The petitioner, the Colorado Department of Highways (department), initiated this original proceeding under C.A.R. 21 to prohibit the Denver District Court (respondent) from further proceeding in a negligence action filed against the department on the ground that the respondent abused its discretion in denying the department’s motion to change venue. The department’s motion was filed pursuant to C.R.C.P. 98(f), which authorizes the court to change the place of trial for the convenience of witnesses. We issued a rule to show cause and now make the rule absolute.
The plaintiffs in the pending negligence action are Mary K. Feldman and Mark Feldman.
Prior to the setting of the case for trial, the department filed a motion to change venue to the district court of Kit Carson County.
The Feldmans filed a response to the motion, asserting that they and their medical witnesses reside in Denver. The respondent court denied the motion to change venue because, in its view, the narrow limitation placed on the doctrine of forum non conveniens by this court’s decision in McDonnell-Douglas Corp. v. Lohn,
The doctrine of forum non conven-iens generally refers to the power of a court to dismiss a case because the forum chosen would seriously inconvenience a party and a more convenient forum is available in some other jurisdiction for the resolution of the controversy. See, e. g., Gulf Oil Corp. v. Gilbert,
C.R.C.P. 98(f) provides that “[t]he court may, on good cause shown, change the place of trial ... when the convenience of witnesses and the ends of justice would be promoted by the change.” The motion is addressed to the sound discretion of the court and “the movant must show, through affidavit or evidence, the identity of the witnesses, the nature, materiality and admissibility of their testimony, and how the witnesses would be better accommodated by the requested change in venue.” Sampson v. District Court,
In this case the department demonstrated by affidavit that its witnesses, who were substantial in number, would be better accommodated by the change of venue to the district court of Kit Carson County. The inconvenience to the department’s wit
The respondent court’s mistaken belief that it lacked the authority to grant the department’s motion for change of venue prohibited it from exercising a reasonable discretion in resolving the motion. The motion should be resolved expeditiously by the court on the basis of “the convenience of witnesses and the ends of justice.” C.R. C.P. 98(f). The court may permit the parties to present additional evidence on the motion by affidavit or testimony.
The rule to show cause is made absolute and the district court is instructed to proceed in accordance with the views expressed herein.
Notes
. The pleadings filed in this court do not include a copy of the complaint. We assume, however, that Mark Feldman is the husband of Mary Feldman. Our recitation of the allegations in the complaint is based on the statements contained in the pleadings filed in this proceeding.
. Under C.R.C.P. 98(e) a motion to change venue ordinarily must be filed within the time permitted for the filing of motions under C.R. C.P. 12(b)(1) to (4), that is within 20 days after the service of the summons and complaint; otherwise, it is deemed waived. However, C.R. C.P. 98(e) expressly excepts from these filing requirements a motion to change venue based on the convenience of witnesses, which may be filed “prior to the time a case is set for trial ... unless the court, in its discretion, upon motion filed or of its own motion, finds that a change of venue should be ordered.”
