No. 87-223 87-231 IN THE SUPREMECOURT OF THE STATE OF MONTANA 1987

STATE OF MONTANA,ex rel., BURLINGTON RAILROAD COMPANY,a corporation, Relator-vsDISTRICTCOURT OF THE EIGHTH JUDICIAL DISTRICT, INAND 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 THETHIRTEENTH JUDICIAL DISTRICTOF THE STATE OF MONTACTA, INAND 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 JohnW. 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'""".*'.

.................................. EDITORIALDEPARI'MENT, WestPl~blishing CO., St.Paul,Minn.



## .............. v.



### ....................................................... for".......



### .....R*. 

### a?5,

## .X4

.

### ~?Y<I*, 

# ,ez: ,&./

# r

. 

## ......

................................................................... ...................................................................



### ................ 

## J

................................................. ..............................................................

I.. 

### . 

# ....... 7 , 

### -. 

# 7. ]

## 7 P.

### "4

, 1
, '/


### .......................... .......... Ir



### ................................................................... 

## ..............

...................................................................

ofanycorrection. Thiswill bemutuallyadvantageous. West Pub. CO. 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. ThomasM. McKittrick and the Hon. John M. McCarvel,presiding judges therein, ordering dismissalof 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 actionpending 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 considerationand opinion. The first issue raised by the respondents is that the applications filed by Burlington Northern Railroad are insufficient in law for the issuance ofwrits 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. JohnM. McCarvel is the presiding district judge. Ineach of those causes,BurlingtonNorthern has filed motions for dismissal on the basis of forum non conveniens, and in each of the said causes, the respective judgeshave denied suchmotions 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 judgehas denied said motions. In each of the foregoingpending DistrictCourt 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 representedby 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 andthe taxpayers of the State of Montana, as well as an unnecessary impediment to litigantswho do reside inMontana andwhose counsel are alsoMontana residents. In addition to the four cases pending in the District Court, above cited, the applications show that there is furtherpending inDistrictCourts three additional causesof action: Averill v. BN, cause no. 85-200, Second Judicial District; Lang v. BN, cause no. 65477, Fourth Judicial District;and,Cheneyv. BN, cause no. 86-319, Sixth Judicial District. All of thesepending actions in the district courts have been brought against Burlington Northern under the provisions of the FederalEmployersLiabilityAct and the Federal Safety Appliance Act (45U.S.C. § 1-60). It is clear that the District Courts before us have jurisdictionofFELA casesunder 45U.S.C. § 56. The federal statute provides that an actionmay 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),182Mont. 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), 136Mont. 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 theDistrict Court in SilverBowCounty in 11years. This Court said there in denying a dismissal on the ground of forumnon conveniens:



# ... We do state, however, that if a substantial increase in this type of litigation is called to our attention in the futurewe will re-examine the situation in light of what we have herein stated. 139Mont. at 457, 365 P.2d at 514. In LaBella v. BurlingtonNorthern, 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. GreatNorthern 

### -- 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 wewill reexamine the situation in light of whatwe have herein stated."
182Mont. at 207, 595 P.2d at 1187. In the application now pending before us, ~urlington Northern contends that thependency 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 forumnon conveniens, soas to order dismissal of these actions in the circumstancesdescribed. In support of its application, Burlington Northern offered in the District Court of Cascade County and nowhere, affidavits showing thatfor 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 YellowstoneCounty,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,therewere 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 "substantialincrease" 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 concedesthat most FELA cases are settled before they ever go to trial. Thependency 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 "courtsof justice shall be open to every person and speedy remedy afforded for every injury of person, property or character." Art. I1

## , S 16, 1972Mont. Const. LaBella,182Mont. 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 removalof two cases from itsdocket 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 statewideper year is not a significant number of cases as to require the exercise of ourpower of supervisory control. Counsel for Burlington Northern submit that the filing of FELA cases in Montana courtsby out-of-state residentsand out-of-state counselmay 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, inwhat 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 morelikely 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 thatwe cannot say the District Court was bound to entertain a provincial fear of the provincialismof aVirginia 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. Thepetitions are DISMISSEP: 

### -\
, % c-L

\,'--- Justice 

# v FJe Concur: 

## - Thepetitions are DISMISSE : 

# B

\,'--- Justice FJe Concur

### 1

/

# /



# &~2zi&d%Zd Justices