Mountain View Recreation, Inc. v. Imperial Commercial Cooking Equipment Co.

129 Nev., Advance Opinion -Lis
IN THE SUPREME COURT OF THE STATE OF NEVADA
MOUNTAIN VIEW RECREATION, No. 56193
INC., D/B/A MOUNTAIN VIEW
RECREATION CENTER,
Appellant,
vs.
IMPERIAL COMMERCIAL COOKING
FILE
EQUIPMENT CO.; HARMONY FIRE
PROTECTION, INC.; AND HERITAGE
OPERATING, L.P.,
Respondents.
Appeal from a district court order granting a motion to change
venue. Fifth Judicial District Court, Nye County; Robert E. Estes, Judge.
Reversed and remanded.
Lewis & Roca, LLP, and Daniel F. PoIsenberg and Joel D. Henriod, Las
Vegas; McDonald & McCabe, LLC, and Thomas A. McDonald, David R.
Butzen, Michael P. Rohan, and Terry L. Welch, Chicago, Illinois,
for Appellant.
Lemons, Grundy & Eisenberg and Robert L. Eisenberg, Reno,
for Respondent Imperial Commercial Cooking Equipment Co.
Lincoln, Gustafson & Cercos and Nicholas B. Salerno and James M.
Barrington, Las Vegas,
for Respondent Harmony Fire Protection, Inc.
Wood, Smith, Henning & Berman, LLP, and Janice M. Michaels and T.
Blake Gross, Las Vegas,
for Respondent Heritage Operating, L.P.
BEFORE THE COURT EN BANC.
OPINION
By the Court, HARDESTY, J.:
This appeal arises from the district court's grant of a motion to
change venue from Nye County to Clark County. The district court
granted the motion based on the doctrine of forum non conveniens and its
findings that existing courtroom facilities in Pahrump, located in Nye
County, were inadequate to accommodate a trial in the underlying matter.
We conclude that the district court abused its discretion by granting the
motion for change of venue because it (1) failed to cite sufficient evidence
supporting a change of venue pursuant to the doctrine of forum non
conveniens; (2) failed to conduct a proper analysis, under NRS 3.100(2)
and Angell v. Eighth Judicial District Court, 108 Nev. 923, 839 P.2d 1329(1992), as expanded by this opinion, regarding the adequacy of courtroom
facilities in a county; and (3) failed to consider the docket congestion in
Clark County before reaching its decision. Accordingly, we reverse and
remand for proceedings consistent with this opinion.
FACTS AND PROCEDURAL HISTORY
In 2003, a fire destroyed the Mountain View Recreation
Center in Pahrump, Nevada. The fire allegedly started when a deep fat
fryer overheated and the building's sprinkler system failed to extinguish
the fire. In December 2005, appellant Mountain View Recreation, Inc.,
which owned and operated the recreation center, filed a complaint in Nye
County against numerous defendants, including respondents Imperial
Commercial Cooking Equipment Co., which manufactured the fryer,
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Heritage Operating, L.P. (Proflame), which provided propane fuel to
Mountain View and serviced the fryer, and Harmony Fire Protection, Inc.,
which designed and installed the building's sprinkler system.
In February 2010, Proflame filed a motion for change of venue
from Nye County to Clark County, which was joined by Harmony. 1
Proflame argued that finding an impartial jury in Pahrump was "highly
unlikely" in light of the pretrial publicity and the community's connection
to the recreation center, 2 and that a trial in Las Vegas, located in Clark
County, would be more convenient for the witnesses and would better
serve the ends of justice. Without providing any evidence to support its
latter argument, Proflame asserted that (1) the majority of the pretrial
litigation and discovery, including most of the depositions, had taken place
in Las Vegas; (2) the physical evidence, the special master, and the
majority of counsel were located in Las Vegas; (3) any experts located
outside of Pahrump would have to travel through Las Vegas to attend
court proceedings in Pahrump; (4) the majority of Mountain View's
witnesses would not have to travel from Pahrump to Las Vegas; and (5)
lImperial initially joined in Proflame's motion for change of venue,
but it later withdrew its joinder because it intended to file a separate
motion. However, nothing in the record before us demonstrates that
Imperial filed a separate motion.
2 To the extent that respondents rely on this argument as an
alternative basis to uphold the district court on appeal, we reject this
argument as we have previously concluded that the determination of an
impartial jury "is appropriate only after jury selection efforts have been
made." See Sicor, Inc. v. Sacks, 127 Nev. „ 266 P.3d 618, 621
(2011).
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the transfer would not require reassignment to a Clark County district
court judge because the Nevada Supreme Court had appointed the
currently presiding senior judge. Mountain View opposed the motion,
arguing that Proflame had failed to provide any affidavits or evidence in
support of its argument that transferring the matter to Clark County
would be more convenient for the witnesses and would better serve the
ends of justice.
At a hearing on the motion, the district court declined to
change venue based on the potential inability to seat an impartial jury,
but nonetheless indicated that the trial could not be held in Pahrump
because existing courtroom facilities were inadequate and NRCP 41(e)'s
five-year want-of-prosecution rule would require dismissal of the action in
December 2010. In response to the district court's concerns, Mountain
View argued that Nye County was required to provide facilities for trial in
Pahrump and suggested substitute locations such as a banquet room or
school. Mountain View alternatively asked that, if the trial was moved
from Pahrump, it be transferred to Tonopah, also located in Nye County,
rather than to Las Vegas. The district court ordered supplemental
briefing by the parties to address whether it was required to seek
alternative facilities within Nye County instead of granting the motion to
change venue.
Mountain View argued in its supplemental brief that, under
Angell v. Eighth Judicial District Court, 108 Nev. 923, 839 P.2d 1329(1992), Nye County must provide adequate facilities for the district court
to conduct the trial within the county. It further argued that the trial
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should be conducted in Nye County based on local private and public
interests in the matter.
Imperial and Proflame argued that Angell was distinguishable
and did not apply to Mountain View's argument to conduct the trial in
Tonopah. 3 Specifically, Imperial and Proflame contended that in Angell
(1) there was no motion to change venue; (2) the dicta stated that a trial is
to be held within existing judicial facilities and not in banquet halls or
schoolhouse facilities and, further, the judge would have to approve if such
change was made, which did not occur in this instance; and (3) the court
did not require a change of venue to Tonopah. Moreover, Imperial and
Proflame asserted that the facilities in Pahrump and Tonopah were
inadequate to accommodate a trial of this magnitude. Imperial provided
no supporting affidavits, citing only the discovery disclosures made by
Mountain View that listed 35 potential percipient witnesses and 8 expert
witnesses, with only 10 of those witnesses having Pahrump addresses.
Thereafter, the district court entered a written order granting
Proflame's motion for change of venue based on the convenience of the
witnesses and the promotion of the ends of justice. In particular, the court
found that because Pahrump had only one courtroom in which to conduct
such a large trial, the existing courtroom facilities in Pahrump were
3 WhileImperial failed to file a separate motion for change of venue,
it did submit a supplemental brief as ordered by the district court.
However, there is no indication in the record on appeal as to whether
Harmony filed a supplemental brief or joined the supplemental brief of
another party.
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inadequate in light of the number of defendants involved, the estimated
length of time needed for the trial, and the Pahrump district court's
current calendar. And the court rejected Mountain View's suggestion to
use alternative facilities in Pahrump, finding that the proposed facilities
would not provide for adequate security or accommodate "the comfort or
simple logistics of complex litigation." As a result, the court concluded
that the ends of justice could not be served by retaining the case in
Pahrump because doing so would result in the case being dismissed for
failure to bring it to trial within five years.
Having concluded that the trial could not be held in Pahrump,
the district court was faced with deciding whether to transfer the case to
Las Vegas or Tonopah. In making this determination, the court generally
noted that Tonopah is 167 miles from Pahrump, whereas Las Vegas is
only 63 miles from Pahrump, and that "[a]ll of the physical and
documentary evidence to be admitted at trial is in Las Vegas." Without
further elaboration, the district court concluded that, under the doctrine of
forum non conveniens, the trial should be transferred to Clark County,
rather than Tonopah. Thus, while acknowledging the deference due to
Mountain View's choice of venue, the court nonetheless granted the
motion for change of venue to Clark County. This appeal followed.
DISCUSSION
This court reviews a district court's grant of a motion to
transfer a trial based on the doctrine of forum non conveniens for an abuse
of discretion. Roethlisberger v. McNulty, 127 Nev. „ 256 P.3d 955,
957 (2011). District courts have wide discretion when considering whether
to grant such motions. Id. at ,256 P.3d at 957.
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Mountain View contends, among other things, that the district
court abused its discretion by granting Proflame's motion for a change of
venue because (1) respondents failed to provide any affidavits or evidence
in support of its argument that transferring the matter to Clark County
would be more convenient for the witnesses and would better serve the
ends of justice; (2) the district court failed to recognize the obligation of
Nye County under NRS 3.100(2) and Angell v. Eighth Judicial District
Court, 108 Nev. 923, 839 P.2d 1329 (1992), to provide adequate facilities
for the litigation; and (3) the district court failed to consider the congestion
of the Clark County district court's docket in determining whether it could
accommodate the trial if transferred. We agree.
Forum non conveniens
The doctrine of forum non conveniens is statutorily embodied
in NRS 13.050. See Cariaga v. Eighth Judicial Dist. Court, 104 Nev. 544,
547, 762 P.2d 886, 888 (1988). NRS 13.050(2)(c) states that "[t]he court
may, on motion, change the place of trial . . . [w]hen the convenience of the
witnesses and the ends of justice would be promoted by the change."
However, a plaintiffs selected forum choice may only be denied under
exceptional circumstances strongly supporting another forum. Eaton v.
Second Judicial Dist. Court, 96 Nev. 773, 774-75, 616 P.2d 400, 401
(1980), overruled on other grounds by Pan v. Eighth Judicial Dist. Court,
120 Nev. 222, 228, 88 P.3d 840, 844 (2004). A motion for change of venue
based on forum non conveniens must be supported by affidavits so that the
district court can assess whether there are any factors present that would
establish such exceptional circumstances. Id. at 775, 616 P.2d at 401.
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General allegations regarding inconvenience or hardship are insufficient
because "[a] specific factual showing must be made." Id.Respondents maintain that holding the trial in Pahrump or
Tonopah would be inconvenient to the witnesses and parties because a
majority of the litigation and discovery, including the majority of
depositions, took place in Las Vegas; the physical evidence, the special
master, and the majority of counsel are located in Las Vegas; and all
experts located outside of Pahrump would have to travel through Las
Vegas to attend court proceedings in Pahrump. We conclude that these
arguments lack merit because they fail to establish the existence of
exceptional circumstances under Eaton.4
Respondents further contend that the majority of Mountain
View's witnesses will not be inconvenienced by transferring venue to Las
Vegas because many already live in Las Vegas, and, if the case were
4Extrajurisdictional caselaw supports our conclusion. See Costello v.
Home Depot U.S.A., Inc., 888 F. Supp. 2d 258, 268 (D. Conn. 2012) ("The
convenience of counsel is not [an] appropriate consideration on a motion to
transfer."); Scheinbart v. Certain-Teed Prods. Corp., 367 F. Supp. 707, 709-
10 (S.D.N.Y. 1973) ("The convenience of expert witnesses has little or no
significance in determining whether an action should be transferred.");
Rothschild v. Superior Court, 31 Cal. Rptr. 248, 249 (Ct. App. 1963)
(disregarding affidavits from the plaintiff and the defendant's employee
because "neither the convenience of a party nor an employee of a party is
to be considered in determining a [forum non conveniens] motion"
(citations omitted)); Said v. Strong Mem'l Hosp., 680 N.Y.S.2d 785, 786
(App. Div. 1998) ("It is well established that the convenience of the parties,
their agents and employees, or others under their control carries little if
any weight" when considering a motion to change venue.).
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transferred to Tonopah, those witnesses would have to travel a distance of
211 miles to attend trial. However, respondents fail to support such
arguments with evidence in the record. We conclude that this argument
also provides little, if any, support for respondents' position even if such
evidence were provided in the record. Gates Learjet Corp. v. Jensen, 743
F.2d 1325, 1336 (9th Cir. 1984) (noting that "a district court should keep
in mind that the increased speed and ease of travel and
communication. . . makes, especially when a key issue is the location of
witnesses, no forum as inconvenient [today] as it was [in years past]" (first
and second alterations in original) (internal quotations omitted));
Maynard v. Oakes, 534 N.Y.S.2d 541, 542 (App. Div. 1988) ("In our mobile
society, a drive of some 21/2 hours is not a matter of much inconvenience.");
see also Roethlisberger, 127 Nev. at , 256 P.3d at 957 (upholding a
district court's denial of a motion to change venue from Douglas County to
Washoe County, Nevada, and stating that "difference [s] in travel times to
the courts in either county are, for many witnesses, relatively minimal").
The record is devoid of affidavits from either percipient or
expert witnesses or other evidence to demonstrate how the witnesses
would be inconvenienced if the trial were held in Pahrump. See Eaton, 96
Nev. at 774-75, 616 P.2d at 401. Additionally, the district court failed to
articulate how changing venue from Pahrump to Las Vegas would be more
convenient for the witnesses or would serve the ends of justice. Thus, to
the extent the district court relied on the doctrine of forum non conveniens
as a basis for its decision, we conclude that there is insufficient evidence in
the record to support such a finding.
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Inadequate courtroom facilities
The district court's decision to change venue away from
Pahrump was based, in part, on its conclusion that the facilities were
inadequate, and the trial would have to be conducted elsewhere. However,
Mountain View contends that the court was obligated to direct Nye
County to provide adequate facilities.
NRS 3.100(2) states that "[i]f a room for holding court. . . is
not provided by the county, . . . the court may direct the sheriff to provide
such room, attendants, fuel, lights and stationery, and the expenses
thereof shall be a county charge." In Angell, the petitioners sought a writ
of mandamus directing the district court to require Clark County to
provide a sufficient courtroom and court personnel to accommodate the
underlying mass-tort litigation. 108 Nev. 923, 926-28, 839 P.2d 1329,
1331-32 (1992). This court denied mandamus relief because there was no
evidence in the record before it to demonstrate that "existing County
facilities [were] inadequate or could not, with comparatively minor
expense and effort, be made adequate." Id. at 927, 839 P.2d at 1332. This
court concluded that Clark County "should. . . determine what facilities
may exist within the county that may be appropriately utilized to
accommodate the trial." Id. In doing so, this court further concluded that
Clark County had a statutory obligation to either find existing facilities
within the county that could accommodate a trial of this magnitude, or
find other suitable courtroom facilities, noting that
[a]lthough . Clark County is generally
responsible for providing a suitable and sufficient
trial facility and necessary court personnel, . . . the
County may wish to seek an accommodation for
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the [litigation] within existing judicial facilities by
suggesting alternative trial methods that have
been used elsewhere to accommodate mass tort
litigation.
Id.
Consistent with our holding in Angell, we conclude that Nye
County has a statutory duty under NRS 3.100 to provide adequate
courtroom facilities and support staff. We now expand our holding in
Angell and require that when considering whether a change of venue is
necessary based on a potential inadequacy of courtroom facilities within a
county, a district court must analyze and provide specific findings
regarding whether: (1) existing courtroom facilities are adequate or, "with
comparatively minor expense and effort, [can] be made adequate"; and (2)
if existing courtroom facilities are inadequate, whether there are
alternative facilities within the county that "may be appropriately utilized
to accommodate the trial." Id.
Here, as in Angell, there is no evidence in the record to
support the district court's findings that the courtroom facilities in
Pahrump or Tonopah were inadequate to conduct the trial or why
alternative facilities suggested by Mountain View were inadequate.
Instead, the district court made generalized statements regarding the
existing courtroom facilities and rejected out of hand the feasibility of
alternative facilities in Pahrump and the ability of those facilities to
accommodate a trial in this complex litigation. Thus, no specific details
were provided as to what cases were currently pending in the one
available courtroom in Pahrump, how many days were free on the court
schedule, how many people the courtroom could accommodate, and what
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size of courtroom would be needed given the size of the trial. In addition,
when the court's order was issued, seven months remained before the five-
year deadline, but the court did not specifically refer to the court's
schedule and, instead, made general statements that there was no way
that a trial could be scheduled before the five years ran.
Furthermore, the district court failed to conduct any analysis
to determine whether, under Angell and NRS 3.100(2), Nye County met its
responsibility to provide adequate or alternative courtroom facilities.
Instead, the district court ruled, without any evidentiary support or proper
analysis, that alternative facilities in Pahrump would be
unaccommodating to jurors, and it thus transferred the case to Las Vegas
for trial proceedings. And, beyond its determination that Tonopah was
farther in distance from Pahrump than Las Vegas, the district court
conducted no further analysis in determining whether Tonopah served as
an adequate alternative facility to conduct the trial.
Because the district court failed to conduct a proper analysis
prior to granting a change of venue in this matter, we conclude that the
district court abused its discretion.
Congestion of docket
Finally, Mountain View contends that the district court failed
to consider Clark County's court schedule and docket congestion before
ordering a change of venue. At the outset, we note the Ninth Circuit's
observation that "[t]he forum non conveniens doctrine should not be used
as a solution to court congestion." Gates Learjet Corp., 743 F.2d at 1337.
When assessing docket congestion in one venue with that of a proposed
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transferring venue, "[t]he real issue is not whether a dismissal will reduce
a court's congestion but whether a trial may be speedier in another court
because of its less crowded docket." Id. (noting that "the district
court. . . observed only that its docket was congested; it did not determine
whether a trial would be speedier in the [proposed transferring venue]").
"A party seeking a transfer has the burden to make prima
facie proof that venue is maintainable in the county to which transfer is
sought." GeoChem Tech Corp. v. Verseckes, 962 S.W.2d 541, 543 (Tex.
1998); see also Walker v. Iowa Marine Repair Corp., 477 N.E.2d 1335, 1342
(Ill. App. Ct. 1985) (concluding that "a compilation of [courtroom] statistics
prepared by the Administrative Office of the Illinois Courts showing the
number of cases disposed of and the average time to trial" submitted by
the defendant convincingly demonstrated that defendant was entitled to a
transfer of the case to a different county).
Here, nothing in the record demonstrates that respondents
satisfied their burden of proof by demonstrating that venue was
maintainable in Clark County. Furthermore, nothing in the record or the
district court's order indicates that the district court considered the docket
congestion of the Clark County district court system before deciding to
change venue to that county. The district court should have properly
considered the docket and the availability of courtrooms and staff in Clark
County before reaching its decision. The district court's failure to do so
was an abuse of discretion. See Roethlisberger, 127 Nev. at , 256 P.3d
at 957.
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For the foregoing reasons, we reverse the district court's order
granting the motion for change of venue and remand this matter to the
district court for further proceedings consistent with this opinion. 5
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5 Mountain View also challenges the district court's order denying its
motion for reconsideration. However, Mountain View filed its motion for
reconsideration after filing its notice of appeal before this court. Thus, we
conclude that the district court was divested of jurisdiction to decide the
motion. See Foster v. Dingwall, 126 Nev. , 228 P.3d 453, 454-55
(2010) ("[T]he timely filing of a notice of appeal divests the district court of
jurisdiction to act and vests jurisdiction in this court." (internal quotations
omitted)); Tuxedo Int? Inc. v. Rosenberg, 127 Nev. n.3, 251 P.3d
690, 692 n.3 (2011) ("[A]rguments set forth for the first time in a motion
for reconsideration are only reviewable if the district court addresses those
arguments on the merits in an order entered before the notice of appeal is
filed." (citing Arnold v. Kip, 123 Nev. 410, 416-17, 168 P.3d 1050, 1054 (2007))).
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