SER Airsquid Ventures, Inc. v. Hon. David W. Hummel, Jr. , 236 W. Va. 142 ( 2015 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2015 Term
FILED
__________ September 24, 2015
released at 3:00 p.m.
RORY L. PERRY II, CLERK
No. 15-0098 SUPREME COURT OF APPEALS
__________ OF WEST VIRGINIA
STATE OF WEST VIRGINIA, ex rel. AIRSQUID VENTURES, INC.
(D/B/A AMPHIBIOUS MEDICS), and TRAVIS PITTMAN,
Petitioners
v.
HONORABLE DAVID W. HUMMEL, JR., Judge of the Circuit Court
of Marshall County, MITA SENGUPTA, as Personal Representative
of the Estate of AVISHEK SENGUPTA, TOUGH MUDDER, LLC,
PEACEMAKER NATIONAL TRAINING CENTER, LLC,
GENERAL MILLS, INC., and GENERAL MILLS SALES, INC.,
Respondents
______________________________________________________
PETITION FOR WRIT OF PROHIBITION
WRIT GRANTED
________________________________________________________
AND
___________
No. 15-0102
____________
STATE OF WEST VIRGINIA ex rel. TOUGH MUDDER, LLC,
PEACEMAKER NATIONAL TRAINING CENTER, LLC, GENERAL
MILLS, INC., AND GENERAL MILLS SALES, INC.,
Petitioners
v.
HONORABLE DAVID W. HUMMEL, JR., Judge of the Circuit
Court of Marshall County, MITA SENGUPTA, as Personal
Representative of the Estate of AVISHEK SENGUPTA,
Respondents
______________________________________________________
PETITION FOR WRIT OF PROHIBITION
WRIT GRANTED
_______________________________________________________
Submitted: September 2, 2015
Filed: September 24, 2015
David L. Shuman, Esq.
Robert P. Fitzsimmons, Esq.
David L. Shuman, Jr., Esq.
Clayton J. Fitzsimmons, Esq.
Roberta F. Green, Esq.
Fitzsimmons Law Firm PLLC
Shuman, McCuskey & Slicer, P.L.L.C.
Wheeling, West Virginia
Charleston, West Virginia
Robert J. Gilbert (Pro Hac Vice)
Robert C. Morgan (Pro Hac Vice)
Edward J. Denn (Pro Hac Vice)
Morgan, Carlo, Downs & Everton, P.A.
Gilbert & Renton LLC
Hunt Valley, Maryland
Andover, Massachusetts
Counsel for Airsquid Ventures, Inc.
Counsel for Mita Sengupta
Karen Kahle, Esq.
Robert P. O’Brien (Pro Hac Vice)
Steptoe & Johnson PLLC
Jennifer M. Sullam (Pro Hac Vice)
Wheeling, West Virginia
Niles, Barton & Wilmer, LLP
Baltimore, Maryland
Charles F. Johns, Esq.
Denielle Stritch, Esq.
Robert N. Kelly (Pro Hac Vice)
Steptoe & Johnson PLLC
Michele L. Dearing, Esq.
Bridgeport, West Virginia
Jackson & Campbell, P.C.
Counsel for Travis Pittman
Washington, D.C.
Kathryn A. Grace. Esq.
Camille E. Shora, Esq.
Wilson, Elser, Moskowitz, Edelman &
Dicker, LLP
McLean, Virginia
Alonzo D. Washington, Esq.
Christopher M. Jones, Esq.
Flaherty Sensabaugh Bonasso PLLC
Morgantown, West Virginia
Counsel for Tough Mudder, Peacemaker
and General Mills
JUSTICE LOUGHRY delivered the Opinion of the Court.
JUSTICE DAVIS dissents and reserves the right to file a dissenting opinion.
JUSTICE BENJAMIN concurs and reserves the right to file a concurring opinion.
SYLLABUS BY THE COURT
A choice of laws provision in an agreement that provides for the substantive
laws of West Virginia to apply to disputes arising thereunder does not exclude the
procedural laws of this state from applying to a matter that will be resolved in this state’s
courts. The procedural laws of this state necessarily apply to matters that are brought in the
courts of West Virginia.
LOUGHRY, Justice:
Through this consolidated action, Airsquid Ventures, Inc. d/b/a Amphibious
Medics (“Airsquid”), Tough Mudder, LLC,1 Peacemaker National Training Center LLC
(“Peacemaker”), General Mills, Inc., and General Mills Sales, Inc. (collectively referred to
as “Tough Mudder Defendants” or “Defendants”) seek a writ of prohibition to prevent
enforcement of the January 9, 2015, order of the Circuit Court of Marshall County, through
which the court ruled that Marshall County was a proper venue for the underlying wrongful
death action. As grounds for relief, the Tough Mudder Defendants argue that the circuit
court misconstrued the language in an agreement which addressed “Venue and Jurisdiction”
and failed to apply the statutory factors set forth in West Virginia Code § 56-1-1 (2012)–this
state’s general venue statute. Had the circuit court employed the proper factors, the Tough
Mudder Defendants maintain that venue can be found to exist only in Berkeley County–the
situs of the event during which the drowning death that is at the center of the underlying
action occurred. Upon our review of the subject agreement that the decedent executed prior
to his drowning death and pursuant to the controlling statutory principles of venue which
govern this matter, we find that the Tough Mudder Defendants have demonstrated the
requisite grounds for issuance of a writ of prohibition.
1
Since the filing of this action, Tough Mudder LLC has redesignated its corporate
identity as Tough Mudder Incorporated.
1
I. Factual and Procedural Background
The decedent, Avishek Sengupta, was a participant in the Tough Mudder Mid-
Atlantic event (the “Event”) that took place on April 20, 2013, in Gerrardstown, Berkeley
County, West Virginia. Mr. Sengupta drowned while attempting to complete an obstacle
known as “Walk the Plank” that was part of the Event. Following Mr. Sengupta’s death,2
Mita Sengupta, his mother and personal representative, instituted a civil action3 in Marshall
County in which she avers that her son’s wrongful death was the result of gross negligence
and the negligent failure to either follow basic safety precautions or effectuate a minimally
competent rescue.4
Included in the complaint is a request for declaratory judgment5 as to the
enforceability of the document entitled “Assumption of Risk, Waiver of Liability, and
Indemnity Agreement Mid-Atlantic Spring – 2013” (the “Agreement”) that the decedent
2
He was taken off life support on April 21, 2013.
3
The complaint, filed on April 18, 2014, includes three counts: wrongful death;
unenforceability of arbitration clause; and unenforceability of waiver agreement.
4
Asserting claims against six different parties, Mrs. Sengupta alleges that Tough
Mudder had primary responsibility for participant safety; Airsquid was responsible for
providing safety personnel and services; Travis Pittman was the designated rescue diver;
Peacemaker participated in advertising, construction, and permitting of the Event; and the
two General Mills entities promoted and sponsored the Event.
5
A second request for declaratory relief involves the arbitration clause included in the
Agreement. The trial court’s ruling, refusing to submit this matter to arbitration, is the
subject of a separate appeal that has not yet been accepted to the docket of this Court.
2
executed prior to his participation in the Event. The Tough Mudder Defendants filed a
motion to dismiss the complaint based on the general venue statute, West Virginia Code §
56-1-1, as well as the venue provisions set forth in the Agreement. As an alternative to
dismissal, the Defendants requested that the matter be transferred to Berkeley County. On
August 22, 2014, the circuit court heard arguments on the venue-related issues.6
After observing that the issue of venue is a procedural question determined by
West Virginia law,7 the circuit court articulated its reasons for concluding that venue is
proper in Marshall County through its order of January 9, 2015. Citing language from the
Agreement, the circuit court opined that the Tough Mudder Defendants had “consented to
venue in any West Virginia court having subject matter jurisdiction over this case.” Since
Tough Mudder was the drafter of the Agreement, the circuit court observed that it easily
could have restricted venue to the county in which the Event occurred by utilizing more
specific terms. Given the provision of the Agreement which states that “only the substantive
laws of the State in which the TM Event is held shall apply,” the circuit court decided there
6
In addition to seeking dismissal or transfer due to improper venue, the Defendants
asserted that the matter should be transferred on grounds of forum non conveniens. Because
we resolve the matter before us on venue, we find it unnecessary to address the alternate
ground of forum non conveniens.
7
See State ex rel. Chemical Tank Lines, Inc. v. Davis, 141 W.Va. 488, 494-95, 93
S.E.2d 28, 32 (1956) (“Venue is procedural and statutes relating thereto are so treated.”);
accord State ex rel. Kenamond v. Warmuth, 179 W.Va. 230, 232, 366 S.E.2d 738, 740
(1988) (recognizing W.Va. Code § 56-1-1 as procedural statute relating to venue).
3
was no need to conduct the venue analysis otherwise required by the provisions of West
Virginia Code § 56-1-1.8
Airsquid filed the initial petition for a writ of prohibition seeking to prevent
enforcement of the January 9, 2015, order. The remaining Defendants subsequently filed
a similar petition seeking a writ of prohibition. By order entered on March 23, 2015, this
Court consolidated the two matters and allowed Mrs. Sengupta to file a singular response.
The Court issued a rule to show cause on April 7, 2015.
II. Standard of Review
As Justice Cleckley sagely exposited in State ex rel. Riffle v. Ranson, 195
W.Va. 121, 464 S.E.2d 763 (1995), the inadequacy of appellate relief in matters involving
“a substantial legal issue regarding venue” may require the resolution of such issues through
the exercise of original jurisdiction.9 See id. at 124, 464 S.E.2d at 766; accord State ex. rel.
Mylan, Inc. v. Zakaib, 227 W.Va. 641, 645, 713 S.E.2d 356, 360 (2011). Otherwise, as the
former jurist observed, this Court would be sanctioning the “potential of placing a litigant
8
Having declared venue to be a procedural matter, the circuit court concluded that the
procedural laws of this state were inapplicable given the provision in the Agreement that
declared this state’s laws controlling for substantive matters. The circuit court took the
position that by referencing only the substantive laws of this state as being applicable, the
Agreement necessarily excluded the application of this state’s procedural laws.
9
See W.Va. Const. art. VIII, § 3.
4
at an unwarranted disadvantage in a pending action.” Riffle, 195 W.Va. at 124, 464 S.E.2d
at 766 (internal quotations omitted). Because the Defendants have averred that the circuit
court both failed to consider the provisions of this state’s venue statute and misconstrued the
language of the venue section of the Agreement, we find it necessary to resolve this matter
pursuant to our grant of original jurisdiction. Our review of this matter is plenary. See id.;
see also Syl. Pt. 2, Caperton v. A.T. Massey Coal Co., 225 W.Va. 128, 690 S.E.2d 322(2009) (“Our review of the applicability and enforceability of a forum selection clause is de
novo.”).
III. Discussion
In ruling on this matter below, the trial court decided the issue of venue based
on the following language included in the Agreement:
Venue and Jurisdiction: I understand that if legal action is brought, the
appropriate state or federal trial court for the state in which the TM
Event is held has the sole and exclusive jurisdiction and that only the
substantive laws of the State in which the TM10 event is held shall
apply. (emphasis supplied and footnote added)
Patently eliding the critical article of speech (“the”) that precedes the term “appropriate,” the
trial court interpreted the Agreement as providing that venue is proper in any West Virginia
court that has subject matter jurisdiction. The Tough Mudder Defendants maintain that the
circuit court erred by altering “the” to “any” and thereby improperly rewrote the provision
10
Tough Mudder.
5
at issue.
As additional support for the extraordinary relief they seek, the Defendants
assert that Mrs. Sengupta has failed to identify any venue-determinative event associated
with Marshall County. They maintain that all of the acts or omissions relevant to the
complaint took place in Berkeley County. Not only do none of the Defendants reside in
Marshall County,11 but none of them conducts a substantial portion of its business in
Marshall County. Responding to Mrs. Sengupta’s contention that her selection of forum
should be honored, the Defendants refer to this Court’s recognition in State ex rel. Thornhill
Group, Inc. v. King, 233 W.Va. 564, 759 S.E.2d 795 (2014), that a “‘plaintiff’s choice [of
forum] is no longer the dominant factor that it was prior to [the] adoption of [W.Va. Code
§ 56-1-1.]’” 233 W.Va. at 570, 759 at 801 (quoting State ex rel. Smith v. Maynard, 193
W.Va. 1, 7, 454 S.E.2d 46, 52 (1994)).12
In addition to asserting that her forum choice should be strongly favored in
11
Peacemaker is the only one of the Defendants who resides in West Virginia;
Peacemaker resides in Berkeley County.
12
We commented in Thornhill that “[u]nder the provisions of our general venue
statute [W.Va. Code § 56-1-1], the place of the plaintiff’s residency has no independent
bearing on where an action may be maintained.” 233 W.Va. at 570-71, 759 S.E.2d at 801­
02. In this case, the plaintiff is a Maryland resident so her personal residency does not
impact the venue determination.
6
deciding venue,13 Mrs. Sengupta looks to the fact that General Mills sold products in grocery
stores located in Marshall County with a specific tie-in to the Event.14 Separate from the tie-
in product sales, she argues additionally that the Defendants “deliberately and regularly
engage[] in commerce in Marshall County.”15 Turning to the Agreement and its venue
clause, Mrs. Sengupta posits that a drafter of a forum selection clause cannot avoid
reasonable application of the clause’s plain meaning. She maintains that the absence of any
geographical restriction in the venue clause permits her to bring suit anywhere in West
Virginia. Finally, Mrs. Sengupta asserts that the venue clause under scrutiny expressly
rejects West Virginia’s procedural rules, specifically West Virginia Code §§ 56-1-1, -1a, 56­
9-1, given the language which requires application of “only the substantive laws” of the state
in which the Event is held.16
Forum selection clauses, as we observed in Caperton, are not contrary to
public policy. 225 W.Va. at 142, 690 S.E.2d at 336. Provided they are fair and reasonable,
such clauses are deserving of enforcement. Id. at 141, 690 S.E.2d at 335. In the case before
us, the issue presented with the forum selection clause is not one of enforceability per se but
13
See infra note 18.
14
Wheaties cereal is the tie-in product.
15
This averment pertains to the General Mills defendants.
16
See supra note 8.
7
one of interpretation. The parties simply disagree on what the clause specifies in terms of
forum selection. Rather than squarely address the issue of differing interpretations, the
circuit court simply omitted reference to a key term of the phrase at issue –“the appropriate
state or federal trial court.” Wholly ignoring the limiting effect of the term “the,” the lower
court declared the agreed-upon forum to be “any” state or federal court that a plaintiff
selects. Not only did the circuit court alter the terms of the Agreement with its revisionary
analysis, but it clearly overlooked the significance of the related term “appropriate.” The
inclusion of that term–appropriate–implicitly incorporates this state’s general venue statute.
See W.Va. Code § 56-1-1. Only by examining the venue statute, can it be determined which
state court is the appropriate court in which to bring suit under the terms of the Agreement.
Before proceeding to analyze the provisions of West Virginia Code § 56-1-1
to identify the county in which venue lies, we first address Mrs. Sengupta’s contention that
the Agreement “expressly repudiated procedural statutes in the consideration of venue and
jurisdiction.” This assertion readily fails upon examination. Rather than excluding the
procedural laws of this state, the express reference to only the substantive laws of this state
was the means by which to avoid a conflict of laws issue. The use of the term “only” was
clearly meant to bar from consideration the substantive laws of any other state. It was not
intended to, and neither could it, prevent application of the procedural laws of this state.
Accordingly, we hold that a choice of laws provision in an agreement that provides for the
8
substantive laws of West Virginia to apply to disputes arising thereunder does not exclude
the procedural laws of this state from applying to a matter that will be resolved in this state’s
courts. The procedural laws of this state necessarily apply to matters that are brought in the
courts of West Virginia.17
Turning to this state’s general venue statute, as is required, we examine the
bases set forth in West Virginia Code § 56-1-1 for determining venue. Under that statute,
the primary factors for determining venue are the county in which “any of the defendants
may reside or the cause of action arose.” W.Va. Code § 56-1-1(a)(1). When the defendant
is a corporation, its residency is determined based on either the location of its principal
office or the location of its “mayor, president or other chief officer.” Id. at § 56-1-1(a)(2).
In this case, neither the principal offices nor the residences of the respective corporate
presidents or chief officers of the defendants are in Marshall County. As a result, subsection
one(a)(2) provides only one final basis for viewing Marshall County as appropriate for
venue purposes–if the corporation does business in Marshall County. Of significant import
however, is the fact that subsection one (a)(2), which addresses the factors used to identify
a corporation’s residency, does not abrogate the applicability of subsection one (a)(1). See
Banner Printing Co. v. Bykota Corp., 182 W.Va. 488, 491, 388 S.E.2d 844, 847 (1989)
17
If the choice of forum clause is specific and the parties agreed to a particular county
for venue purposes, the provisions of the general venue statute would not be necessary to
identify the county having venue over a dispute arising under that agreement.
9
(“[V]enue of an action against a corporate defendant lies in the county where the cause of
action arises, in addition to those locations specified in W.Va. Code, 56-1-1(a)(2).”)
(emphasis supplied). When a cause of action is instituted in the county where the cause of
action accrued and no defendant resides in that county, a statutory mechanism exists to seek
a venue change. Id. at § 56-1-1(b) (specifying convenience to party and witnesses and better
serving interests of justice as grounds for seeking change of venue where no defendant
resides in county in which suit is brought). Critically, the grounds listed for identifying
where venue lies under this state’s general venue statute do not include the plaintiff’s choice
of forum.18
Applying the applicable factors set forth in West Virginia Code § 56-1­
1(a)(1), we look to whether venue exists in Marshall County. Not a single defendant,
corporate or individual,19 has a physical residency in Marshall County. While Mrs. Sengupta
suggests that venue is appropriate in Marshall County based on the corporate sales and
marketing of General Mills products in that county, we find that analysis to be unpersuasive
in view of the facts of this case giving rise to jurisdiction in this state. As the Defendants
18
Mrs. Sengupta wrongly relies upon West Virginia Code § 56-1-1a(a) as support for
the proposition that “the plaintiff’s choice of a forum is entitled to great deference.” That
statement is included in the forum non conveniens statute–a statute distinct from the venue
statute–which provides authority for seeking the transfer of a case filed in West Virginia to
“a forum outside this State.” Id. (emphasis supplied). That statute has no bearing on the
issue of venue before us.
19
Mr. Travis, like Mrs. Sengupta, is a Maryland resident.
10
have demonstrated, the Agreement was executed in Berkeley County; the Event took place
in Berkeley County; and the decedent’s drowning occurred in Berkeley County. Many fact
witnesses, in addition to defendant Peacemaker, are residents of Berkeley County. In her
attempt to keep this case in Marshall County, Mrs. Sengupta relies heavily on the sales of
products by General Mills within Marshall County. Her attempt to convince us that General
Mills conducts sufficient business in Marshall County so as not to offend traditional notions
of fair play and substantial justice is unavailing.20 See Kidwell v. Westinghouse Elec. Co.,
178 W.Va. 161, 163, 358 S.E.2d 420, 422 (1986) (interpreting “wherein it does business”
provision of venue statute and recognizing that whether corporation is subject to venue in
particular county depends on corporation’s minimum contacts in such county). The due
process concerns pertaining to personal jurisdiction that underlie the issue of minimum
contacts are not implicated in this case. The Defendants are not challenging being haled into
the courts of this state on grounds of personal jurisdiction; they are objecting to being
improperly required to defend against claims in the wrong county of this state on grounds
of venue.
Each and every critical event that took place relevant to the alleged wrongful
20
Similarly unpersuasive is the fact that 111 of the 1.6 million cumulative total of
Tough Mudder participants at events throughout the country were from Marshall County.
On the date of the Event relevant to this case, two Marshall County residents were included
among the 14,925 participants.
11
death occurred in Berkeley County. The fact that General Mills sells products in Marshall
County is wholly insignificant to the venue-determinative facts of this case. Because it also
sells products in Berkeley County, there is nothing statistically significant about the sales by
General Mills of products in Marshall County that could tip the proverbial scales of justice
in favor of venue existing in Marshall County. In the same fashion, we do not find the reach
of the internet to advertise or promote either General Mills products or the Event to be
significant in terms of identifying the venue-determinative facts of this case.21 All of the
corporate defendants have a connection to Berkeley County and the underlying alleged
wrongful death; the same is not true of Marshall County.22 The singular nexus between the
underlying suit and Marshall County, and one that is statutorily insignificant, is the location
of Mrs. Sengupta’s local lawyers within Marshall County.23 Were we to find that the sales
of General Mills products in Marshall County are sufficient to permit this action to proceed
in that county over the county that clearly has extensive ties to the underlying lawsuit, we
21
Cf. Nutraceutical Corp. v. Vitacost.com, Inc., 2006 WL 1493224 *5 (D. Utah
2006) (finding that corporation’s operation of “website with a high level of interactivity,
which encourages customers accessing its website to order its products” fell “within the
sliding scale category of website that allows a defendant to ‘do business’ and ‘enter into
contracts with residents of foreign jurisdictions over the Internet’”).
22
Airsquid had no connection to Marshall County. Similarly, Tough Mudder did not
conduct any business in Marshall County. As discussed above, Mrs. Sengupta looks to the
generalized sales of cereal products in Marshall County as the grounds upon which to argue
that it is appropriate to bring her suit in Marshall County. There has been no allegation that
the decedent’s death resulted from his purchase of Wheaties cereal or consumption.
23
She has additional counsel with offices in Andover, Massachusetts.
12
would be violating the venerated ideals of fair play and substantial justice that are
traditionally recognized to control venue determinations. See Westmoreland Coal Co. v.
Kaufman, 184 W.Va. 195, 197, 399 S.E.2d 906, 908 (1990).
The trial court unquestionably committed error in its rewriting of the venue
and jurisdiction clause to broadly restate the Agreement as one that contemplated the filing
of a lawsuit in any county in this state.24 As discussed above, the Agreement specified that
venue would be proper “in the appropriate state or federal trial court” in which the Event
took place. The Event occurred in Berkeley County and diversity does not exist to permit
federal court jurisdiction. Because the venue determination required by the Agreement is
to identify the appropriate court in which this matter should proceed, we are persuaded that
venue lies in Berkeley County as that county is clearly the geographical situs in which the
cause of action accrued and where numerous fact witnesses are located as well. See W.Va.
Code § 56-1-1(a)(1).
24
In reaching its decision on venue, the trial court erroneously looked beyond the four
corners of the Agreement before it. There was no ambiguity in the terms of the Agreement
to warrant a consideration of parol evidence for purposes of interpretation. Any reference
to agreements utilized in prior Tough Mudder events, specifying a distinct geographical
forum selection, was improper as those provisions have no bearing on the issue of venue in
this case. This Court, like the circuit court, is required to limit its examination and rulings
to the present controversy. To do otherwise, is to engage in an ill-advised and wholly
improper advisory-based analysis. See State ex rel. Morrisey v. Office of Disciplinary
Counsel, 234 W.Va. 238, 246, 764 S.E.2d 769, 777 (2014) (recognizing well-ensconced
judicial precedent, both state and federal, of refraining from answering or even addressing
issues not properly before us).
13
IV. Conclusion
Having determined that venue does not lie in Marshall County under the
Agreement or the provisions of our general venue statute, we conclude that the Tough
Mudder Defendants have established their entitlement to a writ of prohibition. Rather than
dismiss the case outright, however, we grant the alternative relief sought by the Defendants
and direct the Circuit Court of Marshall County to transfer the underlying case to the Circuit
Court of Berkeley County.
Writ granted.
14