Senate Bill No. 501
(By Senators Hall, Barnes, Boley, Sypolt, Nohe and K. Facemyer)
[Introduced February 11, 2011; referred to the Committee on the Judiciary.]
A BILL to amend and reenact §56-1-1a of the Code of West Virginia, 1931, as amended, relating to the application of the doctrine of forum non conveniens when civil actions have both a resident and nonresident plaintiff; and defining “legal resident” for purposes of this section.
Be it enacted by the Legislature of West Virginia:
That §56-1-1a of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 1. VENUE.
§56-1-1a. Forum non conveniens.
(a) In any civil action if a court of this state, upon a timely written motion of a party, finds that in the interest of justice and for the convenience of the parties a claim or action would be more properly heard in a forum outside this state, the court shall decline to exercise jurisdiction under the doctrine of forum non conveniens and shall stay or dismiss the claim or action or dismiss any plaintiff. Provided, That The plaintiff’s choice of a forum is entitled to great deference but this preference may be diminished when the plaintiff is a nonresident and the cause of action did not arise in this state. In determining whether to grant a motion to stay or dismiss an action or dismiss any a plaintiff under the doctrine of forum non conveniens, the court shall consider:
(1) Whether an alternate forum exists in which the claim or action may be tried;
(2) Whether maintenance of the claim or action in the courts of this state would work a substantial injustice to the moving party;
(3) Whether the alternate forum, as a result of the submission of the parties or otherwise, can exercise jurisdiction over all the defendants properly joined to the plaintiff's claim;
(4) The state in which the plaintiff(s) reside;
(5) The state in which the cause of action accrued;
(6) Whether the balance of the private interests of the parties and the public interest of the state predominate in favor of the claim or action being brought in an alternate forum, which shall include consideration of the extent to which an injury or death resulted from acts or omissions that occurred in this state. Factors relevant to the private interests of the parties include, but are not limited to, the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling witnesses; the cost of obtaining attendance of willing witnesses; possibility of a view of the premises, if a view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. Factors relevant to the public interest of the state include, but are not limited to, the administrative difficulties flowing from court congestion; the interest in having localized controversies decided within the state; the avoidance of unnecessary problems in conflict of laws or in the application of foreign law; and the unfairness of burdening citizens in an unrelated forum with jury duty;
(7) Whether not granting the stay or dismissal would result in unreasonable duplication or proliferation of litigation; and
(8) Whether the alternate forum provides a remedy.
(b) A motion pursuant to subsection (a) of this section is timely if it is filed either concurrently or prior to the filing of either a motion pursuant to Rule 12 of the West Virginia Rules of Civil Procedure or a responsive pleading to the first complaint that gives rise to the grounds for such a motion. Provided, That A court may, for good cause shown, extend the period for the filing of such a motion.
(c) If the statute of limitations in the alternative forum expires while the claim is pending in a court of this state, the court shall grant a dismissal under this section only if each defendant waives the right to assert a statute of limitation defense in the alternative forum. The court may further condition a dismissal under this section to allow for the reinstatement of the same cause of action in the same forum in the event a suit on the same cause of action or on any cause of action arising out of the same transaction or occurrence is commenced in an appropriate alternative forum within sixty days after the dismissal under this section and such alternative forum declines jurisdiction.
(d) Except as provided in subsection (b), section one of this article, if an action involves both legal resident and nonresident plaintiffs, the court may not stay or dismiss the action under subsection (a) if the plaintiffs who are legal residents of this state are properly joined in the action and the action arose out of a single occurrence. The court shall dismiss a claim under subsection (a) if the court finds by a preponderance of the evidence that a party was joined solely for the purpose of obtaining or maintaining jurisdiction in this state and the party's claim would be more properly heard in a forum outside this state.
(d) (e) In actions filed pursuant to Rule 23 of the West Virginia Rules of Civil Procedure, the provisions of this section shall apply only to the class representative(s).
(e) (f) A court that grants a motion to stay or dismiss an action pursuant to this section shall set forth specific findings of fact and conclusions of law.
(g) For the purposes of this section, "legal resident" means an individual who is a resident of West Virginia at the time the cause of action arose or at the time the action is filed without regard to the individual's country of citizenship or national origin. The term does not include an individual who adopts a residence in this state in bad faith for purposes of avoiding the application of this section.
NOTE: The purpose of this bill is to provide direction under the doctrine of forum non conveniens when civil actions have both a resident and nonresident plaintiff and to define “legal resident” for purposes of this section.
Strike-throughs indicate language that would be stricken from the present law and underscoring indicates new language that would be added.