Senate Bill No. 200
(By Senators Tomblin, Mr. President, and Caruth,
By Request of the Executive)
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[Introduced January 10, 2008; referred to the Committee on the
Judiciary.]
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A BILL to amend and reenact §56-1-1a of the Code of West Virginia,
1931, as amended, relating to civil actions filed in the
courts of the state.
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
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 twelve 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 non-resident
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.
(e) (d) In actions filed pursuant to Rule twenty-three of the
West Virginia Rules of Civil Procedure the provisions of this
section shall apply only to the class representative(s).
(f) (e) 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 modify certain statutory
venue provisions in a manner consistent with the common law
doctrine of forum non conveniens.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.