Ex parte INDIANA MILLS & MANUFACTURING, INC., and McNeilus Truck and Manufacturing, Inc.
(In re Marcy Johnson, as personal representative of the estate of James Johnson, deceased v. McNeilus Truck and Manufacturing, Inc., et al.).
Supreme Court of Alabama.
*538 Charles A. Stewart III and Angela R. Rogers of Bradley Arant Rose & White L.L.P., Montgomery, for petitioner Indiana Mills & Manufacturing, Inc.; and R. Bruce Barze, Jr., and Steven R. Parker of Balch & Bingham LLP, Birmingham, for petitioner McNeilus Truck and Manufacturing, Inc.
Ted L. Mann and Robert Potter of Mann, Cowan & Potter, P.C., Birmingham, for respondent.
Thomas M. O'Hara of McDowell Knight Roedder & Sledge, L.L.C., Mobile, amicus curiae Alabama Defense Lawyers Association, in support of the petitioners.
SMITH, Justice.
Indiana Mills & Manufacturing, Inc. ("IMMI"), and McNeilus Truck and Manufacturing, Inc. ("McNeilus") (collectively "the petitioners"), petition for a writ of mandamus directing the Macon Circuit Court to transfer this action to the Lee Circuit Court on the basis of forum non conveniens. We grant the petition and issue the writ.
Facts and Procedural History
James Johnson worked for Sunflower Waste, LLC ("Sunflower"), a waste-disposal company whose principal office is located in Tallapoosa County. On March 7, 2006, James was driving a garbage truck owned by his employer. While James was traveling on Marvyn Parkway in Lee County, the raised rear door of the truck struck an overhead railroad trestle. The truck crashed, and James was killed when he was ejected through the front windshield.
The Opelika police and fire departments responded to the scene of the accident. James's body was transported to the East Alabama Medical Center, and his death was investigated by the Lee County coroner. The garbage truck was towed to a Sunflower facility located in Lee County.
Subsequently, Marcy Johnson, James's widow, on behalf of James's estate, sued McNeilus, the manufacturer of the garbage truck, and IMMI, the manufacturer of the seat belts in the garbage truck, alleging, among other things, that the truck and its seat belts were defective. Additionally, Marcy sued three individuals who were employees of Sunflower at the time of the accident: Jack Conner, a maintenance manager; Russell Davis, an operations manager; and Van Forrester, a district manager, alleging that these individual defendants willfully breached a duty to provide James with a safe work *539 environment and that they willfully removed, failed to install, or failed to maintain certain safety devices on the garbage truck and, in doing so, contributed to James's death. See Ala.Code 1975, § 25-5-11.
The petitioners, joined by Conner, Davis, and Forrester, filed motions to transfer the case to the Lee Circuit Court based on the doctrine of forum non conveniens. The trial court denied the motion, and IMMI and McNeilus petition for mandamus relief.
Standard of Review
"`The proper method for obtaining review of a denial of a motion for a change of venue in a civil action is to petition for the writ of mandamus.' Ex parte National Sec. Ins. Co.,727 So.2d 788 , 789 (Ala.1998). A writ of mandamus is appropriate when the petitioner can demonstrate `(1) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.' Ex parte BOC Group, Inc.,823 So.2d 1270 , 1272 (Ala.2001). Additionally, this Court reviews mandamus petitions challenging a ruling on venue on the basis of forum non conveniens by asking whether the trial court exceeded its discretion. Ex parte Fuller,955 So.2d 414 (Ala.2006); Ex parte Verbena United Methodist Church,953 So.2d 395 (Ala.2006). Our review is limited to only those facts that were before the trial court. Ex parte Pike Fabrication, Inc.,859 So.2d 1089 , 1091 (Ala. 2002)."
Ex parte Kane,
Discussion
Alabama Code 1975, § 6-3-21.1(a), provides when a civil action must be transferred under the doctrine of forum non conveniens:
"With respect to civil actions filed in an appropriate venue, any court of general jurisdiction shall, for the convenience of parties and witnesses, or in the interest of justice, transfer any civil action or any claim in any civil action to any court of general jurisdiction in which the action might have been properly filed and the case shall proceed as though originally filed therein...."
(Emphasis added.) A party moving for a transfer under § 6-3-21.1 has the initial burden of showing, among other things, one of two factors: (1) that the transfer is justified based on the convenience of either the parties or the witnesses, or (2) that the transfer is justified "in the interest of justice." Ex parte Masonite Corp.,
There is no dispute that venue in this case is proper in both Macon County and Lee County. However, the petitioners argued in their motion for a change of venue and in their mandamus petition both that the convenience of the parties and witnesses required that the case be transferred to Lee County and that it was in the interest of justice to do so. We need not analyze the convenience of the parties and witnesses in this case, because we hold that the interest of justice requires a transfer.[1]
*540 The "interest of justice" prong of § 6-3-21.1 requires "the transfer of the action from a county with little, if any, connection to the action, to the county with a strong connection to the action." Ex parte National Sec. Ins. Co.,
Marcy argues that the interest of justice does not require a transfer in this case to Lee County because none of the parties reside or are located in Lee County. Additionally, she notes that neither IMMI or McNeilus "have business relationships" in Lee County, whereas Sunflower conducts business in Macon County and Conner resides there. Finally, litigating the case in Lee County, Marcy contends, would be less convenient for the parties.[2]
We agree that this case certainly has a connection with Macon County as Marcy notes, Conner resides there and Sunflower conducts business there. Additionally, it is *541 true that none of the parties in this case actually resides in Lee County. However, we nevertheless hold that the overall connection between Macon County and this case is weak and that the connection between the case and Lee County is strong.
First and foremost, the accident occurred in Lee County. Lee County police and emergency personnel the Opelika Police Department and the Opelika Fire Department responded to the scene and investigated the accident. Additionally, Gene Manning, the chief deputy coroner of Lee County, investigated James's death. He testified in an affidavit that all the work he performed in connection with the investigation took place in Lee County. Additionally Danny Cotney, the assistant fire chief of the Opelika Fire Department, testified that the various records and documents generated by the department are located in Lee County.[3]
On the other hand, the "connection" or "nexus" with Macon County in this case is weak. No party but Conner resides or is located there.[4] Additionally, none of the relevant facts in this case actually involve Macon County.
In her dissent, Chief Justice Cobb suggests that this Court should defer to the trial court's decision. In Ex parte First Family Financial Services, Inc.,
We held in First Family that the adoption of § 6-3-21.1 "substantially modified the law relating to the venue of civil actions."
The plaintiff in First Family argued "that a trial judge has almost unlimited *542 discretion in such matters." We noted that although the trial court "has a degree of discretion in determining whether the factors listed in the statute ... are in favor of transferring the action," this degree of discretion is not unlimited and "must be considered in light of the fact that the Legislature used the word `shall' instead of the word `may' in § 6-3-21.1."
The accident made the basis of this case occurred in Lee County, and the accident was investigated by Lee County authorities. We see no need for Macon County, with its weak connection with this case, to be burdened with an action that arose in Lee County simply because one of several defendants resides there. Instead, Lee County clearly has a strong connection with this case. See Ex parte Verbena United Methodist Church,
Chief Justice Cobb in her dissent urges this Court to adopt a rule requiring parties to demonstrate a significant likelihood of injustice in order to warrant a change of venue based on the interest-of-justice factor of § 6-3-21.1. Although acknowledging that Alabama law does not require such a showing, Chief Justice Cobb cites several cases in support of the idea that a party should show a "significant likelihood of injustice in the absence of the transfer of the case." However, the decisions cited in her dissent do not appear to support this assertion.[6] Additionally, it *543 is unclear how the new analysis proposed by Chief Justice Cobb would require any less consideration of "subjective" elements, to which Chief Justice Cobb objects. Moreover, this proposed limitation to the interest-of-justice factor has no support in the text of § 6-3-21.1; no persuasive authority urges its adoption; and neither party in this case has discussed this proposed limitation. We thus see no need to engraft such an analysis to restrict the application of § 6-3-21.1.
Conclusion
The trial court is directed to transfer the case to the Lee Circuit Court.
PETITION GRANTED; WRIT ISSUED.
SEE, LYONS, WOODALL, STUART, BOLIN, and PARKER, JJ., concur.
MURDOCK, J., concurs in the result.
COBB, C.J., dissents.
COBB, Chief Justice (dissenting).
I respectfully dissent. I write first to note my continued concern with this Court's inclination to intrude into areas properly reserved to the trial court's discretion, with the added detriment of unduly expanding this Court's "piecemeal" appellate jurisdiction. Previously, this Court sought to avoid reviewing cases in such a fashion and quoted with approval the federal plan of constraining the use of extraordinary writs:
"`In strictly circumscribing piecemeal appeal, Congress must have realized that in the course of judicial decision some interlocutory orders might be erroneous. The supplementary review power conferred on the courts by Congress in the All Writs Act is meant to be used only in the exceptional case where there is clear abuse of discretion or "usurpation of judicial power."'"
Ex parte Alabama Power Co.,
With respect to the circumstances presented by this case, it is apparent that the main opinion avoids any conclusion that under the doctrine of forum non conveniens, *544 Ala.Code 1975, § 6-3-21.1, the trial court exceeded its discretion in refusing to transfer the case because the facts show that there is little difference between the forums in convenience to the parties. That is, the facts do not support the issuance of the instant writ under the doctrine of forum non conveniens. The doctrine of forum non conveniens requires the proponents of a change in venue to show that the proposed location here Lee County would be "significantly more convenient" than the current location here Macon County a showing that the instant facts do not support. Moreover, in this situation, the trial court would be well within its discretion in deferring to the plaintiff's choice of the forum in which to try the cause. See, e.g., Ex parte Bloodsaw,
Thus, the main opinion shifts its emphasis to whether the change in venue is warranted in the "interest of justice." Under Ex parte First Tennessee Bank National Ass'n,
In my view, this sort of analysis flies in the face of the deference this Court once paid to a plaintiff's right to choose among appropriate forums for the prosecution of his or her cause,[7] and it further permits this Court to substitute its discretion for that of the trial court. Moreover, the simple weighing of factors to determine the strength of a particular forum's connection or the extent that a transfer would serve justice invites parties to petition this Court for a writ of mandamus to change between two equally "convenient" venues in most situations where there are two or more acceptable venues. I believe that a proper evaluation of the interest-of-justice factor in § 6-3-21.1 would require the movant to show a significant likelihood of injustice if the transfer does not occur before this Court invalidates the plaintiff's choice of forum and displaces the trial court's discretion with its own. Accordingly, in order to warrant a change of venue based on the interest of justice, the movant should be required to present facts showing a significant likelihood of injustice in the absence of the transfer of the case. Although this requirement has not been adopted in this State, it underlies the rationale of the transfer of, or the refusal to transfer, a case in numerous decisions in other jurisdictions. See, e.g., King v. Russell,
I recognize that none of these cases is precisely on point with the venue scheme set out in § 6-3-21.1. They do, however, give examples of what factors might be considered as a basis for venue decided on the "interest of justice." The point is that the distinction between a change of venue for the convenience of the parties and a change of venue in the interest of justice should be more significant than simply assessing the relative travel times. A change of venue based on the "interest of justice" should meet a higher standard, one that can be plainly and specifically articulated. It is this Court's responsibility to enunciate such a standard, based on the statute, which can then be understood and applied by the trial courts and all practitioners. I believe that the connection test as employed by the majority here falls short of the appropriate analysis for changing venue "in the interest of justice." Although "connectedness" might be one consideration, the Court should also consider factors such as the ability of the parties to obtain a fair and timely trial in the respective venues, the selection of venue for purposes of harassment or fraud on the court, and the judicial resources that are available in a particular venue to adjudicate the cause. That is, the party seeking a change of venue "in the interest of justice" should be prepared to show that the denial of the motion for a change of venue will result in a significant likelihood of injustice.
It is a long-settled maxim of American jurisprudence that "justice delayed is justice denied." Folsom v. Wynn,
NOTES
Notes
[1] Again, a transfer under 6-3-21.1 is appropriate based on either the convenience of the parties and witnesses or in the interest of justice. Chief Justice Cobb, in her dissent, faults this Court for not analyzing the convenience-of-the-parties-and-witnesses factor, which she argues would not require a transfer in this case. If this were true, however, then a discussion of that issue given this Court's resolution of the case would be dicta. Additionally, Chief Justice Cobb's analysis seems to elevate the convenience-of-the-parties-and-witnesses factor of § 6-3-21.1 over the interest-of-justice factor, which she criticizes as requiring the consideration of "subjective" elements. However, by including the "interest of justice" in § 6-3-21.1, the legislature has deemed this factor as one of two that may be considered when determining if a transfer under that statute is required. Nothing in the plain language of the statute implies that one factor is less worthy of consideration or that it should be ignored altogether.
[2] Chief Justice Cobb also asserts that this Court's decision to order the case transferred to Lee County moves this case from a county with an average caseload to a county with a higher caseload. However, no argument or evidence on this issue was presented to this Court by the parties; therefore, we may not consider it. In any event, an argument that a case should not be transferred to a circuit court with a higher caseload than the circuit court from which the case is being transferred is negated by the fact that the court services and resources of a county should not be burdened with a case that is only remotely connected with that county. Ex parte Smiths Water & Sewer Auth., supra. Additionally, citizens should not be required to suspend their lives and jobs to serve on a jury in a case with only a tenuous connection to their county merely because their local court has a lighter caseload. See Ex parte First Family Fin. Servs., Inc.,
[3] The petitioners also contend that numerous witnesses in this case reside in Lee County. Although the petitioners present affidavits from some of these witnesses, they fail to present affidavits for many others. See Ex parte ADT Sec. Servs., Inc.,
[4] The Johnsons lived in Montgomery County at the time of the accident; Marcy has since moved to Florida. IMMI is an Indiana corporation, and McNeilus is located in Minnesota. Sunflower is located in Tallapoosa County. Davis and Forrester live in Elmore County.
[5] Chief Justice Cobb, citing caselaw prior to the enactment of § 6-3-21.1, suggests that our review of this ruling risks "expanding this Court's `piecemeal' appellate jurisdiction." However, this Court has consistently reviewed rulings on motions to transfer filed pursuant to § 6-3-21.1 since that Code section was enacted in 1987. Additionally, this Court has reviewed rulings on motions to transfer under the common-law doctrine of forum non conveniens since at least 1957. See Ex parte Southern Bell Tel. & Tel. Co.,
Additionally, review by petitions for the writ of mandamus does not offend the maxim that "justice delayed is justice denied." Alabama law specifically provides that a party may move for a transfer under § 6-3-21.1, and § 6-3-21.1 was specifically designed to end prior abuse of the legal process. Justice is not denied when a party successfully exercises the rights provided it by law in this case, seeking the correct disposition of a transfer under § 6-3-21.1.
[6] King v. Russell,
Kawamoto v. CB Richard Ellis, Inc.,
Garza v. Garcia,
Finally, In re Trust Created Under Agreement Dated September 19, 1983,
[7] See Bloodsaw, Johnson, and Townsend, supra. See also Ex parte Nichols,