Ex parte Tyson Chicken, Inc.

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          Marshall Circuit Court, CV-18-900113

          K. Donald Simms of Webster, Henry, Bradwell, Cohen, Speagle & DeShazo, P.C., Birmingham, for petitioners.

          M. Clay Martin of Martin & Helms, P.C., Huntsville; and R. Champ Crocker of Crocker & Sparks, Cullman, for respondent.

         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         This Court's opinion of November 30, 2018, is withdrawn, and the following is substituted therefor.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

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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');">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.

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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

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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

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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

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its discretion or that they have a clear legal right to the ...