Lead Opinion
OPINION
At issue in this cause is whether the statutory right to enforce a personal injury or wrongful death claim in the Texas courts precludes a trial court from dismissing the claim on the ground of forum non conveniens. The court of appeals held that Texas courts lack the authority to dismiss on the grounds of forum non conveniens.
Alfaro sued Dow and Shell in Harris County district court in April 1984. The amended petition alleged that the court had jurisdiction under article 4678 of the Revised Statutes.
Section 71.031 of the Civil Practice and Remedies Code provides:
(a)An action for damages for the death or personal injury of a citizen of this state, of the United States, or of a foreign country may be enforced in the courts of this state, although the wrongful act, neglect, or default causing the death or injury takes place in a foreign state or country, if:
(1)a law of the foreign state or country or of this state gives a right to maintain an action for damages for the death or injury;
(2) the action is begun in this state within the time provided by the laws of this state for beginning the action; and
(3) in the case of a citizen of a foreign country, the country has equal treaty rights with the United States on behalf of its citizens.2
(b) All matters pertaining to procedure in the prosecution or maintenance of the action in the courts of this state are governed by the law of this state.
(c) The court shall apply the rules of substantive law that are appropriate under the facts of the case.
Tex.Civ.Prac. & Rem.Code Ann. § 71.031 (Vernon 1986). At issue is whether the language “may be enforced in the courts of this state” of Section 71.031(a) permits a trial court to relinquish jurisdiction under the doctrine of forum non conveniens.
The statutory predecessors of Section 71.031 have existed since 1913. The original law states “[t]hat whenever the death or personal injury of a citizen of this State or of a country having equal treaty rights with the United States on behalf of its citizens, has been or may be caused by a wrongful act, neglect or default ... such right of action may be enforced ... in the courts of this State_” Act of Apr. 8, 1913, ch. 161, 33d Leg., 1913 Tex.Gen.Laws 338, 338-39, repealed by Revised Statutes, § 2, 39th Leg., 1925 Tex.Rev.Civ.Stat. 2419. Another act was passed in 1917 to expand the right of action to citizens of the United States. Act of Mar. 30, 1917, ch. 156, 35th Leg., 1917 Tex.Gen.Laws 365, repealed by Revised Statutes, § 2, 39th Leg., 1925 Tex.
Dow and Shell argued before this Court that the legislature did not intend to make section 71.031 a guarantee of an absolute right to enforce a suit in Texas brought under that provision. In his dissent, Justice Gonzalez agrees, concluding that the legislature could not have intended to preclude application of forum non conveniens to suits brought under the statute because “[fjorum non conveniens did not arrive upon the judicial landscape of this state until after the predecessors to section 71.-031 were enacted.”
I.
The doctrine of forum non conveniens arose from the doctrine of forum non competent in Scottish cases. See, e.g., Vernor v. Elvies, 6 Dict. of Dec. 4788 (1610); see also Barrett, The Doctrine of Forum Non Conveniens, 35 Calif.L.Rev. 380, 386-87 & n. 35 (1947). The Scottish courts recognized that the plea of forum non competent applied when to hear the case was not expedient for the administration of justice. In Longworth v. Hope, 3 Sess.Cas. (3d ser.) 1049, 1053 (1865), the court stated:
The next question is the question of forum non competent. Now the plea usually thus expressed does not mean that the forum is one in which it is wholly incompetent to deal with the question. The plea has received a wide signification, and is frequently stated in reference to cases in which the Court may consider it more proper for the ends of justice that the parties should seek their remedy in another forum.
Id.; see Barrett, supra, at 387, n. 35. By the end of the nineteenth century, English courts had “accepted the doctrine of forum non convenient as a means of preventing abuse of the court’s process when the plaintiff’s choice of forum is vexatious and works unnecessary hardship on the defendant.” Barrett, supra, at 388.
In 1929, Paxton Blair, a Wall Street lawyer, brought the term “forum non conve-niens” into American law with his article entitled, The Doctrine of Forum Non Convenient in Anglo-American Law. See generally, Blair, The Doctrine of Forum Non Convenient in Anglo-American Law, 29 Colum.L.Rev. 1 (1929). Although Blair found only three or four cases in which the American courts had used the term, he concluded:
Upon an examination of the American decisions illustrative of the doctrine of forum non convenient, it becomes apparent that the courts of this country have been for years applying the doctrine with such little consciousness of what they were doing as to remind one of Moliér’s M. Jourdain, who found he had been speaking prose all his life without knowing it.
Id. at 21-22. Blair cited hundreds of cases dismissing suits for the same reasons now employed under the doctrine of forum non conveniens. Id. Following the publication of Blair’s article, the United States Supreme Court applied the doctrine to suits in admiralty brought between aliens, Charter Shipping Co. v. Bowring, Jones, & Tidy, Ltd.,
Texas courts applied the doctrine of forum non conveniens in several cases prior to the enactment of article 4678 in 1913. In 1890, this court in dicta recognized the power of a court to refuse to exercise jurisdiction on grounds essentially the same as those of forum non conveniens. See Morris v. Missouri Pac. Ry.,
We do not think the facts alleged show the action to be transitory. But, if so, it has been held in such actions, where the parties were non-residents and the cause of action originated beyond the limits of the state, these facts would justify the court in refusing to entertain jurisdiction. Railway Co. v. Miller,19 Mich. 305 . Jurisdiction is entertained in such cases only upon principles of comity, and not as a matter of right. Gardner v. Thomas,14 Johns. 136 ; Wells, Juris. § 115.
Id. In Mexican National Railroad v. Jackson,
If our courts assume to adjust the rights of parties against those railroads, growing out of such facts as in this case, we will offer an invitation to all such persons who might prefer to resort to tribunals in which the rules of procedure are more certainly fixed, and the trial by jury secured, to seek the courts of this state to enforce their claims. Thus we would add to the already overburdened condition of our dockets in all the courts, and thereby make the settlement of rights originating outside the state, under the laws of a different government, a charge upon our own people.
Id.,
If the facts showed that this [suit] was necessary in order to secure justice, and the laws were such as we could properly enforce, this consideration [docket backlog] would have but little weight; but we feel that it is entitled to be considered where the plaintiff chooses this jurisdiction as a matter of convenience, and not of necessity.
Id. (emphasis added).
In Southern Pacific Co. v. Graham,
Appellant’s first proposition ... is ... that all parties being nonresidents, and the injuries complained of having occurred outside of the state of Texas, the courts of this state are not bound to entertain jurisdiction. The language of this proposition implies that the state courts may entertain jurisdiction of causes in which all parties are nonresidents when the injuries complained of occurred outside of the state, though they are not bound to do so. This being true, the court in this case having entertained jurisdiction, and thus [having] determined the question of public policy in favor of entertaining jurisdiction, the appellant has no right to complain.
Id.
II.
We therefore must determine whether the legislature in 1913 statutorily abolished
Our interpretation of section 71.031 is controlled by this court’s refusal of writ of error in Allen v. Bass,
The El Paso Court of Civil Appeals clearly addressed and rejected the doctrine of forum non conveniens in Allen. Discussing the existence of the doctrine prior to the 1913 and 1917 enactments of article 4678, the court stated:
Under the many authorities we have reviewed, both state and federal, we think it might be said that the courts of this state had a discretion in the matter of exercising jurisdiction where all parties were nonresidents of the state, and the cause of action arose in the state of the nonresidents.
Id. at 426 (emphasis added). Although the court did not specify the authorities it reviewed, it is clear from the Application for Writ of Error filed in this court that the Court of Civil Appeals reviewed two pre-1913 forum non conveniens cases — Morris v. Missouri Pacific Railway, supra, and Southern Pacific Co. v. Graham, supra. See Application for Writ of Error, Bass v. Allen, App. No. 18857 (filed April 7, 1932), at 2. The petitioner before this court in Allen summarized the case as follows:
Before the passage of any statute in Texas[,] trial courts had the discretion to refuse to entertain jurisdiction of a case founded on tort committed in another State by and on residents of the State in which the tort was committed.
Morris v. Ry. Co., supra.
Bowman v. Flint, supra.
In the case of Southern Pacific v. Graham the opinion reads in part as follows:
‘Had the District Court in the exercise of a sound discretion, refused to entertain jurisdiction of the case at all, this court would not have felt called upon to review its action.’
The Court of Civil Appeals in the instant case [Allen ] held that to be true but under Article 4678 this discretion no longer existed and that it was now obligatory on the district courts to accept jurisdiction and try these cases.
Id. at 2-3. The petitioner in Allen argued that the Court of Civil Appeals erred in construing the term “foreign state” in article 4678 to include a state of the union. Id. at 4. The petitioner in Allen also argued that the Court of Civil Appeals erred in applying forum non conveniens to a cause of action arising in another state in the union:
While it is perhaps just and right to open our courts for the trial of causes arising in foreign countries where the denial of a forum might mean the denial of his remedial rights, still no such just demand could be made by residents of sister States against a resident of his own State for a cause which can with more ease and economy and justice be tried in that forum.
Id. at 4. Asking that this court reverse the decision of the Court of Civil Appeals and affirm the judgment of the trial court dismissing the action, the petitioners in Allen quoted from Atchison, T. & S.F. Ry. Co. v. Weeks,
Manifestly, there are many advantages in trying such a case where the cause of action arises. The law of the cause ofaction is the law of the place. It may be assumed that the courts of the state can more satisfactorily administer the laws of the state than can the courts of any other state. The expense incident to a trial would usually be materially less at the place of the tort than elsewhere. The imposition upon a state of the expense of maintaining courts to try causes in which the state has no interest would be difficult to justify. The maintenance of the judicial machinery involves no light burden. Many of the states, including Texas, have been unable to provide adequate machinery. No good reason could probably be made to appear why her overworked courts should be compelled to carry any part of the burdens of other states.
Id. at 518, cited in, Application for Writ of Error, Bass v. Allen, supra, at 5. Given these arguments and authorities, this court chose to refuse the Application for Writ of Error, thereby manifesting its approval of the decision of the Court of Civil Appeals in Allen v. Bass. Cf., Hamilton v. Empire Gas & Fuel Co.,
We conclude that the legislature has statutorily abolished the doctrine of forum non conveniens in suits brought under section 71.031. Accordingly, we affirm the judgment of the court of appeals, remanding the cause to the trial court for further proceedings.
Notes
. Although article 4678 was in effect at the time suit was originally brought, this cause is governed by section 71.031 of the Civil Practice and Remedies Code because no substantive change was intended by the legislature’s recodification. See Tex.Civ.Prac. & Rem.Code Ann. § 1.001(a) (Vernon Supp.1989).
. The United States and Costa Rica agreed to the following:
The citizens of the high contracting parties shall reciprocally receive and enjoy, full and perfect protection for their persons and property, and shall have free and open access to the courts of justice in the said countries respectively, for the prosecution and defense of their just rights; and they shall be at liberty to employ, in all cases, the advocates, attorneys, or agents of whatever description, whom they may think proper, and they shall enjoy in this respect the same rights and privileges therein as native citizens.
Treaty of Friendship, Commerce, and Navigation, July 10, 1851, United States-Costa Rica, art. VII, para. 2, 10 Stat. 916, 920, T.S. No, 62. Subsection (a)(3) requires the existence of similar treaty provisions before an action* by a citizen of a foreign country may be maintained under Section 71.031.
Concurrence Opinion
concurring.
Because my dissenting brethren are so enthusiastic in their praise of the doctrine of forum non conveniens, I must add a few lines of concurrence with the majority opinion. Although I would like to join the chorus singing the praises of the doctrine of forum non conveniens, I am unable to do so because the Texas legislature statutorily abolished the doctrine of forum non conveniens when it enacted the predecessors of section 71.031. TEX.CIV.PRAC. & REM.CODE ANN. § 71.031 (Vernon 1986).
The evolution of the common law has been accomplished by good judgment and common sense filling in the pages left blank by legislative bodies. Great legal minds have masterfully developed concepts that have contributed to the strength of our civilization. Although the common law doctrine of forum non conveniens has been defined in recent history, the idea is a useful tool of judicial administration in those jurisdictions that have chosen to adopt it. As the dissenting opinions point out, Texas is in a distinct minority of jurisdictions that have taken a different track.
The fact that this court has waited so long to write on the doctrine is not important. Although several opportunities have been presented, the court based its decisions on other issues. In the case at hand, the doctrine is squarely before the court. The issue for this court, however, is not whether the doctrine is a good, fair, and desirable one for the people of Texas; the issue is whether the doctrine is available because of legislative actions that have been taken.
The argument is made that section 71.-031 is in fact permissive, not mandatory. In the court of appeals, the petitioners argued “that the use of the words ‘may be enforced ’ indicates that the legislature recognized the trial court’s discretionary power to dismiss.”
The Texas legislature may not have intended to make Texas “the world’s forum of final resort.” However, the wording of section 71.031 is clear and we must respect what the legislature has done. If the legislature did not intend to statutorily preclude the adoption of the doctrine of forum non conveniens, however it may have been defined in 1913 when it enacted the predecessors of section 71.031, I encourage the legislature to amend section 71.031 to clarify its intent. Otherwise, the legislature’s failure to act will evidence its adoption of our interpretation that the enactment of the predecessors of section 71.031 statutorily abolished the doctrine of forum non conve-niens. See Allen Sales and Servicenter, Inc. v. Ryan,
The legislature has the privilege of changing its mind. Certainly it has done so many times since 1913. In writing the constitution, the founding fathers wisely provided for regular sessions of the legislature. What one legislature enacts another may later repeal. The court must respect the enactment when it is within the powers granted to the legislature by the constitution.
Concurrence Opinion
concurring.
Because its analysis and reasoning are correct I join in the majority opinion without reservation. I write separately, however, to respond to the dissenters who mask their inability to agree among themselves with competing rhetoric.
The dissenters are insistent that a jury of Texans be denied the opportunity to evaluate the conduct of a Texas corporation concerning decisions it made in Texas because the only ones allegedly hurt are foreigners. Fortunately Texans are not so provincial and narrow-minded as these dissenters presume. Our citizenry recognizes that a wrong does not fade away because its immediate consequences are first felt far away rather than close to home. Never have we been required to forfeit our membership in the human race in order to maintain our proud heritage as citizens of Texas.
The dissenters argue that it is inconvenient and unfair for farmworkers allegedly suffering permanent physical and mental injuries, including irreversible sterility, to seek redress by suing a multinational corporation in a court three blocks away from its world headquarters and another corporation, which operates in Texas this country’s largest chemical plant. Because the “doctrine” they advocate has nothing to do
I. THE FACTS
Respondents claim that while working on a banana plantation in Costa Rica for Standard Fruit Company, an American subsidiary of Dole Fresh Fruit Company, headquartered in Boca Raton, Florida, they were required to handle dibromochloropro-pane [“DBCP”], a pesticide allegedly manufactured and furnished to Standard Fruit by Shell Oil Company [“Shell”] and Dow Chemical Company [“Dow”]. The Environmental Protection Agency issued a notice of intent to cancel all food uses of DBCP on September 22, 1977. 42 Fed.Reg. 48026 (1977). It followed with an order suspending registrations of pesticides containing DBCP on November 3, 1977. 42 Fed.Reg. 57543 (1977). Before and after the E.P. A.’s ban of DBCP in the United States, Shell and Dow apparently shipped several hundred thousand gallons of the pesticide to Costa Rica for use by Standard Fruit. The Respondents, Domingo Castro Alfaro and other plantation workers, filed suit in a state district court in Houston, Texas, alleging that their handling of DBCP caused them serious personal injuries for which Shell and Dow were liable under the theories of products liability, strict liability and breach of warranty.
Rejecting an initial contest to its authority by Shell and Dow, the trial court found that it had jurisdiction under Tex.Civ.Prac. & Rem.Code Ann. § 71.031 (Vernon 1986), but dismissed the cause on the grounds of forum non conveniens. The court of appeals reversed and remanded, holding that Section 71.031 provides a foreign plaintiff with an absolute right to maintain a death or personal injury cause of action in Texas without being subject to forum non conve-niens dismissal.
Shell Oil Company is a multinational corporation with its world headquarters in Houston, Texas. Dow Chemical Company, though headquartered in Midland, Michigan, conducts extensive operations from its Dow Chemical USA building located in Houston. Dow operates this country’s largest chemical manufacturing plant within 60 miles of Houston in Freeport, Texas. The district court where this lawsuit was filed is three blocks away from Shell’s world headquarters, One Shell Plaza in downtown Houston.
Shell has stipulated that all of its more than 100,000 documents relating to DBCP are located or will be produced in Houston. Shell’s medical and scientific witnesses are in Houston. The majority of Dow’s documents and witnesses are located in Michigan, which is far closer to Houston (both in terms of geography and communications linkages) than to Costa Rica. The respondents have agreed to be available in Houston for independent medical examinations, for depositions and for trial. Most of the respondents’ treating doctors and co-workers have agreed to testify in Houston. Conversely, Shell and Dow have purportedly refused to make their witnesses available in Costa Rica.
The banana plantation workers allegedly injured by DBCP were employed by an American company on American-owned land and grew Dole bananas for export solely to American tables. The chemical allegedly rendering the workers sterile was researched, formulated, tested, manufactured, labeled and shipped by an American company in the United States to another American company. The decision to manufacture DBCP for distribution and use in the third world was made by these two American companies in their corporate offices in the United States. Yet now Shell and Dow argue that the one part of this equation that should not be American is the legal consequences of their actions.
As a reading of Tex.Civ.Prac. & Rem. Code Ann. § 71.031 (Vernon 1986) makes clear, the doctrine of forum non conveniens has been statutorily abolished in Texas. The decision in Allen v. Bass,
Displeased that Allen stands in the way of immunizing multinational corporations from suits seeking redress for their torts causing injury abroad, the dissenters doggedly attempt to circumvent this precedent.
A. USING THE “DOCTRINE” TO KILL THE LITIGATION ALTOGETHER
Both as a matter of law and of public policy, the doctrine of forum non conve-niens is without justification. The proffered foundations for it are “considerations of fundamental fairness and sensible and effective judicial administration.” Hecht dissent,
A forum non conveniens dismissal is often, in reality, a complete victory for the defendant. As noted in Irish Nat’l Ins. Co. v. Aer Dingus Teoranta,
[i]n some instances, ... invocation of the doctrine will send the case to a jurisdiction which has imposed such severe monetary limitations on recovery as to eliminate the likelihood that the case will be tried. When it is obvious that this will occur, discussion of convenience of witnesses takes on a Kafkaesque quality— everyone knows that no witnesses ever will be called to testify.
In using the term forum non conveniens, “the courts have taken refuge in a euphemistic vocabulary, one that glosses over the harsh fact that such dismissal is outcome-determination in a high percentage of the forum non conveniens cases_” Robertson, Forum Non Conveniens in America and England: “A Rather Fantastic Fiction,” 103 L.Q.Rev. 398, 409 (1987). Empirical data available demonstrate that less than four percent of cases dismissed under the doctrine of forum non conveniens ever reach trial in a foreign court.
B. THE GULF OIL FACTORS — BALANCED TOWARD THE DEFENDANT
Courts today usually apply forum non conveniens by use of the factors set forth at length in Gulf Oil Corp. v. Gilbert,
1. The Obsolete Private Interest Factors In their discussion of the private interest factors supposedly designed to promote
In his dissent, Justice Gonzalez correctly crystalizes the private interest factors as “those considerations that make the trial of a case relatively easy, expeditious, and inexpensive for the parties.”
A forum is not necessarily inconvenient because of its distance from pertinent parties or places if it is readily accessible in a few hours of air travel. It will often be quicker and less expensive to transfer a witness or a document than to transfer a lawsuit. Jet travel and satellite communications have significantly altered the meaning of “non conveniens.”
Calavo Growers of California v. Belgium,
2. The Public Interest Factors
The three public interest factors asserted by Justice Gonzalez may be summarized as (1) whether the interests of the jurisdiction are sufficient to justify entertaining the lawsuit; (2) the potential for docket backlog; and (3) judicial comity.
a. The Interest of Texas
The dissenting members of the court falsely attempt to paint a picture of Texas becoming an “irresistable forum for all mass disaster lawsuits,” Gonzalez dissent,
Due process mandates that these requirements be satisfied before a Texas court may assert jurisdiction over a defendant. The personal jurisdiction-due process analysis will ensure that Texas has a sufficient interest in each case entertained in our state’s courts.
b. Docket Backlog
The next justification offered by the dissenters for invoking the legal fiction of “inconvenience” is that judges will be overworked. Not only will foreigners take our jobs, as we are told in the popular press; now they will have our courts. The xenophobic suggestion that foreigners will take over our courts “forcing our residents to wait in the corridors of our courthouses while foreign causes of action are tried,” Gonzalez dissent,
It is the height of deception to suggest that docket backlogs in our state’s urban centers are caused by so-called “foreign litigation.” This assertion is unsubstantiated empirically both in Texas and in other jurisdictions rejecting forum non conve-mens.
Moreover, the United States Supreme Court has indicated that docket congestion “is a wholly inappropriate consideration in virtually every other context.” Robertson, supra, 103 L.Q.Rev. at 408. See Thermtron Products, Inc. v. Hermansdorfer,
Nor does forum non conveniens afford a panacea for eradicating congestion:
Making the place of trial turn on a largely imponderable exercise of judicial discretion is extremely costly. Even the strongest proponents of the most suitable forum approach concede that it is inappropriately time-consuming and wasteful for the parties to have to “litigate in order to determine where they shall litigate.” If forum non conveniens outcomes are not predictable, such litigation'is bound to occur_ In terms of delay, expense, uncertainty, and a fundamental loss of judicial accountability, the most suitable forum version of forum non conveniens clearly costs more than it is worth.
Robertson, supra, 103 L.Q.Rev. at 414, 426.
c. Judicial Comity
Comity — deference shown to the interests of the foreign forum — is a consideration best achieved by rejecting forum non conveniens. Comity is not achieved when the United States allows its multinational corporations to adhere to a double standard when operating abroad and subsequently refuses to hold them accountable for those actions. As S. Jacob Scherr, Senior Project Attorney for the Natural Resources Defense Counsel, has noted
There is a sense of outrage on the part of many poor countries where citizens are the most vulnerable to exports of hazardous drugs, pesticides and food products. At the 1977 meeting of the UNEP Governing Council, Dr. J.C. Ki-ano, the Kenyan minister for water development, warned that developing nations will no longer tolerate being used as dumping grounds for products that had not been adequately tested “and that their peoples should not be used as guinea pigs for determining the safety of chemicals.”
Comment, U.S. Exports Banned For Domestic Use, But Exported to Third World Countries, 6 Int’l Tr.LJ. 95, 98 (1980-81) [hereinafter “U.S. Exports Banned
Comity is best achieved by “avoiding the possibility of ‘incurring the wrath and distrust of the Third World as it increasingly recognizes that it is being used as the industrial world’s garbage can.’” Note, Hazardous Exports From A Human Rights Perspective, 14 Sw.U.L.Rev. 81, 101 (1983) [hereinafter “Hazardous Exports”] (quoting Hon. Michael D. Barnes (Representative in Congress representing Maryland)).
The factors announced in Gulf Oil fail to achieve fairness and convenience. The public interest factors are designed to favor dismissal and do little to promote the efficient administration of justice. It is clear that the application of forum non conveniens would produce muddled and unpredictable case law,
III. PUBLIC POLICY & THE TORT LIABILITY OF MULTINATIONAL CORPORATIONS IN UNITED STATES COURTS
The abolition of forum non conveniens will further important public policy considerations by providing a check on the conduct of multinational corporations (MNCs). See Economic Approach, 22 Geo.WashJ. Int’l L. & Econ. at 241. The misconduct of even a few multinational corporations can affect untold millions around the world.
The allegations against Shell and Dow, if proven true, would not be unique, since production of many chemicals banned for domestic use has thereafter continued for foreign marketing.
During the mid-1970s, the United States Environmental Protection Agency (EPA) began to restrict the use of some pesticides because of their environmental effects, and the Occupational Safety and Health Administration (OSHA) established workplace exposure standards for toxic and hazardous substances in the manufacture of pesticides.... [I]t is clear that many pesticides that have been severely restricted in the United States are used without restriction in many Third World countries, with resulting harm to fieldworkers and the global environment.
McGarity, Bhopal and the Export of Hazardous Technologies, 20 Tex.Int’l L.J. 333, 334 (1985) (citations omitted). By 1976, “29 percent, or 161 million pounds, of all the
Some United States multinational corporations will undoubtedly continue to endanger human life and the environment with such activities until the economic consequences of these actions are such that it becomes unprofitable to operate in this manner. At present, the tort laws of many third world countries are not yet developed. An Economic Approach, supra, 22 Geo. Wash.J.Int’1 L. & Econ. at 222-23. Industrialization “is occurring faster than the development of domestic infrastructures necessary to deal with the problems associated with industry.” Exporting Hazardous Industries, supra, 20 Int’l L. & Pol. at 791. When a court dismisses a case against a United States multinational corporation, it often removes the most effective restraint on corporate misconduct. See An Economic Approach, supra, 22 Geo.Wash.J.Int’1 L. & Econ. at 241.
The doctrine of forum non conveniens is obsolete in a world in which markets are global and in which ecologists have documented the delicate balance of all life on this planet.. The parochial perspective embodied in the doctrine of forum non conve-niens enables corporations to evade legal control merely because they are transnational. This perspective ignores the reality that actions of our corporations affecting those abroad will also affect Texans. Although DBCP is banned from use within the United States, it and other similarly banned chemicals have been consumed by Texans eating foods imported from Costa Rica and elsewhere. See D. Weir & M. Schapiro, Circle of Poison 28-30, 77, 82-83 (1981).
As a matter of law and of public policy, the doctrine of forum non conveniens should be abolished. Accordingly, I concur.
. It is neither I nor the majority who find it necessary to have opinions or statutes "twisted." Gonzalez dissent,
Not content to follow the law as it is, the dissenters create gloomy pictures of Texas without forum non conveniens. However, the public policy reasons they advance to circumvent the legislature’s intent are invalid. Justice Hecht then challenges the majority to state the advantages of abolishing forum non conveniens and justify its holding on the grounds of public policy. When I do so. Justice Gonzalez, in apparent disagreement with Justice Hecht, complains at my acceptance of the Hecht challenge.
. Stewart, Forum Non Conveniens: A Doctrine in Search of a Role, 74 Cal.L.Rev. 1259, 1264 n. 18 (1986).
. Justice Hecht argues that Allen is not controlling because it has not been subsequently followed. After citing the decisions of this court in Couch v. Chevron Int'l Co.,
Justice Gonzalez disregards Allen principally by reliance upon Flaiz v. Moore,
It should be pointed out that we have not considered or attempted to decide in this case: (1) the extent to which the forum non conve-niens principle is recognized in Texas; (2) whether article 4678 is mandatory and deprives the court of any discretion....
Justice Gonzalez next attempts to distinguish Allen by arguing that the only doctrine it involved was that of comity, not forum non con-veniens. A review of Allen and the subsequently refused application for writ of error indicates that the issue of forum non conveniens was presented and rejected. Even more ironic is the fact that Justice Gonzalez includes comity as one of his forum non conveniens public interest factors. See Gonzalez dissent,
.In an apparent attempt to gain access to favorable federal forum non conveniens rules and to avoid Texas procedural law, Shell and Dow removed this case to the United States District Court for the Southern District of Texas despite the clear absence of any basis for federal jurisdiction. United States District Judge DeAnda, in remanding the case, labeled Shell and Dow’s efforts to distinguish plainly controlling authority against removal “specious."
Over three years after the plaintiffs filed this lawsuit in Houston, Shell and Dow obtained a dismissal of the action on forum non conve-niens grounds. Extensive discovery had already been completed, interrogatories had ' already been answered by the individual plaintiffs and the individual plaintiffs had already agreed to appear in Houston for medical examinations and depositions. Many of the so-called "convenience" problems had already been resolved in this litigation prior to the dismissal under forum non conveniens.
. Professor David Robertson of the University of Texas School of Law attempted to discover the subsequent history of each reported transnational case dismissed under forum non conve-niens from Gulf Oil v. Gilbert,
. Such a result in the name of "convenience” would undoubtedly follow a dismissal under forum non conveniens in the case at bar.
The plaintiffs, who earn approximately one dollar per hour working at the banana plantation, clearly cannot compete financially with Shell and Dow in carrying on the litigation. More importantly, the cost of just one trip to Houston to review the documents produced by Shell would exceed the estimated maximum possible recovery in Costa Rica. In an unchallenged affidavit, a senior Costa Rican labor judge stated that the maximum possible recovery in Costa Rica would approximate 100,000 colones, just over $1,080 at current exchange rates. Assuming such a recovery were possible, no lawyer, in Costa Rica or elsewhere, could afford to take such a case — against two giant corporations vigilantly defending themselves in litigation. Further, Costa Rica permits neither jury trials nor depositions of nonparty witnesses. Attempting to depose a Dow representative concerning the company’s knowledge of DBCP hazards will prove to be an impossible task as Dow is not required to produce that person in Costa Rica.
It is not unlikely that Shell and Dow seek a forum non conveniens dismissal not in pursuit of fairness and convenience, but rather as a shield against the litigation itself. If successful, Shell and Dow, like many American multinational corporations before them, would have secured a largely impenetrable shield against meaningful lawsuits for their alleged torts causing injury abroad.
. It is interesting that Justice Hecht pronounces the doctrine as one founded in considerations of "fundamental fairness," only to later reject the private factors — the doctrine’s only focus on fairness to the parties. Nevertheless, he clings to the so-called doctrine of convenience, claiming that "[t]he public factors, however, deserve the same consideration now as when Gulf Oil was written."
. Justice Cook seems to suggest that it may violate due process for Shell to be sued in Houston. It is an extremely novel holding, unprecedented in American constitutional law, that a corporation could be denied due process by being sued in its hometown. Justice Cook argues in his dissent that "the due process test has not developed answers ... to questions regarding considerations of fairness." He claims that forum non conveniens has ‘bridged the gap in the development of the due process test,” and concludes that “the majority shatters that bridge.”
Justice Cook confuses two distinct issues in suggesting that forum non conveniens should be used to "bridge the gap” in the development of the due process test. Forum non conveniens is never considered until and unless the personal jurisdiction-due process determination is complete. See Gulf Oil,
Issues going to the existence of jurisdiction are conceptualised as turning on rules and principles which, however flexible and open-textured, lend an element of solidity that is wholly lacking for discretionary decisions to decline to exercise jurisdiction.... When judges have too much jurisdiction-declining discretion, they will inevitably not put in the hard work necessary to formulate and apply sensible jurisdictional rules. What has happened in American jurisprudence is a form of “buck passing" whereby the vague and amorphous “forum non conveniens doctrine has come to accomodate the collective shortcomings and excesses of modern rules governing jurisdiction, venue, and choice of law.”
Robertson, supra, 103 L.Q.Rev. at 424 (citations omitted). The use of the "doctrine" in other jurisdictions has produced an incoherent and disordered body of case law as judges often have ignored the law concerning in personam jurisdiction in favor of the unbridled discretion they enjoy in dismissing cases under forum non conveniens. See Stein, Forum Non Conveniens and 'the Redundancy of Court-Access Doctrine, 133 U.Pa.L.Rev. 781, 785 (1985) (forum non conveniens has resulted in “a crazy quilt of ad hoc, capricious, and inconsistent decisions.”). See also Stewart, Forum Non Conveniens: A Doctrine in Search of A Role, 74 Cal.L.Rev. 1259, 1324 (1986) (arguing that forum non conveniens should be abolished because “[tjhe factors and policies to which the doctrine calls the court’s attention ... are best considered in the jurisdictional contexts”). The “considerations of fairness” discussed by Justice Cook may best be achieved “by following the jurisdictional rules strictly rather than construing a malleable doc
. Evidence from the most recent and largest national study ever performed regarding the pace of litigation in urban trial courts suggests that there is no empirical basis for the dissenters’ argument that Texas dockets will become clogged without forum non conveniens. The state of Massachusetts recognizes forum non conveniens. See Minnis v. Peebles,
. A senior vice-president of a United States multinational corporation acknowledged that "[t]he realization at corporate headquarters that liability for any [industrial] disaster would be decided in the U.S. courts, more than pressure from Third World governments, has forced companies to tighten safety procedures, upgrade plants, supervise maintenance more closely and educate workers and communities." Wall St. J., Nov. 26, 1985, at 22, col. 4 (quoting Harold Corbett, senior vice-president for environmental affairs at Monsanto Co.).
. Today’s opinions reveal the legal monstrosity that would be created in Texas if forum non conveniens were applied. Justice Hecht and Justice Gonzalez each predict dire consequences of a Texas without forum non conveniens. Chief Justice Phillips correctly admits that no such predictions can be supported. The doctrine has been developing for over 100 years, yet Justice Gonzalez asserts that the doctrine “was at best incipient among the states" until 1947. Justice Hecht states that Texas is “the only jurisdiction on earth” with the position taken today; however, earlier in the same opinion, he admits that ten states in the United States have not adopted forum non conveniens.
Each of the dissenters strongly advocates forum non conveniens for Texas. However, they cannot arrive at a collective decision regarding its application. While Justice Hecht correctly acknowledges that the private interest factors are outdated and useless, Justice Gonzalez and Chief Justice Phillips advocate both the private and public interest factors. While Justice Gonzalez correctly notes that before the doctrine may be applied, jurisdiction must be proper, Justice Cook argues that the doctrine is needed to help bridge the gap in the jurisdictional rules. The conflicting views of the dissenters surely portend the confused and unpredictable decisions which would inevitably result from attempts by Texas trial judges to apply the doctrine.
. As one commentator observed, U.S. multinational corporations
adhere to a double standard when operating abroad. The lack of stringent environmental regulations and worker safety standards abroad and the relaxed enforcement of such laws in industries using hazardous processes provide little incentive for [multinational corporations] to protect the safety of workers, to obtain liability insurance to guard against the hazard of product defects or toxic tort exposure, or to take precautions to minimize pollution to the environment. This double standard has caused catastrophic damages to the environment and to human lives.
Note, Exporting Hazardous Industries: Should American Standards Apply?, 20 Int’l L. & Pol. 777, 780-81 (1988) (emphasis added) (footnotes omitted) [hereinafter “Exporting Hazardous Industries"]. See also Diamond, The Path of Progress Racks the Third World, N.Y. Times, Dec. 12, 1984, at Bl, col. 1.
. A subsidiary of Sterling Drug Company advertised Winstrol, a synthetic male hormone severely restricted in the United States since it is associated with a number of side effects that the F.D.A. has called “virtually irreversible”, in a Brazilian medical journal, picturing a healthy boy and recommending the drug to combat poor appetite, fatigue and weight loss. U.S. Exports Banned, supra, 6 Int’l Tr.L.J. at 96. The same company is said to have marketed Dipy-rone, a painkiller causing a fatal blood disease and characterized by the American Medical Association as for use only as "a last resort," as “Novaldin” in the Dominican Republic. "Noval-din” was advertised in the Dominican Republic with pictures of a child smiling about its agreeable taste. Id. at 97. "In 1975, thirteen children in Brazil died after coming into contact with a toxic pesticide whose use had been severely restricted in this country." Hazardous Exports, supra, 14 Sw.U.L.Rev. at 82.
.Regarding Leptophos, a powerful and hazardous pesticide that was domestically banned, S. Jacob Scherr stated that
In 1975 alone, Velsicol, a Texas-based corporation exported 3,092,842 pounds of Leptop-hos to thirty countries. Over half of that was shipped to Egypt, a country with no procedures for pesticide regulation or tolerance setting. In December 1976, the Washington Post reported that Leptophos use in Egypt resulted in the death of a number of farmers and illness in rural communities.... But despite the accumulation of data on Leptophos’ severe neurotoxicity, Velsicol continued to market the product abroad for use on grain and vegetable crops while proclaiming the product’s safety.
U.S. Exports Banned, 6 Int’l Tr.LJ. at 96.
. Less than one per cent of the imported fruits and vegetables are inspected for pesticides. General Accounting Office, Pesticides: Better Sampling and Enforcement Needed on Imported Food GAO/RCED-86-219 (Sept. 26, 1986), at 3. The GAO found that of the 7.3 billion pounds of bananas imported into the F.D.A.’s Dallas District (covering Texas) from countries other than Mexico in 1984, not a single sample was checked for illegal pesticide residues such as DBCP. Id. at 53. Even when its meager inspection program discovers illegal pesticides, the F.D.A. rarely sanctions the shipper or producer.
Id. at 4. The GAO found only eight instances over a six year period where any punitive action whatsoever was taken. Id. "United States consumers have suffered as pesticide-treated crops are imported to the United States, thus completing a circle of poison.” McGarity, supra, 20 Tex.Int’1 L.J. at 334. As just one example, from 1972 to 1976 American imports of produce from Mexico contained residues of Leptophos, the neurotoxic pesticide discussed previously at note 14. U.S. Exports Banned, supra, 6 Int’l Tr.LJ. at 97 n. 19.
Dissenting Opinion
dissenting.
I respectfully dissent. For the reasons stated in Justice Hecht’s dissenting opinion, I would hold that the doctrine of forum non conveniens is not foreclosed by TEX.CIV. PRAC. & REM.CODE § 71.031. While I agree that the statute allows these plaintiffs to bring suit in Texas, I cannot agree that the statutory language prohibits the trial court from applying any common law procedural defense. Is laches, for example, statutorily foreclosed in wrongful death cases? I think not. I would therefore overrule Allen v. Bass,
I regret our court's decision to discard a procedural tool which has proved useful to the federal judicial system and most of our sister states. Unlike my fellow dissenters, however, I lack the prescience to foretell
I would reverse that part of the judgment of the court of appeals which precludes the possibility of a forum non conve-niens dismissal, affirm that part of the judgment which reverses the dismissal in this matter, and remand this cause to the trial court for a consideration of the factors set forth in Gulf Oil Co. v. Gilbert,
. As the United States Supreme Court recently observed:
[Texas] may not apply the same, or indeed, any forum non conveniens analysis.... Rather, as the Court of Appeals noted, it is possible that "Texas has constituted itself the world’s forum of final resort, where suit for personal injury or death may always be filed if nowhere else.”
Chick Kam Choo v. Exxon Corp.,
. The trial court dismissed this cause under forum non conveniens without written expression of what factors, if any, it had considered. In order to facilitate appellate review, I would require the trial court to set forth written findings and conclusions regarding those factors, either in the final judgment or in a separate document.
Dissenting Opinion
dissenting.
Under the guise of statutory construction, the court today abolishes the doctrine of forum non conveniens in suits brought pursuant to section 71.031 of the Civil Practice and Remedies Code. This decision makes us one of the few states in the Union without such a procedural tool,
This cause of action arose in Costa Rica where certain Costa Rican agricultural workers suffered injuries allegedly as a result of exposure to a pesticide manufactured by the defendants. The injured workers are seeking to enforce in Texas courts claims for personal injuries that occurred in Costa Rica. Several suits involving many of the same plaintiffs and essentially the same defendants have previously been filed in the United States and then dismissed on forum non conveniens grounds.
In 1983, a group of plaintiffs filed suit in a Florida state court. That case was removed to a federal district court, which dismissed it on the basis of forum non
In 1985, members of this group of plaintiffs filed suit in California. That case was subsequently removed to a federal court, which dismissed it on the basis of forum non conveniens in 1986. Aguilar v. Dow Chem. Co., No. 86-4753 JGD (S.D.Cal.1987).
In 1987, a federal district court in Florida once again addressed a cause of action filed by certain members of this group of plaintiffs. The court dismissed the action on the basis of forum non conveniens. Barrantes Cabalceta v. Standard Fruit Co.,
The case at bar was originally filed in state district court in Harris County, Texas in 1984. It was removed to federal court and then remanded to the district court where it was dismissed on the basis of forum non conveniens. The court of appeals reversed the judgment of the trial court and remanded the case for trial. It is this judgment that the court today affirms.
The term forum non conveniens refers to the discretionary power of a court to decline jurisdiction when the convenience of the parties and the ends of justice would be better served if the action were brought and tried in another forum. Black’s Law Dictionary, 589 (5th ed, 1979). It is a sound doctrine rooted in public policy concerns of judicial economy and fairness, and it is recognized in Texas. See, e.g., Flaiz v. Moore,
The court today
Paxton Blair’s conclusion in his article The Doctrine of Forum Non Conveniens in Anglo-American Law, 29 Colum.L.Rev. 1 (1929) that forum non conveniens has been employed in the state courts since 1817:
seems questionable. Many of the state cases cited by [Blair] involved rules that absolutely barred the action.
Such provisions, unlike forum non con-veniens, did not provide the trial courts with discretion; rather, they absolutely precluded assertion of jurisdiction. Moreover, until 1929 it was thought that the doctrine was a violation of the privileges and immunities clause of the constitution. ...
Stein, 133 U.Pa.L.Rev. at 796 n. 43 (citations omitted); see also Barrett, The Doctrine of Forum Non Conveniens, 35 Cal.L. Rev. 380, 388-90 (1947); J. Hazard, Civil Procedure, § 2.31 (1985); Note, Forum Non Conveniens in Georgia: A Critical Analysis and Proposal for Adoption, 7 Ga.L.Rev. 744, 747, 749, n. 15 (1973) [hereinafter Forum Non Conveniens in Georgia ] (“After the publication of [Blair’s article], the use of the phrase ‘forum non con-veniens’ became quite familiar, but few American courts applied it. Not until the late 1940’s did forum non conveniens really come of age in this country.”) The court’s reliance on Blair is misplaced.
The original version of section 71.031 was enacted in 1913 to give Texas citizens the right to maintain a cause of action in the courts of this State free from the threat of a dismissal under the dissimilarity doctrine. See Note, The Texas Dissimilarity Doctrine as Applied to the Tort Law of Mexico — A Modem Evaluation, 55 Tex. L.Rev. 1281,1293 (1977) [hereinafter Note]; see also S. Bayitch & J. Siqueiros, Conflict of Laws: Mexico and the United States 152 (1968); Paulsen, Foreign Law in Texas Courts, 33 Tex.L.Rev. 437, 454 (1955); Stumberg, Conflict of Laws-Torts-Texas Decisions, 9 Tex.L.Rev. 21, 30 (1930). The caption to the statute and subsection 2 both evidence this intent:
PROTECTION OF CITIZENS OF THIS STATE INJURED IN FOREIGN COUNTRIES — PROVIDES ADEQUATE COMPENSATION THEREFOR
[S.B. No. 75} Chapter 161
An act for the protection of persons of this State who may be injured in a foreign country and providing for adequate compensation therefor, and declaring an emergency.
Be it enacted by the Legislature of the State of Texas:
Section 1. That whenever the death or personal injury of a citizen of this State or a country having equal treaty rights with the United States on behalf of its citizens, has been or may be caused by a wrongful act, neglect or default in any State, for which a right to maintain an action and recover damages in respect thereof is given by a statute or by law of such State, territory or foreign country, such right of action may be enforced in the courts of the United States, or in the courts of this State, within the time prescribed for the commencement of such action by the statute of this State, and the law of the former shall control in the maintenance of such action in all matters pertaing [pertaining] to procedure.
Section 2. The fact that there is now no law permitting citizens of this State who receive injuries in a foreign country from bringing an action for said injuries under the laws of this State, creates an emergency and imperative public necessity requiring that the constitutional rule that bills shall be read upon three several days, should be suspended and it is hereby suspended, and this Act shall take effect from and after its passage.
Act of April 8, 1913, ch. 161, § 1, 1913 Tex.Gen.Laws 338 (Repealed 1985) (emphasis added). It does not follow from the language of this version of the statute or any of the subsequent versions
The doctrine of forum non conveniens cannot be equated to the dissimilarity doctrine. See Flaiz,
The court appears to hold that this case turns upon the language in section 71.031, which states that an action “may be enforced in the courts of this State.”
In short, Allen v. Bass does not control the issue of forum non conveniens dismissals under section 71.031 because that decision did not address the doctrine of forum non conveniens. See McNutt v. Teledyne Indus., Inc.,
Comity considerations focus on deference to a sister state; forum non conveniens considerations allow the trial court to engage in a discretionary balancing of factors in order to determine the most appropriate forum for the litigation.
Forum non conveniens is a common law doctrine “pertaining to procedure.” See Missouri ex rel. Southern Ry. Co. v. Mayfield,
[A]ll matters pertaining to procedure in the prosecution or maintenance of the action in the courts of this state are governed by the laws of this state,
(emphasis added). See Note, 41 Tex.L.Rev. 924, 927, n. 16 (1963).
Because I believe that the doctrine of forum non conveniens is applicable to cases brought in the courts of this state, I would adopt the following guidelines for its use.
Forum Non Conveniens Factors
At the outset it must be noted that the doctrine of forum non conveniens does not come into play until it is established that the trial court has both subject matter and personal jurisdiction. If there is any challenge to the court’s jurisdiction over the parties or the subject matter, it must be resolved before the court may make the forum non conveniens determination. Thereafter, the doctrine may be invoked only by motion of a party, and the burden shall rest upon the movant to produce evidence which would authorize dismissal. This evidence must establish by a preponderance that the court should not accept trial of the case.
Once forum non conveniens has been invoked, the trial court should, as its first step, determine what substantive law governs the case under the relevant choice of law rules. See In Re McClelland Engineers, Inc.,
Next, it must be established that the plaintiff has an alternate forum — the doctrine presupposes at least two forums in which the defendant is amenable to process. Gulf Oil,
Once the trial judge has determined that an acceptable alternate forum exists, the judge must then consider all relevant factors of public and private interest to determine if the interests of justice would be better served if the alternate jurisdiction adjudicated the case. Factors of private (interest are those considerations that make the trial of a case relatively easy, expeditious, and inexpensive for the parties. Factors of public interest include: 1) those which take into account the burdens imposed upon the citizens of the forum state when controversies having no connection with the state are allowed to proceed to trial; 2) those which comprehend the bur
The consideration of public and private interest factors should be individualized on a case by case basis. Clearly, the general descriptions of those factors set forth above are capable of granulation into the more specific considerations necessitated by individual cases. See, e.g., Gulf Oil,
Accordingly, the forum non conveniens determination, though committed to the sound discretion of the trial court, must be carefully confined to a structured consideration of the relevant factors so that an appellate court may conduct a meaningful review of the decision. The trial judge may not, for example, dismiss a case from the plaintiffs chosen forum simply because, in the court’s view, another forum may be superior to that chosen by the plaintiff. See Pain, 637 F.2d at 783. The trial judge’s discretion is not unlimited: “where there has been no weighing of the relative advantages of each forum but only a consideration of the drawbacks of one, that discretion has been abused.” Founding Church of Scientology v. Verlag,
In the instant case, the trial judge dismissed the case without specifying on the record the factors which he considered and the way in which those considerations influenced his determination. I would reverse that part of the judgment of the court of appeals which precludes the possibility of a forum non conveniens dismissal, affirm that part of the judgment which reverses the dismissal, and remand this cause to the trial court for further proceedings not inconsistent with this opinion.
Response to J. Doggett’s Concurrence
When you strip Justice Doggett’s concurring opinion of its fiery rhetoric, it is clear that he has twisted my dissent to such an extent that ordinarily I would feel compelled to respond at length. Deprived of its rhetorical flourishes, however, his concurring opinion contains only the following conclusions:
(1) The legislature has abolished forum non conveniens. (We are not told when or how this was accomplished);
(2) “As a matter of law and of public policy,” the doctrine “should be abolished.”786 S.W.2d 689 . (Why is this necessary if, as J. Doggett and the plurality claims, this was done by the legislature long ago?);
(3) Allen v. Bass is “compelling precedent” that the plaintiffs have an absolute right to bring suits in Texas. (In Flaiz v. Moore and in Couch v. Chevron, we said that this issue was an open question);
(4) The legal systems of many countries of the world are not as generous as ours, and the doctrine of forum non conve-niens is a barrier to holding greedy, irresponsible multinational corporations accountable. The doctrine is therefore invalid on public policy grounds. (We are a court, not a legislative body. We do not have the power or authority to make this public policy decision).
Justice Doggett also criticizes the doctrine of forum non conveniens as “yet another legal fiction” and assumes that by calling it such he has challenged its validity. Taking this line of reasoning to its logical conclusion, it appears that Justice Doggett opposes the use of such legal fictions as corporations, constructive trusts, constructive notice, constructive fraud, and numerous others. In any event, he is incorrect in suggesting that forum non con-veniens is a legal fiction, for a legal fiction is defined as an assumption of fact made by a court as a basis for deciding a legal question or a situation contrived by the law to permit a court to dispose of a matter. See Black’s Law Dictionary (5th ed. 1979). Forum non conveniens requires the mov-ant to prove to the court facts that warrant dismissal of the case.
In conclusion, I have no intent, much less “zeal” to implement social policy as Justice Doggett charges. That is not our role. It is clear that if anybody is trying to advance a particular social policy, it is Justice Dog-gett. I admire his altruism, and I too sympathize with the plight of the plaintiffs. However, the powers of this court are well-defined, and the sweeping implementations of social welfare policy Justice Doggett seeks to achieve by abolishing the doctrine of forum non conveniens are the exclusive domain of the legislature.
For all of the above reasons, I dissent.
. See Chambers v. Merrell-Dow Pharmaceuticals,
. For example, in July 1988, there was an oil rig disaster in Scotland. A Texas lawyer went to Scotland, held a press conference, and wrote letters to victims or their families. He advised them that they had a good chance of trying their cases in Texas where awards would be much higher than elsewhere. Houston Post, July 18, 1988, at 13A, col. 1; The Times (London), July 18, 1988, at 20A, col. 1; Texas Lawyer, Sept. 26, 1988 at 3.
. Until today, the issue of whether the legislature or the supreme court had abolished the doctrine of forum non conveniens was an open question. See Flaiz v. Moore,
. See Stein, Forum Non Conveniens and the Redundancy Court Access Doctrine, 133 U.Pa.L.R. 781, 796 (1985) [hereinafter Stein] (“Although bearing a Latin name, the forum non conve-niens doctrine is of relatively recent origin. Not until 1948 was the doctrine accepted for general application in the federal courts and it received little or no attention in the state courts until after federal adoption.”); see also Comment, Forum Non Conveniens: The Need for Legislation in Texas, 54 Tex.L.Rev. 737, 740 (1976).
. The current version, section 71.031 of the Civil Practice and Remedies Code, provides:
(a) An action for damages for the death or personal injury of a citizen of this state, of theUnited States, or of a foreign country may be enforced in the courts of this state, although the wrongful act, neglect, or default causing the death or injury takes place in a foreign state or country, if:
(1) a law of the foreign state or country or of this state gives a right to maintain an action for damages for the death or injury;
(2) the action is begun in this state within the time provided by the laws of this state for beginning the action; and
(3) in the case of a citizen of a foreign country, the country has equal treaty rights with the United States on behalf of its citizens.
(b) All matters pertaining to procedure in the prosecution or maintenance of the action in the courts of this state are governed by the law of this state.
(c) The court shall apply the rules of substantive law that are appropriate under the facts of this case.
. It makes no sense to argue that the legislature in 1913 abolished the doctrine of forum non conveniens when the doctrine was not recognized in Texas at that time.
. Dow and Shell contend that the legislature’s use of the word "may" makes the statute permissive. They argue that both Kansas and Iowa have statutes similar to section 71.031 that also use the word "may” and that each applies the doctrine of forum non conveniens. Compare KAN.STAT.ANN. § 60-217(b) (1986) and Gonzales v. Atchinson, Topeka, and Santa Fe Ry. Co.,
.The court cites Morris v. Missouri Pac. R.R.,
. Comity does not rely on a balancing of interest factors. Rather, it "is a willingness to grant a privilege, not as a matter of right, but out of deference and good will.” Black’s Law Dictionary, 5th ed. (1979). The principles of comity are not properly equated with the doctrine of forum non conveniens.
. Until now, Allen v. Bass has been largely ignored. Imprecise language in the opinion is, regrettably, subject to manipulation. Accordingly, I would overrule Allen v. Bass in order to eradicate any possible confusion concerning the application of forum non conveniens to actions alleged under section 71.031.
Dissenting Opinion
dissenting.
Like tum-of-the-century wildcatters, the plaintiffs in this case searched all across the nation for a place to make their claims. Through three courts they moved, filing their lawsuits on one coast and then on the other. By each of those courts the plaintiffs were rejected, and so they continued their search for a more willing forum. Their efforts are finally rewarded. Today they hit pay dirt in Texas.
No reason exists, in law or in policy, to support their presence in this state. The legislature adopted within the statute the phrase “may be enforced” to permit plaintiffs to sue in Texas, irrespective of where they live or where the cause of action arose. The legislature did not adopt this statute, however, to remove from our courts all discretion to dismiss. To use the statute to sweep away, completely and finally, a common law doctrine painstakingly developed over the years is to infuse the statute with a power not contained in the words. Properly read, the statute is asymmetrical. Although it confers upon the plaintiffs an absolute right to bring claims in our courts, it does not impose upon our courts an absolute responsibility to entertain those claims.
Even if the statute supported the court’s interpretation, however, I would remain unwilling to join in the opinion. The decision places too great a burden on defendants who are citizens of our state because, by abolishing forum non conveniens, the decision exposes our citizens to the claims of any plaintiff, no matter how distant from Texas is that plaintiff's home or cause of action. The interest of Texas in these disputes is likely to be as slight as the relationship of the plaintiffs to Texas. The interest of other nations, on the other hand, is likely to be substantial. For these reasons, I fear the decision allows assertions of jurisdiction by Texas courts that are so unfair and unreasonable as to violate the due process clause of the federal constitution.
I. PERSONAL JURISDICTION — FROM PRESENCE TO FAIR PLAY
Over a century ago, the United States Supreme Court was called upon to decide the reach of a state’s power to adjudicate a resident plaintiff's claim against an out-of-state defendant in a state court. The Court adopted and applied a simple rule: the state’s power to adjudicate was circumscribed by its borders. If a defendant was present within those borders, then he was subject to the state’s jurisdiction. Thus, the state courts in Oregon could enter a binding personal judgment against the de
The presence rule was onerous for both plaintiffs and defendants. Plaintiffs had to capture defendants within a state’s borders to serve process. The law compensated for this burden upon plaintiffs by allowing them to serve even transient defendants. This concession to plaintiffs worked a hardship on defendants, who were subjected to assertions of jurisdiction no matter how fleeting the passage of the defendants through a state. For this hardship, the common law provided relief of another kind: the notion that litigants should not be confined to inappropriate forums. This idea, which has developed into what we now call the doctrine of forum non conve-niens, stepped in to bridge the gap between the interests of defendants and forums on the one hand and Pennoyer’s dogmatic presence rule on the other. See Eh-renzweig, The Transient Rule of Personal Jurisdiction: the “Power” Myth and Forum Conveniens, 65 Yale L.J. 289, 292 (1956).
Pennoyer’s. jurisdictional scheme proved too simplistic for the complexities of modern life, with its large corporations and controversies involving multi-state elements. A new jurisdictional rule was necessary. It was formulated when the United States Supreme Court dispensed with the presence rule and redefined the nature and extent of a state’s power to adjudicate in the case of International Shoe Co. v. Washington,
Two standards derived from Shoe, the first relating to the existence of contacts between an out-of-state defendant and the forum, the second relating to notions of fair play and reasonableness. Although the standards have appeared at times to merge into one idea, they have evolved over the years to perform different functions in the due process analysis.
The first standard departs from the traditional concept, described in Pennoyer, that imposition of jurisdiction is always proper where a defendant is present in the forum. In place of that concept, the Shoe Court developed the less stringent requirement that a defendant have “minimum contacts” with the forum. Id. at 316,
It is the first standard, contacts, that dominates both the reasoning in Shoe and in most of the subsequent jurisdiction decisions of the Court. This standard has developed to incorporate most of the rules that inhibit a state in its exercise of jurisdiction over an out-of-state defendant. It is true that in the forty years following Shoe, courts dutifully recited the fair play standard. But once courts applied the analysis developed under the contacts standard and found that minimum contacts existed, courts did not have to be concerned that jurisdiction would falter upon application of the second, fair play, standard.
The dominance of Shoe’s contacts standard diminished neither the need for nor recognition of the occasional application of the doctrine of forum non conveniens. In Gulf Oil Corp. v. Gilbert,
The pre-eminence of contacts over fair play as a jurisdictional yardstick began to taper when the Court decided World-Wide Volkswagen Corp. v. Woodson,
Volkswagen’s accumulation of these factors transformed the fair play standard from a dutifully recited incantation to a substantial test for gauging the propriety of jurisdictional assertions. Although not applied in Volkswagen, the factors contained the sum of ideas concerning fair play and substantial justice that had developed in case law over the years. Not surprisingly, the factors included and overlapped some of the same ideas that had been developing in the doctrine of forum non conveniens. The test for jurisdiction and the test for forum appropriateness were, therefore, undergoing parallel developments. See generally Piper Aircraft Co. v. Reyno,
In Burger King Corp. v. Rudzewicz,
The Burger King view of the proper place for forum non conveniens was, therefore, not so distant from the place the doctrine had occupied in the years following both Pennoyer and Shoe. The doctrine reached where the due process test of jurisdiction did not and, once again, bridged the gap between the due process test for jurisdiction and concerns about forum appropriateness. Where the law provided that bridge, there was no need for application of the Volkswagen factors. The Court made it clear, however, that where a defendant presents a compelling case that the presence of the Volkswagen factors renders jurisdiction unreasonable, then the Constitution comes into play, and the fair play
Burger King ’s pronouncement, however strong, did not determine the outcome in that case. In Asahi Metal Indus. Co. v. Superior Court,
II. FAIR PLAY IN THE ABSENCE OF FORUM NON CONVENIENS
In Asahi, the fair play standard acquired — and perhaps eclipsed — the force of the minimum contacts standard. It is now clear that considerations of fair play may defeat jurisdiction even where a defendant has minimum contacts with the forum. Should the same considerations be allowed to defeat the contacts that exist between defendant and forum in the case before us today? To arrive at the answer, I invite a comparison between Asahi and this case.
In Asahi, a foreign plaintiff sought to enforce his claim against a foreign defendant in a California court. The United States Supreme Court considered both of the standards derived from Shoe, dividing on the question whether the foreign defendant had sufficient contacts with California. Nevertheless, the fair play standard of the due process clause, standing alone, foreclosed the plaintiff’s claim and defeated the court’s jurisdiction. In the case before us today, a foreign plaintiff seeks to enforce his claim against a Texas defendant. These defendants may not defeat jurisdiction based on a contacts analysis, for they have many contacts with our state. The question remains, however, whether they are entitled to the same inquiries into fair play afforded the foreign defendant in Asahi. If the answer is no, then the due process clause produces a lopsided and incorrect result: lopsided because it protects a foreign defendant from a foreign plaintiff but leaves a United States citizen exposed to liability from a similar source, incorrect because the Constitution does not afford greater protection to foreign plaintiffs than to American citizens. The answer, therefore, must logically be yes. Where the assertion of jurisdiction threatens notions of fair play and substantial justice, then the elements of fair play must be investigated, irrespective of the contacts of the defendant.
III. ABOLITION OF FORUM NON CON-VENIENS-EFFECTS ON THE FAIR PLAY ANALYSIS
I do not lightly suggest that the due process clause is, or should be, implicated in the case before this court. I am aware of Justice Brennan’s observation in Burger King that, in most cases, fair play “considerations usually may be accommodated
Consider, for example, the Burger King Court’s statement that a defendant claiming inconvenience may seek a change of venue. Id. at 477,
IV. OTHER CONCERNS
Other considerations in this case implicate the fair play standard. Although they are too numerous and complex for analysis here, they are important enough to warrant the attention of the court and the litigants. First, we are inviting into our courts disputes that may involve more substantial connections to foreign countries than to our own. Should we not stop to consider, as the Asahi court did, the possible effects of extending our laws beyond the shores of the United States? See generally Born, Reflections on Judicial Jurisdiction in International Cases, 17 Ga.J.Int’1 & Comp.L. 1 (1987).
Second, there are in this case unresolved choice of law questions that, once resolved, may diminish the interest of this state in this litigation. The plaintiffs proceed as though obtaining jurisdiction in Texas automatically confers upon them the benefits of Texas substantive law as well. As Justice Brennan made clear in Burger King when he urged consideration of choice of law principles as a “means short of finding jurisdiction unreasonable,” such a result does not automatically follow. Burger King,
Finally, and most important, I have questions concerning the propriety of exercising jurisdiction over plaintiffs whose relationship to this state is so attenuated. Although the United States Supreme Court’s position on plaintiff-forum relationship has been uncertain, the law indicates a growing concern with that relationship. In two earlier cases, the Court rejected the notion that a plaintiff’s contacts with the forum should be properly included in the due process analysis. See Keeton v. Hustler Magazine, Inc.,
It appears, therefore, that a plaintiff’s relationship to the forum state constitutes a legitimate inquiry in the fair play analysis. Without a comprehensive record in this case, I decline to consider whether the plaintiffs are sufficiently connected with Texas such that their suit would not offend traditional notions of fair play and substantial justice. I believe, however, that the question ought to be investigated.
V. CONCLUSION
The due process test for in personam jurisdiction has developed to protect defendants from unreasonable and unfair assertions of judicial power. The dominant component of the test has concentrated on a defendant’s contacts with the forum, but the test includes another component, the recurring question whether the assertion of jurisdiction comports with constitutional guarantees of fair play and substantial justice. Although questions whether the forum is appropriate often encompass considerations of fair play, the due process test has not developed answers to these questions. Indeed, there has been no need for the test to do so, for the common law doctrine of forum non conveniens has bridged the gap between the due process test of jurisdiction and concerns about forum appropriateness. By abolishing the doctrine of forum non conveniens, the court shatters that bridge. The questions of fair play inherent in the forum non conveniens inquiry cannot now be answered unless they are answered within the context of the due process test for in per-sonam jurisdiction.
. Texas has expressly adopted Burger Kings fair play analysis. See Zac Smith & Co. v. Otis Elevator Co.,
. 1 also observe with interest that there may someday be a “means short of finding jurisdiction unreasonable” to answer the potential problem of foreign plaintiffs suing American defendants in American courts. Those means could come in the form of a federal law. In 1987, a bill was introduced in the House to amend the Judicial Code to provide specifically for removal to federal court actions commenced in state courts by foreign citizens against a United States citizen "for injury that was sustained outside the United States and relates to manufacture, purchase, sale, or use of a product outside the United States.” See H.R. 3662, 100th Cong., 1st Sess., 133 CONG.REC. 10,785-86 (1987). In the 101st Congress, the bill was revised somewhat and has been reintroduced. See H.R. 3406, 101st Cong., 1st Sess., 135 CONG.REC. 1124 (1989).
Dissenting Opinion
dissenting.
Today the Court decrees that citizens of a foreign nation, Costa Rica, who claim to have been injured in their own country have an absolute right to sue for money damages in Texas courts. This same invitation extends to the citizens of every nation which would allow a Texas resident to sue in its courts in the most unlikely event he should ever want to. Citizens of foreign nations injured in Texas may certainly sue here; in some cases, they may sue in Texas even though they were injured elsewhere. But for this Court to give aliens injured outside Texas an absolute right to sue in this state inflicts a blow upon the people of Texas, its employers and taxpayers, that is contrary to sound policy.
The United States does not give aliens unlimited access to its courts. Indeed, one federal district court in California
To abolish the rule of forum non conve-niens in personal injury and death cases,
I
Section 71.031 of the Texas Civil Practice and Remedies Code states:
(a) An action for damages for the death or personal injury of a citizen of this state, of the United States, or of a foreign country may be enforced in the courts of this state, although the wrongful act, neglect, or default causing the death or injury takes place in a foreign state or country, if:
(1) a law of the foreign state or country or of this state gives a right to maintain an action for damages for the death or injury;
(2) the action is begun in this state
within the time provided by the laws of this state for beginning the action; and ⅜
(3) in the case of a citizen of a foreign country, the country has equal treaty rights with the United States on behalf of its citizens.
(b) All matters pertaining to procedure in the prosecution or maintenance of the action in the courts of this state are governed by the law of this state.
(c)The court shall apply the rules of substantive law that are appropriate under the facts of the case.
This statute is a nonsubstantive recodification of its predecessor, article 4678 of the Texas Revised Civil Statutes, which the trial court applied. As it affects this case, the statute has not been changed materially since it was first passed in 1913 and amended in 1917.
The plain language of this statute is permissive: the actions described “may be enforced in the courts of this state”. The statute thus prohibits dismissal of an action within its ambit solely because plaintiffs reside or the action arose outside Texas. The Legislature has plainly opened the door to such actions; but the Court tears the door off its hinges. Not only does the statute allow foreign actions, the Court says, it mandates them. The Court would be correct if the statute stated that the actions it describes “shall be enforced in the courts of this state”. But it does not say so. The statute does not create an absolute right to bring a personal injury action in Texas no matter how little it has to do with this state, how inconvenient it is to the parties, and how burdensome it is to the courts and the people of Texas who must pay for them. The statute certainly does not explicitly revoke the rule of forum non conveniens.
The Court’s analysis of the statute consists of quoting it. The Court then argues with Justice Gonzalez’s dissent about whether the rule of forum non conveniens existed in Texas prior to 1913, when the statute was first enacted. The point of this argument appears to be that the Legislature could have abolished the rule in 1913
Just as the Court ignores other states’ acknowledgment of the rule of forum non conveniens, it ignores other states’ construction of similar statutes. The supreme courts of other states with statutes similar to section 71.031 containing the term “may” have held those statutes to be permissive and have applied the rule of forum non conveniens. For instance, the Kansas statute provides:
Whenever a cause of action has accrued under or by virtue of the laws of any other state or territory, such cause of action may be sued upon in any of the courts of this state by the person or persons who are authorized to bring and maintain an action thereon in the state or territory where the same arose.
Kan.Stat.Ann. § 60-217(b) (1983) (emphasis added). Despite terms nearly identical to the Texas statute, Kansas applies forum non conveniens. Gonzales v. Atchison, T & S.F. Ry.,
An action may be brought against any railway corporation, the owner of stages, or other line of coaches or cars ... or persons operating the same, in any county through which such road or line passes or is operated.
Iowa Code § 616.8 (1950) (emphasis added). Despite this statute, however, Iowa applies the doctrine of forum non conveniens. Silversmith v. Kenosha Auto Transp.,
By comparison, Alabama had a specific mandatory statutory provision which stated:
Whenever, either by common law or the statutes of another state, a claim either upon contract or in tort has arisen in such other state against any person or corporation, such cause of action shall be enforceable in the courts of this state....
Ala.Code § 6-5-430 (1975) (emphasis added). While this statute was effective, the Alabama Supreme Court construed this statute to preclude application of the rule of forum non conveniens. Central of Ga. Ry. v. Phillips,
Whenever, either by common law or the statutes of another state or of the United States, a claim either upon contract or in tort has arisen outside this state against any person or corporation, such claim may be enforceable in the courts of this state ... provided, however, the courts of this state shall apply the doctrine of forum non conveniens in determining whether to accept or decline to take jurisdiction of an action based upon such claim originating outside this state.
Ala.Code § 6-5-430 (1987) (emphasis added). When Alabama’s legislature chose to change its law to ensure recognition of the rule of forum non conveniens, it changed “shall be enforceable” to “may be enforceable”. The Texas Legislature’s use of “may” in the same context is no less permissive and no more mandatory.
The language of section 71.031 simply does not support the Court’s holding. The very most the Court can say is that the statute is unclear. If there were some ambiguity in the statute, surely the Court should suggest some rationale for resolving the ambiguity the way it has. The sole authority the Court offers in support of its holding is Allen v. Bass,
II
Allen v. Bass was a suit by one New Mexico resident against another for personal injuries sustained in an automobile accident which occurred in New Mexico. The
We have concluded that article 4678 opens the courts of this state to citizens of a neighboring state and gives to them an absolute right to maintain a transitory action of the present nature and to try their cases in the courts of this state.
Id. (emphasis added). One might wonder whether the court of appeals in 1932 ever envisioned that one unnecessarily broad sentence in its opinion would someday be authority for compelling Texas courts to hear plaintiffs and actions from around the world. Nevertheless, Allen v. Bass, even if myopic, is clear and, as the Court concludes, indistinguishable on any principled ground.
Allen v. Bass should not control this case. In over half a century, that case has never been followed by another court. Two courts of appeals have expressly rejected it as authority. McNutt v. Teledyne Indus., Inc.,
Allen v. Bass is far too feeble a precedent to support the Court’s expansive holding. That case is simply an aberration in the jurisprudence of not only the state but the country, and I would overrule it.
Ill
The dearth of authority for the Court’s unprecedented holding is disturbing. Far more disconcerting, however, is the Court's silence as to why the rule of forum non conveniens should be abolished in personal injury and death cases, either by the Legislature or by the Court. If the Legislature did abolish the rule of forum non conve-niens by statute in 1913, what does the Court think the Legislature expected to accomplish for the people of this state?
But what purpose beneficial to the people of Texas is served by clogging the already burdened dockets of the state’s courts with cases which arose around the world and which have nothing to do with this state except that the defendant can be served with citation here? Why, most of all, should Texas be the only state in the country, perhaps the only jurisdiction on earth, possibly the only one in history, to offer to try personal injury cases from around the world? Do Texas taxpayers want to pay extra for judges and clerks and courthouses and personnel to handle foreign litigation? If they do not mind the expense, do they not care that these foreign cases will delay their own cases being heard? As the courthouse for the world, will Texas entice employers to move here, or people to do business here, or even anyone to visit? What advantage for Texas does the Court see, or what advantage does it think the Legislature envisioned, that no other jurisdiction has ever seen, in abolishing the rule of forum non conveniens for, personal injury and death cases? ■ Who gains? A few lawyers, obviously. But who else? If the Court has good answers to these questions, why does it not say so in its opinion? If there are no good answers, then what the Court does today is very pernicious for the state.
The rule of forum non conveniens, properly used, does not prohibit a court from entertaining a case it ought to hear. Rather, it protects courts from being compelled to hear cases when doing so would be fundamentally unfair to the defendants or the public or both. The rule recognizes that there are unusual cases which a court has power to hear but which it should nevertheless decline. The rule thus provides some play in the otherwise relatively rigid jurisdictional and venue joints of the judicial system. The factors to be considered in determining the application of the rule were set forth at length by the United States Supreme Court in Gulf Oil Corp. v. Gilbert,
An interest to be considered, and the one likely to be most pressed, is the private interest of the litigant. Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may _also be questions as to the enforceability of a judgment if one is obtained. Thecourt will weigh relative advantages and obstacles to fair trial. It is often said that the plaintiff may not, by choice of an inconvenient forum, ‘vex,’ ‘harass,’ or ‘oppress’ the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy. But unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed.
Factors of public interest also have place in applying the doctrine. Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation. In cases which touch the affairs of many persons, there is reason for holding the trial in their view and reach rather than in remote parts of the country where they can learn of it by report only. There is a local interest in having localized controversies decided at home. There is an appropriateness, too, in having the trial of a diversity case in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself.
The relative importance of private factors as compared with public factors may have shifted since Gulf Oil. Ease of travel and communication, availability of evidence by videotape and facsimile transmission, and other technological advances have reduced the significance of some private inconvenience factors. The public factors, however, deserve the same consideration now as when Gulf Oil was written.
The balancing of public and private considerations in applying the rule of forum non conveniens is primarily the responsibility of the trial court. “The forum non conveniens determination is committed to the sound discretion of the trial court. It may be reversed only when there has been a clear abuse of discretion; where the court has considered all the relevant public and private interest factors, and where its balancing of these factors is reasonable, its decision deserves substantial deference.” Piper Aircraft Co. v. Reyno,
The plaintiffs in this case are certainly entitled to justice. But so are the people of Texas. And it may well be that justice for both groups requires that these plaintiffs pursue their remedies fully in Costa Rica, their home. I therefore dissent.
. Aguilar v. Dow Chem. Co., No- 86-4753 JGD (C.D.Cal.1986), cited in Cabalceta v. Standard Fruit Co.,
. Sibaja v. Dow Chemical Co.,
. Gulf Oil Co. v. Gilbert,
. Mills v. Aetna Fire Underwriters Ins. Co.,
. Crowson v. Sealaska Corp.,
.Of the nine states that have not recognized the rule of forum non conveniens, none have rejected it absolutely as the Court does today. As discussed below, Alabama did reject the rule of forum non conveniens at one time but has since recognized it by statute. Montana has refused to apply the rule of forum non conveniens in actions under the Federal Employers’ Liability Act, 45 U.S.C. §§ 51-60 (1986), but has expressly reserved the issue of the applicability of the rule to other actions. Labella v. Burlington Northern, Inc.,
. The original act provided "[t]hat whenever the death or personal injury of a citizen of this State or of a country having equal treaty rights with the United States on behalf of its citizens, has been or may be caused by a wrongful act, neglect or default in any State, for which a right to maintain an action and recover damages in respect thereof is given by a statute or by law of such State, territory or foreign country, such right of action may be enforced in the courts of the United States, or in the courts of this State, within the time prescribed for the commencement of such action by the statute of this State, and the law of the former shall control in the maintenance of such action in all matters [pertaining] to procedure.” Act of Apr. 8, 1913, ch. 161, 1913 Tex.Gen.Laws 338-339, repealed by Revised Statutes, § 2, 1925 Tex.Rev.Civ.Stat. 2419.
This act was amended in 1917 to apply to citizens of the United States as well as of this State and foreign countries, and to clarify that the actionable injury could occur not only in another state but also in a foreign country. Act of March 30, 1917, ch. 156, 1917 Tex.Gen.Laws 365, repealed by Revised Statutes, § 2, 1925 Tex. Rev.Civ.Stat. 2419.
. Justice Doggett’s concurring opinion objects that this analysis does not give proper deference to the doctrine of stare decisis. Justice Doggett did not defend the doctrine quite so vigorously in his very first opinion as a member of this Court, which overruled two prior decisions of this Court. Sterner v. Marathon Oil Co.,
. The issue for the Court is not whether the Legislature should have abolished forum non conveniens, but whether it did. If it did, it surely must be presumed to have acted in the best interests of the people of Texas. The purpose of examining the public policies which support the rule of forum non conveniens is not to argue for retention of the rule but to show that the Legislature would not be motivated to abolish the rule.
. It is equally plain to me that defendants want to be sued in Costa Rica rather than Texas because they expect that their exposure will be less there than here. However, it also seems plain to me that the Legislature would want to protect the citizens of this state, its constituents, from greater exposure to liability than they would face in the country in which the alleged wrong was committed. This would be incentive for the Legislature not to abolish the rule of forum non conveniens.
. Justice Doggett’s concurring .opinion undertakes to answer these questions that the Court ignores. It suggests that there are essentially two policy reasons to abolish the rule of forum non conveniens: to assure that injured plaintiffs can recover fully, and to assure that American corporations will be fully punished for their misdeeds abroad. Neither reason is sufficient. If the defendants in this case were Costa Rican corporations which plaintiffs could sue only in Costa Rica, plaintiffs would be limited to whatever recovery they could obtain in Costa Rican courts. The concurring opinion has not explained why Costa Rican plaintiffs who claim to have been injured by American corporations are unjustly treated if they are required to sue in their own country where they could only sue if they had been injured by Costa Rican corporations. In other words, why are Costa Ricans injured by an American defendant entitled to any greater recovery than Costa Ricans injured by a Costa Rican defendant, or a Libyan defendant, or an Iranian defendant? Moreover, the concurring opinion does not explain why the American justice system should undertake to punish American corporations more severely for their actions in a foreign country than that country does. If the alleged conduct of the defendants in this case is so egregious, why has Costa Rica not chosen to afford its own citizens the recovery they seek in Texas? One wonders how receptive Costa Rican courts would be to the pleas of American plaintiffs against Costa Rican citizens for recovery of all the damages that might be available in Texas, or anywhere else for that matter.
Lead Opinion
ON MOTION FOR REHEARING
dissenting.
During the pendency of the motion for rehearing in this cause, this court made a decision which I believe conflicts squarely with our opinion here. Our amendment of Texas Rule of Appellate Procedure 140, in my view, is based on a statutory interpretation which is incompatible with our construction of Section 71.031 of the Texas Civil Practice and Remedies Code.
An appeal may be taken directly to the supreme court from an order of a trial court granting or denying an interlocutory or permanent injunction on the ground of the constitutionality of a statute of this state. It is the duty of the supreme court to prescribe the necessary rules of procedure to be followed in perfecting the appeal.1
(Emphasis added).
Our posture is thus that a district judge may not decline to exercise jurisdiction on common law procedural grounds because a plaintiff who “may” bring an action under Section 71.031 of the Texas Civil Practice and Remedies Code has the absolute right to select the forum. On the other hand, this court may decline to exercise jurisdiction in a direct appeal on purely discretionary grounds, even though Section 22.001 of the Texas Government Code provides that an appeal “may be taken” under certain conditions. Is there a principled rationale for this distinction? I can find none. If “may” is mandatory in one instance, it should be mandatory in the other. Is this court entitled to an exemption from statutory mandates because of its importance, its superior wisdom, or its crowded docket? Or does legislative direction mean one thing to this court in March, something else in April, and back again in May, reducing our decisions, in Justice Roberts’ lament, to nothing but “a restricted railroad ticket, good for this day and train only”? Smith v. Allwright,
For this additional reason, I would grant petitioners’ motion for rehearing.
GONZALEZ, COOK and HECHT, JJ„ join in this dissenting opinion.
. This statute is authorized by Article V, section 3-b of the Texas Constitution.