RENEE BOWMAN AND MARIA CRISTINA MARTIN v. CERAMICHROME, INC.
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RENDERED:
December 24, 1997; 2:00 p.m.
NOT TO BE PUBLISHED
NO. 96-CA-2311-MR
RENEE BOWMAN AND
MARIA CRISTINA MARTIN
APPELLANTS
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE WILLIAM E. McANULTY, JR., JUDGE
ACTION NOS. 96-CI-1923 & 96-CI-1929
v.
CERAMICHROME, INC.
APPELLEE
OPINION
REVERSING AND REMANDING
* * * * * * *
BEFORE:
ABRAMSON, BUCKINGHAM, and EMBERTON, Judges.
ABRAMSON, JUDGE:
Renee Bowman and Maria Martin appeal from a
July 23, 1996, order of Jefferson Circuit Court dismissing
without prejudice their employment discrimination action against
the Appellee, Ceramichrome, Inc. ("Ceramichrome").
The trial
judge dismissed with leave to refile in Lincoln County, the forum
which he deemed "most convenient and appropriate."
Bowman and
Martin contend that the trial court misconstrued its authority to
decline jurisdiction.
We agree and so reverse and remand.
Ceramichrome is a Kentucky corporation with its
principal place of business in Stanford, Lincoln County,
Kentucky.
Ceramichrome's registered agent for service of process
is located in Jefferson County, Kentucky.
Bowman and Martin are
residents of Boyle County, Kentucky, who worked for Ceramichrome
in Stanford during several months of 1995 and who claim to have
been discharged from their jobs in violation of KRS Chapter 344.
Both women filed complaints in Jefferson Circuit Court in March
1996 alleging discrimination based on race, color, and national
origin.
Their complaints were consolidated in April 1996, and
three months later the consolidated action was dismissed without
prejudice upon the trial court's finding that "the most
convenient and appropriate forum" for the litigation was Lincoln
County.
It is undisputed that Jefferson Circuit Court has
jurisdiction of the claims asserted by Bowman and Martin and that
Jefferson County is a proper venue for their discrimination suit.
KRS 344.450; KRS 452.450; KEM Mfg. Corp. v. Kentucky Gem Coal
Co., Inc., Ky. App., 610 S.W.2d 913 (1981) (venue established by
"the mere presence of a registered office and agent" of the
defendant-corporation).
The question before us is whether the
circuit court erred by refusing to exercise its jurisdiction.
We begin with the basic principle that "absent
compelling or unusual circumstances, a court is duty bound to
hear cases within its vested jurisdiction."
Roos v. Ky.
Education Ass'n, Ky. App., 580 S.W.2d 508, 509 (1979).
See also
20 Am. Jur. 2d Courts § 61, pp 377-78 (1995) ("Generally, a court
with jurisdiction over a case has not only the right, but also
the duty, to exercise that jurisdiction, and to render a decision
on a case before it.")
There are exceptions to this general
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rule, however, among which is the court's authority, in certain
situations, to decline jurisdiction in favor of an alternative
venue.
This authority is delineated in the statutes regarding
change of venue and in the doctrine of forum non conveniens.
In its motion to dismiss, Ceramichrome relied upon this
latter doctrine, which arose within the common law.
Ceramichrome
argued that because the discrimination is alleged to have
occurred in Lincoln County, and because the witnesses and company
records apt to be introduced as evidence are located in Boyle and
Lincoln Counties, a trial in Jefferson County, which has no
significant connection with the events underlying the claims,
would be so inconvenient as to justify dismissal.
The doctrine of forum non conveniens is not welldeveloped in Kentucky.
Noting that fact and noting in particular
that our appellate courts have never upheld its intrastate
application, the trial court relied instead, or perhaps
additionally, upon the following language of KRS 452.030:
"The
granting of a change of venue shall be within the sound
discretion of the court, and shall be granted [sic] by the court
when justice so requires."
The trial court may have construed
this language as a statutory adoption of forum non conveniens,
for the relief it granted--dismissal rather than transfer--is the
form of relief typically associated with the common law doctrine.
We believe the trial court's reliance on KRS 452.030 as grounds
for a forum non conveniens dismissal was misplaced.
KRS 452.010 through KRS 452.110 provide for the
transfer of civil actions from one trial court within the state
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to another.
KRS 452.010, entitled "Grounds for change of venue,"
limits such transfers to situations wherein the parties have
either consented to the change or
it appears that, because of the undue influence
of his adversary or the odium that attends the
party applying or his cause of action or defense,
or because of the circumstances or nature of the
case he cannot have a fair and impartial trial in
the county.
Ceramichrome has not alleged that Jefferson County would be an
inappropriate venue based on these factors identified in KRS
452.010(2).
Additionally, inconvenience has been held an
insufficient ground to invoke the statutory change of venue
provisions.
In Blankenship v. Watson, Ky. App., 672 S.W.2d 941,
944 (1984), this Court held that transfer of a wrongful death
action from Webster County to Caldwell County on grounds of
convenience was improper and "void ab initio."
Admittedly,
Blankenship construed KRS 452.010, rather than KRS 452.030, the
section relied on by the trial court in this case.
This latter
section, however, cannot be viewed differently because it clearly
concerns only the procedural aspects of a change of venue once
the grounds for a change, identified in KRS 452.010, are present.
Under the doctrine of in pari materia, the courts are required to
construe together those statutes having a common purpose or
subject matter.
Dieruf v. Louisville & Jefferson Co. Bd. of
Health, 304 Ky. 207, 200 S.W.2d 300, 302 (1947); Hardin Co.
Fiscal Ct. v. Hardin Co. Bd. of Health, Ky.App., 899 S.W.2d 859,
862-63 (1995).
Applying this fundamental principle of statutory
construction, it is clear that the grounds for a change of venue
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were stated by our legislature in KRS 452.010 and that the
sections immediately following, including KRS 452.030, are
statements of the process and procedure for implementing a
change.
There is no suggestion from the statute as a whole that
the General Assembly ever intended KRS 452.030 to add grounds to
those specified in KRS 452.010 for granting a change of venue
motion.
The trial court, therefore, did not have authority under
the statute to decline jurisdiction in favor of the more
"convenient and appropriate" Lincoln County venue.
With the statute inapplicable, the next inquiry is
whether the same result can be achieved under the common law
pursuant to the forum non conveniens doctrine.
That doctrine
recognizes that there are certain instances
in which a court properly vested with
jurisdiction and venue may, nonetheless,
dismiss an action if it determines that
it is more convenient for the litigants
and witnesses that the action be tried in
a different forum.
Roos v. Kentucky Ed. Ass'n, supra, 580 S.W.2d at 508.
Application of this doctrine by Kentucky courts has been limited
to interstate situations where doubts about the enforceability of
the Kentucky judgment bear heavily on the decision whether to
decline jurisdiction.
611 S.W.2d 807 (1981).
See e.g., Williams v. Williams, Ky. App.,
In addition to the enforceability
concern, other considerations important to a forum non conveniens
decision include:
the relative ease of access to sources of
proof; availability of compulsory process for
attendance of unwilling, and the cost of
obtaining attendance of willing witnesses;
possibility of view of premises if view would
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be appropriate to the action; and all other
practical problems that make trial of a case
easy, expeditious, and inexpensive. There may
also be questions as to the enforceability of a
judgment if one is obtained. The court will weigh
the relative advantages and obstacles to a fair
trial. It is often said that the plaintiff may
not, by choice of an inconvenient forum, 'vex,'
'harass,' or 'oppress' the defendant by
inflicting upon him expense or trouble not
necessary to his own right to pursue his remedy.
But unless the balance is strongly in favor of
the defendant, the plaintiff's choice of forum
should rarely be disturbed.
Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839,
91 L.Ed.2d 1055 (1947) (quoted in part in the Kentucky Court of
Appeals decision in Roos).
Several states have incorporated forum non conveniens
considerations into their intrastate change of venue statutes,
and at least one state has ruled that the common law doctrine
applies, independently of statutory rules, to intrastate as well
as interstate situations.
The Supreme Court of Illinois has
held:
If the reasons for applying the doctrine in
certain interstate situations are good ones
and in the best interest of justice, and we
believe they are, then such reasoning is also
persuasive where a comparable situation exists
within the boundaries of this state.
Torres v. Walsh, 456 N.E.2d 601, 607 (Ill. 1983) (listing states
whose change of venue statutes incorporate the common law rule).
Kentucky's change of venue statutes do not incorporate
forum non conveniens, however, and otherwise the doctrine has
been applied intrastate infrequently and uncertainly.
In
Skidmore By And Through Skidmore v. Meade, Ky., 676 S.W.2d 793
(1984), our Supreme Court neither affirmed nor foreclosed
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intrastate application of forum non conveniens, ruling simply
that the invocation of the doctrine by a trial court should not
be disturbed through issuance of a writ of mandamus.
In the
Court's words, "[I]f that determination was erroneous as a matter
of law or as an abuse of discretion, the question may be reviewed
on appeal. . . ."
696 S.W.2d at 794.
Justice Leibson, in
dissent, stated:
This is an entirely unique application
of the doctrine of forum non conveniens.
There is no precedent for intrastate transfer
of a damage suit from one county to another
on grounds of forum non conveniens. A
plaintiff is entitled to select and file in
any county in this state where venue lies.
Id.
In Roos v. Ky. Ed. Ass'n, supra, this Court held that the
doctrine had been misapplied to an intrastate situation where the
competing venues were Jefferson Circuit Court and the Louisville
Division of the United States District Court for the Western
District of Kentucky.
The Roos Court did not address the general
scope or validity of an intrastate transfer.
In Evans v.
Commonwealth, Ky., 645 S.W.2d 346, 347 (1982), however, the
Supreme Court, rejecting the intrastate application of forum non
conveniens in a criminal case, said, "the fact is that there is
no existing authority for it [the forum non conveniens
dismissal].
It amounts to a change of venue upon a ground and to
counties of destination not embraced within the applicable
statutes."
Thus, although we are unwilling to say that the
doctrine of forum non conveniens can never be invoked by a
Kentucky court in favor of another Kentucky venue, we must
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acknowledge that the doctrine's status in our Commonwealth is, at
best, unsettled.
Moreover, even were the doctrine better established,
its use would be restricted to situations so burdensome to the
defendant as to overcome a pronounced deference to the
plaintiff's choice of forum.
As Kentucky's highest court stated
in Carter v. Netherton, Ky., 302 S.W.2d 382, 384 (1957):
"Since
it is for the parties seeking relief to choose the place of suit,
the choice of a forum should not be disturbed except for weighty
reasons . . ."
The Supreme Court of Utah has expressed this
point as follows:
the general policy of the law is that when
a plaintiff has commenced a lawsuit and acquired
jurisdiction over the defendant, he should be
allowed to pursue his remedy; and that such a
motion to dismiss should be granted only with
great caution and under compelling circumstances.
That is, where it appears either that the plaintiff
has selected an inconvenient forum for the purpose
of harassing or annoying the defendant, or where
upon an analysis of the factors hereinabove set out,
they preponderate so strongly against trying the
case here, and in favor of the greater convenience
of trying it somewhere else, that to deny the motion
would work a great hardship upon the defendant.
Summa Corporation v. Lancer Industries, Inc., 559 P.2d 544, 546
(Utah 1977).
See also Torres v. Walsh, supra 456 N.E.2d at 607
(adopting the intrastate applicability of forum non conveniens:
"We also caution our trial courts that unless those factors [the
factors to be considered in deciding whether to dismiss] strongly
favor the defendant, then the plaintiff should be allowed to
exercise his choice in deciding in what forum to bring the case
when venue is proper.")
In Norwood v. Kirkpatrick, 349 U.S. 29,
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75 S.Ct. 544, 99 L.Ed. 789 (1955), the United States Supreme
Court, construing 28 U.S.C. § 1404, the federal transfer of venue
statute, quoted with approval this passage from All States
Freight v. Modarelli, 196 F.2d 1010 (3rd Cir. 1952):
"The forum non conveniens doctrine is quite
different from Section 1404(a). That doctrine
involves the dismissal of a case because the
forum chosen by the plaintiff is so completely
inappropriate and inconvenient that it is
better to stop the litigation in the place
where brought and let it start all over again
somewhere else. It is quite naturally subject
to careful limitation for it not only denies the
plaintiff the generally accorded privilege of
bringing an action where he chooses, but makes
it possible for him to lose out completely,
through the running of the statute of limitations
in the forum finally deemed appropriate."
349 U.S. at 31.
Earlier, as noted above, in Gulf Oil Corporation
v. Gilbert, the Supreme Court had cautioned that "unless the
balance [of forum non conveniens factors] is strongly in favor of
the defendant, the plaintiff's choice of forum should rarely be
disturbed."
330 U.S. at 508.
Admittedly, in interstate and
international situations, where the chosen venue has tenuous
connections to the plaintiff and his cause of action, the courts
may grant less deference to the plaintiff's choice, but even then
the plaintiff's chosen venue is preferred absent serious
inconvenience.
See, e.g., Wieser v. Missouri Pacific Railroad
Co., 456 N.E.2d 98 (Ill. 1983) (citing Piper Aircraft Co. v.
Reyno, 454 U.S. 235, 1021 S. Ct. 252, 70 L. Ed. 2d 419 (1981).
In light of this authority, we believe the trial court
misapplied the forum non conveniens doctrine in this case.
For
although it may be conceded that Ceramichrome will find Jefferson
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County a less convenient venue than its home county, Lincoln,
there is no suggestion that its participation in a trial in
Jefferson County will impair its defense, subject it to an
inconvenience so great as to amount to "harassment" or
"oppression," or otherwise render the proceedings unfair.
Practically speaking, Jefferson County is not
geographically distant, being located approximately 85 miles from
Lincoln County.
Ceramichrome's likely witnesses are within
Jefferson Circuit Court's subpoena power under CR 45 and CR
32.01(c); the case is not apt to require a view of Ceramichrome's
premises; and the other likely evidence, such as employee files
and other company documents, is readily portable.
Ceramichrome
has not indicated that the cost of attending trial in Jefferson
County will so exceed the cost of a local trial as to compromise
its strategy or raise a question of vexation or harassment.
Nor
has Ceramichrome substantiated its suggestion that, because many
corporations employ process agents in Jefferson County, Jefferson
Circuit Court has been or is apt to become inundated with
inconvenient suits against distant corporations.
Even if that
potentiality could be substantiated it is a factor more properly
addressed to our General Assembly.
Notably, Ceramichrome's motion and proof focus on the
admitted lack of any real connection between Jefferson County and
the subject matter of the lawsuit rather than the extreme
inconvenience of the venue.
In essence, Ceramichrome seeks
reversal of the KEM Mfg. holding that the mere presence of a
process agent provides proper venue.
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This is a step we are not
prepared to take.
The reasoned conclusion in KEM Mfg. often
assures a plaintiff the choice of more than one venue, a not
insignificant concern.
Moreover, in the seventeen years since
KEM Mfg. was decided, corporations doing business in Kentucky
have had the option of avoiding its impact by designating a
process agent in a county where the corporation is willing to
litigate.
Certainly Ceramichrome could have appointed a process
agent located in Lincoln County.
Finally, with respect to a
statutory claim such as the discrimination action presented here,
the legislature may adopt a specific venue statute assuring that
a lawsuit will be brought where the challenged conduct occurred.
The Kentucky employment discrimination statute, for whatever
reason, has no such venue provision and the general rules must
apply.
In conclusion, while Congress and several state
legislatures have adopted liberal intra-jurisdictional change of
venue statutes incorporating and expanding on the common law
doctrine of forum non conveniens, Kentucky's General Assembly has
not done so.
Whether that doctrine itself applies within
Kentucky to permit dismissal of suits in favor of another
Kentucky venue is unclear, but even if the trial court did not
err by invoking forum non conveniens to effect an intrastate
transfer of venue, we believe application of that doctrine to
these facts was an abuse of discretion.
Any inconvenience to
Ceramichrome which may result from having the trial in Jefferson
County, as opposed to Lincoln County, simply does not appear and
has not been shown to be so substantial that Bowman and Martin
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should be denied their chosen forum and compelled to reinstitute
suit in Lincoln County.
We therefore reverse the July 23, 1996, order of
Jefferson Circuit Court dismissing the actions brought by Bowman
and Martin and remand for reinstatement thereof.
BUCKINGHAM, JUDGE, CONCURS.
EMBERTON, JUDGE, DISSENTS BY SEPARATE OPINION.
EMBERTON, JUDGE, DISSENTING.
Although in reading Ky.
Rev. Stat. (KRS) 452.450, I am not convinced that in KEM Mfg.
Corp. v. Kentucky Gem Coal Co., Inc., Ky. App., 610 S.W.2d 913
(1981), we gave the legislature's intended meaning to "agent," my
disagreement with the majority lies more with its finding of
abuse of discretion by the trial court than with its refusal to
revisit KEM.
The trial court expressly rejects use of the
doctrine of forum non conveniens on the grounds that the Kentucky
Supreme Court has established no precedent for its use in
intrastate matters.
However, equally obvious, neither has it
established precedent rejecting such application.
I agree with
the result reached by the trial court; however, I believe that
result should be supported expressly by the doctrine of forum non
conveniens.
With respect to my associates, I would hold that the
trial court did not abuse its discretion in reaching its result,
and therefore, I would affirm.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
William R. Erwin
Clay & Clay
Danville, Kentucky
William H. Hollander
Mitzi D. Wyrick
Wyatt, Tarrant & Combs
Louisville, Kentucky
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