Lead Opinion
We are called upon in this case to determine the scope of a trial court’s authority to transfer a case based on the doctrine of forum non conveniens as codified in Maryland Rule 2-327(c). For the reasons discussed below, we hold that a trial court may not sua sponte transfer a case on the grounds of forum non conveniens. Nevertheless, because the defendants in the instant case adequately raised that issue by filing their motion to dismiss or to transfer, we hold that the trial judge did not abuse his discretion in transferring this case to Montgomery County.
I.
This appeal arises out of a tort action filed by Angela Simmons, and her children, Sharon, David, and Mark Simmons, in the Circuit Court for Prince George’s County against Joann Urquhart, M.D., William Tullner, M.D.,
Mr. Simmons visited MCA’s office on February 25, 1987 complaining of chest pains.
While Mr. Simmons was still in the hospital, Dr. Tullner left town to attend a medical convention and Dr. Urquhart took over the care of Mr. Simmons. Dr. Urquhart discharged Mr. Simmons from the hospital on the evening of March 9, 1987. Prior to discharging Mr. Simmons, Dr. Urquhart examined his chart, examined his heart and lungs, provided him with routine discharge instructions, and prescribed several medications. Dr. Urquhart did not specifically inform Mr. Simmons of the potential complications from the cardiac catheterization, such as pain and fever, which are associated with a potentially fatal condition known as pulmonary embolization. Dr. Urquhart did, however, advise Mr. Simmons to call her if he experienced any problems. On March 13, 1987, Mr. Simmons died of a pulmonary embolism at Greater Laurel Belts-ville Hospital in Prince George’s County.
Subsequently, plaintiffs filed a wrongful death and survival action with the Health Claims Arbitration Office. Prior to proceeding with the claim, the parties waived arbitration and filed a complaint for wrongful death and survival in the Circuit Court for Prince George’s County. Soon after the lawsuit was filed, the defendants filed a Motion to Dismiss, or, in the Alternative, Motion to Transfer to the Circuit Court for
Defendants claimed that any “contacts” arising in this case occurred in Montgomery County and that viewing the “totality of the circumstances” the case should be transferred to Montgomery County for trial. Defendants’ counsel noted that all three physicians associated with MCA resided in Montgomery County;
“The Court has reviewed 6-201 and 6-202 [Md.Code (1974, 1995 Repl.Vol.), Courts and Judicial Proceedings Article] as well as heard the arguments of counsel and read the memorandums and as well as the exhibits and the Court feels that the motion for—obviously I’m not going to dismiss the case, but I do believe it should be transferred to Montgomery County and I will sign an order to that effect.”
The case was transferred to the Circuit Court for Montgomery County and the trial was held before Judge J. James McKenna. At trial, the respective parties recited contradictory versions of the events leading up to the death of Mr. Simmons.
According to the testimony of Mrs. Simmons, Mr. Simmons repeatedly called MCA’s office in an attempt to reach Dr. Urquhart. Notes taken by Sharon Siegler, MCA’s Bethesda office manager, on March 10, 1987 state that Mr. Simmons telephoned the MCA office and told her that he was experiencing some pain in the left side of his stomach and had a fever. After another telephone call from Mr. Simmons, Ms. Siegler wrote another note which stated “hematoma from cath.” and “fever” and “pain.” Plaintiffs claim that despite these repeated attempts to reach Dr. Urquhart, she never returned Mr. Simmons’s calls until March 12, 1987.
To further support plaintiffs’ claim that Mr. Simmons could not reach Dr. Urquhart, Dr. Wayman W. Cheetham, M.D., Mr. Simmons’s diabetes physician, testified that Mr. Simmons called him about the symptoms he was experiencing following
According to the testimony of Ms. Siegler and Dr. Urquhart they repeatedly urged Mr. Simmons to seek medical attention and he refused. Dr. Urquhart testified that she spoke with Mr. Simmons on the telephone on the evenings of March 11 and March 12, 1987. Dr. Urquhart testified then when she called Mr. Simmons from her home on the evening of March 11 he described his symptoms and she asked him to feel for his femoral artery. Mr. Simmons informed her that it hurt him when he felt it. She stated that she told Mr. Simmons that he may have a hematoma and that “he must go to the emergency room at Washington Adventist Hospital.” Mr. Simmons refused to go to the emergency room despite Dr. Urquhart’s warning that he had “a life-threatening problem.” Dr. Urquhart told Mr. Simmons that if he did not go to the emergency room then he “must come for [his] visit tomorrow” at the Bethesda office. According to Dr. Urquhart, Mr. Simmons agreed to come to MCA’s Bethesda office but when he did not arrive for his appointment on the morning of March 12, an office staff member called him and he said “he didn’t come because he felt better.”
The respective parties also had contradictory versions of a telephone conversation that took place between Mr. Simmons and Dr. Urquhart on March 12, 1987, the evening before Mr. Simmons’s death. According to Mrs. Simmons’s testimony, she listened to that conversation on an extension phone. She
According to Dr. Urquhart, however, Mr. Simmons informed her that his femoral artery “hurt when he pressed” it and she told him that he “must go to the emergency room at Washington Adventist” Hospital. Dr. Urquhart further testified that after Mr. Simmons refused to go to the emergency room, she told Mr. Simmons that “he must see Dr. Tullner the first thing in the morning in his Laurel office” and Mr. Simmons agreed. Mr. Simmons never came to this appoint^ ment, as his death occurred early the next morning.
After the evidence was presented at trial, the plaintiffs submitted a jury instruction regarding the doctrine of last clear chance, arguing that if Dr. Urquhart had advised Mr. Simmons on March 12, 1987 that his symptoms were life-threatening, it would have been a new opportunity to avoid her original negligence. Thus, plaintiffs argued that because Dr. Urquhart had a last clear chance to avoid her negligence but did not do so, the jury should be instructed that even if it found Mr. Simmons contributorily negligent, if it found that Dr. Urquhart had the last clear chance to avoid her negligence
“[Tjhere is a good deal of evidence that shows that the deceased, had he gone to the hospital, ... that he still could have avoided this and he still would have lived, but he didn’t.
He did not go to the hospital despite the fact that his wife told him to do it.... Dr. Cheetham told him to go to the hospital....
But, he didn’t do anything---- So, in my view, last clear chance simply would not apply.”
The jury returned a verdict of negligence on the part of Dr. Urquhart and contributory negligence on the part of Mr. Simmons and judgment was entered in favor of defendants.
Plaintiffs appealed to the Court of Special Appeals which reversed the judgment of the circuit court and held that “the Circuit Court for Prince George’s County abused its discretion in transferring the action” to Montgomery County. Simmons v. Urquhart,
II.
In holding that the trial court abused its discretion in transferring the instant action to Montgomery County, the Court of Special Appeals first determined that a trial court possesses the authority to sua sponte transfer an action under Md.Rule 2-327(c). The Court of Special Appeals held that although defendants filed a motion to dismiss or to transfer
Maryland Rule 2-327(c) permits a trial court to transfer an action on the grounds of forum non conveniens upon motion of any party when it appears that it would be more convenient for the parties and witnesses to have the case heard in another appropriate venue and the interests of justice would be served. See Md.Rule 2-327(c). This rule permits an action to be transferred to another appropriate venue even though a plaintiffs choice of venue is proper. Md.Rule 2-327(c) provides:
“(c) Convenience of the Parties and Witnesses.—On motion of any party, the court may transfer any action to any other circuit court where the action might have been brought if the transfer is for the convenience of the parties and witnesses and serves the interests of justice.”
In reaching its determination that a trial court has the authority to sua sponte transfer an action on the grounds of forum non conveniens, the Court of Special Appeals relied on several sources. One of those sources was 28 U.S.C. § 1404(a) (1982), from which Md.Rule 2-327(c) is derived. See Md.Rule
“For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.”
It has been held that federal courts have wide discretion in transferring an action under 28 U.S.C. § 1404(a) on their own initiative. See, e.g., Wash. Pub. Util. Group v. U.S. Dist. Court,
The Court of Special Appeals emphasized the fact that because federal courts are permitted to act sua sponte in transferring an action under 28 U.S.C. § 1404(a) and because Md.Rule 2-327(c) was derived from that statute, it follows that a Maryland trial court should have the authority to transfer an action on the grounds of forum non conveniens on its own initiative. Notwithstanding the fact that Md.Rule 2-327(c) was derived from 28 U.S.C. § 1404(a), an examination of the language of the two statutes reveals a significant difference between 28 U.S.C. § 1404(a) and Md.Rule 2-327(c). While 28 U.S.C. § 1404(a) contains no language requiring a party to make a motion to transfer prior to the action being transferred to another forum, Md.Rule 2-327(c) conspicuously added the language “[o]n motion of any party,” while adopting a virtually identical version of 28 U.S.C. § 1404(a) in all other
The Court of Special Appeals also noted that because sections (a), (b) and (d) of Md.Rule 2-327 permit a trial court to act on its own initiative in transferring an action, it follows that section (c) also permits a trial court to act on its own initiative. See Simmons,
The intermediate appellate court also found that this Court’s decision in Goins v. State,
In the instant case, however, it is not merely the use of the word “party” that indicates that a court is precluded from sua sponte transferring an action. The Rules Committee specifically recommended to this Court that the “[o]n motion of any party” language be added to Md.Rule 2-327(c) even though the rule was derived from 28 U.S.C. § 1404(a) which does not contain such restrictive language. Thus, the decision in Goins is not particularly persuasive in the instant case given that the clear language of Md.Rule 2-327(c) requires a motion by a party prior to an action being transferred to another forum.
In a post-Goins decision addressing a trial court’s authority to act sua sponte, we held that a trial court lacks the authority to sua sponte grant a motion for summary judgment under Md.Rule 2-501. See Hartford Ins. Co. v. Manor Inn,
Finally, although federal courts have interpreted 28 U.S.C. § 1404(a) to permit a trial court to sua sponte transfer an action on the grounds of forum non conveniens, our determination that Md.Rule 2-327(c) does not permit an action to be transferred absent a motion by a party is in line with other state courts which have held that a trial court does not have the authority to transfer an action absent a motion by a party requesting a transfer. In Stevens v. Blevins,
Thus, we hold that because the express language of Md. Rule 2-327(c) requires that a party first make a motion prior to a case being transferred on the grounds of forum non conveniens, a trial court may not act on its own initiative in transferring a case under that rule.
III.
In the instant case, as we noted above, there was a motion filed by the defendants to transfer this action to Montgomery County. Although defendants relied on §§ 6-201 and 6-202, rather than Md.Rule 2-327(c) in their motion to transfer, we find that defendants’ motion to transfer was sufficient to permit a transfer for forum non conveniens and thus, the trial court did not sua sponte transfer this action under Md.Rule 2-327(c).
In his argument to have the instant case transferred to Montgomery County, defense counsel outlined all of the contacts with Montgomery County such as the telephone calls that took place between Dr. Urquhart and Mr. Simmons from Dr. Urquhart’s office in Montgomery County, the telephone calls between Dr. Cheetham and Mr. Simmons from Dr. Cheetham’s Montgomery County office, the fact that the cardiac catheterization took place in Montgomery County, and the fact that the defendants all reside in Montgomery County.
In responding to the forum non conveniens argument, plaintiff’s counsel noted that the issue should not be addressed because defendants “have not raised that doctrine [and] I have not briefed it, but I would indicate that that doctrine should not be literally applied.”
We have held that “[wjhen determining whether a transfer of the action for the convenience of the parties and witnesses is in the interest of justice, a court is vested with wide discretion.” Odenton Development v. Lamy,
The intermediate appellate court relied on our opinion in Odenton Development to reach its conclusion that the trial court abused its discretion in transferring this case to Montgomery County. In Odenton Development, we adopted a balancing test to determine whether a transfer is proper under Md.Rule 2-327(c). In ascertaining whether to transfer an action a trial court “ ‘must weigh in the balance the convenience of the witnesses and those public-interest factors of systemic integrity and fairness that, in addition to private concerns, come under the heading of “the interest of justice.” ’ ” Odenton Development,
Balancing the convenience of the parties and witnesses in the instant case along with the interests of justice, the trial court was within its discretion in determining that the balance weighs strongly in favor of transferring the action to Montgomery County. Based on the arguments presented at the hearing on defendants’ motion to dismiss or to transfer, there was ample evidence for the trial court to determine that it would be more convenient for the parties and witnesses to have this action tried in Montgomery County and that transferring the case would serve the interests of justice. First, it was established that each of the individual defendants was a resident of Montgomery County. Second, the relevant medical care and treatment received by Mr. Simmons took place in Montgomery County, including the cardiac catheterization performed at Washington Adventist Hospital.
Third, the telephone conversations between Mr. Simmons and Dr. Urquhart and between Mr. Simmons and MCA’s office staff took place through MCA’s office in Montgomery County. Also, the calls between Mr. Simmons and Dr. Cheetham took place through Dr. Cheetham’s office in Montgomery County.
We also note that, although the Court of Special Appeals suggested that the witnesses residing in Prince George’s County outnumbered those residing in Montgomery County, see Simmons,
IV.
The Court of Special Appeals determined that the forum non conveniens transfer to Montgomery County was an abuse
The Court of Special Appeals stated that “[wjhile we do not decide whether it was error for the court, on this record, to have refused to have given the requested instruction, we note that the trial court’s reasoning for its refusal was inappropriate.” See Simmons,
We note that in the instant case, the trial court’s determination not to give a last clear chance instruction may have been based on the assumption that Mr. Simmons’s negligence, if any, whs his continued refusal to go to the emergency room or to seek medical attention after his telephone conversation with Dr. Urquhart, as well as the evidence that it was this continued refusal to seek medical attention that was a contributing cause of his death. If the jury in the instant case found that Dr. Urquhart’s telephone call of March 12,1987 reassured Mr. Simmons that his symptoms did not require medical attention, that may be relevant to the issue of whether Mr. Simmons ceased to be negligent because of such reassurance, rather than the issue of last clear chance. Mr. Simmons was still experiencing the same or more severe symptoms after Dr. Urquhart’s telephone call and he continued to refuse to seek medical attention after that telephone call. The trial court pointed out that the evidence established that if Mr. Simmons had gone to the hospital “within one-half hour or an hour of the time that he actually died, that he still ... would have
V.
We hold that a trial court may not sua sponte transfer a case on the grounds of forum non conveniens. In this case, however, because there was a motion to transfer filed by the defendants, that issue was not initially raised by the trial judge. We also hold that the trial court did not abuse its discretion in transferring this action to Montgomery County.
JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE PAID BY RESPONDENTS.
Notes
. Dr. Tullner was dismissed from this case prior to trial.
. At the time of the events in the instant case, MCA maintained three offices. Two offices were located in Montgomery County in Bethesda and Silver Spring and one office was located in Laurel in Prince George’s County. Dr. Tullner and Dr. Urquhart had privileges at hospitals located in both Montgomery and Prince George’s Counties.
. Unless otherwise specified, all references to §§ 6-201 and 6-202 are to Maryland Code (1974, 1995 Repl.VoL), Courts and Judicial Proceedings Article. Section 6-201 provides in pertinent part:
"(a) Civil actions.—Subject to the provisions of §§ 6-202 and 6-203 and unless otherwise provided by law, a civil action shall be brought in a county where the defendant resides, carries on a regular business, is employed, or habitually engages in a vocation. In addition, a corporation also may be sued where it maintains its principal offices in the State.”
Section 6-202(8) provides that a tort action may also be filed “[w]here the cause of action arose.”
. Although Dr. Urquhart was residing in the District of Columbia at the time the cause of action in the instant case arose, she subsequently moved to Montgomery County.
. We note that the parties do not dispute that either Prince George's County or Montgomery County were proper venues for the instant action because the defendants ‘‘carrie[d] on regular business” in both of those counties. See Maryland Code (1974, 1995 Repl.Vol.), Courts and Judicial Proceedings Article, § 6-201 (a).
. Plaintiff's counsel did not request a continuance to allow the parties to brief the issue of forum non conveniens.
. We note that the Court of Special Appeals adopted from federal case law the additional factor of "proper regard for the plaintiff's choice of forum.” See Simmons v. Urquhart,
. The Court of Special Appeals indicates that the telephone calls Mr. Simmons made to the various doctors’ offices in Montgomery County were placed from Mr. Simmons’s home in Prince George’s County. See Simmons v. Urquhart,
Dissenting Opinion
dissenting:
I agree with the holding of the Court that a trial judge may not raise the issue of forum non conveniens on its own initiative. As the Court concludes today, Maryland Rule 2-327(c) requires a motion by a party prior to the transfer of a case on grounds of forum non conveniens. I disagree with the majority’s resolution of this case, however, because I believe that there was no motion before the court for transfer of the cause on grounds of forum non conveniens and that there is no sound basis in the record for finding that the trial court treated the motion before it as a motion under Rule 2-327(c). To the extent that the Court attempts to supply such a reason, I part ways with the majority opinion.
Under the circumstances of this case, there are three conceivable grounds for the transfer of the action to Montgomery County. The first ground, which was raised by the defendant in the Circuit Court for Prince George’s County, would be venue. It is undisputed at this point, however, that venue in Prince George’s County was proper; consequently, any transfer on the basis of venue was error.
Finally, the trial court could interpret the defense’s motion to dismiss or transfer for improper venue as a motion to transfer on the basis of forum non conveniens. In this case, when the trial court expressly asked defense counsel whether he intended to make a forum non conveniens argument, counsel did not say yes, but rather that one “could probably draw that analogy.” It appears to me that counsel’s answer represented a disavowal of any reliance on forum non conveniens.
Nonetheless, I am willing to assume, as the majority does, that defense counsel’s response was a plausible basis for construing the defendant’s motion as an effort to invoke the court’s discretion to transfer on the basis of forum non conveniens. There are two problems with this resolution of the case, however. The first problem was noted by the plaintiffs attorney, who told the court during oral argument on the venue motion, “Your honor tries to get the—to find out if the defendant is trying to argue something like forum non conveniens, but they have not raised that doctrine. I have not briefed it____” The plaintiff argued, and I agree, that a motion based on improper venue and one based on forum non conveniens are procedurally distinct, and thus require different supporting arguments. Consequently, because the defendant’s motion was expressly based on venue and the trial court never indicated that it was deciding the case based on forum non conveniens, the plaintiff never had a fair opportunity to brief and argue this issue.
The second problem with construing the defendant’s venue motion as a forum non conveniens motion is that the trial court did not follow this path. That the court decided this case on venue grounds is evident from the oral ruling at the conclusion of the argument:
*23 The Court has reviewed 6-201 and 6-202 [venue provisions in the Courts and Judicial Proceedings Article] as well as heard the arguments of counsel and read the memorandums and as well as the exhibits and the Court feels that the motion for—obviously Pm not going to dismiss the case, but I do believe it should be transferred to Montgomery County and I will sign an order to that effect.
Consequently, at the trial level, there were no findings of fact or balancing by the court of the factors bearing on whether the court should transfer the case based on the doctrine of forum non conveniens. In Odenton Development v. Lamy,
The decision to transfer should be reversed, because venue in Prince George’s County was proper and a motion for transfer on the grounds of forum non conveniens was lacking. Since the choice of the forum belongs to the plaintiff, that choice should not be disturbed lightly. Restatement (Second) of Conflict of Laws § 84 cmt. c (1971), quoted in Johnson v. Searle,
Accordingly, I would affirm the mandate, though not the reasoning, of the Court of Special Appeals and order a new trial of this cause in the Circuit Court for Prince George’s County.
Judge Bell has authorized me to state that he joins in the views expressed herein.