the Blair or four cases in found three legislature pre- could not have intended to which the American courts had used the application clude of forum non conveniens term, he concluded: brought to suits under the statute because Upon an examination the American “[fjorum non conveniens did not arrive decisions illustrative doctrine of judicial landscape of this state convenient, ap- it non becomes predecessors until after the to section 71.- parent country the courts of this 031 were enacted.” 786 S.W.2d 691. This years applying have been for the doc- conclusion is false. The doctrine of forum trine such little consciousness of appeared Texas well be- doing what were as to remind one fore the enactment of article 4678 Jourdain, of Moliér’s M. who found he legislature in 1913. speaking prose had been all his life with- knowing out it. I. 21-22. hundreds Id. at Blair cited of cases The doctrine of dismissing for suits the same reasons now arose from the doctrine of non com forum See, employed under the doctrine of forum non petent e.g., in Scottish cases. Vernor Following publication conveniens. Id. Elvies, (1610); 6 Dict. of Dec. 4788 see v. article, of Blair’s the United States Su Barrett, also The Doctrine Forum Non preme applied the to suits in Court doctrine Conveniens, 35 Calif.L.Rev. 386-87 & aliens, admiralty brought between Charter (1947). recog n. 35 The Scottish courts Jones, Bowring, Tidy, Shipping Co. v. & plea compe nized that the 515, 517, 400, 401, Ltd., 281 U.S. 50 S.Ct. applied to hear the case was not tent when (1930); Malting L.Ed. 1008 Canada Co. v. expedient justice. the administration of S.S., Ltd., 413, 422, 52 Paterson 285 U.S. ser.) (3d Longworth Hope, 3 Sess.Cas. v. 413, 415, (1932); S.Ct. 76 L.Ed. 837 to cases (1865), the court stated: involving corpora the internal affairs of tions, Co., question question is the Rogers Guaranty The next Trust fo- 123, 130, 181, plea 53 S.Ct. competent. rum non Now the U.S. Finally, Id., at 862. 33 S.W. (1933); in 89 Tex. and to federal suits L.Ed. 652 resembling closely made a statement system regulating the we volving state’s for forum non conve- argument v. Rowan current Railroad Comm’n industry, oil 573, 584, 60 niens: Nichols Oil & 1021, 1025, 84 L.Ed. 1368 that this was If facts showed [suit] supra, at 395-96.

Barrett, By “the justice, to secure necessary in order properly of ‘forum non conveniens’ familiar doctrine could such as we the laws were firmly in our law.” enforce, imbedded back- ... consideration [was] [docket Kepner, U.S. Baltimore & O.R.R. weight; little but we log] have but would 6, 11-12, 44, 55-56, 86 L.Ed. considered is entitled to be feel that J., dissenting). juris- (1941) (Frankfurter, chooses this plaintiff where the convenience, and matter diction as a applied the doctrine of fo- Texas courts necessity. prior in several cases rum non conveniens 4678 in 1913. added). enactment of article Id. (emphasis recognized the court in dicta In this Graham, 12 v. Co. Southern Pacific In juris- exercise power a court to refuse to (1896, writ Tex.Civ.App. 34 S.W. 135 essentially the same as grounds diction on ref’d), district court court stated that a the Mor- those of forum non conveniens. could, of its sound discre- in the exercise 17, 21, 14 Ry., 78 Tex. ris v. Missouri Pac. in tion, jurisdiction refuse to entertain (1890). Morris, In stated: 230 we S.W. In Mis- involving foreign parties. case alleged think the facts show We do not souri, Railway Godair Kansas & so, But, transitory. if the action to be Co., Tex.Civ.App. Commission actions, held in such where the has been ref’d), (1905, court stated: writ S.W. parties non-residents and the cause were proposition is ... Appellant’s first ... originated beyond limits of of action nonresidents, being parties all state, justify the these facts would having complained of oc- injuries refusing jurisdiction. court in to entertain Texas, state of curred outside of the Miller, 19 Mich. 305. Railway Co. v. state are not bound courts of this in is entertained such cases Jurisdiction language of jurisdiction. The entertain principles comity, and not only upon implies that the state proposition this Thom- right. a matter of Gardner v. as jurisdiction may entertain courts as, 136; Wells, Juris. Johns. parties all are nonresi- causes which Railroad v. Id. Mexican National In injuries complained of dents when Jackson, (1896), state, 89 Tex. 33 S.W. though occurred outside dissimilarity being this court discussed both This not bound to do so. potentiality of docket having doctrine and true, enter- the court in this case latter, backlog. regard to the we [having] With de- and thus jurisdiction, tained public policy stated: question of termined the entertaining jurisdiction, ap- adjust rights favor of If courts assume to our right complain. railroads, has no against grow- pellant parties those case, facts in this we ing out of such as 301; Tex.Civ.App. 87 S.W. at 872. Id. per- an invitation to all such will offer Thus, is correct although Gonzalez Justice might prefer to resort to tribu- sons who using reported case the term first that the procedure are the rules of nals which Phil is Garrett v. “forum non conveniens” fixed, jury by trial certainly and the more Co., lips Petroleum 218 S.W.2d secured, of this state to seek the courts dism’d), (Tex.Civ.App. writ — Amarillo Thus we would enforce their claims. effectively estab itself was the doctrine already condi- overburdened add enactment of Texas before the lished in courts, in all the of our dockets tion legislature in article 4678 rights thereby make the settlement II. state, originating under outside whether must determine charge We therefore government, laws of a different statutorily abolished legislature people. upon our own the doctrine of forum non conveniens in founded on tort committed another brought suits under article 4678 sec- State and on residents of the State [now tion which the tort was committed. 71.031]. Ry. supra. Morris v. interpretation of Our section 71.031 is Flint, supra. Bowman v.

controlled court’s refusal of writ of Bass, (Tex. error in Allen v. 47 S.W.2d In the case of Southern Pacific ref’d). Civ.App. opinion part Paso writ reads in Graham — El appeals Allen the court of civil held that follows: right old article 4678 conferred an absolute ‘Had the District Court exercise properly brought to maintain a suit in Tex discretion, of a sound refused to enter- as courts. The suit in Allen involved a all, jurisdiction tain of the case at plaintiff arising New Mexico and defendant court would not have felt called occurring out of an accident in New Mexi its action.’ review appeals co. The court of reversed a dismis Appeals The Court in the in- of Civil granted by grounds sal the trial court on stant case that to true held [Allen ] conveniens, similar to those of forum non but under Article 4678 this discretion no holding opens that “article 4678 the courts longer oblig- existed and that now it was neighboring of this state to of a citizens atory accept on the district courts gives state and to them an absolute try these cases. transitory to maintain a action of the petitioner argued 2-3. Id. at Allen present try nature and to their cases in the Appeals the Court of Civil erred in courts of 427 (emphasis this state.” Id. at construing “foreign the term state” in arti- added). cle 4678 to include a state of the union. Id. Appeals

The El Paso Court of Civil clear- petitioner argued at 4. The in Allen also ly rejected addressed and the doctrine of Appeals that the Court of Civil erred in forum non conveniens in Discuss- Allen. applying forum non conveniens to a cause ing prior the existence of the doctrine arising of action in another in state the 1913 and 1917 enactments of article union:

4678, the court stated: perhaps just open it is While and many

Under the arising authorities we have re- our courts the trial of causes viewed, federal, both state and in we think countries where the denial of a might might be said that the courts of this mean of the denial his re- rights, just state had a discretion in the matter of medial still no such demand exercising jurisdiction parties where all could be made residents of sister state, against were nonresidents of the and States resident of his own cause of action arose the state of the State for a cause which can with more economy justice nonresidents. ease and be tried that forum. added). (emphasis Although Id. at 426 specify Asking

court did not the authorities it re- that this court Id. at reverse viewed, Application Appeals it is clear from the decision of of the Court Civil judgment of Error filed in this court affirm the Writ that the of the trial court dis- action, Appeals pre- missing petitioners of Court Civil reviewed two Allen Atchison, quoted Ry. 1913 forum non conveniens cases—Morris T. & S.F. Co. v. Cir.1918). Weeks, (5th Railway, supra, v. Missouri 254 F. 513 Id. at 5. Pacific Graham, Weeks, supra. Ap- Southern Co. v. the United States Court of Pacific Error, peals Application for Writ of Bass v. for the Fifth Circuit discussed several Allen, (filed 7, 1932), App. April given today No. 18857 of the same rationales for the petitioner application at 2. The of doctrine of forum non before this court Allen summarized the case as follows: conveniens: passage any Manifestly, many advantages

Before the of there are statute Texas[,] trying trial courts had the discretion to such a case where the cause of refuse to entertain of a arises. The law of the cause of case action torily the doctrine place. It be abolished action is the law of the predeces- when it enacted can that the courts of the state assumed TEX.CIV.PRAC. & of section 71.031. sors satisfactorily administer the laws more 1986). (Vernon ANN. 71.031 REM.CODE any the state than can the courts expense The incident to a other state. has the common law evolution usually materially less at trial would be good judgment and accomplished by been than elsewhere. place of the tort filling pages left sense common state of the ex- imposition legal legislative bodies. Great blank maintaining try causes pense of courts to developed concepts masterfully minds have the state has no interest would which strength of that have contributed The maintenance justify. difficult to be Although the common law our civilization. machinery involves no judicial of the doctrine of states, Many includ- light burden. history, the idea is a defined in recent been Texas, ing provide have been unable to administration in judicial useful tool of adequate machinery. good No reason jurisdictions that have chosen those appear why probably could be made to dissenting opinions point adopt it. As the courts should com- her overworked out, minority juris- in a Texas is distinct pelled carry any part of the burdens have taken a different track. dictions that other states. court has waited so The fact in, Application Id. cited for Writ impor- long on the doctrine is not to write Allen, Error, supra, Bass v. at 5. Given Although opportunities several tant. authorities, arguments and this court these its deci- presented, been the court based Application chose to refuse for Writ hand, issues. In the case at sions on other Error, manifesting thereby approval its squarely the court. the doctrine is before Appeals in the decision of the Court of Civil however, court, is not The issue for Cf., Empire Allen v. Bass. Hamilton v. fair, good, the doctrine is a whether 377, 383-84, 110 Gas & Fuel 134 Tex. Texas; people desirable one for (Tex.Comm’n App.1937, 565-66 S.W.2d issue is whether the doctrine is available opinion adopted). legislative actions that have because of legislature conclude that the has We been taken. statutorily abolished the doctrine of forum section 71.- argument The is made that brought non under sec- conveniens suits mandatory. permissive, 031 is fact Accordingly, tion 71.031. we affirm the petitioners the ar- appeals, In the court of appeals, the court remand-

judgment of ‘may be gued of the words “that the use ’ ing the cause to the trial court for further legislature rec- indicates that the enforced proceedings. pow- ognized discretionary court’s the trial (empha- at 210 er to dismiss.” S.W.2d DOGGETT, JJ., file HIGHTOWER and I this is original). sis in believe that concurring opinions. “may en- interpretation be incorrect 71.031, enacting In section the forced.” PHILLIPS, C.J., GONZALEZ, certain cir- legislature stated that under HECHT, JJ., dissenting file COOK and cumstances, damages for action for “[a]n opinions. may personal injury ... the death or Justice, HIGHTOWER, concurring. state, al- in the courts of this enforced act, neglect, or de- though wrongful my dissenting are so the Because brethren causing injury takes fault the death praise in their of the doctrine enthusiastic conveniens, country....” In place state or non I must add a forum limitations, words, subject certain other majority the few lines of concurrence with personal inju- for death or Although join the causes of action opinion. I like to would in Texas. Since ries are enforceable singing praises of the doctrine chorus to certain conveniens, opened the courts legislature has non I am unable forum statutory en- by cases plaintiffs in certain legislature statu- do so because the Texas actment, responsible interfere at home for harm caused should not held abroad, attempting to “rewrite” the statute. refuse to be these dissenters re- statutory express either lan- strained legislature in may The Texas not have guage compelling precedent, previ- or the Texas forum tended to make “the world’s court, ously approved very holding However, wording final resort.” forum non does not apply respect 71.031 is clear must section and we accomplish in Texas. To the desired social legislature legis If the what the done. engineering, they yet must invoke another statutorily preclude not intend to lature did legal fancy fiction with a name to shield adoption of the doctrine of wrongdoers, alleged so-called doctrine conveniens, it de however have been conveniens. The refusal predeces it fined 1913 when enacted the corporation Texas to confront a Texas 71.031, encourage leg I sors of section judge jury is to “inconven- be labelled clarify islature to amend section 71.031 to really ient” when what involved Otherwise, legislature’s its fail intent. corpo- but to avoid convenience connivance adoption ure evidence of our to act will its accountability. rate interpretation that enactment of predecessors statutorily of section 71.031 jury The dissenters are insistent that a non conve- abolished the doctrine of opportunity denied to evalu- Texans be Servicenter, niens. See Allen Sales and corporation of a ate the conduct con- (Tex. Ryan, Inc. S.W.2d it cerning decisions made in Texas because 1975). foreigners. allegedly ones hurt are legislature has privilege provincial Fortunately Texans are not so Certainly has done so changing pre- its mind. it dissenters and narrow-minded as these writing many times since recognizes that citizenry sume. Our constitution, founding wisely fathers wrong away does not fade because its im- provided regular legisla- sessions of the consequences felt mediate are first far legislature ture. What one enacts another than away rather close to home. Never repeal. respect may later court must required our mem- have we been to forfeit powers the enactment when is within the bership in the human race in order to main- granted legislature by constitu- proud heritage tain our as citizens of Tex- tion. as. that it is inconven- argue The dissenters Justice, DOGGETT, concurring. ient allegedly farmworkers unfair suffering permanent physical and mental analysis reasoning are Because its including sterility, injuries, irreversible join majority opinion with- correct by suing seek redress a multinational cor- I separately, reservation. write how- out away poration in a court three blocks ever, respond to the dissenters who headquarters corpo- and another its world inability among to agree mask their them- ration, operates which in Texas this coun- competing rhetoric.1 their selves largest try’s plant. so- chemical Because the implement preferred their zeal to own nothing they policy corporations cial that Texas not be “doctrine” advocate has do is, majority 1. I nor the who find it Not content the law as It is neither follow necessary opinions gloomy pictures statutes "twisted." dissenters create with- However, dissent, pub- Today's ma- out forum non conveniens. Gonzalez S.W.2d 692. legis- policy they jority merely reasons to circumvent reconfirms the action lic advance abolishing legislature’s intent are invalid. Justice lature in doctrine challenges agree majority Gonzalez then to state the conveniens. do with Justice Hecht advantages "sweeping implementations abolishing wel- forum non conveniens of social sought by my justify holding grounds of policy" concur- its on the fare here—not and Gonzalez, ap- unswerving policy. I do in but in the When Justice rence determination so. Hecht, disagreement protect parent com- of multina- with Justice the dissenters to the welfare my acceptance challenge. corporations. plains Hecht of the tional appeals and judgment of the court every- and and with fairness convenience dismissal. thing immunizing affirm the trial court’s to do with multinational accountability for their corporations from Company is a multinational cor- Shell Oil abroad, I alleged causing injury write torts headquarters in poration with its world separately. Houston, Company, Chemical Texas. Dow Midland, headquartered in Michi-

though from its gan, operations extensive conducts THE I. FACTS building located in USA Dow Chemical Respondents working on claim that while country’s operates this Houston. Dow plantation in Costa Rica for Stan- banana manufacturing plant largest chemical with- Company, an American subsidi- dard Fruit Freeport, Houston in Texas. in 60 miles of Company, ary of Dole Fresh Fruit head- The district court where this lawsuit was Raton, Florida, quartered in Boca away from Shell’s filed is three blocks dibromochloropro- required were to handle in headquarters, One Shell Plaza world [“DBCP”], pesticide allegedly manu- pane Houston. downtown Fruit factured and furnished to Standard stipulated that all of its more Shell has Company and Dow Shell Oil [“Shell”] 100,000 relating documents to DBCP than Company The Environ- Chemical [“Dow”]. produced in Houston. are located or will be Agency mental Protection issued a notice medical and scientific witnesses are Shell’s of intent to cancel all food uses of DBCP majority The of Dow’s doc- Houston. September Fed.Reg. on are located in Michi- uments and witnesses (1977). suspend- It followed with an order (both to Houston gan, which is far closer containing ing registrations pesticides geography terms of and communications Fed.Reg. DBCP November linkages) respon- Rica. The than to Costa Before and after the E.P. agreed to be available in Hous- dents have States, A.’s ban of DBCP in the United examinations, independent ton for medical apparently shipped Shell Dow several Most of the depositions for and for trial. gallons pesticide hundred thousand respondents’ treating doctors and co-work- to Costa Rica for use Standard Fruit. agreed testify ers have Houston. Respondents, Domingo Alfaro Castro purported- workers, Conversely, Shell Dow have plantation and other filed suit Houston, Texas, ly refused to make their witnesses avail- state district court alleging handling able Costa Rica. their of DBCP personal injuries them serious caused allegedly plantation workers banana and Dow under the which Shell were liable employed by were injured DBCP products liability, liability strict theories company American on American-owned warranty. and breach of export grew land and Dole bananas The chemical Rejecting solely to its authori- to American tables. an initial contest Dow, allegedly rendering sterile was ty the trial court found the workers by Shell formulated, tested, researched, manufac- that it had under Tex.Civ.Prac. 1986), tured, (Vernon shipped by an American Ann. 71.031 labeled & Rem.Code to another grounds company the United States but dismissed the cause on The decision to manu- ap- company. American forum non conveniens. The court remanded, and use in holding facture DBCP for distribution peals and reversed by made these two foreign plaintiff the third world was provides 71.031 a Section companies corporate in their of- right a death American an absolute to maintain Yet now Shell injury in Texas fices the United States. personal or cause of action part of this argue that the one being subject forum non conve- and Dow without American is the equation that should not be 751 S.W.2d 208. Shell niens dismissal. consequences their actions. legal of and have asked this court to reverse Dow II. arguments FORUM NON CONVENIENS —“A dent.3 Unsuccessful with based law,

COMMON LAW DOCTRINE OUT upon criticize the court for OF CONTROL”2 justifying public its result on policy grounds. reading As a of & Rem. Tex.Civ.Prac. (Vernon 1986) Code Ann. makes 71.031 A. THE USING “DOCTRINE” TO

clear, the doctrine of forum non conveniens KILL THE LITIGATION ALTO- statutorily has been abolished Texas. GETHER Bass, Allen v. decision 47 S.W.2d (Tex.Civ.App. Paso writ public Both as a —El matter law and of d), court, approved by ref clearly this holds policy, doctrine forum non conve- that, upon showing personal jurisdic- niens is justification. prof without defendant, tion over a article now fered foundations for it “considerations section 71.031 of the Texas Civil Practice & of fundamental and and fairness sensible Code, “opens Remedies the courts of this judicial effective administration.” Hecht neighboring state to citizens of a state and (quoting dissent, Adkins S.W.2d gives them an absolute to maintain a R.R., Chicago, v. R.I. & Pac. Ill.2d transitory present action of the nature and (1973)). fact, In N.E.2d try their cases in the courts of this by doctrine is favored multinational defend Id. at 427. state.” ants4 because a forum non conveniens outcome-determinative, that Allen stands in the Displeased dismissal is often way immunizing corporations effectively defeating denying and multinational claim seeking plaintiff recovery. suits redress for their torts The contorted re causing abroad, injury dog- the dissenters sult of the doctrine of forum non conve- gedly attempt prece- foreign plaintiffs to circumvent this niens is to force “to con Stewart, Forum Non Conveniens: A Doctrine 359 S.W.2d at 876. Neither Couch nor Flaiz Role, holding in Search upon 74 Cal.L.Rev. 1264 n. casts doubt in Allen. attempts distinguish Justice Gonzalez next by arguing Allen that the doctrine it in- comity, volved was that of con- argues forum non 3. Justice Hecht that Allen is not control ling subsequent- veniens. A subsequently review Allen and the because it not been fol ly application citing refused for writ of error indicates lowed. After the decisions of this court that the issue of forum non conveniens was in Couch v. Chevron Int'l 682 S.W.2d (Tex. Moore, presented rejected. 1984) Even more ironic is the 535 872, 359 S.W.2d Flaiz (Tex.1962), comity fact that Justice Gonzalez includes adopts strange he new reading one of his forum non conveniens interest opinions, stating that "Couch and dissent, unmistakably disapproved factors. Gonzalez 786 S.W.2d 690. of Allen v. Bass Flaiz bothering without even to cite it.” Hecht dis apparent attempt gain 4.In access to favor- sent, Texas, 786 S.W.2d 706. we have not able federal forum non conveniens rules and to theory opinions may subscribed to the law, procedural avoid Texas Shell and Dow re- informing anyone overruled without even moved this case to the United States District such action. The doctrine of stare decisis is not despite Court for the Southern District of Texas usually discarded in such a cavalier manner any juris- the clear absence of basis for federal through rejection longstanding precedent by DeAnda, Judge diction. United States District implication. Nothing mere said the court in case, remanding labeled Shell and Dow’s Rather, Couch is at all inconsistent with Allen. distinguish plainly controlling efforts to authori- appellate requiring preservation due to the rules ty against “specious." error, removal this court never reached the issue of Couch, forum non conveniens in Couch. See years plaintiffs Over three after the filed 682 S.W.2d Houston, at. lawsuit Shell and Dow obtained dismissal of on forum conve- the action disregards principally Justice Gonzalez Allen grounds. discovery already Moore, niens Extensive had reliance 359 S.W.2d 872 Flaiz ' interrogatories already (Tex.1962). completed, been had This court did not reach the issue plaintiffs been the individual answered of forum conveniens in Flaiz: plaintiffs already agreed to pointed the individual had It should be out that we have not appear attempted in Houston for medical examinations to decide in this considered case: depositions. Many of the so-called "conve- the extent to which the forum non conve- Texas; (2) principle recognized problems already niens nience" had been resolved in mandatory litigation prior under fo- whether article 4678 is and de- to the dismissal prives any the court of discretion.... rum non conveniens. of forum non conveniens to under doctrine the court that it is more convenient vince A foreign in a court.5 States, ever trial in the United while the Ameri reach sue usually forum conveniens dismissal argues foreign non defendant that ... can [the effective- litigation altogether, end will is the more convenient forum.” court] liability ly excusing any of the defendant. Foreign and Forum Non Note Plaintiffs plaintiffs leave the courtroom without Beyond “Reyno”, 64 Going Conveniens: the mer- having case resolved on had their (1985). nn. 144-46 L.Rev. its.6 non of- A forum conveniens dismissal is

ten, reality, complete victory in a B. THE OIL FACTORS—BAL- GULF DEFEN- As TOWARD THE defendant. noted in Irish Nat’l Ins. ANCED Teoranta, Dingus DANT v. Aer F.2d Co. (2d Cir.1984), today usually apply Courts instances, some ... invocation of [i]n forth by use of the set factors jurisdic- a will send the case to doctrine Gilbert, length in Corp. Oil Gulf imposed such mon- tion which severe 843-44, 508-09, U.S. S.Ct. recovery etary limitations on as to elimi- summarized, (1947). Briefly L.Ed. 1055 case nate the likelihood that the will be (i) private those interests factors it is that this will tried. When obvious (ease to litigants of access cost occur, discussion of convenience of wit- witnesses); (ii) pub- documents and Kafkaesque quality— takes on nesses a (the the fo- lic interest factors interest of everyone knows that no witnesses ever courts, state, rum on the the burden testify. will be called to comity). forty- judicial In the notions of grap- years three in which the courts have conveniens, using In the term factors, pled it has be- with the Oil refuge have in a euphem- “the courts taken Gulf apparent appli- increasingly come that their vocabulary, glosses istic one over promote cation to fairness and conve- fails fact that harsh such dismissal outcome- Instead, nience. these have been factors high percentage determination a of the cases_” objectives to used defendants achieve Rob- policy. violative ertson, Forum in Amer- Non Conveniens England: ica and “A Rather Fantastic 1. The Private Interest Factors Obsolete

Fiction,” L.Q.Rev. private data interest Empirical available demonstrate that their discussion percent designed promote supposedly less than four of cases dismissed factors affidavit, lenged University labor Professor David a senior Costa Rican Robertson attempted judge possible recov- Texas School Law that the maximum discover stated 100,000 subsequent history reported ery approximate of each would transna- Costa Rica $1,080 colones, exchange just tional case dismissed under forum non conve- over at current Gilbert, Assuming recovery possible, niens from Oil v. a rates. such were Gulf elsewhere, to the end of L.Ed. 1055 could lawyer, Costa Rica or no personal injury giant Data was received on 55 against a two afford take such case— per- cases and 30 commercial cases. Of the 55 vigilantly defending corporations themselves cases, injury actually was tried Further, sonal one permits litigation. neither Costa Rica Only in a court. two of 30 commer- jury depositions nonparty witness- trials nor Robertson, supra, reached cial cases trial. See depose representative Attempting to Dow es. at 419. concerning company’s knowledge DBCP prove impossible to be an task hazards will 6. Such a result in the name "convenience” produce person required Dow is not undoubtedly follow a dismissal under would Costa Rica. the case at forum non conveniens in bar. unlikely and Dow seek It Shell pursuit forum non conveniens dismissal plaintiffs, approximately earn one who convenience, rather as but fairness per working planta- hour at the banana dollar successful, litigation against tion, itself. If shield clearly compete financially with cannot Dow, many multina- like American litigation. Shell and carrying and Dow in Shell them, corporations before would tional importantly, just trip cost of one More against largely impenetrable shield produced by secured to review the documents Houston alleged caus- meaningful torts lawsuits their estimated maximum Shell would exceed the recovery ing injury abroad. possible Costa Rica. In an unchal- fairness, engages in activi the dissenters where he economic convenience and State ty.”). judge choose to avoid entire bodies of law con- asked whether “the en One cerning The dissen- jurisdiction and venue. tire doctrine of ignore years light ters of Texas venue law should not be reexamined designed give privilege defendants the transportation that has occurred revolution being country. home Texaco, sued their See Fitzgerald v. since Oil [Gulf ].” Langley, Suggested A Revision the Tex- Cir.1975)(Oakes, Inc., (2d 521 F.2d Statute, 547, 547 as Venue 30 Tex.L.Rev. J., denied, dissenting), 423 U.S. cert. (1952). generated Texas has more case law (1976). 46 L.Ed.2d 641 Even concerning forty-nine the other venue than Hecht, dissent, recognizes in his Justice recently states and has enacted a combined rendered these factors have been Note, new venue statute. Pro- Venue largely “Ease of travel and com obsolete: Analysis cedure in Texas: An the 1983 munication, availability of evidence vid Proce- Amendments to Rules Civil transmission, eotape and oth and facsimile Governing Practice dure Venue Under technological er advances have reduced the Statute, Baylor the New L.Rev. Venue significance private of some inconvenience 242 n. It is ironic that sum, factors.” 786 S.W.2d 708.7 years sought pre- defendants for longer predominant private factors are no a country, sued in home serve a to be consideration—fairness and convenience yet argues that when it Shell nevertheless parties thrust out of the have been hometown, legal in its fiction of sued equation. As the forum non conveniens forum non conveniens is needed to ensure applied, “doctrine” is the term “forum now convenience and fairness. clearly non conveniens” has become a mis dissent, nomer. correctly

In his Justice Gonzalez

crystalizes private interest factors as that make the trial of

“those considerations Factors 2. The Public Interest relatively easy, expeditious, and in- a case public factors asserted The three interest expensive parties.” for the 786 S.W.2d by summarized as Justice Gonzalez be transportation 695. Advances and com- (1) whether the interests of the technology munications have rendered the entertaining justify sufficient to largely private factors irrelevant: lawsuit; (2) potential for docket back- necessarily A forum is not inconvenient comity. log; judicial pertinent because of its distance from parties places readily if it is accessible a. The Interest It often a few hours of air travel. will quicker expensive to transfer and less dissenting of the court members or a document than to transfer witness attempt paint picture of Texas falsely and satellite com- lawsuit. Jet travel becoming an “irresistable forum for all significantly altered munications have dissent, lawsuits,” Gonzalez mass disaster meaning of “non conveniens.” “personal injury 786 S.W.2d world”, Hecht dis- cases from around the Belgium, Calavo Growers California (Newman J., sent, suggest (2d Cir.1980) They 786 S.W.2d 707. 632 F.2d citizens forced to hear cases concurring). v. Interna- our will be See also McGee 220, 223, dis- “[tjhe interest of Texas these 78 which tional Ins. Life slight,” 199, 201, (1957) putes likely Cook dis- to be ... L.Ed.2d sent, Although sup- these 697. (“[Mjodern transportation and communica- S.W.2d undoubtedly pub- to stir positions will serve have made it much less burdensome tion debate, they have little basis fact. himself in a lic party for a sued to defend convenience, interesting pronounces doctrine of claim- to the so-called It is that Justice Hecht factors, however, ing in considerations of the doctrine as one founded deserve that "[t]he fairness," only reject to later "fundamental private as when Oil the same consideration now Gulf factors—the doctrine’s focus on was written." 786 S.W.2d Nevertheless, parties. clings he fairness to the of the suit does maintenance dissenting justices such that each know play of fair offend notions case, not ‘traditional a must jury to hear Texas a Texas (quoting Id. justice.’” jurisdiction over and substantial 'personam obtain in Meyer, 457, 463, 61 v. Milliken Oil, 330 311 U.S. See question. in defendants Gulf (1940)). 339, Under 342, L.Ed. 278 85 S.Ct. 504, (“[T]he 841 doctrine 67 S.Ct. at U.S. at Schapiro, 784 S.W.2d v. Schlobohm 355 non conveniens apply of can never (Tex.1990), must have suffi- defendant a jurisdiction if is an absence there in each lawsuit Texas cient contacts with venue.”). As cor- mistake of Justice Cook com- jurisdiction such that the assertion notes, power its a state’s to assert rectly justice. ports play with fair and substantial process jurisdiction is limited due the United States Constitution. clause of process that these re- Due mandates Washington, v. International Shoe Co. quirements before Texas be satisfied 310, 316, 154, 158, 90 326 66 S.Ct. over a defen- may jurisdiction U.S. assert (1945), process Supreme personal jurisdiction-due the United States L.Ed. 95 dant. The may in has a suffi- analysis a state exercise will ensure that Texas Court held that entertained in cient in each case personam jurisdiction only when a defen- interest minimum it our state’s courts.8 “certain contacts with dant has jurisdiction-due is suggest process determination com- Justice Cook seems 504, Oil, process plete. 67 S.Ct. for Shell to be sued in Hous See 330 U.S. at violate due Gulf extremely reasoning holding, unprece It is an novel Justice backward illus- ton. Cook’s law, significant relying problem dented in American constitutional trates conveniens, corporation process by explained by could be denied due non doctrine being sued in its hometown. Cook ar Justice one commentator as follows: gues process jurisdiction "the due in his dissent that test has going existence of Issues developed questions regard answers turning not ... conceptualised on rules and ing which, open- considerations of fairness." He claims that principles textured, and however flexible ‘bridged gap solidity forum non conveniens has in that is lend an element test,” development process of the due and wholly discretionary lacking decisions majority that “the jurisdiction.... concludes shatters When decline exercise bridge.” S.W.2d 702. jurisdiction-declining 786 Justice Cook is judges too much have wrong discretion, process due inevitably put on both counts. The test in in will cases, admittedly personal jurisdiction although necessary apply formulate and hard work developing fully complex, quickly. and jurisdictional Since hap- has sensible rules. What 1977, Supreme Court has eleven jurisprudence decided pened in is a form of American jurisdiction major personal e.g., vague cases. See As passing" whereby and “buck amor- Court, Superior Indus. Co. v. 480 U.S. ahi Metal phous doctrine has “forum 1026, 102, (1987); 107 S.Ct. 94 L.Ed.2d 92 Phil come to the collective shortcom- accomodate Shutts, 797, lips v. 472 governing Petroleum Co. U.S. 105 ings rules and of modern excesses 2965, (1985); Burger King venue, L.Ed.2d 628 jurisdiction, S.Ct. 86 choice of law.” and Rudzewicz, 462, 2174, Robertson, (citations Corp. L.Q.Rev. v. 471 U.S. S.Ct. 105 supra, 103 at 424 (1985); Helicopteros omitted). 85 L.Ed.2d 528 Nacionales "doctrine" in other The use of the U.S, Columbia, Hall, 408, S.A. v. 466 S.Ct. de 104 jurisdictions produced an has incoherent 1868, (1984); Jones, judges L.Ed.2d 404 v. body 80 Calder case law as often disordered 1482, 783, concerning personam 104 S.Ct. 79 804 ignored 465 U.S. L.Ed.2d have the law Inc., (1984); Magazine, Keeton v. Hustler 465 favor of the unbridled discretion 1473, 770, (1984); S.Ct. 79 they enjoy dismissing U.S. 104 L.Ed.2d 790 cases under non Corp. Campagnie Stein, Ireland v. des Insurance conveniens. Forum Non Conveniens 694, 2099, Guinee, Doctrine, U.S. Redundancy Bauxites de 456 102 S.Ct. 'the Court-Access (1982); Savchuk, 781, (1985) (forum v. Rush 444 L.Ed.2d 133 U.Pa.L.Rev. 571, (1980); quilt 100 S.Ct. L.Ed.2d 516 crazy U.S. in “a of ad conveniens has resulted hoc, Woodson, Volkswagen Corp. v. decisions.”). World-Wide capricious, and inconsistent (1980); Stewart, 62 L.Ed.2d 490 U.S. Non Conveniens: A See also Forum Court, Superior S.Ct. Role, 98 Heitner, Kulko 74 Cal.L.Rev. Doctrine in Search Aof (1978); 56 L.Ed.2d (1986) (arguing that forum conveniens Shaffer 53 L.Ed.2d 683 “[tjhe U.S. factors and should be abolished because policies to doctrine calls court’s which the jurisdic- in the attention ... are best considered two Cook confuses distinct issues Justice contexts”). The “considerations fair- tional suggesting be that forum non conveniens should may best Cook ness” Justice "bridge gap” development of discussed used to jurisdictional “by following the rules achieved process test. Forum non the due construing strictly a malleable doc- personal rather than until and never considered unless the states, Texas, including have in- Ten Specifically, Texas has a substantial mens.9 previ- case at As stated terest bar. Within these recognized the doctrine. Shell, against ously, suit has filed been states, docket is no that the there evidence headquarters corporation with its world congestion predicted by the dissenters Texas, doing in Texas extensive business evidence, of actually occurred. The best manufacturing in Texas. chemicals Although course, comes from Texas itself. occurring alleged The suit arose out acts státutory enjoyed citizens alleged in Tex- made decisions doing living or to sue defendants against suit also filed as. The has been here since 1913 enactment business Dow, corporation headquarters a with its of the predecessor to Section 71.031 Michigan, having substan- apparently but Code, Texas Civil Practice and Remedies operates the contacts with Dow tial Texas. Allen, in the 1932 reaffirmed decision Texas, country’s largest plant chemical by foreign flooded Texas has been manufacturing sixty miles chemicals within causes of action. Texas, largest population center in of the where millions Texans reside. Shell Moreover, Supreme the United States seek the Texas Dow cannot now to avoid congestion indicated docket Court has that justice system jury of Texans. civil wholly inappropriate “is a consideration Robertson, virtually every other context.” Backlog b. Docket L.Q.Rev. 103 Therm supra, at See by the dis- justification The next offered Products, 423 Hermansdorfer, Inc. v. tron invoking legal for fiction senters 344-45, 584, 589-90, 336, 46 U.S. over- judges “inconvenience” that will be (1976) (remanding a case to 542 L.Ed.2d only foreigners our Not will take worked. court “con state court because the federal press; popular as are told in the jobs, we busy improper). try itself too to it” is siders xeno- they courts. The now will our v. Reliable Trans See also United States suggestion foreigners will take phobic that 397, 1708, Co., 408, 421 S.Ct. U.S. 95 fer “forcing our residents over our courts (1975)(“Congestion in 44 251 L.Ed.2d in the corridors of our courthouses wait legal rule that justify courts cannot tried,” are causes of action while unjust litigation_”). produces results dissent, 690, is Gonzalez 786 S.W.2d begin If to refuse to hear lawsuits we misleading and false. both they filed in properly Texas because height deception suggest It is the time, require precedent sure to we set backlogs urban docket in our state’s that employed ac deny can Texans that “foreign centers are caused so-called same cess to these courts. This is unsubstantiat- litigation.” assertion forum non conveniens afford Nor does in other empirically both in Texas and ed congestion: eradicating rejecting panacea non conve- for jurisdictions virtually See Kassa appellate to ne- forum non conveniens since 1967. no review trine gate Inc., Note, Shipping Agency, pas 485 So.2d So.2d jurisdictional v. Arkon An the formal rules.” denied, (La.App.1986), 488 567 writ Approach to Non Conveniens Economic Forum denied, (1986), U.S. 107 203 422, cert. 479 Requested by Multinational Cor- Dismissals U.S. (1986); v. Phoenix L.Ed.2d 372 Trahan 93 Econ. porations, 22 Geo.Wash.J.Int’l L. & (La.App.1967). 200 So.2d Ins. Ap- "Economic [hereinafter 216 n. Nevertheless, study median fil revealed the proach ”]. ing-to-disposition in Boston time for tort cases largest Orleans, most recent days; 9. Evidence in New with no forum to be 953 performed study regarding conveniens, dispo ever national time for the median suggests pace litigation days. urban trial courts cases was sition study tort empirical disposition the dissen is no basis for time for that there revealed the median argument days, dockets will become as ters’ cases in Boston to be 1580 contract clogged days New Orleans opposed without forum non conveniens. a mere 271 recognizes not used. J. non conveniens is state of Massachusetts where forum Lomvardias, Goerdt, Peebles, Mahoney, Mass.App. & B. C. G. Gallas conveniens. 467, Minnis v. Litigation Delay (1987). Conversely, Examining Court Pace 510 N.E.2d —The Courts, recognized Trial explicitly in 26 Urban of Louisiana has state meeting Making place large- products. on a At the 1977 trial turn Council, Governing Ki- Dr. J.C. ly imponderable judicial exercise of dis- UNEP ano, Kenyan minister for water de- extremely costly. cretion is Even the velopment, developing na- warned strongest proponents of the most suit- longer being tolerate used tions will no approach able forum concede that dumping grounds products time-consuming inappropriately adequately “and that had not been tested parties for the to have to “liti- wasteful guin- peoples their should not be used as gate in order to determine where determining safety pigs ea litigate.” If shall forum non conveniens chemicals.” litiga- predictable, outcomes are not such occur_ tion'is In terms of bound Exports Banned For Do- Comment, U.S. delay, uncertainty, expense, and a funda- Use, Exported But to Third mestic World judicial accountability, the Countries, mental loss of (1980-81) 6 Int’l Tr.LJ. most suitable forum version of forum Exports Banned “U.S. [hereinafter clearly than it costs more “avoiding the Comity is best achieved is worth. ‘incurring possibility of the wrath and dis- supra, Robertson, L.Q.Rev. at increasingly Third as it trust of the World being recognizes that it is used as the Comity c. Judicial Note, garbage industrial world’s can.’” Exports From A Human Hazardous Comity shown to the inter- —deference Rights Perspective, 14 Sw.U.L.Rev. ests of the forum—is a considera- “Hazardous Exports”] [hereinafter by rejecting tion best achieved forum non (quoting (Repre- Hon. Michael D. Barnes Comity conveniens. is not achieved when Congress Mary- representing sentative in the United States its multinational allows land)).10 corporations to adhere standard to double operating subsequently when abroad and Oil fail The factors announced Gulf to hold them those refuses accountable for fairness and convenience. The achieve Scherr, Project actions. As S. Jacob Senior designed to fa- public interest factors are Attorney for the Natural Resources De- promote the vor dismissal and do little to Counsel, fense has noted justice. efficient administration of It forum non outrage part application

There is a sense of on the clear that many poor produce muddled and un- countries where citizens conveniens would law,11 used exports predictable are the most vulnerable to case and would be drugs, litigation be- pesticides hazardous and food defendants to terminate only juris- vice-president States states that Texas is “the 10. A senior of a United Justice Hecht corporation acknowledged position today; multinational diction on earth” with the however, taken corporate headquarters opinion, realization at "[t]he he admits earlier in the same liability any for disaster would be [industrial] in the United States have not that ten states courts, pressure in the U.S. more than decided adopted conveniens. forum non governments, Third World has forced strongly advocates fo- Each of dissenters tighten safety procedures, upgrade companies to However, they rum non conveniens for Texas. supervise closely plants, maintenance more and regarding at a collective decision cannot arrive and communities." educate workers Wall St. correctly application. While Justice Hecht its acknowledges J., 26, 1985, (quoting col. 4 Harold Nov. private interest factors that the Corbett, vice-president senior for environmental useless, Justice Gonzalez and are outdated Co.). affairs at Monsanto Phillips private advocate both the Chief Justice Gon- interest factors. While Justice monstrosity legal Today’s opinions reveal the correctly before the doctrine zalez notes that created in Texas if forum non that would be proper, applied, jurisdiction must be applied. Justice Hecht conveniens were argues the doctrine is needed Justice Cook predict consequences dire Justice Gonzalez each bridge gap jurisdictional help rules. in the forum non conveniens. of a Texas without surely conflicting of the dissenters Phillips correctly no views admits that Chief Justice unpredictable portend deci- the confused and supported. predictions The doc- such can be inevitably result from at- yet would developing years, sions which over 100 trine has been for judges apply doc- tempts trial doctrine “was Gonzalez asserts that the Justice among incipient until 1947. trine. the states" at best Dow, allegations against Shell and if fore a consideration of the merits ever oc- true, curs. proven unique, not be since would production many chemicals banned for THE LIA- III. PUBLIC POLICY & TORT domestic use has thereafter continued BILITY OF MULTINATIONAL COR- foreign marketing.14 Professor Thomas PORATIONS IN UNITED STATES McGarity, respected authority in the field COURTS law, explained: of environmental The abolition of forum non conveniens mid-1970s, During the the United States important public policy will further consid- (EPA) Agency Environmental Protection by providing erations a check on the con- pesti- began to restrict the use of some (MNCs). corporations duct of multinational their ef- cides because of environmental Approach, Economic Geo.WashJ. fects, Occupational Safety and the Int’l Econ. at 241. The misconduct of L. & (OSHA) Administration estab- Health corporations even a few multinational can workplace exposure standards lished untold millions around the affect world.12 toxic and hazardous substances example, im- For after United States pesticides.... manufacture [I]t posed of cancer- a domestic ban the sale many pesticides clear that that have been sleep- producing TRIS-treated children’s severely restricted the United States wear, exported ap- companies American many are used restriction without Africa, proximately pieces 2.4 million countries, resulting Third World pattern America. A similar Asia and South global and the envi- harm to fieldworkers proposed for occurred when a ban was ronment. baby pacifiers that had linked to chok- been Export McGarity, Bhopal and the Haz- Exports, infants. Hazardous ing deaths Technologies, 20 Tex.Int’l L.J. supra, ardous at 82. These exam- Sw.U.L.Rev. (citations omitted). By “29 corporations ples by some of indifference percent, pounds, or 161 million of all the are not unusual.13 towards children abroad observed, Dipy- company U.S. same rone, is said to have marketed 12. As one commentator multina- causing corporations painkiller a fatal blood disease tional As- and characterized the American Medical operating standard when adhere to a double resort," use as "a last sociation as for stringent The lack of environmental abroad. Republic. the Dominican "Noval- “Novaldin” in regulations safety and worker standards Republic in the Dominican din” was advertised enforcement of such abroad and relaxed smiling agree- pictures its with of a child about using processes in industries hazardous laws 1975, thirteen children able taste. Id. at 97. "In provide cor- little incentive [multinational workers, coming safety into with a porations] protect to in Brazil died after contact to against severely guard liability pesticide use had been obtain insurance to toxic whose product expo- country." Exports, or toxic tort hazard of sure, defects in this restricted Hazardous pollu- precautions to minimize supra, or to take 14 Sw.U.L.Rev. at 82. This double stan- tion to the environment. damages catastrophic caused dard has 14.Regarding Leptophos, powerful haz- and and to human lives. environment banned, domestically pesticide ardous that was Note, Exporting Should Industries: Hazardous S. Jacob Scherr stated Apply?, 20 Int’l L. & Pol. American Standards Velsicol, alone, corpo- a Texas-based In 1975 added) (footnotes (1988) (emphasis 780-81 3,092,842 Leptop- exported pounds of ration omitted) “Exporting In- [hereinafter Hazardous thirty half of that was hos to countries. Over Diamond, The Path See also dustries"]. country proce- shipped Egypt, with no Times, World, Progress N.Y. Racks the Third regulation pesticide or tolerance set- dures for 1984, Bl, at col. 1. Dec. 1976, Washington ting. Post In December Egypt reported Leptophos use in resulted Drug Company subsidiary Sterling ad- 13. A and of a of farmers in the death number Winstrol, synthetic male hormone vertised severely despite But in rural communities.... illness since it is in the United States restricted Leptophos’ se- of data on the accumulation side effects that the with a number of associated neurotoxicity, to mar- Velsicol continued irreversible”, vere “virtually in a F.D.A. has called grain product use on ket the abroad for healthy journal, picturing a Brazilian medical boy prod- crops proclaiming vegetable while drug recommending combat safety. weight uct’s fatigue U.S. poor appetite, loss. Banned, Banned, Exports 6 Int’l Tr.LJ. at 96. U.S. Exports supra, Tr.L.J. at 96. The 6 Int’l corporations affecting exported by of our pesticides the United States actions Al- unregistered or do- also Texans. were either banned for those will affect abroad McWilliams, Sawyer’s use.” Tom though mestic is banned from use within DBCP Apology: States, similarly A Reevaluation United the United and other Hastings Export Policy, States Pesticide have been consumed banned chemicals Comp.L.Rev. n. Int’l & 61 & 4 imported Costa eating Texans foods pesticides poison It is estimated that these & M. Rica and elsewhere. See D. Weir 750,000 people developing each countries 28-30, Schapiro, of Poison 82-83 Circle 22,500 year, of which die. Id. at 62. Some (1981).15 meaningful tort In the absence of place toll estimates the death from the ac- liability for their in the United States 400,- “improper marketing pesticides tions, will corporations some multinational year.” n. 000 lives a Id. at 62 adequate re- operate without continue to corpo- gard Some United States multinational human for the and environmental endan- undoubtedly rations will continue to actions. This result cannot costs of their ger human life and the environment with repeat itself for decades to allowed conse- such activities until the economic come. quences of actions are such that it these policy, As a of law matter unprofitable operate in this becomes conveniens the doctrine of present, many At tort manner. laws of Accordingly, I con- should be abolished. yet developed. are not third world countries cur. supra, Approach,

An Economic 22 Geo. L. Econ. at 222-23. Indus- Wash.J.Int’1 & PHILLIPS, Justice, dissenting. Chief occurring “is faster trialization than reasons respectfully I dissent. For the development of domestic infrastructures dissenting opinion, Hecht’s stated in Justice necessary problems deal with associ- I the doctrine of forum would hold that industry.” Exporting ated Hazard- is not foreclosed TEX.CIV. Industries, supra, 20 Int’l L. Pol. at ous & PRAC. REM.CODE 71.031. While & dismisses a case 791. When a court plain agree statute these that the allows against a United States multinational cor- Texas, agree I cannot bring tiffs to suit poration, it removes the effec- often most statutory language prohibits that the corporate tive restraint on misconduct. applying any common law trial court from Approach, supra, An Economic laches, procedural Is for exam defense. L. & Econ. at 241. Geo.Wash.J.Int’1 wrongful ple, statutorily foreclosed in The doctrine of forum non conveniens there I think not. I would death cases? in a in are obsolete world which markets Bass, fore Allen v. 47 S.W.2d overrule ecologists in global and doc- which have ref’d.). (Tex.Civ.App. Paso writ — El of life on umented the delicate balance all a regret I court's decision to discard our perspective planet.. parochial em- useful to procedural proved tool which in the doctrine of forum non conve- bodied of our system and most legal judicial the federal corporations to niens enables evade dissenters, my sister Unlike fellow merely they are states. because transna- control however, prescience to foretell ignores reality I lack the perspective This tional. eight imported found instances per Id. at The GAO than one cent of the fruits 4. 15. Less vegetables inspected pesticides. any punitive year period for where action are over a and General six Office, Accounting Pesticides: Better con- taken. Id. "United States whatsoever was Imported Sampling and Needed on crops pesticide-treated suffered as sumers have Enforcement 26, 1986), (Sept. at 3. Food GAO/RCED-86-219 States, complet- thus imported to the United pounds of found of the 7.3 billion The GAO McGarity, supra, ing poison.” a circle of imported Dis- into the F.D.A.’s Dallas bananas just example, from 334. As one Tex.Int’1L.J. at (covering Texas) than countries other trict imports produce from American of 1972 to 1976 single sample was Mexico in not Leptophos, residues of Mexico contained illegal pesticide residues such as checked previously at pesticide discussed neurotoxic meager inspec- its when DBCP. Id. 53. Even Banned, supra, 6 Int’l Exports note 14. U.S. illegal pesticides, program discovers tion at 97 n. Tr.LJ. rarely shipper producer. F.D.A. sanctions consequences As mass lawsuits. whether dire will follow. rum all disaster Note, the existence or not forum non conve- Foreign generally, Plaintiffs long in open question niens has been an Beyond Going Forum Non Conveniens: Texas,1 traditionally courts at- our Reyno, 64 Tex.L.Rev. 193 “Bho- originating tracted a number actions pal”-type litigation, little or no connec- foreign jurisdictions. Today’s decision will already to Texas will to our tion add trend, probably accelerate but what dockets, forcing residents our crowded effect, extent, and with what I do in the corridors of our courthouses wait Further, dissenting express I no know. foreign tried.2 causes of action are I while doctrine intimation as to whether or not the of the hold that section 71.031 Texas would appro- non forum conveniens would be Code does Civil Practice Remedies priate particular under the facts of this litigants absolute confer case. bring suit in Texas. Because I part judg- I would reverse trial believe that courts have inherent pre- appeals the court of which ment of apply conveniens in power to forum possibility of non conve- cludes the a forum cases, provide guide- appropriate I would dismissal, part of the niens affirm that parameters set for its use. lines and judgment the dismissal which reverses modify judgment thus would matter, and remand this cause cause appeals and remand the factors trial court for a consideration of the proceedings. court for the trial further Gilbert, set Oil forth Co. v. Gulf This cause action arose Costa Rica 843-44, 501, 508-09, U.S. agricultural certain Costa Rican where (1947), mod- as modified to meet L.Ed. 1055 allegedly as injuries suffered workers Note, generally ern circumstances. See exposure pesticide result of to a manufac- Foreign and Forum Non Con- Plaintiffs injured by the defendants. tured ”, 64 Tex- Going Beyond “Reyno veniens: seeking to enforce workers are (1985).2 214-23 L.Rev. personal injuries that claims for oc- courts suits in Costa Rica. Several involv- curred Justice, GONZALEZ, dissenting. ing many plaintiffs of the same essen- guise statutory construc- Under the previously tially the same defendants have tion, today doctrine the court abolishes the in the and then been filed United States brought in suits non conveniens dismissed pursuant 71.031 the Prac- to section Civil grounds. decision tice and Remedies Code. This filed suit group plaintiffs makes us one of few states case was re tool,1 Florida state court. That procedural such a Union without court, to a federal district which this doc- moved legislature if fails reinstate trine, fo- it on the basis of an irresistible dismissed Texas will become factors, recently regarding ings those Supreme States Court and conclusions United As the separate judgment or in a in the final either observed: document. same, indeed, apply may or the [Texas] analysis.... any non conveniens forum v. Pharmaceuti- 1. See Chambers Merrell-Dow noted, Rather, Appeals it is Court as the of 370, 373, cals, 123, n. 3 Ohio St.3d 519 N.E.2d 35 itself the possible that "Texas has constituted (1988). resort, suit for final where forum of world’s always be filed injury personal or death 1988, rig example, oil July in there was an For 2. else.” nowhere if lawyer went Scotland. A to disaster in Scotland, Texas 140, Corp., U.S. v. Exxon 486 Choo Chick Kam conference, press and wrote held a 1684, 1688-89, 144-45, 100 L.Ed.2d 108 S.Ct. He advised to victims their families. letters 127, (1988). 135 trying good of had a chance their them be much Texas awards would under cases in where dismissed this cause court trial 2. The Post, 18, July expres- higher Houston than elsewhere. written without conveniens forum non 1; (London), 1988, 13A, factors, July col. The Times any, if at it had considered. of what sion 26, 20A, 1988, 1; Sept. review, 18, Lawyer, col. Texas appellate at I would facilitate to In order to find- 1988 3. court set forth written require trial the

691 writ); 1969, Cole (Tex.Civ.App. no affirmed conveniens. The dismissal was — Dallas Lee, Co., (Tex.Civ.App 757 v. 435 S.W.2d 283 Sibaja v. Dow Chem. appeal. on . —Dal dism’d); Forcum-Dean 1968, Co. denied, Cir.), writ (11th las cert. 474 U.S. F.2d 1215 Co., Pac. 464 (1985). v. Missouri R.R. 341 S.W.2d 347, 948, 88 L.Ed.2d 294 106 S.Ct. 1960, (Tex.Civ.App. Antonio writ — San 1985, plain of of group members this In dism’d). is a nec “Forum non conveniens in That case was tiffs filed suit California. expanded essary greatly antidote court, subsequently removed to a federal ‘long-arm’ provided by stat- jurisdiction it on of which dismissed the basis forum utes_ procedure ... It is a ‘flexible Dow Aguilar v. in non conveniens 1986. place discretionary of of determination the Co., (S.D.Cal. Chem. No. 86-4753 JGD leaving trial,’ technique un ... 1987). press litigants without a court popular 1987, federal district court in Florida Republic claims.” Islamic Iran v. their filed again of action once addressed cause 597, 606-07, Pahlavi, 62 478 N.Y.S.2d group plain members certain 245, 474, 491, 254-55 467 N.E.2d N.Y.2d on action tiffs. The court dismissed the (citations (1984) J., dissenting) (Meyer, Bar non conveniens. the basis of forum omitted). Co., Fruit rantes Cabalceta Standard today3 The court “conclude[s] (S.D.Fla.1987). F.Supp. 833 legislature statutorily abolished the originally The case at bar was filed suits doctrine forum County, Texas court state district Harris brought 786 S.W.2d under section 71.031.” court 1984. It was removed to federal non conveniens disagree. Forum remanded to district court and then upon landscape of judicial not arrive did on the basis where it was dismissed predecessors until this state after ap- non conveniens. court of forum The statute section 71.031 were enacted. trial peals judgment reversed 71.031 was first that was become section trial. It is court and remanded case for 1913, 8, April in 1913. Act of ch. enacted affirms. judgment today court 338, 1, repealed 1913 Tex.Gen.Laws § 17, 1985, 9(1), May ch. non conveniens refers Act of The term discretionary power court 3322. Before of a 1985 Tex.Gen.Laws Supreme Court en year convenience in which U.S. decline when the non conve- doctrine of parties justice and the would dorsed the ends Gilbert, Oil v. brought niens if the served action were better Gulf (1947), the Law dis another forum. Black’s L.Ed. and tried (5th ed, 1979). dismiss the basis of Dictionary, It is cretion to a case assemblage considerations policy unique con rooted in sound doctrine fairness, in recognized by the was at best doctrine judicial economy cerns of See, states;4 Flaiz v. among the such discretion e.g., cipient recognized Texas. Note, Re Moore, in Texas. (Tex.Civ.App. non-existent 353 S.W.2d was — San Statutes, 20 Tex.L.Rev. grounds, cent Cases rev’d other Antonio), reported first McNutt v. (Tex.1962); see also 610-612 S.W.2d Indus., Inc., non conve- (Tex. identify case to Teledyne 693 S.W.2d “forum ” Phillips Petroleum niens was Garrett v. dism’d); Win Van writ App. — Dallas (Tex.Civ.App Rice, 218 S.W.2d 238 Co. 448 S.W.2d kle-Hooker . —Amaril (“Although legisla [hereinafter Stein] today, issue of whether Until name, bearing non conve- a Latin the forum supreme had abolished or the ture relatively origin. open recent doctrine was an niens doctrine 872, Moore, accepted the doctrine for S.W.2d until 1948 was question. See 359 Not Flaiz courts 876, (Tex.1962); general application in federal and it Couch Chevron International 534, (Tex. 1984) state Co., Inc., (per no in the courts little or attention received 682 S.W.2d 535 also adoption.”); see Com- curiam). federal until after ment, Need The Non Conveniens: Forum for Texas, Legislation 740 Stein, in 54 Tex.L.Rev. Re- Non and the Forum Conveniens Doctrine, (1976). dundancy 133 U.Pa.L.R. Court Access dism’d). Stumberg, lo writ believe that Laws-Torts-Texas Conflict of Decisions, The legislature unacquainted was the doc 9 Tex.L.Rev. with caption trine of conveniens and cannot to the statute and subsection both be said to have it. evidence this intent: abolished OF CITIZENS OF THIS PROTECTION Paxton Blair’s conclusion his article IN STATE INJURED FOREIGN COUN- The Doctrine Forum Non Conveniens of ADEQUATE COM- TRIES—PROVIDES Law, Anglo-American 29 Colum.L.Rev. PENSATION THEREFOR (1929) non conveniens has Chapter No. [S.B. 75} employed been in the state courts since protection persons An for the 1817: act may injured in a for- who be State questionable. Many seems of the state eign providing adequate for country and by cited involved rules that cases [Blair] therefor, declaring compensation absolutely barred the action. emergency. provisions, unlike con- Such Legislature of the Be it enacted veniens, provide did not the trial courts of Texas: State discretion; rather, they absolutely jurisdiction. the death or precluded assertion Section 1. That whenever Moreover, thought personal injury until of a citizen of this State 1929 was privi- country having equal treaty rights the doctrine was a violation of the or a leges immunities clause of the con- with the United States on behalf of its citizens, may or be caused stitution. ... been act, wrongful neglect any or default (cita- Stein, n. 43 133 U.Pa.L.Rev. at 796 State, right to maintain an which Barrett, omitted); tions see also The Doc- damages respect action and recover Conveniens, 35 trine Forum Non Cal.L. given by or law of thereof is statute (1947); Hazard, J. Rev. 388-90 Civil State, country, territory or such Note, Procedure, (1985); 2.31 Forum § enforced such action Georgia: A Non Conveniens in Critical States, courts of the United or Analysis Proposal Adoption, 7 State, pre- courts of this within the time (1973) 744, 747, n. 15 Ga.L.Rev. [here- for the commencement of such scribed in Geor- inafter Forum Non Conveniens State, by the statute of this action (“After publication of arti- gia [Blair’s ] the law of the former shall control non con- cle], phrase the use of the ‘forum of such action in all matters maintenance familiar, quite but few veniens’ became pertaing [pertaining] procedure. applied it. Not until the American courts no 2. The fact that there is now Section really late 1940’sdid forum non conveniens who permitting law citizens this State The age country.”) in this court’s come injuries foreign country in a receive misplaced. reliance on Blair injuries under bringing an action for said original version of section 71.031 State, an emer- the laws of this creates give in 1913 to Texas citizens was enacted imperative public necessity re- gency and right to maintain a cause action rule that quiring that the constitutional of this State free from the courts read three several bills shall be dissimilarity threat of a dismissal under here- days, suspended and it is should be Note, Texas Dissimilar- doctrine. See by suspended, and this Act shall take Law Applied to the Tort ity Doctrine as passage. its effect from and after Evaluation, Tex. Modem Mexico—A 8, 1913, Note]; April ch. 1281,1293 Act of L.Rev. [hereinafter 1985)(empha- (Repealed Siqueiros, Tex.Gen.Laws Bayitch & J. see also S. Conflict added). from the It does not follow and the United States sis Laws: Mexico or Paulsen, language of the statute (1968); Foreign of this version Law in (1955); subsequent that the Courts, any of the versions5 33 Tex.L.Rev. version, (a) damages for the death Civil An action for section 71.031 of the 5. The current state, Code, injury personal of this provides: of a citizen Practice and Remedies

693 legislature give object intended of for- aim and of construction is to ascer to citizens in-tent_”); legislative enforce tain and the eign right countries an to main- absolute Commonwealth Massa of strip suits in Texas or to our courts tain cf . Devel to, v. North South on chusetts United & equitable power their common law 226, Co., Tex. circumstances, opment 140 168 S.W.2d under occasion and certain (1942) (interpretation by implication 229 disputes only a tenuous dismiss that have to statute when Instead, legisla- cannot be used extend a the connection Texas.6 discernible); legislative Taylor intent is ef- the preclusive concerned the ture was with and Policemen’s Civil Ser dissimilarity upon ac- v. Firemen’s fect of the doctrine Lubbock, 616 City brought by foreign vice Commission injured tions Texans 187,189 (Tex.1981)(“In the absence prohibit 5.W.2d and intended countries amendment, should specific a statute dismissing solely on the courts from a case meaning given the which it had when applied in the be grounds that to be law enacted”). Note, dissimilar. 55 Tex.L. case was See Baade, (1977); 1293 Con- Rev. at see also this case appears The court hold Law, Laws, Texas Survey 197Jt 71.031,

flict of language in section turns Note, (1974); 2 28 Sw.LJ. 216-217 “may states that an be en which action 7 Tex.L.Rev. 246 It in the courts of this State.” forced however, proceeds, The doctrine non conveniens then to substitute forum Bass, equated dissimilarity holding doc- in Allen v. cannot be to the S.W.2d Flaiz, ref’d) (Tex.Civ.App. trine. See 359 S.W.2d at Paso writ 87.5. — El legislature simply contemplate appeals did not the court of held that for wherein fo- (now 71.031) con rum non when the statute was mer article 4678 section Similarly, right subsequent drafted. amend- ferred an to maintain a suit absolute courts, abrogate explanation not in Texas for an of how ments statute did fo- language precludes There- application rum non conveniens dismissals. fo fore, legisla- purposes Yet in Flaiz v. because rum non conveniens. (Tex.1962), enacting amending Moore, ture in this statute 359 S.W.2d ascertainable, decided, is ab- v. long are and because there after Allen Báss was solutely legislature Supreme Court that it had no indication that the Texas warned doctrine, sought the court’s whether article 4678 yet to abolish the not decided former mandatory precludes that the statute such that a court could assertion was forum City determining whether non conveniens indefensible. exercise discretion Utilities, having Tex. a suit little or no con Mason v. to entertain West (“the 273, 275, (1951) the State of Texas. See also S.W.2d nections with States, legislature foreign country may argue or of makes no sense to that the United 6. It state, although in the abolished doctrine of enforced courts of this act, recog- neglect, causing wrongful default conveniens when doctrine was or injury foreign place state or at that time. death or takes in a nized in Texas country, if: (1) country foreign a law of the state or legislature’s Dow and Shell contend that gives permis state to maintain "may" of this the statute use of the word makes damages injury; argue for the death or They action and Iowa that both Kansas sive. (2) begun action is this state within 71.031 that also statutes similar section provided "may” applies of this state the time the laws and that each use the word action; Compare beginning the non conveniens. doctrine 60-217(b) (1986) (3) of a and Gon § in the case of a citizen KAN.STAT.ANN. Atchinson, rights Topeka, Ry. equal treaty Fe country, country and Santa zales (1962) IOWA 371 P.2d with of its citizens. Kan. the United States on behalf Ke (b) pertaining procedure CODE 616.8 and Silversmith matters All Transport, Auto 301 N.W.2d action in the nosha prosecution or maintenance of the 1981). (Iowa persuasive this governed law of court shuns state courts of this are language reasoning and chooses to hold that state. mandato (c) "may 71.031 is of substan- be enforced” section apply shall the rules The court dis ry precluding appropriate the facts thus under tive law that missals. case. 694 (1963). case, upon prin

Note, 924, in that based 927 n. 19 dismissal 41 Tex.L.Rev. equated with cipals comity, 1984 of cannot be warning as late as We reiterated this Nowhere in Al non conveniens. opinion refusing application an an forum the doctrine of non error: v. Bass is grounds of no reversible len writ forum discussed. non conveniens applicability of conve- “[T]he forum 4678 cause of action is niens to an article Comity focus on deference considerations In- open question.” Couch v. Chevron state; sister non conveniens to a forum 534, Co., Inc., 682 S.W.2d 535 ternational en the trial court to considerations allow (Tex.1984) curiam), (per citing Flaiz v. balancing of gage discretionary in a factors (Tex.1962). Moore, 872 359 S.W.2d appropriate the most in order to determine litigation.8 comity The dis short, forum for the does not control Allen v. Bass trial in Allen by missal ordered court dismis the issue of non conveniens forum balancing public did not involve the section 71.031 because that deci sals under private interests which inform a of and did not address the doctrine sion forum forum decision,9 opinion and the Teledyne v. non conveniens See McNutt non conveniens. appeals of Indus., 666, (Tex.App. not reflect that the court Inc., 668 does 693 S.W.2d of 1985, dism’d) (“As to abolish the doctrine we read intended —Dallas writ forum issue, A announced in a rule Allen, comity was at non conveniens.10 the doctrine disassociated judicial opinion not be non conve- not the doctrine forum of its earlier, or taken out of the context ”). the doctrine of As stated niens Dodger, 158 Haden & Co. v. firmly not es facts. W.D. non conveniens was forum (1958). 74, 838, Fur 308 840 until the Tex. S.W.2d jurisdictions in American tablished ther, phrase right to main de Supreme Court’s seminal United States —“absolute Gilbert, transitory in Allen v. 330 tain a action”—used Corp. v. cision Oil Gulf by (1947), Bass, improvidently upon relied 839, 501, 91 L.Ed. 1055 67 S.Ct. U.S. First, reaching today. court in its result v. Bass. See years some 15 after Allen group 583, language from a McMillen, resulted 779 S.W.2d v. Willman open forums in establishing (Mo.1989); cases absolute Forum Non Conve 584-85 under constitutional attacks at 748 n. 15 order to avoid Georgia, 7 Ga.L.Rev. niens in immunities clause. Sub accepted privileges and 1947, only six states (“By indicated sequently, Supreme Court doctrine.”); Wright, C. Federal Courts Stein, privileges and immunities clause (4th 1983); that the supra, p. 44 at 259 ed. vesting discretion no to a state Abrogation of the doctrine of obstacle 4fn. at 796. to hear suits between its courts to refuse 71.- under section non conveniens forum Gilbert, Corp. v. nonresidents. Oil cannot reason as this 031 in a case such Gulf 841, 839, 501, 504, Bass; 330 U.S. upon Allen v. ably predicated court, R.R., opinions that the indicate none of the Pac. cites Morris v. Missouri 8.The court balancing discretionary engaged authority in the court S.W. Tex. neces public private factors that is recog interest courts had proposition that Texas analysis. sary proper non conveniens in a long before nized forum Gulf forum in did not Corp. v. Gilbert. That decision Oil rely balancing Comity of inter- on a non conveniens. does the doctrine volve Rather, willingness grant engaged it "is a est factors. never described or Morris court The right, out of privilege, but private not as a matter balancing interest good Instead, Black’s Law Dictio- appli will.” explained deference court factors. comity principles of nary, comity 5th ed. and affirmed the doctrine of cation of properly equated the doctrine of be are not the trial court of the case the dismissal conveniens. impolicy of en "indicate[d] cause the facts upon principles tertaining jurisdiction ... now, largely Similarly, the cases Bass has been comity.” Allen v. Id. at 230. 10. Until is, Jackson, opinion language Imprecise Ry. ignored. Tex. Co. v. National Mexican (1896), subject manipulation. Accord- regrettably, Co. Southern 33 S.W. 857 Pacific (1896, Graham, ingly, v. Bass in order Tex.Civ.App. overrule Allen 34 S.W. 135 I would concerning Missouri, any possible ref'd), Ry. confusion & Texas eradicate Kansas writ to actions application S.W. 871 Comm’n Texas v. Godair Co. alleged refd), section 71.031. under cited (Tex.Civ.App.1905, writ evi- Barrett, produce the movant to Doctrine of (1947); shall rest L.Ed. 1055 Conveniens, authorize dismissal. dence would Forum Non 35 Calif.L.Rev. which Rosner, This prepon- establish must Broderick 60; n. evidence cf. accept 629, 643, derance should v. North Car (1935); trial of the case. Williams 1100 L.Ed. olina, 287, 294, n. 63 non conveniens has been Once forum 211, 5, (1942)(under full n. 87 L.Ed. 279 the invoked, should, first as its the trial court clause, “may a state faith and credit gov- law step, what substantive determine apply doctrine appropriate cases the of ‘fo the choice of erns the case under relevant ”) Second, the con rum non conveniens.’ Engi- In Re McClelland See law rules. court Allen Bass the that clusion of neers, (the Inc., (5th Cir.1984) 837 742 F.2d gives 4678 to article an absolute non conveniens step first in a forum except is transitory maintain a action dicta sub- analysis is the determination of what respect of other to citizens states. case). If the governs the stantive law Allen v. Bass controlling not as to simply is gov- court concludes that law will legislature the question the of whether case, may as a ern the it consider this statutorily the doctrine of abolished forum dismissal. See of weighing factor in favor brought non conveniens in Texas suits Procedure, (1985). Hazard, Civil J. 2.31 by section for under 71.031 residents of Next, must be established that the it eign countries. doc- plaintiff an alternate forum—the Forum non conveniens is a common law presupposes at least forums trine two See “pertaining procedure.” doctrine to pro- is to which the defendant amenable Ry. May Missouri ex Co. v. rel. Southern Oil, 506-07, cess. 330 U.S. at 67 S.Ct. Gulf 95

field, L.Ed. 3 U.S. acceptable forum at 842-43. An alternate (1950). I hold would therefore that the when, plain- example, the does not exist applicable alleged is to cases un doctrine get personal jurisdiction tiff is unable der section 71.031 virtue subsection acceptable If the defendant elsewhere. no (b), provides: which exists, not the case should be alternative procedure pertaining matters [A]ll the bur- regardless of additional dismissed prosecution or maintenance of the upon thrust the defen- dens which will be of this are action the courts state (Second) dant. Restatement of Con- See state, governed the laws of this (1969). comment flict of c at Laws § Note, added). (emphasis acceptable Tex.L.Rev. forum And if an alternate even (1963). exist, n. 16 may does trial court not dismiss plaintiff is resident of the case if the I Because doctrine believe Texas. applicable conveniens forum state, brought cases in the courts judge has Once the trial determined guidelines adopt following for its would exists, the acceptable alternate forum use. consider all relevant judge must then private interest public and factors of

Forum Factors Non Conveniens justice interests of would determine if the jurisdiction if the alternate be better served the outset it must be noted that At private case. adjudicated the Factors does doctrine (interest that make those considerations it is play come into until established expedi- easy, relatively a case subject matter the trial of has both the trial court parties. tious, inexpensive any If and personal there jurisdiction. and 1) those public interest include: jurisdiction over Factors of challenge to court’s im- matter, into account the burdens must which take subject parties or the state of the forum posed upon the citizens may the court make resolved before having connection no when controversies non determination. proceed are allowed to Thereafter, with the state be invoked the doctrine trial; 2) comprehend the bur- those which burden party, only motion of judge’s dens which the trial will work trial discretion is unlimited: itself; 3) recognize weighing those which “where there has been no having general interest localized con- advantages relative of each but decided in the troversies one, a consideration of the drawbacks Note, generally which arose. See that discretion has been abused.” Found- Foreign and Forum Non Con- Scientology Verlag, ing Church Plaintiffs Going Beyond Reyno, Tex.L. veniens: (D.C.Cir.1976) (emphasis in F.2d single private No Rev. Bank, original); Lyonnais see also Credit public factor should interest be outcome Cal.Rptr. at 566. determinative; rather, each con- must be case, judge In the the trial dis- instant in relation to the others. sidered specifying missed the case without private consideration he considered record factors which should on interest factors be individualized way the those considerations influ- which Clearly, general the case case basis. enced his determination. would reverse descriptions of those factors set forth part judgment of of the court of that the capable granulation of into the above are appeals precludes possibility the of which specific considerations necessitated more dismissal, affirm forum See, Oil, e.g., individual cases. Gulf part judgment of that which reverses 508-09, 843-44; Piper at at 67 S.Ct. U.S. dismissal, to remand this cause 235, 257- Reyno, v. U.S. Co. Aircraft proceedings not trial court for further in- 266-269, 252, 261, 70 L.Ed.2d 419 opinion. this consistent with (1981); In Re Air Crash Disaster Near 1982, Orleans, La., July on New Response Doggett’s Concurrence to J. (5th Cir.1987); v. F.2d Pain Corp., Technologies 637 F.2d United you Doggett’s strip When Justice concur- (D.C.Cir.1980); 786-795 Great Northern rhetoric, it is ring opinion fiery its clear of Court, Superior County Railway Co. v. to such my that he has dissent an twisted 105, 112-116, Alameda, Cal.App.3d feel ordinarily extent I would com- (1970); Cal.Rptr. Ly 466-467 Credit Deprived pelled length. to respond Manatt, al., et 202 Cal. onnais Bank v. flourishes, however, his con- its rhetorical 1424, 1435, 17, Cal.Rptr. App.3d n. curring opinion following contains (1988); Merrell- n. 17 Chambers v. conclusions: Pharmaceuticals, 35 Ohio St.3d Dow (1) legislature The has abolished forum (1988); 132-33, N.E.2d 378-379 (We are not told when non conveniens. Note, Non Conveniens in Forum Califor accomplished); or how this was Civil Procedure Section nia: Code (2) “As a of law and matter ^10.30, Hastings L.J.. 1245-46 In “should be abol- policy,” the doctrine however, case, trial judge must each (Why is this ished.” 786 S.W.2d the record each factor he or she specify for if, plu- necessary Doggett and as J. manner these considers and the which legis- claims, by the rality this was done the decision. factors influenced long ago?); lature Accordingly, the non conveniens forum (3) “compelling prece- Allen v. Bass determination, though committed have an absolute plaintiffs dent” that the court, the trial must be sound discretion (In right in Texas. bring to suits Flaiz to a structured consider- carefully confined Chevron, we Moore Couch factors an relevant so that ation ques- open an issue was said this may meaningful conduct a appellate tion); judge The decision. trial review many countries legal systems The example, not, dismiss a case ours, generous as not as of the world are simply forum be- chosen plaintiffs non conve- view, doctrine forum cause, court’s another greedy, holding irre- is a by the niens barrier superior to that chosen may be corporations ac- sponsible Pain, The multinational 637 F.2d at 783. plaintiff. See exists, policy, or in in- reason law The doctrine therefore No countable. in this (We support presence their state. public policy grounds. valid legislature adopted within statute court, legislative body. We do not a permit plain- phrase “may enforced” power authority or to make not have Texas, irrespective of where sue in tiffs to decision). public policy action the cause of they live where Doggett criticizes the doc- Justice also adopt legislature did arose. “yet as trine statute, however, our to remove from legal fiction” and assumes that another To use the all discretion dismiss. courts calling challenged it he its validi- such away, fi- sweep completely and statute to reasoning Taking to its ty. this line painstakingly nally, a common law doctrine conclusion, logical appears that Justice years developed is to infuse over legal Doggett opposes the use of such fic- contained power statute with a trusts, corporations, constructive tions read, asym- Properly the statute is words. fraud, notice, constructive constructive upon the Although it confers metrical. event, any he is in- numerous others. bring claims plaintiffs an absolute con- suggesting correct courts, impose upon our it does not our fiction, legal legal veniens is a for a fiction responsibility to enter- courts an absolute assumption of fact made is defined as tain those claims. deciding legal by a court as a basis for supported if the court’s the statute Even by the question or a situation contrived law however, interpretation, I would remain un- dispose permit a court to of a matter. to join the The decision willing opinion. to (5th 1979). Dictionary See Black’s Law ed. great on places too a burden defendants requires the Forum non mov- because, by citizens of our state who are prove the facts warrant ant to to court conveniens, abolishing the de- dismissal of the case. exposes to the claims of cision our citizens conclusion, intent, I In no much less any plaintiff, no matter how distant policy to implement “zeal” social as Justice home or cause of plaintiff's is that Texas Doggett charges. is not our role. It That dis- The of Texas in these action. interest anybody trying if to advance is clear that is slight the putes likely is to be as rela- Dog- particular policy, social it is Justice tionship plaintiffs of to Texas. The the altruism, his I gett. sym- nations, hand, admire and too interest of other on the other plight plaintiffs. of pathize with For these rea- likely is to be substantial. However, powers are sons, of well- I fear decision allows assertions defined, sweeping implementations and the courts that are so jurisdiction of policy Doggett as to of social welfare Justice unfair and unreasonable violate of the federal constitu- abolishing process to the doctrine due clause seeks achieve tion. are the exclusive of legislature. of domain I. PERSONAL JURISDICTION —FROM reasons, I dissent. For all of the above FAIR PLAY TO PRESENCE ago, States century the United aOver COOK, Justice, dissenting. upon to decide Court was called Supreme wildcatters, tum-of-the-century power Like adjudicate to the reach of a state’s all across plaintiffs against in this case searched claim an out-of- plaintiff's resident claims. place for a to make their in a state court. The the nation defendant state moved, filing they simple rule: Through adopted applied courts and three Court circum power adjudicate then on the to was lawsuits on one coast and their state’s was plain- If a defendant of courts the By each those scribed its borders. other. borders, he was then they present continued within those rejected, and so tiffs were Thus, jurisdiction. willing subject forum. to the state’s for more search their enter a Oregon could Today the courts state finally rewarded. Their efforts against the de judgment binding personal dirt Texas. pay hit if, if, personally Although play fendant he was fair and reasonableness. appeared times to process served with within the state or the standards have at idea, they voluntarily merge before the court. into one have evolved appeared 714, 720-23, perform different func- Pennoyer Neff, years over to process analysis. L.Ed. 565 tions the due departs tra- presence onerous standard from the rule was for both first plaintiffs concept, Pennoyer, ditional described in defendants. Plaintiffs had jurisdiction always capture imposition defendants within a state’s borders process. compensated proper present a defendant is to serve The law where plaintiffs by allowing place concept, forum. of that the Shoe upon this burden developed stringent require- less Court them serve even transient defendants. plaintiffs ment that a defendant have “minimum con- This concession to worked a hard- defendants, forum. Id. ship subjected were tacts” with the who as a appears no how at 158. The second standard jurisdiction assertions matter fleeting underlying the first. This theme passage defendants theme irrespec- through expresses the Court’s belief that hardship, a state. For which a state’s provided law relief another tive the contacts common based, litigants jurisdiction jurisdiction exercise kind: the notion that should play and inappropriate confined forums. This must still be consistent with “fair idea, Id. developed justice.” into we substantial which has what call the conve- now doctrine standard, contacts, that It is the first niens, stepped bridge gap in to be- reasoning dominates both Shoe tween the of defendants and fo- interests subsequent in most deci- Pennoyer’s dog- rums on the hand and one This standard has de- sions the Court. presence Eh- matic rule on the other. See veloped incorporate most of the rules renzweig, Rule The Transient Personal juris- in its a state exercise inhibit Myth Fo- the “Power” Jurisdiction: It diction an out-of-state defendant. over 289, Conveniens, 65 Yale L.J. rum following forty years true in the that (1956). Shoe, play dutifully recited the fair courts the applied once courts Pennoyer’s. proved scheme standard. But jurisdictional analysis developed under the contacts stan- simplistic complexities of mod- too for the life, that minimum contacts ex- large corporations and dard and found ern with its isted, have to concerned involving courts did not be multi-state ele- controversies applica- jurisdiction would falter A rule nec- that jurisdictional ments. new was second, play, fair standard. tion the essary. It formulated when the Unit- was dispensed Supreme ed Court States contacts stan- The of Shoe’s dominance the nature presence the rule and redefined for nor neither the need dard diminished power adjudicate extent a state’s and recognition application occasional of the v. case of International Shoe Co. In non conveniens. the doctrine of forum 310, 154, 66 S.Ct. Washington, 326 U.S. Gilbert, 501, 67 Corp. v. 330 U.S. Oil Gulf (1945). Shoe, held In the Court L.Ed. 95 (1946), 839, L.Ed. 1055 the United S.Ct. personam juris- exercise in may a state acknowledged that a Court Supreme States an defendant when diction over out-of-state discussed apply the doctrine and may con- has certain minimum the defendant which the doctrine the circumstances under the forum such that maintenance tacts with pri- These include the appropriate. both no- suit not offend traditional of the does litigant the and vate interest of justice. play fair and substantial tions of in- interest considerations interest. Private 316, at 158. Id. at 66 S.Ct. of access to sources clude the ease witnesses, any availability of and Shoe, proof, the from derived Two standards the trial practical problem that makes other relating existence contacts first to the expeditious, inex- easy, and of a case defendant and between out-of-state 508, Public 67 S.Ct. at 843. pensive. at forum, relating to Id. notions the second opments. generally Piper focus interest concerns on court’s atten- Aircraft tion such factors such the administra- Reyno, on 454 U.S. S.Ct. Co. litigation from (1981). tive difficulties that result 70 L.Ed.2d jury duty upon pile-ups the burden of Rudzewicz, King Corp. In Burger communities which no relation 85 L.Ed.2d 528 U.S. 105 S.Ct. litigation. 508-09, Id. at 67 S.Ct. at (1985), gave power to the the Court real decision, which came one Gilbert play by stating that minimum fair standard year Shoe, provided after the same balance established, contacts, may where be even jurisdictional post- to Shoe’s scheme that light Volkswagen considered Pennoyer jurisprudence provided to the factors to determine whether assertion conveniens, presence test. Forum non jurisdiction comports play with fair although explicitly dealt with in the justice. at substantial Id. jurisdictional analysis, bridge was still the time, dis- 2184. At the same the Court gap that transversed the constitu- between non conve- cussed the function prob- doctrines of tional jurisdictional in the context of a niens arising lems from forums. inconvenient First, that, analysis. the Court conceded pre-eminence of fair contacts over cases, process test due most Shoe play began jurisdictional yardstick as a Objections implicated. need never be taper when the Court decided World-Wide play jurisdiction arising from the fair stan- Woodson, Corp. v. Volkswagen through could accommodated dard L.Ed.2d finding jurisdiction “means short unrea- Volkswagen, In the Court both acknowl- sonable.” Id. at 105 S.Ct. at 2184. edged play the existence of the fair stan- words, plainer a court could address the dard prior and extracted case law play concerns inherent in the fair standard comprise elements standard. raising concerns to the without those level They (1) include: defen- burden Second, inquiry. of a constitutional dant; (2) adju- the forum state’s interest in examples of short of Court noted “means (3) dicating dispute; plaintiff’s in- finding jurisdiction unreasonable.” Choice- obtaining terest in convenient and effective clashes, Court, may be ac- of-law said relief, at least when is not interest through application of the fo- commodated adequately protected by pow- plaintiff’s Similarly, de- rum’s choice-of-law rules. forum; (4) er to choose interstate claiming fendant inconvenience substantial judicial system’s obtaining interest change of venue under the seek a controversies; most efficient resolution of federal statutes or non con- venue the shared interest of the several veniens. Id. furthering states in fundamental substan- policies. tive Id. at social at 100 S.Ct. proper Burger King The view of the was, place for forum therefore, place the not so from the distant Volkswagen’s accumulation of these occupied years follow- doctrine had play factors transformed the fair standard The ing Pennoyer doctrine both and Shoe. a dutifully incantation to a recited process juris- due test reached where the gauging propriety test for substantial and, again, bridged the diction did not once Although not jurisdictional assertions. juris- for gap process the due test between con- applied Volkswagen, the factors appropri- about forum diction and concerns concerning fair sum of tained the ideas that provided the law ateness. Where justice that devel- play and substantial had application need for bridge, was no there sur- oped years. in case law over the Not made The Court Volkswagen factors. prisingly, the factors included and over- clear, however, where a defendant it had lapped the same ideas that some of compelling pres- case presents a developing in the doctrine been renders Volkswagen factors jurisdiction ence test conveniens. unreasonable, Consti- then the jurisdiction appropriateness and the test for forum play fair play, into and the were, therefore, undergoing parallel comes devel- tution may standard jurisdiction.1 defeat Id. at Should the same considerations be allowed 477-78, 105 S.Ct. at 2184-85. to defeat the contacts that exist between defendant and forum the case us before Burger King pronouncement, ’s however answer, today? To arrive at the I invite a strong, did not determine the outcome in comparison between Asahi and this case. that case. In Asahi Metal Indus. Co. v. Court, Superior Asahi, foreign plaintiff sought a (1987),however, 94 L.Ed.2d 92 appli- against foreign enforce his claim a defen- cation of certain factors of fair play dant in a California court. The United jurisdiction independent- standard defeated Supreme States Court considered both ly of Shoe, dividing considerations about the defendant’s the standards derived from contacts question with the forum state. at 114- foreign Id. on the whether the defen- 16, 107 S.Ct. at 1034-36. The Court decid- dant had sufficient contacts with Califor- company Nevertheless, ed that a Taiwanese play which had nia. the fair standard clause, alone, been sued and had settled process standing with a California of the due plaintiff could not seek plaintiff’s indemnification foreclosed the claim and defeat- Japanese from a jurisdiction. defendant a California ed the court’s In the case Specifically, court. foreign plaintiff the Court was influ- today, before us seeks to (1) by: procedural enced against and substan- enforce his claim a Texas defen- policies tive of other nations whose inter- dant. These defendants not defeat ests were affected jurisdiction analysis, assertion of the based a contacts (2) jurisdiction; slight state’s they many interests contacts with our state. plaintiff remains, however, of the Taiwanese and the Califor- question whether nia forum in juris- inquiries the state’s assertion of are entitled same into defendant; play foreign diction over the the se- fair afforded the defendant in no, Japanese vere burden on the defendant. Asahi. If the answer is then the due process produces lopsided Id. Justice Brennan noted in his concur- clause and in- ring opinion presented case lopsided protects one of correct result: because play those rare foreign plain- instances which the fair defendant from a jurisdiction standard defeated even where tiff citizen ex- but leaves United States source, purposefully posed the defendant had liability availed from a similar himself of the forum. Id. at incorrect because the Constitution does not play greater protection foreign plain- at 1035. The fair standard had afford achieved, last, long independent sta- tiffs than to American citizens. The an- swer, therefore, power tus and logically yes. contacts standard. must stated, flatly As Justice Stevens “An exam- Where the assertion of threat- always play ination of minimum contacts is not ens notions of fair and substantial necessary play justice, to determine whether a state then the elements of fair must personal jurisdiction investigated, irrespective court’s assertion of is be of the contacts constitutional.” Id. at 107 S.Ct. at of the defendant.

III. ABOLITION OF FORUM NON CON- PLAY IN THE ON THE II. FAIR ABSENCE OF VENIENS-EFFECTS PLAY FORUM NON CONVENIENS FAIR ANALYSIS Asahi, lightly suggest I play In the fair standard ac- do not the due be, process is, implicated quired perhaps eclipsed force of clause or should —and —the I the minimum contacts standard. It is now in the case before this court. am aware in play may Burger clear that considerations of fair of Justice Brennan’s observation cases, that, jurisdiction King play where a defendant in most fair “consid- defeat even usually may accommodated has minimum contacts with the forum. erations be denied, 1063, 1022, expressly adopted Burger Kings 98 L.Ed.2d 1. Texas has fair 484 U.S. 108 S.Ct. play analysis. (1988). See Zac Smith & Co. v. Otis 986 662, (1987); Elevator 734 S.W.2d cert. Second, in finding there are this case unresolved through jurisdiction means short of that, resolved, King, questions choice of law once Burger unreasonable.” 471 U.S. at belief, my may of state in at 2184. It is diminish the interest this S.Ct. however, proceed litigation. plaintiffs absence forum conveniens, many auto- though obtaining jurisdiction of those accommoda- matically tions cannot made. them the benefits of confers law As Justice Texas substantive as well. Consider, example, Burger King the Burger King when Brennan made clear that a defendant claim- Court’s statement urged he of choice of consideration law change ing may inconvenience seek a finding principles as a “means short of at at 2184. venue. Id. S.Ct. unreasonable,” jurisdiction such a result While transfer venue feasible Burger automatically follow. does unitary judicial system, a a defen- within at 105 S.Ct. at 2184. King, U.S. system dant outside the who claims sub- remand, parties must debate choice On the may normally stantial inconvenience move court, which must before the trial law under the common-law doc- for dismissal again make a determination the forum’s trine of non conveniens. Forum litiga- plaintiff contacts with the and the may indeed non conveniens be more strong possibility There is a that a tion. application appropriate than of a vehicle analysis choice of law will result the process analysis taking due account so, application of If what Costa Rican law. Stravitz, defendant inconvenience. See adjudicating then is Texas’ interest Sayonara to Minimum Contacts: Asahi plaintiffs? foreign by foreign claim Court, Industry Superior Co. Metal clear, they Volkswagen factors are (1988). case, In this S.C.L.Rev. 808-09 adjudi- include the forum state’s interest in however, has non conveniens been cating dispute as well as the interstate abolished. No vehicle exists to take ac- judicial system’s obtaining interest count of defendant’s inconvenience. Con- resolution of controversies. most effective sequently, the common law factors that 444 U.S. at Volkswagen, 100 S.Ct. comprised once recognize majority 564. Yet the fails analysis, complaints factors that addressed play impact of choice law on the fair through of inconvenience a “means short given unreasonable,” impact This should be finding standard. jurisdiction must more careful be raised to the of constitution- consideration. now level inquiry al and subsumed within fair ques Finally, important, most play process jurisdic- standard of the due concerning propriety exercising tions analysis. tional plaintiffs relation over whose ship attenuated. Al state so CONCERNS IV. OTHER though Supreme Court’s United States plaintiff-forum relationship position on impli- Other considerations this case uncertain, growing law Although been indicates a play they the fair cate standard. relationship. ear analysis In two complex for concern with that are too numerous and cases, notion here, important enough rejected lier the Court to warrant litigants. plaintiff’s with the forum that a contacts attention of court pro in the due First, inviting properly into courts dis- should be included we are our Mag analysis. Keeton v. Hustler putes more substantial cess involve Inc., 770, 104 azine, than to countries connections Jones, consider, (1984); stop Calder we not L.Ed.2d our own. Should did, 79 L.Ed.2d possible effects U.S. as the Asahi however, Burger King, extending beyond our laws the shores of Born, plaintiff’s interest generally Court included the United States? See in the obtaining as one of the factors in relief on Judicial Jurisdiction Reflections King, 471 U.S. Cases, analysis. Burger play & fair Ga.J.Int’1 International Asahi, And in at 2184. (1987). 105 S.Ct. Comp.L. importance bridged gap process the Court attached to the lack between the due relationship plaintiff jurisdiction of a between the and test of and concerns about fo- California, stating appropriateness. By abolishing rum “[b]ecause resident, conveniens, plaintiff is not a California doctrine of Cali non legitimate bridge. dispute questions fornia’s interests in the court shatters that Asahi, considerably play diminished.” 480 of fair inherent inquiry U.S. at 107 S.Ct. at 1034. cannot now answer- be ed unless are answered within therefore, appears, plaintiff’s It that a process per- context of the due test for in relationship forum state constitutes jurisdiction. sonam legitimate inquiry play analy- in the fair comprehensive sis. Without a record in case, HECHT, Justice, I dissenting. decline to consider whether the plaintiffs sufficiently connected with Today the Court decrees that citizens of Texas such that their suit would not offend nation, Rica, foreign Costa who claim to play traditional notions of fair and substan- injured country have been their own believe, however, justice.

tial money have an absolute to sue for question ought investigated.2 to be damages in Texas courts. This same invi- every extends to the citizens na-

tation V. CONCLUSION tion which would allow a Texas resident to unlikely sue in its courts the most event process personam for in The due test foreign he should ever want to. Citizens jurisdiction developed protect defen- injured may certainly nations in Texas sue dants from unreasonable and unfair asser- cases, here; they may in some sue Texas power. The com- judicial tions of dominant though they injured even were elsewhere. ponent of the test has concentrated on a give injured But for this Court to aliens forum, defendant’s contacts with the but right to sue in outside Texas an absolute component, the test includes another people state inflicts blow recurring question whether the assertion of Texas, employers taxpayers, that is its jurisdiction comports with constitutional contrary policy. to sound guarantees play jus- of fair and substantial give Although questions the fo- The United States does not aliens tice. whether Indeed, appropriate encompass consid- unlimited access to its courts. one rum is often process court in California1 and two play, erations of fair the due test federal district ques- already dismissed essen- developed has not answers to these Florida2 have Indeed, the Court tially tions. there has been no need for this same lawsuit which so, has ever to do for the common law now welcomes to Texas. No state test given unlimited admission to its conveniens has aliens such doctrine of Co., Aguilar JGD that there v. Dow Chem. 86-4753 2. 1 also observe with interest No- finding jurisdic- someday (C.D.Cal.1986), be a “means short of cited in Cabalceta v. Standard potential prob- 833, 837, Co., tion unreasonable” to answer the part F.Supp. Fruit aff’d suing plaintiffs American defen- lem of grounds, part F.2d 1553 rev'd in (11th Cir.1989). on other Those means could dants in American courts. 1987, a form of a federal law. In come in the House to amend bill was introduced Co., Sibaja F.2d 1215 v. Dow Chemical provide specifically for remov- Judicial Code denied, (11th Cir.), cert. in state al federal court actions commenced (1985); Cabalceta v. Stan 88 L.Ed.2d 294 by foreign against citizens a United States courts (S.D.Fla.1987), F.Supp. dard Fruit injury outside the "for that was sustained citizen grounds, part part rev’d in on other aff’d 883 F.2d 1553 manufacture, pur- relates to United States and (11th Cir.1989) (holding if chase, sale, product outside the or use of a action court had the district Cong., 1st See H.R. 100th United States.” court, dismissal on the from state its removed 10,785-86 Sess., (1987). 133 CONG.REC. appropri grounds conveniens was of forum non Congress, the bill was revised somewhat 101st not, ate, if did the action must and that See H.R. has been reintroduced. court). to state Sess., remanded Cong., CONG.REC. 1124 1st 101st

703 Court,3 Supreme fundamental fairness The United States siderations courts. Columbia,4 forty the District of states5 judicial administra sensible and effective recognized has have come to be all what Chicago, v. R.I. & Pac. tion.” Adkins rule of non conveniens. called the forum R.R., 729, 511, 54 301 N.E.2d 730 Ill.2d stated, the rule is state Simply that “[a] now, (1973). reject no has ever Until state jurisdiction if is a seri- will not exercise it however, Court, This does ed this rule.6 ously trial of inconvenient forum acknowledge collective not even provided appropriate a more action that country. of the entire wisdom plaintiff.” forum is available Re- rule of To abolish the forum conve- (Second) of Laws statement Conflict cases, (1971). personal injury and death 84 The rule is founded in “con- niens § Pharm., Gilbert, 501, Ohio Co. v. 67 S.Ct. Chambers v. Merrell-Dow 35 St.3d Oil Gulf 839, 123, (1947); (1988); Piper Groendyke Transp., 1055 Co. v. 91 L.Ed. 519 N.E.2d 370 Aircraft 235, 252, Cook, (Okla.1979); Reyno, 454 U.S. 102 S.Ct. 70 L.Ed.2d P.2d 369 Horner Inc. v. 594 683, (1981). Mining Corp., 419 165 Or. 107 v. Pleasant Creek (1940); P.2d 989 Rini v. New York Cent. R.R. Co., 511 4. Mills v. Aetna Fire Underwriters Ins. Co., 235, (1968); 429 240 A.2d Broten Pa. 372 (D.C.1986). A.2d 8 663, Co., Apparel Corp. 273 v. Bankers Trust S.C. (1979); Inman, S.E.2d 110 Zurich v. 221 259 (Alas Corp., v. 705 P.2d Crowson Sealaska 905 393, (1968); 426 S.W.2d 767 Kish v. Tenn. 369, Chamberlain, 1985); v. ka Avila 119 Ariz. (Utah 1977); Burlington Wright, 562 625 v. P.2d (1978); Running 1223 Southwest 580 P.2d v. 211, Co., Vt. 134 356 A.2d 506 Ashland Oil 839, Lines, Freight 227 303 S.W.2d 578 Ark. Werner, 360, (1976); Wash.2d Werner v. 84 526 Hotels, (1957); Archibald v. Cinerama 15 Cal.3d (1974); 262.19. P.2d 370 Wis.StatAnn. 853, 811, (1976); Cal.Rptr. 126 544 P.2d 947 Court, (Colo.1981); District P.2d State v. 635 889 recognized 6.Of the nine states have not Technologies Corp., United Conn. Miller v. 40 conveniens, reject rule of forum non none 457, (1986); Supp. Marine 515 A.2d 390 State today. absolutely ed it as the Court does As (Del.1970); Domingo, Lines v. 269 A.2d 223 below, reject Alabama discussed did rule 1978); Caldwell, (Fla Houston v. 359 So.2d 858 has at one time but since 553, Allen, (1982); Allen v. 64 645 P.2d 300 Haw. recognized has it statute. Montana refused Laboratories, 366, v. Searles 93 Ill.2d 67 Jones apply non conveniens the rule 118, (1982); 444 Ill.Dec. N.E.2d 157 McCracken Employers’ Liability actions under the Federal Co., Lilly (Ind.Ct.App. v. & Eli 494 N.E.2d 1289 Act, (1986), expressly but has 45 U.S.C. 51-60 §§ 1986); Transport, Silversmith v. Kenosha Auto applicability of the rule reserved the issue (Iowa 1981); Quillin 301 725 v. Hesston N.W.2d Burlington to other actions. Labella v. North 591, (1982); Corp., Kan. P.2d Car 230 640 1195 202, 1184, Inc., ern, P.2d 1187 182 Mont. 595 Netherton, (Ky.1957); ter S.W.2d v. 302 382 (1979). appellate suggested An Idaho court has 195, Litchenberg, v. La. So. 734 Stewart 148 86 apply appropriate cases. rule would Richards, 419, (1920); v. 126 A. Foss Me. Bosche, 139 369, Lease, Inc., 110 Nelson v. Worldwide Idaho (1927); 313 Texaco Vanden 242 Md. v. 513, Georgia, (App.1986). 1 like 716 P.2d 518 n. 334, (1966); Joly Laroque A.2d 80 v. 219 Albert Montana, apply not the rule FELA would 43, Ltd., Lumber 397 Mass. 489 N.E.2d 698 R.R., cases, Lines see v. Seaboard Coast Brown (1986); Dredge Anderson Great Lakes & Dock v. 382, (1972), 481, but has 229 Ga. 192 S.E.2d 383 Co., 619, (1981); 411 Mich. 309 N.W.2d 539 cases, might suggested apply in other R.R., Chicago, Burlington Quincy & Johnson v. 565, Regents, Ga.App. v. 165 302 Smith Board 58, (1954); Minn. 243 66 N.W.2d 763 Illinois 124, Virginia de 125 West also S.E.2d Moore, (Miss.1968); Co. v. 215 Cent. Rd. So.2d 419 cases, apply rule in but has clines FELA R.R., S.W.2d v. Missouri 721 Besse Pacific expressly application on its in other ruled denied, 1016, (Mo.1986), 481 107 740 cert. U.S. Co., Ry. v. and W. contexts. Gardner 1894, (1987); Qualley v. Norfolk 95 L.Ed.2d 501 — —, (W.Va.1988). W.Va. 372 S.E.2d 786 787, Chrysler Corp., Neb. 217 N.W.2d Credit 191 applied Connecticut has Court, (1974); Payne Eighth Jud. 97 914 v. Dist. referring in a to the rule factors cáse without 228, (1981); Dam v. 626 P.2d 1278 Van Nev. Smit, Technologies Corp., 40 name. v. United 508, Miller (1959); Gore v. 101 N.H. 148 A.2d 289 457, (1986). Wyoming Conn.Supp. 515 A.2d 301, 390 Corp., N.J. 104 A.2d States Steel 15 United Magee Booth 861, 84, has not resolved issue. denied, 99 U.S. cert. 348 Co., (Wyo.1976). n. 2 Carpet P.2d McLam, (1954); N.M. L.Ed. 678 McLam reject grounds one case Alaska refused (1973); Republic P.2d 914 Islamic conveniens, absolutely did not Pahlavi, of forum non but 62 N.Y.2d 478 N.Y.S.2d Iran v. reject v. Sealaska (1984); in all cases. Crowson Mgmt., rule Inn Inc. v. Motor 467 N.E.2d (Alaska 1985). Virginia, Corp., 705 P.2d N.C.App. Dev. Irvin-Fuller denied, appear South do Rhode Island and Dakota 301 N.C. S.E.2d review 4(b)(5); application of the rule. (1980); considered to have N.D.R.Civ.Pro. S.E.2d authority (c)The apply court the rules of relies no other shall the Court appropriate that are un- statute, substantive law it never ana- than a 1913 which of the case. der the facts 1932 court lyzes, and one sentence from a of these au- appeals decision. Neither This is a nonsubstantive recodifica- statute support is sufficient for thorities predecessor, article 4678 of the tion of its decision, sweeping Statutes, I demon- Court’s Texas Revised Civil which case, Furthermore, equally applied. As it affects this strate below. trial changed has not been material- troubling, attempts response no the statute the Court passed first in 1913 and ly since it was argu- petitioners’ very to the substantial in 1917.7 amended that the rule of forum non conve- ments apply does and should Texas. niens per- plain language The of this statute is “may the actions described

missive: in the courts of this state”. The enforced prohibits dismissal of an ac- statute thus Practice Section 71.031 of the Texas Civil solely plain- tion its ambit because within and Remedies Code states: arose outside Tex- tiffs reside or the action plainly opened the Legislature The has as. (a) damages for the An action for actions; but the Court tears door to such personal injury of a citizen of death or hinges. only does the the door off its Not States, state, or of a of the United this actions, foreign the Court statute allow in the foreign country may be enforced says, it mandates them. Court would state, wrong- although the courts of this if the statute stated that be correct act, causing the neglect, or default ful enforced actions it describes “shall be foreign place in a injury death or takes not state”. But it does the courts of this country, or if: state statute does not create an say so. The (1) foreign state or a law of the right bring personal injury to absolute gives right to country or of this state matter little it has action in Texas no how damages action for for maintain an state, it is how inconvenient to do with this injury; or death to parties, and how burdensome begun in this state the action is people of Texas who the courts and provided by the laws of within the time certainly pay them. The statute must action; beginning the this state the rule of forum explicitly revoke does n non conveniens. for- (3) in case of a citizen of a analysis of the statute con- The Court’s country equal eign country, the argues it. The Court then quoting sists of treaty rights with the United States dissent about with Justice Gonzalez’s of its citizens. behalf of forum non conveniens whether the rule 1913, (b) pertaining procedure prior All matters in Texas when existed point enacted. The prosecution or maintenance statute was first Legisla- that the argument appears state are to be courts of this action the rule in 1913 abolished ture could have by of this state. governed the law [per- in all matters of such action provided maintenance original whenever "[t]hat act 7. Apr. ch. personal injury taining] procedure.” of this State Act of of a citizen death or 338-339, treaty rights country having equal by repealed or of a Tex.Gen.Laws citizens, has of its Statutes, States on behalf the United 1925 Tex.Rev.Civ.Stat. § Revised act, wrongful by ne- may be caused been or glect State, right any for which a or default apply to in 1917 to act was amended This damages re- an action and recover maintain of this States as well as of the United citizens given by or law of spect a statute thereof countries, clarify that and to State and State, foreign country, territory such such only in injury could occur the actionable courts of right be enforced in the of action foreign country. Act in a state but also another State, States, of this or in the courts United 1917 Tex.Gen.Laws ch. of March 365, prescribed for the commence- the time within Statutes, Tex. repealed § Revised State, of this the statute ment of such action Rev.Civ.Stat. control in the the former shall law of and the recognized because it had been corporation, earlier. such cause of action shall be argument This is at best inconclusive. The enforceable courts of Legislature could have made the state.... bring under actions the 1913 statute abso- (1975) (emphasis 6-5-430 add- Ala.Code regardless lute anyone whether had ever ed). effective, While this statute was principles heard of the of forum non conve- Supreme Alabama Court construed this niens, by that any name or other. The preclude application statute to of the rule Legislature issue is not what could of forum non conveniens. Central Ga. done, but what it did do. Ry. Phillips, 286 Ala. 240 So.2d 118 ignores Just as the Court other states’ mandatory The use of the verb acknowledgment of the rule of forum non “shall” in the Alabama statute stood in conveniens, ignores it other states’ con- stark contrast to the use of the discretion- struction of similar supreme statutes. The ary Texas, Kansas, “may” verb in the courts of other states with statutes similar Iowa Legis- statutes. 1987the Alabama containing to section 71.031 the term lature recognize amended its statute to ex- “may” per- have held those statutes be pressly the rule of forum non conveniens: applied missive and have the rule of forum Whenever, by either common law or the instance, non conveniens. For the Kansas statutes of another state or of the United provides: statute States, upon a claim either contract or Whenever a cause of action has accrued tort has arisen against outside this state under by or virtue of the any laws of any person corporation, or such claim other state or territory, such cause of may be enforceable the courts of this action may upon any be sued of the however, provided, state ... the courts courts of by person this state or of this apply state shall the doctrine of persons who are bring authorized to forum non in determining maintain an action thereon in the state or accept juris- whether to or decline take territory where same arose. upon diction of an action based such 60-217(b)(1983) originating (emphasis claim outside this state. § Kan.Stat.Ann. added). Despite nearly terms identical to (1987) (emphasis 6-5-430 add- § Ala.Code statute, the Texas applies Kansas forum ed). legislature When Alabama’s chose to Atchison, conveniens. Gonzales v. T change its recognition law to ensure Ry., & S.F. 189 Kan. 371 P.2d 193 conveniens, changed rule of forum non (1962). Similarly, the pro- Iowa statute “may “shall be enforceable” to be enforce- vides: Legislature’s able”. The Texas use of An action brought against any “may” in per- the same context is no less railway corporation, stages, the owner of and no mandatory. missive more or other line of coaches or cars or ... language simply The of section 71.031 same, persons operating the any coun- support holding. does not the Court’s ty through pass- which such road or line very say most the Court can is that operated. es or is statute is If unclear. there were some (1950)(emphasis added). 616.8 Iowa Code statute, ambiguity surely the Court statute, however, Despite this applies Iowa suggest should some rationale for resolv the doctrine of forum non conveniens. Sil- ing ambiguity way it has. The sole Transp., versmith v. Kenosha Auto authority support offers in Court of its (Iowa 1981). N.W.2d holding Bass, is Allen v. S.W.2d By comparison, specific ref’d). (Tex.Civ.App. Alabama had a Paso writ — El mandatory statutory provision which stat- II ed: Whenever, either common or the was a suit one law Allen v. Bass New state, against person- statutes of another a claim either Mexicoresident another for injuries contract or in tort has arisen in al sustained in an automobile acci- against any person or Mexico. such other state dent which occurred New (Tex.Civ.App. as im- Antonio trial court dismissed the action “an 465-466 — San dism’d). importantly, this proper interference writ More Court recently years ago ought to be exercised as six stated: “the that should and Citing applicability Mexico”. non conveniens to the State New Id. open action is an 1913 and 1917 versions of article article cause of Moore, 71.031, predecessors question. current 359 S.W.2d section Flaiz reversed, (Tex.1962).” appeals saying: “we 876 Couch v. Int 'l court of Chevron (Tex.1984). Thus, plaintiff] right to think has an absolute 682 S.W.2d [the present unmistakably disapproved maintain action the courts Couch and Flaiz ..., language courts of this state the broad of Allen v. Bass with this state bothering any mat- out even to cite it. The Court are left without discretion mention, explain attempt ter.” 47 S.W.2d 427. The court then does not distinguish any of these authorities which added: grave upon the of its cast doubt sole basis We have that article 4678 concluded holding.8 opens the of this state to courts citizens gives neighboring to them state a prece- Allen v. is far too feeble Bass transitory an to maintain a absolute support expansive the Court’s hold- dent to try present action of the nature and to in ing. simply is That case aberration this their cases in the courts of state. only jurisprudence the state but added). might (emphasis One wonder country, Id. it. and would overrule appeals in 1932 ever whether the court Ill unnecessarily

envisioned that one broad opinion someday sentence in its would be authority for the dearth Court’s authority compelling Texas courts to disturbing. Far unprecedented holding is plaintiffs from around the hear and actions however, disconcerting, more is Court's Nevertheless, Bass, Allen v. even world. why to the rule of forum non silence as and, as con- myopic, if is clear the Court personal be in conveniens should abolished cludes, indistinguishable any principled cases, Legis- injury by either and death ground. Legislature If the lature or the Court. non conve- this did the rule of forum v. should not control abolish Allen Bass in century, that case has niens statute what does case. In over half Legislature expected to never another court. Court think been followed people of this expressly accomplish re state? appeals Two courts of have suing plaintiffs authority. Teledyne The benefit to jected it as McNutt Inc., money, more Indus., (Tex.App. Texas obvious: 693 S.W.2d should be enough in oral dism'd); to admit counsel was candid —Dallas writ Forcum-Dean advantage suing R.R., argument.10 This to 341 S.W.2d v. Missouri Pac. Co. pur- people concurring objects of Texas. The opinion best interests of the 8. Doggett’s Justice analysis give proper examining policies pose public deference which does not that this decisis. Justice support to the doctrine stare is not the rule of forum non conveniens Doggett vigorously quite so did not defend the doctrine show argue the rule but to to for retention of very opinion as a of this in Court, first member his Legislature to would not be motivated that the prior two decisions which overruled abolish the rule. Co., Oil Sterner Marathon Court. (Tex. 1989) (overruling, part, S.W.2d Sakowitz, want equally plain It to me that defendants (Tex. Steck, S.W.2d 105 Inc. v. Texas Costa Rica rather than to be sued in 1984), Pipe Co. v. Union Lake Line and Black exposure they expect will be that their because (Tex.1976). 538 S.W.2d 80 Construction However, here. it also seems less than there v. Bass. Its cannot save Allen Stare decisis Legislature plain would want me that the consistently language simply cannot coexist constituents, state, protect its the citizens with Couch. liability greater exposure than alleged country in which would face in the the Court is not whether the issue for be incentive wrong This would was committed. Legislature abolished forum non should have did, conveniens, Legislature the rule not to abolish for the it it it but whether did. If surely non conveniens. presumed in the must be to have acted lawyers, obviously. But gains? A few escaped has not interna- American courts good Denning, else? If the Court has answers England’s Lord for who tional notice. say so observed, questions, why does it not “As a moth is to these example, has good If are no an- opinion? in its there light, litigant so is a drawn drawn to the swers, today does then what the Court only get his States. If he can the United pernicious for the state.11 courts, very he stands to win a into their case French Labora- fortune.” Smith Kline & conveniens, prop The rule of forum non Bloch, (1983) 2 All E.R. Ltd. v. tories used, prohibit court from erly does Note, Fo- Foreign ought Plaintiffs Rath entertaining a case it to hear. Going Beyond Non rum Conveniens: er, being compelled protects courts from 193, 197-8, n. 28 “Reyno”, 64 Texas L.Rev. doing to hear cases when so would be fundamentally to the defendants or unfair recognizes or both. The rule peo- purpose But beneficial what unusual cases a court that there are which by clogging the ple of Texas is served power hear but which it should of the state’s already dockets burdened pro The rule thus nevertheless decline. around the courts with cases which arose relatively play vides some the otherwise nothing to do with world which joints rigid jurisdictional and venue except that the defendant can be this state judicial system. The factors to be con Why, citation here? most of served with determining application sidered all, state should length by forth at the rule were set country, perhaps only jurisdiction on Supreme in United States Court Oil earth, possibly only history, the in to one Gulf Gilbert, 501, 508-509, 67 Corp. v. 330 U.S. try personal injury cases from offer to (1947): 839, 843, 91 L.Ed. 1055 taxpayers the world? Do Texas around considered, judges clerks An and the one pay extra for and interest be want private personnel likely pressed, handle to most is the and and be courthouses litigant. Important litigation? they If do not mind the interest of the con- they for- siderations are the relative ease of access expense, do not care that these being proof; availability of com- eign delay cases will their own cases to sources world, pulsory process for the for attendance of unwill- heard? As the courthouse here, obtaining employers ing, and the cost of attendance will Texas entice to move witnesses; here, possibility any- willing of view people or to do business or even advantage premises, appropriate if view would be What one visit? action; see, advantage practical and all other or what does to the does the Court envisioned, easy, of a case Legislature problems that no that make trial it think the seen, expeditious inexpensive. in There jurisdiction has ever abolish- other for, _also enforceability questions be as to ing the rule of forum non conveniens n judgment if one is cases? Who of a obtained. personal injury and death words, why concurring .opinion other are Costa Ricans under- tions. injured by Doggett’s Justice entitled to questions an American defendant that the Court to answer these takes injured essentially any greater recovery than Costa Ricans suggests are ignores. It that there defendant, Libyan by or a defen- of forum a Costa Rican policy reasons to abolish the rule two Moreover, dant, injured plaintiffs defendant? or an Iranian to assure that non conveniens: why explain concurring opinion does not fully, to assure that American recover can justice system undertake to fully should punished for their American corporations will be severely corporations punish more American Neither reason is sufficient. misdeeds abroad. foreign country than that Rican for their actions in a case were Costa defendants in this If the alleged only country conduct of the does. If the plaintiffs could sue in corporations which why egregious, Rica, in this case is so plaintiffs to what- defendants would be limited Costa its citizens chosen to afford own recovery they Rican Costa Rica not could obtain in Costa ever recovery they wonders seek in Texas? One concurring opinion ex- has not courts. plained receptive be to Costa Rican courts would why plaintiffs claim to how Rican who Costa plaintiffs against pleas Costa corporations of American injured by are American have been damages recovery of all the they required in Rican citizens for to sue unjustly if treated Texas, anywhere only might in or they sue if that be available country could where own their corpora- else for that matter. injured Costa Rican they had been weigh advantages balancing reasonable, of these factors is its court will relative to fair trial. It is often said obstacles deserves decision substantial deference.” not, plaintiff may by choice of Piper Reyno, Co. v. 454 U.S. Aircraft ‘vex,’ ‘harass,’ forum, an inconvenient 419 (op. 102 S.Ct. 70 L.Ed.2d inflicting ‘oppress’ the defendant Gilbert, Marshall, J., citing 330 U.S. at expense not neces- upon him or trouble 511-12, 844-45, Roster v. S.Ct. at his reme- sary pursue to his own Lumbermens Mut. Cas. strongly in dy. But unless balance (1947)). 91 L.Ed. 1067 defendant, plaintiff’s of the favor meaningful appellate review, To allow rarely dis- choice of forum should be however, judge the trial must enunciate the turbed. factors considered and the reasons for the Factors of interest also struck. The trial court in balance place applying Adminis- the doctrine. present provide case did not this essential difficulties follow for courts when trative basis for its decision to dismiss this case. I piled up congested centers litigation is determine from the record cannot before us being origin. its instead handled the trial correct in whether court was dis- ought not to Jury duty is a burden that missing grounds case on the people of a commu- imposed I Consequently, non conveniens. would re- litiga- nity has no which relation the trial of the verse court’s dismissal case In cases which touch the affairs of tion. and remand to that court for further con- hold- many persons, there is reason for would, light opinion. I sideration of this rath- ing trial in their and reach view however, judgment reverse of the country parts in remote er than appeals precludes to the extent it only. by report can learn where proper possibility ap- after dismissal having local- There is a local interest forum non plication of rule of conve- at home. ized controversies decided hold, niens. would rule of too, appropriateness, in hav- There is an applied conveniens should be diversity ing the trial of a case case, applied but that it can be law that is at home with the state proper no case. I would intimate deci- case, govern must rather than shown sion on whether this would be to be un- having in other forum a court some proceedings laws, proper case after further in tangle problems conflict of and foreign to the trial court. in law itself. private factors importance relative The plaintiffs certainly in this case are The have compared public may with factors people are the justice. But so entitled travel Oil. since Ease of shifted Gulf justice And it may Texas. well be communication, availability of evidence requires plaintiffs these groups both transmission,

videotape and facsimile Rica, fully their remedies Costa pursue technological have reduced advances other I home. dissent. their therefore inconven- significance private of some factors, however, public factors. ience REHEARING ON MOTION FOR now as same consideration deserve the Oil was written. when Gulf Justice, PHILLIPS, dissenting. Chief balancing public private con- motion During pendency of the of forum applying the rule siderations cause, this court made a rehearing responsibili- primarily squarely I conflicts believe decision which “The forum ty of the trial court. opinion our here. Our amendment with is committed determination 140, in Appellate Procedure Texas Rule court. discretion of the trial It the sound view, statutory interpreta- my on a based there has been may reversed when our incompatible tion which is con- discretion; where abuse a clear of the struction of Section 71.031 considered all the relevant court has Practice Code. factors, its Civil and Remedies and where private interest 1, 1990, wisdom, September superior Rule effective its or its crowded docket? provide Supreme may that the will Court legislative Or does direction mean one jurisdiction decline to exercise a direct over March, thing something court in else reasons, appeal including for several in- April, again May, reducing and back stances where “the case is not of such decisions, lament, our Justice Roberts’ importance jurisprudence to the of the ticket, nothing but “a restricted railroad appeal state that a direct al- should be good day only”? for this and train Smith 140(b) (eff. Tex.R.App.P. Sept. lowed.” 649, 669, Allwright, 1990). Although predeces- this rule and its 757, 768, (1944) (Rob- L.Ed. (Tex.R.Civ.P. procedure sor rule of civil erts, J., dissenting). 499a) in existence since been reason, grant For this additional would before, this court has never either rule petitioners’ rehearing. motion for opinion, jurisdiction or asserted that its appeals discretionary. direct over was GONZALEZ, HECHT, JJ„ COOK and Wicker, generally Appeals Direct to the dissenting join opinion. in this Court, Supreme 32 Texas Practice—Civil Appellate Trial and Procedure 97-102 authorizing ap- The statute such is,

peals authorizing wrong- like the statute actions,

ful death couched in terms of what 22.001(c) party “may” do. Section of the (formerly

Texas Government Code Article

1738a, Tex.Rev.Civ.Stat.), provides: appeal

An may directly be taken Ralph JOHNSON, Robert Appellant, supreme court from an order of a trial granting denying or an interlocu- tory permanent injunction on the Texas, Appellee. The STATE of ground constitutionality of the of a stat- No. 0733-86. ute of this state. It is duty supreme prescribe necessary court to Texas, Appeals Court of Criminal procedure per- rules to be followed in En Banc. fecting appeal.1 7, 1989. June added). (Emphasis Rehearing On June posture judge Our is thus that a district decline to exercise Rehearing Denied Jan. procedural grounds common law because a plaintiff “may” bring who an action under

Section 71.031 of the Texas Civil Practice

and Remedies Code has absolute hand,

to select the forum. On the other jurisdic-

this court decline to exercise appeal purely

tion a direct discretion- ary grounds, though 22.001 of even Section Walker, Antonio, Benjamin F. San for provides the Texas Government Code appellant. appeal “may be taken” under certain Little, principled Atty., conditions. Is there a rationale Dist. Michael R. and Geor- Anahuac, If distinction? I can find none. gia Clapper, Atty., Asst. Dist. L. instance, mandatory in one “may” Huttash, Austin, Atty., Robert State’s mandatory should in the other. Is this the State. from statu- exemption entitled to an importance, of its

tory mandates because V, Article section 3-b of the Texas Constitution. 1. This statute authorized

Case Details

Case Name: Dow Chemical Co. v. Castro Alfaro

Court Name: Texas Supreme Court

Date Published: May 2, 1990

Citation: 786 S.W.2d 674

Docket Number: C-7743

Court Abbreviation: Tex.