No. 87-223 

87-231 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

STATE OF MONTANA, ex rel., BURLINGTON 

RAILROAD COMPANY, a corporation, 

Relator 

-vsDISTRICT COURT OF THE EIGHTH JUDICIAL 

DISTRICT, IN AND FOR THE COUNTY OF 

CASCADE, et al. 

Respondents. 

No. 87-234 

STATE OF MONTANA, ex rel., BURLINGTON 

NORTHERN RAILROAD COMPANY, a corporation, 

Relator, 

-vsDISTRICT COURT OF THE THIRTEENTH JUDICIAL 

DISTRICT OF THE STATE OF MONTACTA, IN AND 

FOR THE COUNTY OF YELLOWSTONE, et al. 

Respondents. 

ORIGINAL PROCEEDINGS: 

COUNSEL OF RECORD: 

For Relators: 

Crowley Law Firm; Bruce R. Toole, Billings, Montana 

Moulton Law Firm; K. Kent Koolen, Billings, Montana 

For Respondents: 

William G. Jungbauer, Minneapolis, Minnesota 

John W. Larson, Missoula, Montana 

JT-- Tnkn *-1, -I :---L a::,, - 

David B Kiker, Aurora, Colorado 

Wright, Tolliver & Guthals; Robert S Fain, Billings, 

Montana 

Submitted: August 11, 1987 

Decided: December 3, 1987 

Filed: D[S\fi-1987 

Clerk 
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of any correction. This will be mutua

West Pub. CO. 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

In cause no. 87-223, Burlington Northern Railroad 

Company as relator petitions for a writ of supervisory 

control directed to the District Court, Eighth Judicial 

District, the Hon. Thomas M. McKittrick and the Hon. John M. 

McCarvel, presiding judges therein, ordering dismissal of two 

causes of action pending in that court. 

In cause no. 87-234, Burlington Northern Railroad 

Company as relator has petitioned for a writ of supervisory 

control directed to the District Court of the Thirteenth 

Judicial District, and to the Hon. Diane G. Rarz, the 

presiding judge therein, ordering dismissal of two causes of 

action pending in that court. 

In each of the pending petitions in this Court, relator 

contends that the district judges in each of the causes 

should have dismissed the same on the basis of forum - non 

conveniens. Because the issues involved are the same, with 

almost identical arguments being made in each case, we have 

ordered that the petitions be consolidated for purposes of 

our consideration and opinion. 

The first issue raised by the respondents is that the 

applications filed by Burlington Northern Railroad are 

insufficient in law for the issuance of writs of supervisory 

control. In each of these proceedings the jurisdictional 

requisites for the issuance of writs of supervisory control 

are inextricably interwoven with the merits of the 

applications for such writs. Since we have determined in 

each cause that a writ of supervisory control should not 

issue, we do not rule directly on the jurisdictional 

question. 
In cause no. 87-223, the application of Burlington 

Northern is supported by documents in two causes now pending 

in the District Court, Eighth Judicial District, Cascade 

County. One is the case of Shirley Elaine Houser v. 

Burlington Northern Railroad Company, in which the Hon. 

Thomas M. McKittrick is the presiding district judge. The 

other is Charles M. O'Brien v. Burlington Northern Railroad 

Company, in which the Hon. John M. McCarvel is the presiding 

district judge. In each of those causes, Burlington Northern 

has filed motions for dismissal on the basis of forum non 

conveniens, and in each of the said causes, the respective 

judges have denied such motions to dismiss. 

In cause no. 87-234, it appears that there are pending 

in the District Court, Thirteenth Judicial District, 

Yellowstone County, before the Hon. Diane G. Barz, the 

presiding district judge, two causes of action. One is that 

of Andrew Samrns v. Burlington Northern Railroad Company and 

the other is Gary D. Epple v. Burlington Northern Railroad 

Company. In each of those pending causes of action in the 

Yellowstone County District Court, Burlington Northern has 

filed motions to dismiss on the basis of forum - non 

conveniens. In each cause, the Hon. Diane G. Rarz, as 

presiding district judge has denied said motions. 

In each of the foregoing pending District Court actions, 

it is alleged by relator, and not refuted, that the accidents 

giving rise to the claims against the railroad occurred in a 

state other than the State of Montana; that the plaintiffs 

are residents in a state other than Montana; that all factual 

witnesses are residents of states other than the State of 

Montana; that the plaintiffs are represented by counsel from 

a state other than the State of Montana; and, that the 

addition of these cases to the District Court's docket 

imposes an unnecessary burden on the judicial resources and 
the taxpayers of the State of Montana, as well as an 

unnecessary impediment to litigants who do reside in Montana 

and whose counsel are also Montana residents. 

In addition to the four cases pending in the District 

Court, above cited, the applications show that there is 

further pending in District Courts three additional causes of 

action: Averill v. BN, cause no. 85-200, Second Judicial 

District; Lang v. BN, cause no. 65477, Fourth Judicial 

District; and, Cheney v. BN, cause no. 86-319, Sixth Judicial 

District. 

All of these pending actions in the district courts have 

been brought against Burlington Northern under the provisions 

of the Federal Employers Liability Act and the Federal Safety 

Appliance Act (45 U.S.C. § 1-60). 

It is clear that the District Courts before us have 

jurisdiction of FELA cases under 45 U.S.C. § 56. The federal 

statute provides that an action may be brought in a district 

court of the United States, in the district of the residence 

of the defendant, the district in which the cause of action 

arose, or in which the defendant railroad shall be doing 

business at the time of commencing the action. Further, "the 

jurisdiction of the courts of the United States under this 

chapter shall be concurrent with that of the courts of the 

several states." 

On four previous occasions, Burlington Northern, or its 

predecessor, Great Northern Railway Company, has importuned 

this Court for an application of the doctrine of forum non 

conveniens in FELA cases. Bevacqua v. Rurlington Northern 

(1979), 183 Mont. 237, 598 P.2d 1124; LaBella v. Burlington 

Northern (1979), 182 Mont. 202, 595 P.2d 1184; State ex rel. 

Great Northern Ry. Co. v. District Court (1961), 139 Mont. 

453, 365 P.2d 512; Bracy v. Great Northern Ry. Co. (1959), 

136 Mont. 65, 343 P.2d 848. 
In State ex rel. Great Northern Ry. Co. v. ~istrict 

Court, supra, it appeared that 18 FELA cases had been filed 

in the District Court in Silver Bow County in 11 years. This 

Court said there in denying a dismissal on the ground of 

forum non conveniens: 

. . . We do state, however, that if a substantial 

increase in this type of litigation is called to 

our attention in the future we will re-examine the 

situation in light of what we have herein stated. 

139 Mont. at 457, 365 P.2d at 514. 

In LaBella v. Burlington Northern, supra, we had. a case 

where the District Court dismissed a FELA case upon the 

grounds of forum - non conveniens. This Court reversed in 

LaBella, stating: 

We fully recognize that the state is not 

constrained by federal law to reject the doctrine 

of forum - non conveniens in FELA actions. However, 

we find the policy favoring the injured railroad 

worker's choice of forum to be highly persuasive. 

This, in addition to the state's "open court 

policy" compels this Court to hold the doctrine of 

forum - non conveniens inapplicable to FELA suits 

filed in Montana District Courts. We repeat the 

warning set forth in State -- ex rel. Great Northern 

Ry., supra, 139 Mont. at 457, 365 P.2d 514.. . . "if a substantial increase in this type of 

litigation is called to our attention in the future 

we will reexamine the situation in light of what we 

have herein stated." 

182 Mont. at 207, 595 P.2d at 1187. 

In the application now pending before us, ~urlington 

Northern contends that the pendency of seven cases before the 

District Court of Montana represents a substantial increase 

in the number of FELA cases, and it is now time to apply the 

doctrine of forum non conveniens, so as to order dismissal of 

these actions in the circumstances described. In support of 

its application, Burlington Northern offered in the District 

Court of Cascade County and now here, affidavits showing that 
for fiscal year 1986, the total expenditure for the District 

Court budget was $903,444.00 and from that determined that 

the daily costs of operating the District Court approximated 

$3,475.00 per day. It further showed that the direct costs 

of conducting a civil jury trial approximated $822.79 per 

day. 

In Yellowstone County, in fiscal year 1986, the total 

expenditure for the District Court was $1,459,430.00. Its 

budget for 1987 is $1,576,776.00. The costs of operating the 

District Court is calculated there at approximately $6,064 

per day. It further appears that in Yellowstone County, that 

since 1979, the number of cases to 1986 had increased to 

4,231, an increase of nearly 20 percent. That number 

includes domestic actions, but excludes probate proceedings, 

juvenile and insanity actions. It is estimated that in 

Yellowstone County, the direct costs of a district court 

trial is about $3,000.00 per week. 

Burlington Northern also filed statistics obtained from 

the Montana State Judicial Information System. From those 

statistics, it appears that in 1986, there were 16,397 civil 

filings statewide, of which 1,828 related to tort. The 

numbers increased from 1984, when there were 15,045 civil 

filings statewide, of which 1,640 represented tort actions. 

The statistics provided by Burlington Northern in its 

applications fail to meet the "substantial increase" in FELA 

cases so as to show an intolerable burden on this state in 

maintaining its "open door" policy and meeting the obvious 

intention of the federal statute that the plaintiff could 

make a choice of forum in which to try his FELA claim. 

Burlington Northern concedes that most FELA cases are settled 

before they ever go to trial. The pendency of two FELA cases 

in the District Court of Cascade County, two in Yellowstone 

County, and one each in Missoula County, Silverbow County, 
and Park County are insufficient in number to cause this 

Court to move from its settled decision in the earlier cases 

to maintain the "open door" policy and to follow the 

provision of our Montana Constitution that "courts of justice 

shall be open to every person and speedy remedy afforded for 

every injury of person, property or character." Art. I1 , S 

16, 1972 Mont. Const. LaBella, 182 Mont. at 207, 595 P.2d at 

1187. 

The budgetary figures presented for Yellowstone and 

Cascade Counties represent the total operation of the whole 

District Court, and all the cases, civil and criminal, that 

come before those courts. There are three district judges 

serving the Eighth Judicial District, including Cascade 

County, and five district judges serving the Thirteenth 

Judicial District, including Yellowstone County. Although 

the district judge in Yellowstone County indicated that a 

trial may not be available in that county for two years, it 

does not appear that the removal of two cases from its docket 

will substantially lessen the burden on that District Court, 

nor would the elimination of seven cases statewide have a 

like effect on all state courts. Seven pending FELA cases, 

where there are over 16,000 civil cases filed statewide per 

year is not a significant number of cases as to require the 

exercise of our power of supervisory control. 

Counsel for Burlington Northern submit that the filing 

of FELA cases in Montana courts by out-of-state residents and 

out-of-state counsel may represent a form of forum shopping. 

However that may be, a choice of forum is given by federal 

statute in FELA cases. The United States Court, in what may 

be its first case acknowledging the doctrine of forum non 

conveniens, Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 

510, 67 S.Ct. 839, 844, 91 L.Ed. 1055, 1063, noted the 

argument of the plaintiff in that case that he was more 
likely to get a large verdict in a New York Court than in a 

Virginia Court saying: 

. . . It is a strange argument on behalf of a 

Virginia plaintiff that the community which gave 

him patronage to make his business valuable is not 

capable of furnishing jurors who know the value of 

the goods they store, the building they are stored 

in, or the business their patronage creates . . . The net of this is that we cannot say the District 

Court was bound to entertain a provincial fear of 

the provincialism of a Virginia jury . . . 

In the light of the statements of this Court and 

LaBella, supra, and earlier cases, and the paucity of 

evidence submitted by the applicant that pending FELA cases 

are a burden on the Montana courts or the taxpayers of this 

state, the applications in each cause for a writ of 

supervisory control are denied. 

The petitions are DISMISSEP: -\ , % c- L 

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FJe Concur: 

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The petitions are DISMISSE : B \, 

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&~2zi&d%Zd Justices