Marshall Circuit Court, CV-18-900113
On
Application for Rehearing
PETITION FOR WRIT OF MANDAMUS
PER
CURIAM
This
Court's opinion of November 30, 2018, is withdrawn, and
the following is substituted therefor.
Tyson
Chicken, Inc. ("Tyson"), and Charles Gregory Craig,
defendants in a personal-injury action below, petition this
Court for a writ of mandamus directing the Marshall Circuit
Court to vacate its order denying Tyson and Craig's
motion for a change of venue and to enter an order
transferring the underlying action to the Cullman Circuit
Court. We deny the petition.
Facts
and Procedural History
In
November 2017, Craig, while working for his employer, Tyson,
was driving westbound on County Road 1609 in Cullman County
in a tractor-trailer rig. As Craig reached the intersection
of County Road 1609 and County Road 747, he attempted to turn
left into the southbound lane of County Road 747. As Craig
was turning, a vehicle driven by Lisa Burke Huffstutler, who
was traveling northbound on County Road 747, collided with
Craig's tractor-trailer. As a result of the collision,
Huffstutler was injured; she was taken to Cullman Regional
Medical Center for treatment.
Subsequently,
Huffstutler sued Craig and Tyson in the Marshall Circuit
Court. She asserted the following claims: (1) negligence and
wantonness against Craig; (2) negligent and/or wanton
supervision or training of Craig by Tyson; and (3) negligent
and/or wanton hiring, retention, and/or entrustment by Tyson
in relation to Craig's operation of a tractor-trailer rig
on its behalf.
Tyson
and Craig filed a joint motion to transfer the case from
Marshall County to Cullman County under the doctrine of
forum non conveniens. Huffstutler responded and
argued that the case should not be transferred. Following a
hearing, the trial court denied Craig and Tyson's motion.
Thereafter, Craig and Tyson timely filed a petition for a
writ of mandamus with this Court, and we ordered answers and
briefs.
Standard
of Review
"A petition for a writ of mandamus is the proper method
for challenging a ruling denying a motion to transfer for
forum non conveniens reasons. Ex parte Integon
Corp., 672 So.2d 497, 499 (Ala. 1995). 'A writ of
mandamus ... is appropriate when the petitioner can show (1)
a clear legal right to the order sought; (2) an imperative
duty upon the respondent to perform, accompanied by a refusal
to do so; (3) the lack of another adequate remedy; and (4)
the properly invoked jurisdiction of the court.' Ex
parte BOC Group, Inc., 823 So.2d 1270, 1272 (Ala. 2001).
This Court reviews mandamus petitions seeking review of a
ruling on a motion to transfer based on forum non
conveniens by asking whether the trial court exceeded
its discretion in granting or denying the motion. Malsch
v. Bell Helicopter Textron, Inc., 916 So.2d 600, 603
(Ala. 2005); see also Ex parte Kia Motors America,
Inc., 881 So.2d 396 (Ala. 2003)."
Ex parte DaimlerChrysler Corp., 952 So.2d 1082,
1086-87 (Ala. 2006).
Analysis
In
their petition, Craig and Tyson contend that the doctrine of
forum non conveniens requires that the underlying
action be transferred from Marshall County to Cullman County.
Initially, we note that neither Craig and Tyson, on the one
hand, nor Huffstutler, on the other, disputes that both
Marshall County and Cullman County are appropriate venues for
the underlying action. Alabama's forum non
conveniens statute provides that,
"[w]ith respect to civil actions filed in an appropriate
venue, any court of general jurisdiction shall, for the
convenience of parties and witnesses, or in the interest of
justice, transfer any civil action or any claim in any civil
action to any court of general jurisdiction in which the
action might have been properly filed and the case shall
proceed as though originally filed therein."
§ 6-3-21.1(a), Ala. Code 1975. "The purpose of the
doctrine of forum non conveniens is to 'prevent
the waste of time, energy, and money and also to protect
witnesses, litigants, and the public against unnecessary
expense and inconvenience.'" Ex parte
Perfection Siding, Inc., 882 So.2d 307, 312 (Ala. 2003)
(quoting Ex parte New England Mut. Life Ins. Co.,
663 So.2d 952');">663 So.2d 952, 956 (Ala. 1995)). "'A defendant
moving for a transfer under § 6-3-21.1 has the initial
burden of showing that the transfer is justified, based on
the convenience of the parties and witnesses or based on the
interest of justice.'" Ex parte Southeast
Alabama Timber Harvesting, LLC, 94 So.3d 371, 373 (Ala.
2012)(quoting Ex parte National Sec. Ins. Co., 727
So.2d 788, 789 (Ala. 1998)).
In the
present case, Craig and Tyson argued both that Marshall
County was an inconvenient forum and that the transfer was
required "based on the interest of justice." As the
parties moving for the transfer, Craig and Tyson had the
burden of demonstrating "either that [Cullman] County is
a more convenient forum than [Marshall] County or that having
the case heard in [Cullman] County would more serve the
interest of justice ...." Ex parte Fuller, 955
So.2d 414, 416 (Ala. 2006).
With
regard to the "convenience-of-the-parties" prong of
§ 6-3-21.1, this Court has recognized that
"'[a] defendant seeking a transfer based on §
6-3-21.1 has the burden of proving to the
satisfaction of the trial court that the defendant's
inconvenience and expense in defending the action in the
venue selected by the plaintiff are so great that the
plaintiff's right to choose the forum is overcome.
Ex parte New England Mut. Life, 663 So.2d [952, ]
956 [(Ala. 1995)]; Ex parte Townsend, 589 So.2d
[711, ] 715 [(Ala. 1991)]. For a transfer to be justified,
the transferee forum must be "significantly more
convenient" than the forum chosen by the plaintiff.
Ex parte Townsend, 589 So.2d at 715. See
also[] Ex parte Johnson, 638 So.2d 772, 774
(Ala. 1994).'"
Ex parte Blair Logistics, LLC, 157 So.3d 951, 955
(Ala. Civ. App. 2014) (quoting Ex parte Integon
Corp., 672 So.2d 497, 500 (Ala. 1995) (emphasis added)).
Thus, a trial court should not grant a motion for a change of
venue under the convenience-of-the-parties prong unless the
new forum is shown to be "significantly more
convenient" than the forum in which the action was
filed. See Ex parte First Tennessee Bank Nat'l
Ass'n, 994 So.2d 906, 909 (Ala. 2008).
In
cases in which this Court has found that the
"convenience of the parties and witnesses" warrants
a transfer of the action, evidence was provided demonstrating
that the proposed transferee forum was "significantly
more convenient" than the transferor forum. Such
evidence included affidavits from parties and witnesses
stating that the incident underlying the action occurred in
the transferee forum, affidavits from the parties stating
that they lived in the transferee forum, and evidence
indicating that requiring the parties and/or the witnesses to
travel to the transferor forum would be a significant burden.
See, e.g., Ex parte Kane, 989 So.2d 509,
511, 512-13 (Ala. 2008) (noting affidavits submitted by the
movant in support of the motion for a change of venue in
holding that the transferee forum would be a
"substantially more convenient" forum than the
transferor forum). In contrast, in cases in which the party
moving for the transfer has failed to present
evidence demonstrating that the transferee forum is
"significantly more convenient" than the transferor
forum, this Court has declined to order a transfer. See,
e.g., Ex parte Gentile Co., 221 So.3d 1066,
1069 (Ala. 2016) (noting that the petitioner failed to
present any evidence in support of its motion for a change of
venue under the doctrine of forum non conveniens in
declining to order a transfer of the case).
In the
present case, Craig and Tyson have not presented evidence or
affidavits demonstrating that Cullman County is a
"significantly more convenient" forum than Marshall
County. Although they argue that the "overwhelming
majority" of documentary evidence related to the
accident is located in Cullman County, this Court has stated
that a party who makes this argument "'"must
make a showing on the factors such as volume, necessity, and
inconvenience that would support such a
claim."'" Ex parte Yocum, 963 So.2d
600, 602 (Ala. 2007) (quoting Ex parte Nichols, 757
So.2d 374, 378 (Ala. 1999), quoting in turn Ex parte
Wiginton, 743 So.2d 1071, 1076 (Ala. 1999)); see
also Ex parte General Nutrition Corp., 855 So.2d 475,
480 (Ala. 2003), and Ex parte Nichols, 757 So.2d at
379. This means that the moving party must identify those
documents and provide information demonstrating how
burdensome it would be for it to move those documents to the
transferor forum. Nichols, 757 So.2d at 379. Here,
Craig and Tyson have not presented information regarding the
nature of the documentary evidence, and, thus, we cannot
consider the location of the documents in determining whether
the trial court exceeded its discretion in denying the
transfer.
Additionally,
Craig and Tyson mention that the paramedics who responded to
the accident are located in Cullman County. The evidence
before us, however, shows only that the paramedics'
employer is located there, not that the paramedics who
responded to the accident live there or that it would
otherwise be inconvenient for them to appear at trial in
Marshall County. Craig and Tyson also note that
Huffstutler's employer, which they say could testify as
to the impact her injuries had on her ability to earn a
living, is located in Cullman County. Although this may be
true, there is no evidence before us, such as affidavits from
potential witnesses, indicating that witnesses who might
testify on behalf of Huffstutler's employer would be
"seriously inconvenienced" by having to travel to
Marshall County for trial. See, e.g., Ex parte
General Nutrition, 855 So.2d at 480 ("'[A]
defendant cannot assert the inconvenience of its witnesses
without making a detailed statement specifying the key
witnesses and providing generally statements of the subject
matter of their testimony.'" (quoting Ex parte
Preston Hood Chevrolet, 638 So.2d 842, 845 (Ala.
1994))). Finally, Craig and Tyson have not provided any
evidence demonstrating how the "inconvenience and
expense in defending the action" in Marshall County is
"so great" that Huffstutler's ability, as the
plaintiff, to choose the forum is overcome. See,
e.g., Ex parte Perfection Siding, 882 So.2d at
312 (holding that the moving party failed to show how its
inconvenience and expense in defending the action in a county
that was 20 minutes away from the forum county justified a
transfer under the doctrine of forum non
conveniens). Thus, Craig and Tyson have not satisfied
their burden of establishing that Cullman County is a
"significantly more convenient" forum than Marshall
County, and the trial court did not exceed its discretion in
denying their motion under the convenience-of-the-parties
prong.
Next,
Craig and Tyson argue that the "interest of
justice" requires that the underlying case be
transferred to Cullman County. In addressing this prong, this
Court has stated:
"The 'interest of justice' prong of §
6-3-21.1 requires 'the transfer of the action from a
county with little, if any, connection to the action, to the
county with a strong connection to the action.' Ex
parte National Sec. Ins. Co., 727 So.2d [788, ] 790
[(Ala. 1998)]. Therefore, 'in analyzing the
interest-of-justice prong of § 6-3-21.1, this Court
focuses on whether the "nexus" or
"connection" between the plaintiff's action and
the original forum is strong enough to warrant burdening the
plaintiff's forum with the action.' Ex parte
First Tennessee Bank Nat'l Ass'n, 994 So.2d 906,
911 (Ala. 2008). ... Further, in examining whether it is in
the interest of justice to transfer a case, we consider
'the burden of piling court services and resources upon
the people of a county that is not affected by the case and
... the interest of the people of a county to have a case
that arises in their county tried close to public view in
their county.' Ex parte Smiths Water & Sewer
Auth., 982 So.2d 484, 490 (Ala. 2007)."
Ex parte Indiana Mills & Mfg., Inc., 10 So.3d
536, 540 (Ala. 2008). Additionally, this Court has
consistently upheld the principle that litigation should be
handled in the forum where the injury occurred. See,
e.g., Ex parte Indiana Mills & Mfg., Inc.,
10 So.3d at 540; Ex parte Fuller, 955 So.2d at 416.
Here,
the evidence before us shows that Huffstutler was injured in
Cullman County. The evidence also shows that the company that
provided emergency medical care and the hospital at which
Huffstutler was treated for her injuries are located in
Cullman County. Finally, there is also evidence before us
indicating that Tyson operates a facility in Cullman County.
Thus, the connection between the underlying action and
Cullman County appears to be "strong."
Our
forum non conveniens analysis under the
interest-of-justice prong, however, "has never involved
a simple balancing test weighing each county's connection
to an action." Ex parte J & W Enters., LLC,
150 So.3d 190, 196 (Ala. 2014). Rather, to compel a change of
venue under this prong, the underlying action must have
both a "strong" connection to the
county to which the transfer is sought and a
"weak" or "little"
connection to the county in which the case is pending, which
necessarily depends on the specific facts of each case.
Id.; see also Ex parte Elliott, 254 So.3d
882, 886 (Ala. 2017)("Even accepting Allstate's
contention that Montgomery County has a 'strong'
connection to this action, we note that Allstate must also
demonstrate that Lowndes County has a 'weak' or
'little' connection to the action."). Thus,
despite the above evidence demonstrating that Cullman
County--where the accident occurred--has a strong connection
to the present case, that evidence alone does not require a
transfer. Craig and Tyson must still show that Marshall
County's connection to the underlying action is
"weak" or "little."[1]
Ex
parte J & W Enterprises, supra, illustrates
this point. In Ex parte J & W Enterprises, the
plaintiff was injured in an accident involving a
tractor-trailer rig that occurred in Mobile County. The
plaintiff sued the driver of the rig and the driver's
employer in Clarke County. Both the driver and his employer
moved to transfer the case from Clarke County to Mobile
County. In support of their motion, they argued that the
interest-of-justice prong in Alabama's forum non
conveniens statute required that the case be transferred
to the location where the accident occurred.
This
Court held, however, that the interest-of-justice prong did
not warrant a transfer despite the fact that the
injury occurred in Mobile County. In doing so, this Court
noted, among other things, both that the driver lived and
that his employer was located in Clarke County where the
action was filed. In denying the mandamus petition, this
Court concluded that the connections to the plaintiff's
chosen forum--Clarke County--were not "weak."
Id.
In the
present case, Marshall County's connection to the
underlying action is not weak. All the parties in
this case either live in or operate in Marshall County.
Specifically, Huffstutler and Craig both reside
there.[2] Additionally, it is undisputed that Tyson
maintains a facility in Marshall County and, according to the
accident report, Craig works at that facility. Although Tyson
and Craig dispute this by alleging that all the documentary
evidence relating to Craig's employment and training is
located at its facility in Cullman County, that assertion, as
noted above, is not supported by evidence. Thus, under these
circumstances, although there is a strong connection between
the present case and Cullman County, the connection to
Marshall County is also strong. Because Craig and
Tyson have not satisfied their burden of showing that
Marshall County's connection to the underlying action is
"weak" or "little," the trial court did
not exceed its discretion in denying Craig and Tyson's
motion for a change of venue under this prong. Thus, Craig
and Tyson have failed to establish that the trial court
exceeded its discretion or that they have a clear legal right
to the relief sought.
Conclusion
For the
foregoing reasons, the trial court did not exceed its
discretion in denying Tyson and Craig's motion for a
change of venue. Thus, Craig and Tyson have not shown a clear
legal right to the writ of mandamus.
APPLICATION
GRANTED; OPINION OF NOVEMBER 30, 2018, WITHDRAWN; OPINION
SUBSTITUTED; PETITION DENIED.
Shaw,
Wise, Bryan, Mendheim, and Stewart, JJ., concur.
Parker, C.J., and Bolin and Sellers, JJ., dissent.
Mitchell, J., recuses himself.
SELLERS, Justice (dissenting).
The
main opinion concludes: "[A]lthough there is a strong
connection between the present case and Cullman County, the
connection to Marshall County is also strong.
Because [Charles Gregory] Craig and Tyson [Chicken, Inc., ]
have not satisfied their burden of showing that Marshall
County's connection to the underlying action is
'weak' or 'little,' the trial court did not
exceed its discretion in denying Craig and Tyson's motion
for a change of venue under [the interest-of-justice]
prong" of the forum non conveniens statute. ___
So.3d at ___. Because I am unable to see the strength of the
connection to Marshall County, I dissent.
My
review of the materials reveals these undisputed facts: (1)
the accident occurred in Cullman County; (2) the accident was
investigated in Cullman County; (3) the plaintiff was treated
at the accident scene by employees of Cullman Emergency
Medical Services; (4) the plaintiff was transported from the
accident scene to Cullman Regional Medical Center to receive
additional medical care and treatment; (5) much of the
documentary, testimonial, and physical evidence, including a
cautionary road sign near the accident site, is located in
Cullman County;[3] (6) Tyson maintains the facility in
Cullman County to which the tractor-trailer rig involved in
the accident is registered; and (7) the plaintiff is employed
in Cullman County and owns a house there. As far as Marshall
County is concerned: (1) the lawsuit was filed in Marshall
County; (2)the individual parties in this case each reside in
Marshall County; and (3) Tyson maintains a facility in
Marshall County out of which Craig works. As I examine these
facts, I disagree with the main opinion's conclusion that
the connection to Marshall County is strong.
In
determining when a transfer is warranted under the
interest-of-justice prong of the forum non
conveniens statute, we have held that the "interest
of justice" requires "the transfer of an action
from a county with little, if any, connection to the
action, to a county with a strong connection to the
action." Ex parte National Sec. Ins. Co., 727
So.2d 788, 790 (Ala. 1998) (emphasis added). I view the
emphasized term "action" in this context to be the
accident at the center of this case. Viewed in this light, I
believe Cullman County has a strong connection to the
accident and Marshall County a weak connection. Cf. Ex
parte Midsouth Paving, Inc., 250 So.3d 527, 534 (Ala.
2017)(holding that Hale County had a weak connection to four
consolidated cases arising from an accident in Tuscaloosa
County despite the fact that all four plaintiffs resided
there and three of the corporate defendants conducted
business there). In further analyzing the interest-of-justice
prong, "this Court focuses on whether the
'nexus' or 'connection' between the
plaintiff's action and the original forum is strong
enough to warrant burdening the plaintiff's forum with
the ...