SER American Electric Power v. Hon. David W. Nibert, Judge ( 2016 )

No. 15-0819 – State of West Virginia ex rel. American Electric Power Co., Inc. v. The
Honorable David W. Nibert et al.
FILED
LOUGHRY, Justice, dissenting: February 10, 2016
released at 3:00 p.m.
RORY L. PERRY, II CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Given the preponderance of factors that weigh heavily in favor of resolving
the underlying action in our sister state of Ohio, the majority’s decision rests on decidedly
infirm grounds and, as a consequence, I am compelled to dissent. In affirming the circuit
court’s refusal to dismiss the underlying action on grounds of forum non conveniens, the
majority adopted the circuit court’s improper focus on the existence of minimal contacts with
this state while intentionally overlooking the clear indicia which demonstrate that Ohio, and
not West Virginia, is the preferred forum for this matter based on the controlling statutory
factors. See W.Va. Code § 56-1-1a (2012).
At the center of the suit below are allegations of harm arising from exposure
to fly ash at a landfill in Gallia County, Ohio, where the plaintiffs or their family members
worked. Nine of the seventy-seven plaintiffs are residents of West Virginia; fifty-six of the
plaintiffs are residents of Ohio.1 In making its decision that the action should remain in West
Virginia, the circuit court confused notions of general venue with the principle at issue:
whether there is a more appropriate forum outside this state to try the underlying case. Of
1
The remaining twelve plaintiffs reside in Kentucky or elsewhere.
1
further and critical import is the trial court’s mistaken notion that the doctrine of forum non
conveniens does not apply when one of the plaintiffs is a resident of the forum in which the
lawsuit is filed. Because the trial court’s ruling is replete with both procedural and
substantive error, the majority’s refusal to issue the writ of prohibition sought by the
petitioners only served to exacerbate that error.
The circuit court’s misdirected analysis began with its identification of Abbott
v. Owens-Corning Fiberglass Corp., 191 W.Va. 198, 444 S.E.2d 285 (1994), superseded by
statute as stated in State ex rel. Ford Motor Co. v. Nibert, 235 W.Va. 235, 773 S.E.2d 1
(2015), as “still controlling law” on the issue of forum non conveniens. Abbott–a decision
applying common law principles of forum non conveniens–was legislatively abrogated with
the enactment of West Virginia Code § 56-1-1a in 2007. See Nibert, 235 W.Va. at 240, 773
S.E.2d at 6 (remanding based on trial court’s failure to recognize that Abbott was superseded
by enactment of W.Va. Code § 56-1-1a); Mace v. Mylan Pharmaceuticals, Inc., 227 W.Va.
666, 671 n. 3, 714 S.E.2d 223, 228 n.3 (2011) (discussing common law doctrine of forum
non conveniens and subsequent codification of separate forum non conveniens statute in
response to Morris v. Crown Equip. Corp., 219 W.Va. 347, 633 S.E.2d 292 (2006)); accord
Savarese v. Allstate Ins. Co., 223 W.Va. 119, 122-23 n.8, 672 S.E.2d 255, 258-59 n.8 (2008).
While the circuit court also utilized the eight factors set forth in West Virginia Code § 56-1­
1a, the decision it reached was greatly influenced, and arguably tainted, by this Court’s pre­
2
statutory decision in Abbott.2 As this Court has made clear in our decisions issued after the
enactment of the forum non conveniens statute, the statute is the controlling and governing
law on whether “in the interest of justice and for the convenience of the parties” a case
should be “heard in a forum outside this State.” W.Va. Code § 56-1-1a(a); State ex rel.
Mylan v. Zakaib, 227 W.Va. 641, 649 n. 6, 713 S.E.2d 356, 364 n.6 (2011).
Through its decision, the majority has inexplicably and unwisely resurrected
the Abbott decision. Not once since the enactment of West Virginia Code § 56-1-1a has this
Court relied upon or even cited favorably to Abbott in resolving a motion for forum non
conveniens. With the adoption of our forum non conveniens statute, and the doctrine’s
codification, the common law precedent was superceded. Until now, this Court has been
clear in each of its decisions to reinforce the controlling effect of West Virginia Code § 56­
1-1a. Through its lengthy and repeated recitation of the trial court’s reasoning and its
multiple references to Abbott, the majority has arguably muddied the waters of statutory
forum non conveniens. While giving lip service to the fact that a forum non conveniens
motion is to be governed by statute and not “our cases decided before the promulgation of
2
Not only does the circuit court state at the outset of its ruling that it “finds the
reasoning in Abbott . . . persuasive,” but it further states that “Abbott is still controlling law.”
Among the repeated references to Abbott that appear in the ruling, the circuit court found that
“Abbott makes clear that a defendant seeking dismissal must provide a detailed showing of
the additional expenses incurred by litigating in West Virginia, and the expenses must be
substantial.” That court-imposed requirement of demonstrating a quantitative increase in
litigation costs does not appear in the statute. See W.Va. Code W.Va. Code § 56-1-1a.
3
said statute,”3 the majority, through its recurring approval of the trial court’s reasoning and
extensive quoting from that reasoning, appears to be sanctioning a continued and improper
reliance on Abbott.4 In marked contrast to the Court’s decision in Nibert, where remand was
required due to the absence of clear application of the statutory factors set forth in West
Virginia Code § 56-1-1a and improper reliance on Abbott, the majority does not call into
question the basis of the circuit court’s ruling despite the trial court’s repeated reliance on
non-controlling precedent.5 As a result, rather than steering the circuit courts of this state
away from Abbott, the majority seems to be, with a wink and a nod, suggesting that you may
apply this Court’s pre-statutory precedent as long as you throw in an obligatory mention of
the statutory factors.6
3
State of West Virginia ex rel. American Electric Power Co. et al. v. Honorable David
W. Nibert, No. 15-0819, __ W.Va. ___ n.5, __ S.E.2d ___ n.5 (W.Va. February 10, 2016).
4
I find it telling that despite the lip service given in footnote 5 to the statutory control
of this issue, the majority wholly avoids any criticism or even comment on the trial court’s
repeated reference to and reliance on Abbott.
5
I submit that you cannot discern from the face of the trial court’s order that the actual
basis for the ruling was West Virginia Code § 56-1-1a, rather than the Abbott decision. And,
in light of this error in applying the law, the petitioners correctly recognized that the standard
of review is de novo and not an abuse of discretion. See Nibert, 235 W.Va. at __, 773 S.E.2d
at 5 (applying de novo review where, as here, petitioners asked this Court to decide whether
the trial court “erroneously based its decision on the Abbott case”).
6
As an additional observation, this Court should not be “rewarding” attorneys who
wrongly cite to cases of limited or questionable application without acknowledgment and
thereby steer the trial courts in the wrong direction.
4
Besides its erroneous reliance on Abbott, the trial court’s order demonstrates
confusion with regard to applying principles of forum non conveniens. Citing to law that
was included in a previous venue statute,7 the trial court corrupted its ruling in this case with
an improper focus on matters of venue and joinder.8 Furthermore, the trial court discounted
the petitioners’ arguments with regard to the existence of an alternate forum based solely on
the existence of a West Virginia plaintiff. Numerous courts have applied the doctrine of
forum non conveniens when a resident’s suit is determined to have been filed in an
inconvenient forum. See, e.g., Davis v. Davis, 957 A.2d 576 (D.C. 2008) (affirming
dismissal of resident’s suit against Mississippi defendant on grounds of forum non
conveniens where alternate forum determined to have more connection to matters in dispute);
Warlop v. Lernout, 473 F. Supp. 2d 260 (D. Mass. 2007) (granting forum non conveniens
motion despite presence of resident class members); V.G. Marina Mgmt. Corp. v. Wiener,
787 N.E.2d 344 (Ill. App. 2003) (affirming dismissal of resident’s suit on forum non
conveniens grounds); New Amsterdam Cas. Co. v. Estes, 228 N.E.2d 440, 445 (1967)
(observing that suits by state’s residents are “subject to the considerations of policy
underlying the doctrine of forum non conveniens” and are not “shield[ed] . . . from the
operation of that doctrine”).
7
W.Va. Code § 56-1-1(c) (2003).
8
By definition, as we explained in syllabus point eight of Mace, “dismissal of a claim
or action on the basis of forum non conveniens presupposes at least two forums in which the
defendant is amenable to process.” 227 W.Va. at 668, 714 S.E.2d at 225.
5
Turning to the statutory factors that control the outcome of this case, only three
of the eight factors were in dispute. This is because the plaintiffs, as the record demonstrates,
had conceded factors (1) the existence of an alternate forum; (3) that the alternate forum
could exercise jurisdiction over the parties; (4) the state in which the plaintiff(s) reside; (5)
the state in which the cause of action accrued; and (8) that the alternate forum provides a
remedy. Consequently, the only statutory factors that were truly disputed on the issue of
whether this case should be tried in Ohio, were factors (2) whether maintenance of the action
in West Virginia would work a substantial injustice to the petitioners; (6) whether the balance
of the private interests of the parties and the public interest of West Virginia predominate
in favor of the action being tried in Ohio; and (7) whether dismissing the claim would result
in unreasonable duplication or proliferation of litigation.
Beginning with factor two, the circuit court and the majority simply got it
wrong. The only basis given by the trial court for its ruling on this factor was the existence
of a West Virginia defendant and the amenability of the defendants to personal jurisdiction.
Rather than addressing the wholesale inapplicability of venue concerns to a factor predicated
on the issue of whether the defendants would be judicially harmed by maintenance of the
suit in West Virginia, the majority chose instead to contrast the facts of this case to previous
6
forum non conveniens cases.9 Falling into the net improperly cast by the respondents, the
majority seized upon a minimum contacts analysis,10 by mentioning the ties of the petitioners
to this state and then proceeding to spell out the mileage between the court houses to the situs
of the alleged exposure.11 In taking this tack, the majority goes seriously astray of the subject
factor.
In support of the factor aimed at examining the possibility of substantial
injustice, the petitioners argued to the circuit court that the respondents’ complaint involves
novel legal theories and issues of first impression that have yet to be decided by the state of
Ohio. There is no dispute that the substantive law of Ohio law, and not West Virginia law,
will govern this matter as the situs of the cause of action exists in and is confined to Ohio.
As a result, the petitioners argued below that the need to involve the Ohio courts to resolve
9
These cases, as we recognized in State ex rel. North River Insurance Co. v. Chafin,
233 W.Va. 289, 295, 758 S.E.2d 109, 115 (2014), will always turn on a unique set of facts
and thus the weight to be attributed to any one factor will vary substantially.
10
Such an analysis would only be relevant if the issue was one of jurisdiction but it is
not. The defendants are not challenging the reach of the West Virginia courts in terms of
jurisdiction; their challenge is predicated solely on the existence of a more appropriate forum.
11
It stands to reason that a mileage differential has little to no bearing on the issues
relative to trying this matter that are rooted in compulsory process. This state’s procedural
rules are wholly inapplicable with regard to the issuance of subpoenas to Ohio residents.
And while the Ohio plaintiffs may be willing to travel to West Virginia, there may be
numerous former AEP employees who are Ohio residents who are unwilling to participate
in a trial in this action. Those are the types of factors that the majority should have addressed
rather than the state of equipoise with regard to the distance between the opposing court
houses and the landfill.
7
matters of undecided law would cause further delays in the litigation of this matter in West
Virginia. Deferring heavily to the circuit court on this issue, the majority simply deemed the
trial court the best judge both with regard to the management of its docket and to its
professed ability to apply Ohio law.
The sixth factor requires a balancing of the private interests of the parties and
the public interest of West Virginia in maintaining this action. This statutory factor sets forth
multiple issues for consideration and begins with an examination of whether the subject
“injury or death resulted from acts of omissions that occurred in this state.” W.Va. Code §
56-1-1a(a)(6). Identifying the private interests that relate to trying the case in this state, the
statute enumerates a litany of litigation-related concerns such as the ease of access to sources
of proof; the availability of compulsory process for attendance of unwilling witnesses; the
cost of obtaining attendance of willing witnesses; the possibility of a view of the premises;
and “all other practical problems that make trial of a case easy, expeditious and inexpensive.”
Id. (emphasis supplied). Glossing over both the additional expense and the additional time
required to seek out-of-state subpoenas from the Ohio courts, the trial court faults the
petitioners for not identifying a sum specific for its additional expenses to try this case in
West Virginia and declares that the private factors tip the scale in favor of the respondents.
The majority’s agreement with the trial court on this issue demonstrates a woeful ignorance
of what is involved in gathering evidence and trying a case of this size. Viewing the
8
production of witnesses and evidence as a minor matter, easily accomplished by virtue of the
voluntary submission of the Ohio plaintiffs to the jurisdiction of this state, the majority
effectively ignores the issue of compulsory compliance. The statute seeks to determine the
costs of compelling the unwilling witnesses, not the willing witnesses. See id. The plaintiffs
are not the parties that the petitioners will have difficulty compelling: it is the former plant
employees and any lay and medical witness who are beyond the subpoena power of the West
Virginia courts that will present problems.12 Simply put, the majority, like the circuit court,
categorically dismissed any real concern for the increased costs or difficulties that the
petitioners will incur in trying this case in West Virginia.
Turning to the second part of factor six–the public interest that this state has
in maintaining the cause of action–requires an examination of administrative difficulties
related to maintaining the action in this state,13 the interest in having localized controversies
decided within this state, the avoidance of unnecessary problems in conflict of laws or in the
application of foreign laws,14 and the unfairness of burdening citizens in an unrelated forum
12
The respondents conceded that many non-party witnesses reside in Ohio and thus
will not be subject to this state’s compulsory process.
13
See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09 (1947) (defining judicial
administration to include removal of cases bearing no relationship to locality from forum
court’s docket and avoiding unnecessary interpretation of another jurisdiction’s laws).
14
As already discussed above, the need to rely exclusively upon Ohio law and the
involvement of issues that are likely to require certification to the Ohio Supreme Court for
resolution, clearly bodes against West Virginia retaining this case.
9
with jury duty. W.Va. Code § 56-1-1a(a)(6). Missing the boat on this second aspect of
factor six also, the majority buys lock, stock and barrel into the faulty reasoning of the trial
court. The trial court opined that Mason County citizens have a right to decide this case
because, they too, have been subjected to exposure to coal combustion waste. In framing the
issue of whether a West Virginia jury has an interest in this matter in personal terms that are
patently beyond the scope of the allegations–exposure from a landfill rather than ambient air
exposure from coal-fired power plants–the circuit court and then the majority have gone
seriously astray of the statutory objective. The legislatively-declared focus in a motion for
forum non conveniens is to decide whether it makes sense to try this matter in West Virginia
in comparison to the alternate available forum. As the petitioners rightly observe: “No good
reason exists for a West Virginia jury to be called upon to decide a case which originated in
Ohio, must be decided under Ohio law, and involves only 9 of 77 plaintiffs who reside in
West Virginia.”
The final contested factor–number seven–looks at whether a dismissal would
result in unreasonable duplication or proliferation of litigation. In making its finding on this
factor, the trial court again displayed its misapprehension that this case could not be
dismissed under the general venue statute–W.Va. Code § 56-1-1. That finding is clearly
unrelated to the issue of duplicative litigation. As a result, the trial court’s finding on the
issue of duplicative costs–that the majority rubber stamped–is seriously flawed. Other than
10
the initial costs related to the refiling of the action in Ohio, there is little reason to believe
that the costs of trying this action just miles away from its initial filing would greatly increase
the overall costs of this litigation or unnecessarily delay its resolution.
When the focus is properly framed on the correct issues–where this case should
be tried given the location of the alleged injury-causing event in view of the quantity of out­
of-state plaintiffs and the clear need to employ both substantive and procedural Ohio laws
to try this matter–there is only one conclusion. Ohio is the obvious answer. For this Court
to affirm the lower court’s decision raises the unwelcome hint of “home cooking” and forum
shopping: two constructs that the majority of this Court should have taken more pains to
consider before casually approving the flawed reasoning and decision of the circuit court.
See Pollux Holding Ltd. v. Chase Manhattan Bank, 329 F.3d 64, 71 (2d Cir. 2003)
(commenting that deference afforded to plaintiff’s choice of forum is limited if there are
indicia of forum shopping).
As I previously observed in my dissent to Nibert, the forum non conveniens
statute is written in mandatory terms and directs a court to “decline to exercise jurisdiction
under the doctrine of forum non conveniens” when the movant demonstrates that there is an
alternative forum that is preferential in terms of serving the interests of justice and providing
for the convenience of the parties. W.Va. Code § 56-1-1a(a), Nibert, 235 W.Va. at __, 773
11
S.E.2d at 11 (Loughry, J., dissenting). The petitioners unquestionably demonstrated the
existence of an alternate forum which is, hands down, the preferred tribunal in which to
resolve the matters at issue in this case. The majority’s decision to deny the petitioners’
motion to dismiss on forum non conveniens grounds on the facts of this case was a judicial
mistake of lasting consequences. The finite judicial resources of this state will be required
to untangle this litigation that could best be handled by the courts of the state in which the
majority of the plaintiffs reside and in which the alleged tortious conduct undisputedly took
place. To volunteer to give away our scarce judicial resources and to require this state’s
citizens to give up either their work hours or their personal time to sit on a jury to consider
matters entrenched in Ohio law when Ohio could resolve this matter more expeditiously at
no cost to this state’s citizens was not only improvident but markedly myopic. See Gulf Oil
v. Gilbert, 330 U.S. 510, 508 (1947) (“Jury duty is a burden that ought not to be imposed
upon the people of a community which has no relation to the litigation.”). As a final
observation, a possible ramification from this decision is that border state employers may
simply decide not to employ our citizens if the end result is that West Virginia courts are
unwilling to dismiss cases that deserve to be tried in their states “in the interests of justice
and for the convenience of the parties.” W.Va. Code § 56-1-1a(a).
Accordingly, I respectfully dissent.
12