ILLINOIS CENTRAL RAILROAD COMPANY,
v.
Mаry Frances TRAVIS, Administratrix of the Estate of Clifton Davis Travis, Jr., Deceased.
Supreme Court of Mississippi.
*930 Curtis R. Picou, Belleville, IL, Chad Michael Knight, Jackson, Thomas R. Peters, Belleville, IL, Attorneys for Appellant.
Thomas W. Brock, William S. Guy, McComb, John Booth Farese, Ashland, Attorneys for Appellee.
Before SMITH, P.J., COBB AND DIAZ, JJ.
SMITH, P.J., for the Court.
¶ 1. Mary Frances Travis (Administratrix of the Estate of Clifton Davis Travis, Jr., deceased), joined ninety-eight others in filing suit against Illinois Central Railroad Company (ICRR) in Marshall County, Mississippi, for alleged exposure to asbestos and products containing asbestos. ICRR moved to dismiss Travis's claims based on improper venue, improper joinder, and forum non conveniens. The circuit court denied this motion. This Court subsequently granted ICRR's request for permission to appeal. See, M.R.A.P. 5. Finding no error by the trial court, we affirm.
FACTS
¶ 2. This is a case filed under the Federal Employers' Liability Act, 45 U.S.C. §§ 51 et seq. ("FELA"), alleging injuries and death due to exposure to asbestos. Mary Frances Travis is the administratrix of the estate of her late husband, Clifton Davis Travis. Travis worked for Illinois Central Railroad Company ("ICRR") from 1949 to 1990. Mr. Travis worked for ICRR as a stationary fireman, a machinist's helper, a carman helper, a carman, and a mеchanical foreman. He was diagnosed with asbestosis on February 21, 1998. He developed lung cancer and died on July 21, 1998.
¶ 3. On October 9, 1998, Mrs. Travis joined 71 other former ICRR employees and filed a complaint under the FELA in the Circuit Court of Marshall County, Mississippi. Twenty-seven additional plaintiffs were later joined by amendment. Mrs. Travis's case, along with nine other cases, was set for trial to begin July 24, 2000. Mr. Travis was a resident of Tennessee. His wife is still a resident of Tennessee. He worked for ICRR in Kentucky and Tennessee. Plaintiffs claim there is a possibility that he did some work in Mississippi; although, defendants state that he never worked in Mississippi.
STANDARD OF REVIEW
¶ 4. There are essentially two standards that are to be dealt with in reviewing the case at bar. First, as to the question of forum non conveniens, this Court will uphold the trial court's ruling unless it is clearly erroneous. "When considering a motion to dismiss, the allegations in the complaint must be taken as true, and the motion should not be granted unless it appears beyond doubt that the plaintiff will be unable to prove any set of facts in support of his claim." Donald v. Amoco Prod. Co.,
¶ 5. Second, as to the issues of improper venue and improper joinder, this Court uses a more deferential standard. The official comment to Rule 20 describes its purpose as:
The general philosophy of the joinder provisions of these Rules is to allow virtually unlimited joinder at the pleading stage but to give the Court discretion to shape the trial to the necessities of the particular case.
Miss. R. Civ. P. 20.
¶ 6. In First Investors Corp. v. Rayner,
¶ 7. "An application for a change of venue is addressed to the discretion of the trial judge, and his ruling thereon will not be disturbed on appeal unless it clearly appears that there has been an abuse of discretion or that the discretion has not been justly and properly exercised under the circumstances of the case." Donald v. Amoco Prod. Co.,
DISCUSSION
¶ 8. There are essentially three arguments made by ICRR. First, it claims that the circuit court erred in failing to dismiss Travis's claim for improper venue. Second, it claims that the circuit court committed error in failing to dismiss Travis's claim for improper joinder. Third, it claims that the circuit court erred in failing to dismiss or transfer Travis's claim based on the doctrine of forum non conveniens.
(1) DID THE CIRCUIT COURT ERR IN FAILING TO DISMISS TRAVIS'S CLAIM FOR IMPROPER VENUE?
¶ 9. Under its first claim, ICRR argues that Miss.Code Ann. § 11-11-5 (Supp. 2001) controls the venue choice in this case. Thus, it argues that the only appropriate places for venue are where the action accrued, where the defendant has its principal place of business, оr where the plaintiff resided. Miss.Code Ann. § 11-11-5. Second, ICRR contends that while Miss. R. Civ. P. 82(c) states that "where *932 several claims or parties have been joined, the suit may be brought in any county which any one of the claims could properly have been brought," this does not apply to those parties joined under Rule 20(a). It cites the second sentence of Rule 82(c) for this finding. That sentence states that:
Whenever an action has been commenced in a proper county, additional claims and parties may be joined, pursuant tо Rules 13, 14, 22, and 24, as ancillary thereto, without regard to whether that county would be the proper venue for an independent action on such claims or against such parties.
¶ 10. ICRR acknowledges that this Court has recently stated that "when Rule 20 joinder of parties is involved, `venue is proper wherever it is proper as to one such claim.'" American Bankers Ins. Co. v. Alexander, ___ So.2d ___, ___,
¶ 11. Plaintiff argues that Travis is properly joined under Rule 20 of the Mississippi Rules of Civil Procedure, and thus Rule 82(c) of the Mississippi Rules of Civil Procedure, which states that venue is proper for all plaintiffs where it is proper for one, makes Marshall County, Mississippi, an appropriate venue for this action. Plaintiff states that within the ten-plaintiff trial group that Travis is a part of, four of the plaintiffs worked for ICRR in Marshall County and were exposed to asbestos during that time. Further, plaintiff Dean Pounders currently resides in Marshall County.
¶ 12. First, this Court has previously stated that Miss.Code Ann. § 11-11-5 is not "the only venue statute to which parties may resort in an action against a railroad." Missouri Pac. R.R. v. Tircuit,
¶ 13. As for ICRR's argument that Rule 82(c) does not apply to parties joined under Rule 20, Mississippi law has never suggested that Rule 82(c) might not apply. In two cases, this Court has simply stated that Rule 82(c) applied when parties are joined under Rule 20. The Alabama Supreme Court addressed an argument similar to this in Ex parte Progressive Cas. Ins. Co.
[T]he second sentence of Rule 82(c) can be read to mean that the addition of parties whose relation to each other or to existing parties is different from the original plaintiff/defendant relation does not render venue improper or require severance. That sentence's omission of Rule 15 does not mean that amendments *933 adding parties do rеnder venue improper, but rather, the sentence is more properly interpreted as omitting reference to Rule 15 because that Rule is unlike the four that are mentioned. An amendment adding a party under Rule 15 is properly analogous to Rules 19 and 20, under which joinder is practiced in the original pleadings, and therefore comes within the import of the first sentence of Rule 82(c).
(2) DID THE CIRCUIT COURT COMMIT ERROR IN FAILING TO DISMISS TRAVIS'S CLAIM FOR IMPROPER JOINDER?
¶ 14. As to the second claim, ICRR contends that Travis is improperly joined under Rule 20(a) of the Mississippi Rules of Civil Procedure. Rule 20(a) provides in pertinent part that:
All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences, and if any question of law or fact common to all these persons will arisе in the action.
This Court has recognized that the Official Comments to Rule 20 call for consideration on a case-by-case basis "utilizing a liberal approach toward joinder." American Bankers Ins. Co. of Florida v. Alexander, ___ So.2d ___, ___,
¶ 15. ICRR argues that plaintiffs can only claim that they all "worked for defendant at some time, at some place, and allegedly suffer from some asbestos-related injury," and that this does not establish that joinder is proper. ICRR points to a number of federal and state cases to support its claim of improper joinder that it contends share similar factual scenarios with the case at bar. ICRR cites Abdullah v. Acands, Inc.,
¶ 16. First, the court stated in Abdullah that the case was "more appropriately viewed as a dismissal pursuant to Fed. R.Civ.P. 41(b)" on the grounds that it did not follow the local rules in regard to its suit.
¶ 17. ICRR also relies on Saval v. B.L. Ltd.,
¶ 18. One important difference between the case at bar and Saval is the procedural posture in which the cases were received on appeal. In the case at bar, this Court is reviewing the decision of a lower court judge to grant joinder under Rule 20(a). In Saval, the Fourth Circuit was reviewing a decision to deny joinder. This Court has recognized that it is inappropriate to substitute its judgment on such matters. Alexander, ___ So.2d ___, ___,
¶ 19. ICRR cites Bobby Kitchens, Inc. for the proposition that joinder is improper where the only similarity between claims is that they are brought under the same general legal theory; however, in the discussion of the joinder issue, this Court merely stated the rule of joinder under Miss.R.Civ.P. 20, that the standard of review was abuse of discretion, then stated that the better choice would have been to allow joinder, but that it was not an abuse of discretion to deny it.
¶ 20. ICRR also looks to Demboski v. CSX Transp., Inc.,
¶ 21. Demboski cites Sun-X Glass Tinting of Mid-Wisconsin v. Sun-X Int'l, Inc.,
For example assume 4 automobiles, A, B, C, and D. A and B collide, causing B to strike C, which in turn strikes D, parked at a curb. Here is a series of events which produce multiple claims. However, all possible claims will have stemmed from a common transaction or event, namely the collision of A and B. Further, assume A was at fault in the example; and further assume that 10 minutes earlier on the same highway, A negligently caused a collision involving E. Could it fairly be said that the claims of B, C, and D have any common question of law or fact with E's claim against A? There are separate series of events or transactions. Id. at 374-75.
Just as in the illustration, the Court finds that the different crossing accidents did not stem from a common transaction or event, rather the crossing accidents stem from separate transactions which do not amount to a series of transactions or occurrences.
Demboski,
¶ 22. ICRR also cites to Grayson v. K-Mart,
Plaintiffs have not ... directed this Court's attention to any discrete program or procedure employed by K Mart that affected each of the plaintiffs in this litigation. Absent some causal link between a common and identifiable wrongful act on the part of the defendant and the аdverse action taken with respect to each plaintiff, the first prong of Rule 20(a) is not satisfied.
[E]ach demotion decision affecting the plaintiffs in these cases was a discrete act by the defendant. "As indicated, the factual and legal questions between the plaintiffs and the defendant are based upon the wholly separate acts of the defendant with respect to each plaintiff."
Id. (quoting Smith v. North Am. Rockwell Corp.,
¶ 23. Finding that the plaintiffs in Alexander were appropriately joined, this Court stated that:
It is clear that all of the plaintiffs' claims arise out оf the same pattern of conduct, the same type of insurance, and involve interpretation of the same master policy. All of the plaintiffs' claims are similar with the exception of the actual dollar amount charged on premiums.... [Further], [i]n the case at hand, individual treatment did not take place but instead the same fraudulent scheme or course of conduct was allegedly involved.
Id.
¶ 24. As for whether plaintiff Travis is properly joined in the case at bar, two considerations must be addressed. First, whether the causes of action arise out of the same transaction or occurrence. Second, whether there is a question of law or fact common to all the plaintiffs. Travis argues that these claims arise out of ICRR's "policy of not warning or protecting its workers from the hazards of asbestos exposure, and breaching its non-delegable *936 duty to provide a reasonably safe place to work."
¶ 25. As to the second prong of the Rule 20(a) test, Travis argues that there are multiple questions of law and fact that are common to all plaintiffs. Common questions of law, alleged by plaintiffs, include:
a) ICRR's negligence in failing to warn its employees of the dangerous hazards of asbestos
b) ICRR's negligence in failing to provide asbestos exposed employees' respirators, protective clothing and/or proper ventilation
c) ICRR's negligence in not providing plaintiffs and plaintiffs' decedents a reasonably safe place to work
d) ICRR's negligence in not substituting non hazardous materials for asbestos
e) ICRR's negligence in failing to test or monitor the work environment of plaintiffs and plaintiffs' decedents for the presence of dangerous concentrations of asbestos dust.
Common questions of fact, alleged by plaintiffs, include: one employer defendant for all plaintiffs; each plaintiff worked on the same or similar equipment and machinery owned by ICRR; each plaintiff claims asbestos disease; ICRR had actual knowledge of the hazards of asbestos by 1935; ICRR, in 1937, drafted rules for the prevention of asbestosis which it failed to followthese rules include a written policy of not informing its employees that asbestos could be hazardous; ICRR failed to warn these plaintiffs; and ICRR failed to provide protective gear for these plaintiffs.
¶ 26. Travis cites In re Norplant Contraceptive Prods. Liab. Litig.,
¶ 27. We find that the lower court did not abuse its discretion in allowing the joinder of these Plaintiffs.
(3) DID THE CIRCUIT COURT ERR IN FAILING TO DISMISS OR TRANSFER TRAVIS' CLAIM BASED ON THE DOCTRINE OF FORUM NON CONVENIENS?
¶ 28. As to the third argument, ICRR asserts that the doctrine of forum non conveniens makes Marshall County an inappropriate forum to hear Travis's claim. This Court has recognized that this doctrine is "inapplicable when the trial court is faced with a choice of venue between two Mississippi counties." Clark v. Luvel Dairy Prods., Inc.,
¶ 29. ICRR accurately states that this Court has developed a seven-factor test when considering a motion to dismiss claim pursuant to the doctrine of forum non conveniens. These seven factors are: (1) relative ease of access to sources of proof, (2) availability and cost of compulsory process for attendancе of unwilling witnesses, (3) possibility of viewing the premises, (4) unnecessary expense or trouble to the defendant not necessary to the plaintiffs own right to pursue his remedy, (5) administrative difficulties for the forum courts, (6) whether there are local interests in deciding the case at home, and (7) the plaintiffs forum should rarely be disturbed. Tircuit,
(A) Relative Ease of Access to Sources of Proof
¶ 30. ICRR argues that the record makes no mention of any substantial source of proof in this case present in Mississippi. However, Travis cites to a recent case where this Court took notice of ICRR's activities within Mississipрi.
First, there is an ease of access to sources of proof in Mississippi. The record indicates that ICR maintains an extensive business presence in Jackson, Mississippi. For example, in a document produced in the record marked "Illinois Central Corporate Headquarters," ICR's offices are listed. ICR maintains a transportation center and a quality service center at 2151 N. Mill St., Jackson, Mississippi. Next, the document indicates that ICR also maintains and operates an intermodal facility at 100 N. Commerce Park Drivе, Jackson, Mississippi, and an automotive facility at 350 N. Market St., Jackson, Mississippi.
Illinois Cent. R.R. v. Samson,
¶ 31. Two of ICRR's physician expert witnesses reside in Jackson, Mississippi; the individual responsible for asbestos removal from the ICRR system and documents related to this are housed in the Jackson, Mississippi offices; and, further, the person that ICRR identified as its employee with knowledge of claims or defenses of any party in this suit or who has knowledge of discoverable matter resides in Memphis, Tennessee, which is a short drive from Marshall County, Mississippi.
(B) Availability and Cost оf Compulsory Process for Attendance of Unwilling Witnesses
¶ 32. ICRR contends that all of the witnesses disclosed in discovery are located outside of Mississippi, and that it does not have the use of compulsory process for those witnesses who reside in Tennessee and Kentucky. While this is true, it must be recognized that in cases such as this, where it is the norm for employees to work across state lines, that no state would ever be perfectly convenient on this standpoint. Further, it would be appropriate for ICRR to compel vidеo depositions of any out-of-state witnesses that could later be shown to the jury. As stated above, some of ICRR's witnesses are within the state. Further, at least two co-worker witnesses are residents of Mississippi. Clearly, this case is distinguishable from Tircuit where no witnesses could be found in Mississippi.
(C) Possibility of Viewing the Premises
¶ 33. ICRR argues that if this case is tried in Marshall County, Mississippi that *938 a view of the premises where Travis's decedent worked would be impractical and unfeasible. However, Plaintiff asserts that the Fulton, Kentucky location where Mr. Travis worked has been destroyed (although this is not mentioned in the record). It is aрparent that visits to premises would be impractical no matter where the trial was held, as all employees worked at locations across three states. Further, Plaintiff notes that the steam locomotives which Mr. Travis and other plaintiffs operated are no longer in use, and many have been destroyed. Thus, this is not a factor that weighs against Mississippi being a proper forum.
(D) Unnecessary Expense or Trouble to the Defendant Not Necessary to the Plaintiff's Own Right to Pursue His Remedy
¶ 34. In the case at bar, ICRR has offices within Mississiрpi and some of its witnesses are within the State. Unlike in Tircuit, trial in Mississippi would not "inflict upon [Defendant] expense over and above that necessarily incident to affording these Plaintiffs their right to pursue their FELA remedy."
(E) Administrative Difficulties for the Forum Courts
¶ 35. ICRR makes no new argument under this factor, other than to refer to the fact that witnesses and locations are outside of this State. It must be noted, however, that the documents regarding ICRR's removal of asbestos and several witnesses are within Mississippi, as well as numerous plaintiffs who are Mississippi residents and who worked in the Marshall County location. In Tircuit, we found that the administrative difficulties would be "enormous, if not insurmountable;" however, unlike Tircuit, the defendant sub judice has offices and witnesses that can be found within the State.
(F) Whether There Are Local Interests in Deciding the Case at Home
¶ 36. Again, this case is easily distinguishable from Tircuit where none of the plaintiffs were Mississippi residents, and none had been injured within Mississippi. In the case below, there are several residents of Mississippi and other plaintiffs whose causes of action occurred in whole or in part within Mississippi. Further, ICRR has long operated within this State. This gives rise to a loсal interest in deciding this case in Mississippi, and having Plaintiff Travis joined should not remove this local interest.
(G) Plaintiff's Forum Should Rarely Be Disturbed
¶ 37. This factor is discussed in Tircuit:
While, unless the balance is strongly in favor of the defendant, the choice of a plaintiff who is a resident of the forum "should rarely be disturbed," deference to the plaintiff is less compelling when the plaintiff is a non-resident. There is no reason to assume a non-resident plaintiff will choose a foreign forum for purposes of convenience.
Id. at 882.
¶ 38. In the case below, Plaintiff Travis is a non-resident, and thus her choice is less comрelling. However, this Court recognized that while a non-resident plaintiff's choice of venue may receive less deference, this does not mean that their choice is given no deference. Metropolitan Life Ins. Co. v. Aetna Cas. & Sur. Co.,
*939 CONCLUSION
¶ 39. We find that joinder was appropriate under Rule 20(a) of the Mississippi Rules of Civil Procedure, and venue that is proper to one plaintiff is proper for all under Rule 82(c). Thus, it was appropriate, and not an abuse of discretion, for the trial court to deny the motion to dismiss as to the improper joinder and improper venue claims. Finally, the trial court's finding as to the claim of forum non conveniens is not clearly erroneous. Based on these findings, we affirm the trial court's denial of ICRR's motion to dismiss Plaintiff Travis's claim, and we remand this case to the trial court for further proceedings consistent with this opinion.
¶ 40. AFFIRMED AND REMANDED.
PITTMAN, C.J., McRAE, P.J., WALLER, COBB, DIAZ, EASLEY, CARLSON AND GRAVES, JJ., CONCUR.