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Clark v. Luvel Dairy Products Inc.

November 25, 1998


The opinion of the court was delivered by: Sullivan, Presiding Justice









¶1. Henry Clark, the appellant, sued Luvel Dairy Products, Inc., and its president, James H. Briscoe, the appellees, in Hinds County Circuit Court for actionable words, false imprisonment, and defamation. That court ordered venue transferred to Attala County upon the motion of the appellees based on the doctrine of forum non conveniens. This Court granted interlocutory appeal.



¶2. As recognized by the United States Supreme Court, "[a]lthough the origins of the doctrine [of forum non conveniens] in Anglo-American law are murky, most authorities agree that forum non conveniens had its earliest expression . . . in Scottish estate cases." American Dredging Co. v. Miller, 510 U.S. 443, 449 (1994). The first Scottish cases dealt with the plea of "forum non competens." The plea, which was normally directed to a lack of jurisdiction, "was sustained in cases where the jurisdiction seemed clear but the parties were nonresidents and trial in Scotland would have been inconvenient." Edward L. Barrett, Jr., The Doctrine of Forum Non Conveniens, 35 Cal.L.Rev. 380, 387 n. 35 (1947) (citing Vernor v. Elvies, 6 Dict. of Dec. 4788 (1610); Col. Brog's Heir v. _____, 6 Dict. of Dec. 4816 (1639); Anderson v. Hodgson, 6 Dict. of Dec. 4779 (1747)).

¶3. By 1845, Scottish cases discussed the question in terms of one "on the merits" rather than jurisdiction, and the words "inconvenient forum" were beginning to be used. The Latin term "forum non conveniens" was used by Scottish Judges for the first time in the latter part of the nineteenth century. Robert Braucher, The Inconvenient Federal Forum, 60 Harv.L.Rev. 908, 909 (1947). "Forum non conveniens" was used by the courts instead of "forum non competens" when the court's jurisdiction was clear and "only a question of discretion was involved." Barrett, 35 Cal.L.Rev. at 387 n. 35 (citing Brown v. Cartwright, 20 Scot.L.R. 818 (1883); Williamson v. North-Eastern Ry. Co., 21 Scot.L.R. 421(1884)).

¶4. A case which is considered to be a leading case in England dealing with the doctrine is Logan v. Bank of Scotland, 1 K.B. 141 (C.A. 1905). In that case, the plaintiff, a domiciled Scotsman, brought an action against the defendant bank, a Scottish corporation with head offices in Edinburgh. The transactions which gave rise to the cause of action took place in Scotland. All the parties involved in the action resided in Scotland with the exception of one of the defendants. The bank had one branch outside Scotland, and it was located in London. The writ of summons in the action was served on the bank in London. The defendants moved to have the action in England stayed on the ground that the action was vexatious and oppressive.

¶5. The English court granted the stay. In so doing, the court cited three cases dealing with forum non conveniens, a New York case, Collard v. Beach, 81 N.Y.S. 619 (1903) (declining jurisdiction of tort action occurring in another jurisdiction between nonresidents), and the Scottish cases of Longworth v. Hope, 3 M. 1049 (1865) (dismissing the plea in a libel action between Englishmen because the libel was published in Scotland), and Williamson v. North Eastern Ry. Co., 11 R. 596 (1884) (sustaining a plea of forum non conveniens where a Scottish resident sued a company located in England for negligence in a death occurring in England). The court noted that the cases "seem to carry the law further in those countries than can be found in any reported case in this country." Logan, 1 K.B. at 148. While noting that the court should stay proceedings on the ground of vexation only with great care, the court held,

Now, it is true that the Courts of this country have not gone so far as to express themselves upon the question of convenience in terms similar to those used in the Scotch cases, though, as I have already noticed, it may be doubted whether there is any substantial difference between the two. Yet it seems to me clear that the inconvenience of trying a case in a particular tribunal may be such as practically to work a serious inJustice upon a defendant and be vexatious. This would probably not be so if the difference of trying in one country rather than in another were merely measured by some extra expense; but where the difficulty for the defendant of trying in the country in which the action is brought is such that it is impracticable to properly try the case by reason of the difficulty of procuring the attendance of busy men as witnesses, and keeping them during a long trial, and of having to deal with masses of books, documents, and papers which are not in the country where the action is brought, and of dealing with law foreign to the tribunal, it appears to me that a case of vexation in some circumstances may be made out if the plaintiff chooses to sue in that country rather than in that where everybody is and where all the witnesses and material for the trial are. Id. at 151-52.

The court further noted that if the one defendant who was an English resident were a real defendant rather than a nominal defendant and it had been necessary to bring an action to join him and the bank in England, then the defendant bank might have had to submit to the action brought in England. Id. at 153.

¶6. In the United States, the doctrine of forum non conveniens appeared in the 1800s in the jurisprudence of a few state courts although the phrase "forum non conveniens" was not used. These cases involved suits between aliens on foreign causes of action or parties who were residents of different states. Barrett, 35 Cal.L.Rev. at 387 n. 36. Following a 1929 law review article whose author contended that "all American courts had inherent power to decline jurisdiction under the doctrine" of forum non conveniens, the term "forum non conveniens" began to be used by courts. Id. at 388 (citing Blair, The Doctrine of Forum Non Conveniens in Anglo-American Law, 29 Colum.L.Rev. 1 (1929)). The doctrine originated in state courts not in federal court. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 505 n. 4 (1947); see also Piper Aircraft Co. v. Reyno, 454 U.S. 235, 248 n. 13 (1981) ("The doctrine . . . originated in Scotland . . . and became part of the common law of many States . . ."). By 1947, the doctrine had gained acceptance in barely half a dozen states. Barrett, 35 Cal.L.Rev. at 388-89.

¶7. In 1947, the United States Supreme Court rendered two decisions which settled the question of the power of the federal courts to apply forum non conveniens. In Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947), the Court recognized that a federal court has the discretion to dismiss a case even when it has jurisdiction if the plaintiff has a choice of courts and the convenience of witnesses and the ends of Justice would be better served by another forum. To that end, the Court prescribed a number of factors to be used in determining if the case should be dismissed. The Court also approved the dismissal of a case by applying forum non conveniens in Koster v. Lumbermens Mutual Casualty Co., 330 U.S. 518 (1947).

¶8. The following year, Congress enacted section 1404(a) of Title 28 of the United States Code. The section allows a district court to transfer a civil action to another district court for the convenience of parties and witnesses and in the interest of Justice. In Norwood v. Kirkpatrick, 349 U.S. 29 (1955), the Supreme Court discussed the difference between the doctrine of forum non conveniens as it existed prior to enactment of section 1404(a) and after enactment.

When Congress adopted § 1404(a), it intended to do more than just codify the existing law on forum non conveniens. As this Court said in Ex parte Collett, 337 U.S. 55-61, Congress, in writing § 1404(a), which was an entirely new section, was revising as well as codifying. The harshest result of the application of the old doctrine of forum non conveniens, dismissal of the action, was eliminated by the provision in § 1404(a) for transfer. When the harshest part of the doctrine is excised by statute, it can hardly be called mere codification. As a consequence, we believe that Congress, by the term "for the convenience of parties and witnesses, in the interest of Justice," intended to permit courts to grant transfers upon a lesser showing of inconvenience. This is not to say that the relevant factors have changed or that the plaintiff's choice of forum is not to be considered, but only that the discretion to be exercised is broader. Id. at 32.

By virtue of enactment of section 1404(a), the doctrine of forum non conveniens in federal cases has continuing application only where the alternative forum is abroad. American Dredging Co. v. Miller, 510 U.S. 443, 449 n. 2 (1994).

¶9. We have recognized the doctrine of forum non conveniens in cases involving out-of-state defendants requesting transfer to another state. See Missouri Pac. R.R. v. Tircuit, 554 So.2d 878 (Miss. 1989); Shewbrooks v. A.C.&S., Inc., 529 So.2d 557 (Miss. 1988); Illinois Cent. Gulf R.R. v. Stedman, 344 So.2d 468 (Miss. 1977); Illinois Cent. R.R. v. Moore, 215 So.2d 419 (Miss. 1968); Strickland v. Humble Oil & Ref. Co., 194 Miss. 194, 11 So.2d 820 (1943).



¶10. A majority of states have enacted statutes which provide for a change of venue when the convenience of witnesses and the ends of Justice would be promoted by the change. A few states provide for a change of venue by rule. In the absence of statutory authority, the courts in some states have allowed a change of venue under the doctrine of intrastate forum non conveniens, while the courts in a number of other states have rejected the doctrine of intrastate forum non conveniens and refused to allow venue to be changed for the sake of convenience.

¶11. The Illinois Supreme Court adopted the doctrine of intrastate forum non conveniens in 1983 in the case Torres v. Walsh, 456 N.E.2d 601 (Ill. 1983). The court recognized the authority to transfer a case to another county within the same state as existing at common law and that "therefore, statutory authorization is unnecessary as it only recognizes and codifies a right that previously existed at common law." Id. at 605. As the basis for finding that the doctrine of forum non conveniens originated in the common law of England which Illinois adopted as it existed prior to the fourth year of James the First, the court cited cases from England which said that "removal to another county might be had 'for the necessity of an indifferent trial.'" Id. at 605 (citations omitted). Specifically, the court cited the English case of Holmes v. Wainwright, 3 East. 329, 330, 102 Eng.Rep. 624 (1803) to support its adoption of the doctrine of forum non conveniens. In this case, the Illinois Supreme Court said, "The [English] court applied the forum non conveniens doctrine and transferred the case from London to Yorkshire." Torres, 456 N.E.2d at 606. The court has continued to apply the doctrine in subsequent cases.

¶12. Oklahoma adopted intrastate forum non conveniens in Gulf Oil Co. v. Woodson, 505 P.2d 484 (Okla. 1972). Citing its Code of Civil Procedure, an unreported Oklahoma case, and a case from Kansas involving interstate forum non conveniens which held that the doctrine of forum non conveniens is a part of the common law of the state of Kansas, the Oklahoma Supreme Court held that the doctrine of intrastate forum non conveniens may under the common law be applied in a proper case.

¶13. The Missouri Supreme Court has declined to adopt the doctrine of intrastate forum non conveniens in the absence of statutory authority. In Willman v. McMillen, 779 S.W.2d 583 (Mo. 1989), the court stated that venue is within the legislature's province. As such, the court "may not engraft upon a statute provisions that do not appear explicitly or by implication from other words in the statute" especially since "[t]he statutory designation of proper venue as the site where the cause of action accrued presupposes legislative determination that it cannot be overly inconvenient for a defendant to appear in that location." Id. at 585-86. The court also rejected the notion that intrastate forum non conveniens existed at common law. The court said that the part of the English common law which was adopted by Missouri was that existing prior to the fourth year of the reign of James I (1607), and no English cases had been found dealing with the doctrine earlier than an 1803 case. In any event, such cases "would not be dispositive because travel between English counties prior to 1607 would be more analogous to travel between American states than between Missouri counties." Id. at 586.

¶14. In First Financial Trust Co. v. Scott, 929 P.2d 263 (N.M. 1996), the Supreme Court of New Mexico expressly disapproved the doctrine of intrastate forum non conveniens, overruling prior case law in New Mexico which had recognized application of the doctrine since 1985. The court was highly critical of Illinois and Oklahoma which rely on common law as the authority for application of the doctrine. In noting that the Illinois Supreme Court relied on an English case which had involved the transfer of a case from London to Yorkshire as a basis for finding that forum non conveniens existed at common law, the New Mexico Supreme Court refused to "find the transfer from a county in southern England to another county in northern England at the beginning of the nineteenth century to be sufficiently analogous to the transfer between counties in the State of New Mexico at the end of the twentieth century." Id. at 267.

¶15. With regard to Oklahoma, the court noted that Oklahoma had recognized the doctrine by citing an unreported case which had allowed intrastate forum non conveniens even though acknowledging that the case had no precedential value. Additionally, the court recognized that the doctrine of forum non conveniens existing at common law allowed for the dismissal, not the transfer, of a lawsuit and that the federal statute providing for forum non conveniens was an expansion of the common law doctrine, not a codification. Id. at 265 (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 253 (1981)). In sum, the court stated,

"We have been unable to find any persuasive precedent in the common law, of this state or any other, for the continued recognition of this doctrine, and we believe it would be improper to allow [prior case law] to stand in light of our analysis. . . . We are well aware of certain problems that may arise from the absence of a transfer mechanism based upon the convenience of the parties, but it is improper for the judiciary to create such a ...

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