Senate Bill No. 728
(By Senators Yoder, Guills, Barnes, Caruth, Boley, Facemyer,
Sprouse, Sypolt, Minard, Helmick, Plymale and Deem)
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[Introduced February 19, 2007; referred to the Committee on the
Judiciary.]
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A BILL to amend and reenact §56-1-1 of the Code of West Virginia,
1931, as amended; and to amend said code by adding thereto a
new section, designated §56-1-1a, all relating to civil
actions filed in the courts of the state; repealing
unconstitutional venue provision; and codifying the doctrine
of forum non conveniens.
Be it enacted by the Legislature of West Virginia:
That §56-1-1 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that said code be amended by adding
thereto a new section, designated as §56-1-1a, all to read as
follows:
ARTICLE 1. VENUE.
§56-1-1. Venue generally.
(a) Any civil action or other proceeding, except where it is otherwise specially provided, may hereafter be brought in the
circuit court of any county:
(1) Wherein any of the defendants may reside or the cause of
action arose, except that an action of ejectment or unlawful
detainer must be brought in the county wherein the land sought to
be recovered, or some part thereof, is;
(2) If a corporation be a defendant, wherein its principal
office is or wherein its mayor, president or other chief officer
resides; or if its principal office be not in this state, and its
mayor, president or other chief officer do not reside therein,
wherein it does business; or if it be a corporation organized under
the laws of this state which has its principal office located
outside of this state and which has no office or place of business
within the state, the circuit court of the county in which the
plaintiff resides or the circuit court of the county in which the
seat of state government is located shall have jurisdiction of all
actions at law or suits in equity against the corporation, where
the cause of action arose in this state or grew out of the rights
of stockholders with respect to corporate management;
(3) If it be to recover land or subject it to a debt, where
the land or any part may be;
(4) If it be against one or more nonresidents of the state,
where any one of them may be found and served with process or may
have estate or debts due him or them;
(5) If it be to recover a loss under any policy of insurance
upon either property, life or health or against injury to a person, where the property insured was situated either at the date of the
policy or at the time when the right of action accrued or the
person insured had a legal residence at the date of his or her
death or at the time when the right of action accrued;
(6) If it be on behalf of the state in the name of the
attorney general or otherwise, where the seat of government is; or
(7) If a judge of a circuit be interested in a case which, but
for such interest, would be proper for the jurisdiction of his or
her court, the action or suit may be brought in any county in an
adjoining circuit.
(b) Whenever a civil action or proceeding is brought in the
county where the cause of action arose under the provisions of
subsection (a) of this section, if no defendant resides in the
county, a defendant to the action or proceeding may move the court
before which the action is pending for a change of venue to a
county where one or more of the defendants resides and upon a
showing by the moving defendant that the county to which the
proposed change of venue would be made would better afford
convenience to the parties litigant and the witnesses likely to be
called, and if the ends of justice would be better served by the
change of venue, the court may grant the motion.
(c) Effective for actions filed after the effective date of
this section, a nonresident of the state may not bring an action in
a court of this state unless all or a substantial part of the acts
or omissions giving rise to the claim asserted occurred in this
state: Provided, That unless barred by the statute of limitations or otherwise time barred in the state where the action arose, a
nonresident of this state may file an action in state court in this
state if the nonresident cannot obtain jurisdiction in either
federal or state court against the defendant in the state where the
action arose. A nonresident bringing such an action in this state
shall be required to establish, by filing an affidavit with the
complaint for consideration by the court, that such action cannot
be maintained in the state where the action arose due to lack of
any legal basis to obtain personal jurisdiction over the defendant.
In a civil action where more than one plaintiff is joined,
each plaintiff must independently establish proper venue. A person
may not intervene or join in a pending civil action as a plaintiff
unless the person independently establishes proper venue. If venue
is not proper as to any such nonresident plaintiff in any court of
this state, the court shall dismiss the claims of the plaintiff
without prejudice to refiling in a court in any other state or
jurisdiction.
§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 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.
(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).
(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 repeal an
unconstitutional venue provision and to codify the doctrine of
forum non conveniens as to civil actions filed in the courts of the
state.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§56-1-1a is new; therefore, strike-throughs and underscoring
have been omitted.
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