Forum Non Conveniens Again?

December 3, 2007

The Supreme Court has published Dollar General Stores, Ltd. v. Smith, another case dealing with the little known and seldom used doctrine of forum non conveniens. The court had previously held that the savings provision of KRS 413.270 applied to save cases filed in the improper venue, as well as, those filed in the wrong jurisdiction. The Court had not previously decided whether the savings statute applied when the case was dismissed on the grounds of forum non conveniens from a proper venue. The Court believed this issue was before them.

Mabel Smith filed suit for personal injury on the last day of the statute of limitation against Dollar General Stores in Jefferson County for an accident that occurred on the premises of a store in Casey County. No one argued that the court lacked jurisdiction or that it was the improper venue. However, the Jefferson Circuit Court dismissed the action under the doctrine of forum non conveniens, claiming that Casey County was the “more convenient forum.” Fifteen days later Smith filed the claim in Casey County. She argued that KRS 413.270 (savings statute) tolled the limitation. However, the Circuit Court concluded it did not and dismissed the case. The Court of Appeals disagreed and reversed finding that KRS 413.270 applied to cases dismissed on grounds of forum non conveniens, as well as, those dismissed for improper venue.

Dollar General’s argument was that KRS 413.270 should be read literally and that the cases relied upon by the Court regarding venue were distinguishable. The Court did not agree. It noted; “There is no reasonable explanation for the Legislature to have enacted to save claims brought in an improper jurisdiction, but denied the saving provision to claims brought in an improper venue.” The Court went on to note that the Jefferson Circuit Court acknowledged that venue was not improper (meaning proper?), but instead of transferring the case, it dismissed it on grounds of forum non conveniens. This left Plaintiff no alternative but to appeal or to bring an action in Casey Circuit Court and thereby depend on the saving statute. It believed the Casey Circuit Court dismissal should be reviewed in terms of the Jefferson Circuit Court dismissal for forum non conveniens.

It noted Kentucky’s lack of any real authority on the issue. However, the U.S. Supreme Court had previously determined a similar issue. There the USSC found that “forum non conveniens dismissal” was appropriate where the chosen forum would result in oppressiveness and vexation to the defendant out of proportion to plaintiff’s convenience. The USSC went on to note that the doctrine was a “supervening venue provision permitting displacement of the ordinary rules of venue when, in light of certain circumstances, the Court thinks that venue ought to be declined.” Of course, Congress codified the doctrine and provided for transfer rather than dismissal shortly after this decision.

From this language the Ky. Supreme Court concluded that forum non conveniens was a subdivision of venue requiring transfer rather than dismissal. The Supreme Court touched on the Kentucky case of Beavin v. McAnulty, which held the transfer of a case on grounds of forum non conveniens was improper. It found this case unpersuasive since KRS 452.105, a statute mandating transfer of cases upon a determination that the venue selected is improper, was rendered shortly thereafter. The Court felt that in cases where venue was proper the result should be the same. It concluded that dismissal on the grounds of forum non conveniens would be, of necessity, a venue based dismissal resulting in applicability of the savings statute, KRS 413.270.

“With the enactment of KRS 452.105, the General Assembly made it clear that venue should be transferred in a proper case, and that the action should not be dismissed. We now hold that the same rule applies where the trial court determines that another forum would be a more convenient place for the litigation.”

Judge Abramson concurred in the result, believing that the Plaintiff should not suffer from this confusion, but felt that Judge Minton’s dissent more properly reflected the correct interpretation of the two statutes.

Judge Minton believed that the “plain language” of the statute did not support the majority’s confusion of three distinct legal concepts—jurisdiction, venue, and forum non conveniens. He believed it was time to clean up certain loose language by overruling certain precedents to that effect. He discussed certain opinions where jurisdiction, venue, and the transfer or dismissal of cases, were in his view, incorrectly decided or distinguishable. He believed this resulted from the Court’s confusion over improper venue and forum non conveniens. He felt that there was no reason to think the legislature meant “forum non conveniens” when it used the terms “improper venue.” He felt that if the legislature had meant to enlarge the types of cases
saved from dismissal by KRS 413.270, then it should amend the statute to include that instance.

The majority certainly raises a valid point. It seems bizarre to think the legislature meant to save cases filed in the improper venue but would not extend the same to cases filed in the correct venue, but in an inconvenient forum. However, there is a giant leap in logic in the majority opinion in discussing the U.S. Supreme Court case and its holdings and Kentucky and its view of forum non conveniens. In fact the USSC case specifically held that cases should be “dismissed” for forum non conveniens grounds. It was Congress who codified the doctrine and provided for transfer instead of dismissal. While the majority would like to think that KRS 413.270 and KRS 452.105 require a similar result, it is completely lacking in the same language and clearly does not even address the issue of forum non conveniens, a point Justice Minton readily notes. Perhaps because it’s simply something the legislature never imagined.

Frankly, if the Jefferson Circuit Court was the proper venue but the Court dismissed the case due to forum non conveniens, it did so in accordance with the holding in Beavin. If that was incorrect as a matter of law, the correct response by the Plaintiff was to appeal that decision. Plaintiff’s failure to do so, however, is fatal. The majority knows this and instead embarks on an analysis of the dismissal in Casey Circuit Court on statute of limitations grounds to reach
back and eliminate the effect of the Jefferson Circuit Court decision. As such, no real discussion regarding the correctness of the Jefferson Circuit Court decision is ever reached.

Of course, the one analysis missing in each of these decisions is a discussion of why Jefferson Circuit Court was the “proper venue” to begin with. The Supreme Court acknowledges that no argument was raised by any of the parties regarding Jefferson County as the “improper venue” and rightly so. However, that alone doesn’t make Jefferson County a proper one.

A good lesson for practitioners, is to remember venue must be proper before the doctrine of forum non conveniens applies. ONLY if venue is proper do you ever reach the question of whether another proper venue is more suitable. This requires something more than what is seen in this case and as noted by the USSC, requires more of a determination that the venue, while proper, results in oppressiveness and vexation to the defendant, which is out of proportion to the plaintiff’s convenience. This is more readily seen in U.S. District Courts where venue crosses state lines covering more than 3,000 square miles. It is not something likely seen in state court. This is where language such as “more convenient forum” (used in this opinion) is a misnomer. There is a reason the doctrine is little known and seldom used.