Borger v. Polaris Indus., Inc.

IN THE SUPREME COURT OF THE STATE OF NEVADA
JOHN BORGER; AND SHERRI No. 81764
BORGER.
Appellants,
vs.
FILED
POLARIS INDUSTRIES, INC., MAR 1 6 2022
Respondent. ELIZABETH A. BROWN
CLERK OF S ?RENE COURT
BY
ORDER OF AFFIRMANCE
This is an appeal from a district court order dismissing a
products liability action. Eighth Judicial District Court, Clark County;
Kathleen E. Delaney, Judge.
Appellants John and Sherri Borger (collectively, "the Borgers")
appeal from a district court order dismissing their products liability action
for forum non conveniens. In October 2016, while vacationing at Lake
Havasu, Arizona, Sherri Borger was severely injured in an off-road vehicle
accident.1 The Borgers, who lived in Minnesota at the time of the accident,
had rented the off-road vehicle shortly before the accident from Sandbar
Powersports, LLC, a Nevada company operating in Arizona. While the
family was driving in the vehicle, it rolled, pinning Sherri's right arm above
the elbow and nearly severing it. Lake Havasu's fire department and
emergency medical services, the Lake Havasu police department, and the
Mohave County Sheriffs Office all responded to the accident. Sherri was
initially flown to Havasu Regional Medical Center in Arizona and then
transferred that sarne day to University Medical Center (UMC) in Las
Vegas, where her arrn was amputated.
1 We recount the facts only as necessary for our disposition.
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The vehicle was designed, tested, and manufactured in
Minnesota by Polaris Industries, Inc., a Minnesota company, who sold it to
an Arizona dealership. Sandbar's vehicle rental agreement, which the
Borgers signed, stated that the agreement and any disputes arising from it
would be governed by Arizona law.
In March 2017, the Borgers sued Sandbar in Nevada, and
Sandbar filed a counterclaim. In November 2017, the Borgers amended the
complaint to include claims against Polaris for product liability design and
marketing defects, breach of warranty, and negligent design and
marketing. Sandbar thereafter reached a settlement agreement with the
Borgers, and in January 2019, Polaris moved to dismiss for forum non
conveniens. Polaris argued that because Sandbar had settled, the Borger's
case was entirely about the vehicle's design and manufacture. Polaris
pointed out that it had not yet produced any documents, nor had any of its
representatives been deposed or expert discovery conducted. Polaris argued
that the case no longer had connections to Nevada and explained that it
would be difficult to compel key witnesses to testify unless trial proceeded
in Arizona.
The district court granted Polaris's motion to dismiss for forum
non conveniens. The Borgers appeal.
NRS 13.050 allows a court, upon a party's motion, to move the
trial's location when doing so would be convenient for the witnesses and
promote the ends of justice. In deciding a motion to dismiss for forum non
conveniens, the court must consider three factors: (1) "the level of deference
owed to the plaintiffs forum choice," (2) "whether an adequate alternative
forum exists," and (3) whether dismissa] is warranted given public and
2
private interest factors.2 Provincial Gov't of Marinduque v. Placer Dome,
Inc., 131 Nev. 296, 300-01, 350 P.3d 392, 396 (2015) (internal quotation
marks omitted). Dismissal is appropriate where exceptional circumstances
exist and the factors "weigh strongly in favor of another forum." Id. at 301,
350 P.3d at 396 (internal quotation marks omitted). We review a district
court's order dismissing an action for forum non conveniens for an abuse of
discretion. Id. at 300, 350 P.3d at 395-96. An abuse of discretion occurs
where the decision is "arbitrary, fanciful, or unreasonable, or where no
reasonable [person] would take the view adopted by the trial court."
Imperial Credit v. Eighth Judicial Dist. Court, 130 Nev. 558, 563, 331 P.3d
862, 866 (2014) (alternation in original) (internal quotation marks
omitted)).
2A party must also support a motion for dismissal based on forum non
conveniens with affidavits so that the district court can assess whether
extraordinary circumstances exist. Mountain View Recreation, Inc. v.
Imperial Commercial Cooking Equip. Co., 129 Nev. 413, 419, 305 P.3d 881,
885 (2013). Here, Polaris submitted an affidavit stating that the product at
issue was designed, tested, and manufactured in Minnesota; all employees
with relevant information and documents are in Minnesota; and the vehicle
was sold to an Arizona dealership. The motion to dismiss also included
excerpts from transcripts of sworn depositions and other apparently
admissible evidence. We therefore conclude that the district court had
sufficient information here to determine that dismissal was appropriate.
The dissent points out that the affidavit does not directly address the
hardships or convenience of its witnesses, and this is a true observation.
However, the district court could reasonably conclude that the evidence
strongly favored litigation in Arizona even without more specific allegations
of hardship. After all, the district court has to engage with numerous
"public and private interest factors." Placer Dome, 131 Nev. at, 302-305,
350 P.3d at 397-98.
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We conclude the district court did not abuse its discretion under
these facts. Although t he Borger's choice of forum is entitled to deference,3
the other two Placer Dome factors weigh heavily in favor of dismissal here.4
The Borgers did not include claims against Polaris until over eight months
after they filed their initial complaint and over a year after the accident,
and the record shows that minimal, if any, discovery has been conducted as
to the specific claims against Polaris.5 The Borgers do not reside in Nevada
and the record suggests that none of the key witnesses reside in Nevada.
We deterrnine the following to be persuasive: (1) the vehicle was designed,
tested, and manufactured in Minnesota; (2) the vehicle was sold to an
Arizona dealership, the Borgers rented the vehicle in Arizona and agreed
Arizona law would control in the event of any dispute; (3) the accident
occurred in Arizona; (4) the first responders were from Arizona; and (5)
Sherri was initially treated at an Arizona hospital. Therefore, all of the
witnesses testifying to the accident's immediate aftermath, as well as to the
vehicle's design, testing, manufacture, and upkeep, reside outside Nevada.6
3Whi1e we have never held that a plaintiff s Nevada forum choice is
entitled to less deference when the plaintiffs are not Nevada residents, and
we do not resolve that point here, we note that we have held a foreign
plaintiffs choice of foruni inside the United States is entitled to less
deference. Placer Dome, 131 Nev. at 301, 350 P.3d at 396.
4The Borgers conceded below that Arizona is an appropriate
alternative forum.
5Moreover, the district court ordered that discovery produced during
the Nevada case may be used in the re-filed case and that Polaris is to waive
formal service of process requirements for the re-filed case.
6We recognize Polaris could have compelled first responders in
Arizona to submit to a deposition in Arizona for the Nevada case. See Quinn
v. Eighth Judicial Dist. Court, 134 Nev. 25, 29-30, 410 P.3d 984, 987-88
continued on next page . . .
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Sherri's treatment at UMC is not the subject of this dispute, and because
Sandbar has been dismissed from the case, the case no longer has ties to
Nevada.7 Arizona is therefore an adequate alternative forum for the case,
and both public and private interests weigh in favor of dismissal, whereas
nothing remains to tie the case to Nevada, there are substantial ties to
Arizona, and Arizona is a convenient forum for the accident's witnesses. In
this complex product liability case that will undoubtedly require extensive
testimony and many expert witnesses, we cannot say the district court's
decision was arbitrary, fanciful, or unreasonable.8 See Imperial Credit, 130
Nev. at 563, 331 P.3d at 866. Accordingly, we
ORDER the judgment of the district court AFFIRMED.
Ale;11-Lt..0
Stiglich
J.
Silver
(2018). Under the facts of this particular case, however, witness
convenience strongly favors an Arizona forum.
7 Notab1y too, the parties can subpoena certified records from UMC
should the case proceed in Arizona. See NRS 53.100-.200 (Nevada's version
of the Uniform Interstate Depositions and Discovery Act). To the extent the
Borgers argue the settlement is not grounds for a forum non conveniens
motion, we note the settlement is one of multiple factors demonstrating
extraordinary circumstances favoring dismissal here.
8As neither NRS 13.050 nor Placer Dome impose a time restriction on
a party's ability to bring a motion for forum non conveniens, we disagree
with the Borgers argument that the m otion here was untimely, particularly
where Polaris had only been in the action for a little over a year at the time
it made the motion, and little, if any, discovery relevant to the complex
product liability claims against Polaris has been conducted.
5
HARDESTY, J., dissenting:
"Dismissal for forum non conveniens is appropriate only in
exceptional circumstances when the factors weigh strongly in favor of
another forum." Provincial Gov't of Marinduque v. Placer Dome, Inc., 131
Nev. 296, 301, 350 P.3d 392, 396 (2015) (emphasis added) (internal
quotation marks omitted). Further, "[a] motion . . . 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." Mountain View Recreation, Inc. v. Imperial
Commercial Cooking Equip. Co., 129 Nev. 413, 419, 305 P.3d 881, 885
(2013) (emphasis added). "General allegations regarding inconvenience or
hardship are insufficient because [a] specific factual showing must be
made." Id. (alteration in original) (internal quotation marks omitted). And
we have opined that a party's or its employees convenience is irrelevant
when considering such motions. Id. at 419 n.4, 305 P.3d at 885 n.4 (citing,
among others, Said v. Strong Mem'l Hosp., 680 N.Y.S.2d 785, 786 (App. Div.
1998)).
This court has established a clear framework to determine
whether a case shall be dismissed for forum non conveniens. We review a
district court's application of the framework for an abuse of discretion,
Placer Dome, 131 Nev. at 300, 350 P.3d at 395-96, and disregarding the
affidavit requirement in the framework, or adding an entirely new standard
concerning a plaintiffs preference, constitutes an abuse of that discretion.
For these reasons, I respectfully dissent.
NRS 13.050(2)(c) provides that "[t]he court may, on motion or
stipulation, change the place of the proceeding . . [w]hen the convenience
of the witnesses and the ends of justice would be promoted by the change."
We have established a three-part test for district courts to consider "[w]hen
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deciding a motion to dismiss for forum non conveniens." Placer Dome, 131
Nev. at 300-01, 350 P.3d at 396. First. the "court must . . . determine the
level of deference owed to the plaintiffs forum choice." Id. at 300, 350 P.3d
at 396. Second, "a district court must determine whether an adequate
alternative forum exists." Id. at 301, 350 P.3d at 396 (internal quotation
marks omitted). And third, TV an adequate alternative forum does exist,
the court must then weigh public and private interest factors to determine
whether dismissal is warranted." Id.
In the first instance, Polaris has not met the evidentiary burden
necessary for the district court to decide its motion to dismiss for forum non
conveniens. It is undisputed that the affidavit supporting Polaris's motion
to dismiss did not address the hardships or convenience of its witnesses, or
exceptional circumstances to warrant dismissal, as required under
Mountain View. See Mountain View, 129 Nev. at 419, 305 P.3d at 885.
InAead, Polaris argues that the affidavit requirement "is a matter of form
over substance," and that "the record already contained most of the facts
speaking to Nevada's three-part test." Similarly, the majority also
dismisses this issue by concluding, without analysis, that "the district court
could reasonably conclude that the evidence strongly favored litigation in
Arizona even without more specific allegations of hardship." Majority, ante
at 3 n.2. But this is not what Mountain View requires! Mountain View
clearly requires an affidavit be attached to a forum non conveniens motion
to dismiss that demonstrates specific instances of inconvenience or
hardship. 129 Nev. at 419, 305 P.3d at 885.
The only affidavit that Polaris provided was from Blake
Anderson, a "Senior Project Engineee at Polaris. Anderson merely attested
generally to the facts contained in the motion to dismiss, the headquarter
location of Polaris, the model of off-road vehicle involved, and where the
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vehicle was manufactured and sold. Anderson did not attest as to why
Arizona is more convenient. The fact that Polaris is located out of state is
of no consequence, because both the chosen forum and the alternative forum
are not Polaris's headquarters. Polaris will have to travel to the west coast
regardless. Further, there is no evidence in the record, beyond Polaris's
counsel's statements, to demonstrate that the Sandbar employees and the
first responders are unwilling to travel to Nevada. See Nev. Ass'n Servs.,
Inc. v. Eighth Judicial Dist. Court, 130 Nev. 949, 957, 338 P.3d 1250, 1255
(2014) (explaining that lalrguments of counsel . . . are not evidence and do
not establish the facts of the case" (internal quotation marks omitted)). In
fact, to the contrary, Polaris was present and participated in the depositions
of the Sandbar employees in Nevada during the one year and three months
before it brought the motion to dismiss for forum non conveniens.
This is the type of speculation that this court was trying to avoid
in Mountain View when it required an affidavit and stated that Ideneral
al1egations regarding inconvenience or hardship are insufficient." 129 Nev.
at 419, 305 P.3d at 885. The majority, like the district court, minimize this
requirernent and instead change the standard for forum non conveniens
motions, allowing any minimal showing to dismiss a case, rather than
"exceptional circumstances." Placer Dome, 131 Nev. at 301, 350 P.3d at 396
(internal quotation marks omitted). The lack of a proper affidavit under
Mountain View alone requires reversal.
Lastly, the majority completely disregards the district court's
erroneous application of the three-part Placer Dome test. The first
requirement in Placer Dorne is that a district court "must . . . determine the
level of deference owed to the plaintiff s forum choice." 131 Nev. at 300, 350
P.3d at 396. Here, the district court found that "the [Borgers] choice of
forum is entitled to lesser deference because it is not the [Borgersr]
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residence." This court has held that a "plaintiff s choice of forum is entitled
to great deference, but a foreign plaintiffs choice of a United States forum
is entitled to less deference." Placer Dome, 131 Nev. at 301, 350 P.3d at 396.
However, we have never made a distinction between a plaintiff who resides
within the state versus one who resides outside of the state. And why would
we? At the inception of this lawsuit, Nevada was the only place that the
Borgers could properly bring suit against Sandbar because it is a Nevada-
based LLC. Polaris and the majority fail to provide any reasoning as to why
a plaintiff should be entitled to lesser deference, after correctly filing a
lawsuit in a proper forum, just because the plaintiff does not live in that
forum. By ignoring the district court's conclusion, the majority is adopting
an entirely new standard in Nevada regarding deference to a plaintiffs
forum choice, devoid of analysis. The district court made an erroneous
conclusion of law, which requires reversal. See Dewey v. Redevelopment
Agertcy of Reno, 119 Nev. 87, 93, 64 P.3d 1070, 1075 (2003) (reviewing
questions of law de novo).
Accordingly, for the foregoing reasons, I respectfully dissent.
J.
cc: Hon. Kathleen E. Delaney, District Judge
Stephen E. Haberfeld, Settlement Judge
Chad A. Bowers, Ltd.
Kaster, Lynch, Farrar & Ball, LLP
Sgro & Roger
Faegre Drinker Biddle & Reath, LLP
Eighth District Court Clerk
9