NO. 94-100

IN THE SUPREME COURT OF THE STATE OF MONTANA

1994

STATE OF MONTANA, EX REL.,

BURLINGTON NORTHERN RAILROAD

COMPANY, a corporation,

Relator,

THE DISTRICT COURT OF THE EIGHTH

JUDICIAL DISTRICT COURT, CASCADE COUNTY,

and HONORABLE JOHN M. MCCARVEL

Respondents.

ORIGINAL PROCEEDING

COUNSEL OF RECORD:

For Relator:

Kurt W. Kroschel (argued), Dennis Nettiksimmons,

Kroschel & Yerger, Billings, Montana

For Plaintiff:

C. Marshall Friedman, St. Louis, Missouri, Lynn D.

Baker, Newton McCoy (argued), Hartelius, Ferguson &

Baker, Great Falls, Montana (Iddings)

For Third-Party Defendants:

Don M. Hayes, Herndon, Hartman, Sweeney & Halverson,

Billings, Montana (DuPont de Nemours & Co.); L.D.

Nybo, Nybo, Conklin & LeVeque, Great Falls, Montana

(SSI/Mobley Co.)

For Amici:

Randy Cox, Boone, Karlberg & Haddon, Missoula,

Montana, Sue Ann Love, Great Falls, Montana (Montana

Defense Trial Lawyers); Patricia O'Brien Cotter,

Cotter & Cotter, Great Falls, Montana, Lawrence

Anderson, Great Falls, Montana (Montana Trial

Lawyers Association); Robert M. Knight, Helena S.

Maclay, Knight, Maclay & Masar, Missoula, Montana

Filed:

Heard: October 25, 1994

Submitted: October 25, 1994

Decided: March 2, 1995
Justice James C. Nelson delivered the Opinion of the Court.

This case comes before us on Relator Burlington Northern's

(BN) application for a writ of supervisory control. BN requests

that we order the District Court to dismiss, without prejudice,

Plaintiff Anthony Iddings' (Plaintiff) Federal Employer's Liability

Act (FELA or the Act) complaint seeking monetary damages for an

injury occurring in the course and scope of his employment with BN.

BN contends that dismissal is appropriate under the doctrine of

forum non conveniens. We hold that dismissal on those grounds is

not warranted and, accordingly, decline to issue the requested

writ.

ISSUES

Four general issues are raised by the parties and are

discussed by the parties and by amici. We restate these issues as

follows:

I. Did the District Court err in failing to dismiss this case

on the grounds of forum non conveniens because of the substantial

increase in imported FELA cases in Montana?

II. Has the Montana Supreme Court applied the doctrine of

forum non conveniens in non-FELA cases, and if so, must the

doctrine now be applied in FELA cases?

III. Is it appropriate to apply the doctrine of forum non

conveniens to the instant case?

IV. What is the effect of the Privileges and Immunities Clause

on this litigation?

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff's claim arose out of an incident in May of 1989, in

Wyoming when he was allegedly injured in the course and scope of

his employment with BN by being exposed to herbicides from spraying

2
operations at the rail yard. Plaintiff is neither a citizen nor a

resident of Montana.

Plaintiff filed his FELA complaint under 45 U.S.C. § 51, et.

seq., in the Eighth Judicial District Court, Cascade County,

Montana, on April 27, 1992. On May 26, 1992, BN filed a motion to,

alternatively, dismiss the complaint on the basis of the doctrine

of forum non conveniens, or to change the place of trial.

By stipulation, BN's motion was stayed until the U.S. Supreme

Court decided Burlington Northern v. Ford (1992), _ U.S. _, 112

S.Ct. 2184, 119 L.Ed.2d 432, which related to the railroad's motion

for a change of place of trial based on equal protection grounds.

The parties, nevertheless, agreed that discovery in the instant

case would proceed. In May 1993, BN brought a third party complaint

against E.I. DuPont de Nemours & Company, Inc. (DuPont) and

SSI/Mobley Company, Inc. (SSI), contending negligence in the

spraying operation which allegedly injured Plaintiff. In the

course of their defense, DuPont and SSI joined BN's motion to

dismiss Plaintiff's complaint for forum non conveniens and,

subsequently, also filed their own motion to dismiss BN's third

party complaint and amended third party complaint on the same

grounds. BN's motion to dismiss Plaintiff's complaint for forum

non conveniens was heard on January 26, 1994, and on February 15,

1994, the District Court entered its written order denying the

motion. On March 7, 1994, BN filed a notice of application for

writ of supervisory control. We accepted original jurisdiction,

ordered briefs and, on October 25, 1994, heard oral argument. The

3
Montana Trial Lawyers Association, Montana Defense Trial Lawyers

and Robert M. Knight and Helena S. Maclay filed briefs, amicus

curiae.

DISCUSSION

Did the District Court err in failing to dismiss this case on

the grounds of forum non conveniens because of the substantial

increase in imported FELA cases in Montana?

BN contends that the District Court erred by not exercising

its discretion to grant its motion to dismiss, because of what it

claims is evidence of a substantial increase in the filing of outof-state FELA cases in Montana, especially in Cascade County. As

authority, BN cites, among others, our decision in Haug v.

Burlington Northern R. Co. (1989), 236 Mont. 368, 770 P.2d 517, for

the proposition that:

[tlhe common law doctrine of forum non conveniens allows

a court to "resist imposition upon its jurisdiction even

when jurisdiction is authorized by the letter of a

general venue statute." Under the doctrine, a court may

decline to exercise its jurisdiction when it believes

that the action may be more appropriately and justly

tried elsewhere.

Hauq, 770 P.2d at 521, citing Gulf Oil Corp v. Gilbert (1947), 330

U.S. 501, 507, 67 S.Ct. 839, 842, 91 L.Ed 1055, 1062. Moreover, BN

argues that, "a court is free to decide the availability of the

principle of forum non conveniens in FELA suits according to its

own local law," providing that the local law is not applied in a

discriminatory fashion, citing Missouri v. Mayfield (1950), 340

U.S. 1, 5, 71 S.Ct. 1, 8, 95 L.Ed. 3.

Plaintiff, on the other hand, maintains that filings of non4
resident FELA cases in the State of Montana since 1988, have

neither overburdened the court system in this state nor ~~cloggedl~

the dockets of Cascade County so as to call for the implementation

of forum non conveniens. Additionally, Plaintiff maintains that

BN's statistics are deceptive, and that many of the cases listed as

filed since 1988, are cases wherein the "plaintiffs are actually

residents of the State of Montana, . . or have substantial

contacts with the State of Montana, in that they were treated by

physicians located within the state."

The issue of trial courts' refusal to apply the doctrine of

forum non conveniens in FELA cases filed in Montana has been

considered by this Court on a fairly regular basis over the last

three and one-half decades--largely because our prior cases have

indicated a willingness to reexamine this issue if there was a

substantial increase in such filings. Because there was no

evidentiary hearing before or findings by the District Court on

BN's data, we take no position on the validity or interpretation of

the numbers and statistics offered by the Railroad.

Notwithstanding, we conclude that the numbers, whether accurate or

inaccurate, are not dispositive of this Issue and that the time has

come to clarify, once and for all, the law to be applied henceforth

in Montana with regard to the application of the doctrine of forum

non conveniens in FELA cases filed in this State.

To put our decision in context, a review of our prior case law

is necessary. We first substantively considered this issue in

Bracy v. Great Northern Railway Company (1959), 136 Mont. 65, 343

5
P.2d 848. There, the plaintiff, injured in Washington, filed his

FELA case in district court in Silver Bow County, Montana.

Defendant's appeal included a claim that the district court erred

in failing to dismiss plaintiff's complaint on forum non conveniens

grounds because the accident occurred in Washington and all the

witnesses resided there. Defendant requested that we "settle the

question as to whether the doctrine has application in this state."

Bracy, 343 P.2d at 850. Expressing doubt as to whether the

doctrine had any application in Montana, we declined to resolve

this "academic question," and simply observed that whether the

doctrine applies in a given case rests in the discretion of the

trial court and that on the basis of the affidavits and counteraffidavits filed, the trial court did not abuse its discretion in

denying defendant's motion to dismiss on forum non conveniens

grounds. m, 343 P.2d at 850.

A few years later, this issue again surfaced in State ex rel.

Great Northern Railway v. District Court (1961), 139 Mont. 453, 365

P.2d 512. That case, factually akin to Bracy, was also filed in

Silver Bow County and came before this Court as an original

proceeding from the trial court's denial of the railroad's motion

to dismiss the injured employee's FELA action on forum non

conveniens grounds. Great Northern, 365 P.2d at 512. As

additional support for its position, the Railroad argued that the

district court's failure to dismiss non-resident FELA cases "has

resulted in an increasing number of cases being filed in Silver Bow

County, constituting a hardship upon both the Railroad Company and

6
the [county] taxpayers . " Great Northern, 365 P.Zd at 513.

Without analyzing plaintiff's contentions which, among others,

included FELA choice of venue and state public policy/"open court"

arguments, we acknowledged our ability to accept or reject the

forum non conveniens doctrine and noted its purpose in requiring

litigants to avail themselves of the trial forum in their

residence. Great Northern, 365 P.2d at 513. Having those

considerations in mind, but declining to "establish the rule," we

concluded that the numbers of cases filed in Silver Bow County did

not indicate a trend of importing non-resident FELA litigation.

However, the numbers argument having been raised, we warned that we

would reexamine this issue if there were substantial increases in

filings of those type of cases. Great Northern, 365 P.2d at 514.

LaBella v. Burlington Northern, Inc. (19791, 182 Mont. 202,

595 P.2d 1184, followed eighteen years later. That case involved

an appeal from a Lewis and Clark County district court order

dismissing on forum non conveniens grounds, the FELA complaint of

a non-resident worker injured in the state of Washington. While

the district judge concluded that, under Bracv and Great Northern,

it was within his discretion to dismiss plaintiff's complaint

because of forum non conveniens, we framed and resolved the issue

on appeal much more narrowly. "The issue on appeal is whether a

District Court of this state may dismiss a FELA action because it

deems itself an inconvenient forum. We hold that it may not."

LaBella, 595 P.2d at 1185.

Facing squarely for the first time the relation of forum non

7
conveniens to FELA actions, we discussed at length the remedial

purposes of the Act along with its legislative history and

interpretive precedent under federal case law requiring liberal

construction of the Act in favor of the injured worker. LaBella,

595 P.2d at 1186-87. We also acknowledged federal authority to the

effect that I' [nl otwithstanding the strong policy favoring

plaintiffs' forum selection" under the Act, such actions were

transferable under 28 U.S.C. 5 1404(a), and that a state court

could dismiss a FELA case on forum non conveniens grounds

"[alccording to its own notions of procedural policy," citing Ex

parte Collett (1949), 337 U.S. 55, 69 S.Ct. 944, 93 L.Ed 1207, 10

ALR 2d 921, and Mayfield. LaBella, 595 P.2d at 1187.

While recognizing our ability to adopt the doctrine of forum

nOI3 conveniens in non-resident FELA cases, we, nevertheless,

unequivocally declined to do so. We first pointed out that this

state's public policy, dictated by Article II, Section 16, of our

Constitution, requires that our courts "shall be open to every

person, and speedy remedy afforded for every injury to person,

property or character." We noted that constitutional right was

unrestricted by reference to citizenship or residence and that any

such qualification could not pass muster under the Privileges and

Immunities Clause of Article IV, Section 2 of the United States

Constitution. LaBella, 595 P.2d at 1187. We then cited § 49-l204, MCA, which mandates equality of rights and duties for United

States citizens who are not citizens of Montana; and we found

"highly persuasive" the policy favoring the injured railroad

8
worker's choice of forum.

From that analysis we were compelled "to hold the doctrine of

forum non conveniens inapplicable to FELA suits filed in Montana

District Courts." LaBella, 595 P.2d at 1187. Moreover, we pointed

out that we had not been confronted with the application of forum

non conveniens in non-FELA cases and that our decision neither

denied nor recognized the existence of the doctrine "in cases where

there is no strong policy favoring plaintiffs' forum selection."

LaBella, 595 P.2d at 1187. Having said all that, we, inexplicably,

again mentioned OUT warning from Great Northern concerning

reexamination of this issue in the event of a substantial increase

in this type of litigation. LaBella, 595 P.2d at 1187.

In the same year we handed down our decision in LaBella, 1979,

we decided one other case involving the forum non conveniens/FELA

issue. In Bevacqua v. Burlington Northern, Inc. (1979), 183 Mont.

237, 598 P.2d 1124, a non-resident FELA case filed and subsequently

dismissed in Cascade County on forum non conveniens grounds, we

reversed the district court citing LaBella and Montana's "open

door" (open court) policy. Bevacaua, 598 P.2d at 1125.

Similarly, eight years later in State ex rel. Burlington

Northern v. Dist. Ct., Eighth Jud. Dist. (1987), 223 Mont. 325, 746

P.2d 1077, another non-resident FELA case filed in Cascade County,

the relator again raised the issue of county taxpayer funding and

judicial resources being utilized in cases where the plaintiff's

injury occurred in another state and where counsel and the fact

witness had no connection with Montana. Burlinqton Northern, 746

9
P.2d at 1078-79. Referencing our decisions, in Bracy, Great

Northern, LaBella and Bevacaua, and acknowledging that filing outof-state FELA cases in Montana may constitute forum shopping,

Burlinston Northern, 746 P.2d at 1080, we, nevertheless, rejected

BN's statistics as failing to demonstrate a "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 [supporting the FELA plaintiff's

ability to choose his foruml." Burlinaton Northern, 746 P.2d at

1080.

Finally, our most recent consideration of this issue was in

two consolidated cases filed in Cascade County. Haug v. Burlington

Northern and Lay v. Burlington Northern (1989), 236 Mont. 368, 770

P.2d 517 (the consolidated cases being cited as Hauq). While both

FELA cases, Hauq and Lay were factually somewhat different than the

previously discussed cases as those all involved the plaintiff

being injured out-of-state. In w, both plaintiffs were injured

in Montana--Haug in Park County and Lay in Lewis and Clark County.

Hauq, 770 P.2d at 518. In arguing that Montana's venue statutes

required that the two cases be transferred to the respective

counties where the injuries occurred, BN maintained that Cascade

County, having no connection with either lawsuit, was not a proper

place for trial. ~auq, 770 P.2d at 518.

We disagreed. First, overruling McAlear v. Kasak (1987), 225

Mont. 113, 731 P.2d 908, we determined that §§ 25-2-115, 25-2-

118 (7.), 25-2-122 and 25-z-201, MCA (1985), permitted plaintiff the

10
choice of filing his tort claim against the non-resident defendant,

BN, in either the county where the tort was committed or in any

county of this state. Hauq, 770 P.2d at 519. Next, treating the

issue as one of first impression, we held that our statutory

interpretation was also applicable to FELA cases. Hauq, 770 P.2d

at 520. In so holding, we again acknowledged that venue in FELA

cases is properly left to the practice of the forum, but,

notwithstanding, we focused on the policy arguments expressed in

LaBella and Montana's "open door" policy in reaching our

conclusion. Hauq, 770 P.2d at 520.

We then addressed the issue of whether the trial court is

empowered to change the place of trial of FELA actions in light of

the doctrine of forum non conveniens and the Montana venue

statutes. Hauq, 770 P.2d at 521. By way of dicta, we first

observed that the doctrine had been "codified" in 5 25-Z-201(2) and

(3), MCA. Hauq, 770 P.2d at 521. Noting that our previous

discussions of forum non conveniens in FELA cases had not made

reference to our statutory scheme or to the "codification of that

doctrine," we again however, focused on the rationale and policies

of our prior cases--i.e., Montana's "open court" or "open door"

policy, the policy favoring the FELA plaintiff's choice of forum,

the policy of liberally interpreting the Act to effect its remedial

purposes--and the failure to demonstrate any substantial increase

in imported FELA litigation. Haug, 770 P.2d at 521. Determining

that our "foregoing case analysis under the doctrine of forum non

conveniens applies equally to the provisions allowing a court to

1 1
change the place of trial in 5 25-Z-201, MCA," we then held that

"in FELA cases neither the doctrine of forum non conveniens, nor

the right to change the place of trial contained in § 25-z-201,

MCA, is available." Hauq, 770 P.2d at 522.

From a close reading of our cases starting with Bracv and

concluding with Hauq, several clearly identifiable rules and

rationale emerge as regards claims of improper or inconvenient

venue in FELA actions filed in Montana:

First, we have acknowledged that under federal case law, venue

in FELA actions filed in state court is left to the practice of the

forum state and that a state is not compelled to entertain FELA

cases brought in its courts, but can reject, as it may accept, the

doctrine of forum non conveniens for all causes of action begun in

its courts, providing that it does so on a nondiscriminatory basis.

See, Great Northern, LaBella, Burlinqton Northern and Hauq.

Second, we have neither accepted nor rejected the application

of forum non conveniens in non-FELA cases and we have neither

denied nor recognized the existence of that doctrine in cases where

there is no strong policy favoring plaintiff's forum selection.

See, Bracv, LaBella, Burlinston Northern and Hauq. In that regard

BN argues that we have accepted the doctrine of forum non

conveniens in non-FELA cases, citing Application of Bertelson

(1980), 189 Mont. 524, 617 P.2d 121 (child custody action);

Columbia Falls Alum. v. Hindin/Owne/Engelke (1986), 224 Mont. 202,

728 P.2d 1342 (contract action); and Simmons v. State (1983), 206

Mont. 264, 670 P.2d 1372 (negligence action). We disagree. None

12
of these cases dealt with the application of forum non conveniens,

but instead, dealt with the issue of the propriety of jurisdiction.

Montana has yet to apply the common law doctrine of forum non

conveniens in any non-FELA case, and, obviously, this case does not

resolve that issue one way or the other.

Third, we have uniformly refused to allow application of the

common law doctrine of forum non conveniens in FELA cases, whether

the injury occurred in Montana or in some other state and

regardless of the residence or citizenship of the plaintiff. See,

Bracv, Great Northern, LaBella, Bevacqua, Burlinqton Northern, and

Hauq.

Fourth, while we have seemingly left the door open to

reexamine the application of forum non conveniens to non-resident

FELA cases filed in Montana in the event of substantial increases

in filings of those types of cases, (See, Great Northern, LaBella,

Bevaccfua, Burlinqton Northern and Hauq), we have, at the same time,

uniformly rejected application of the doctrine to such cases

because:

1 . under federal case law FELA is to be given a liberal

construction in favor of injured railroad employees so that it may

accomplish its humanitarian and remedial purposes; See, LaBella,

Bevacqua, and Hauq;

2 . we have found "highly persuasive" the policy favoring the

injured worker's choice of forum, (See, LaBella, Burlinqton

Northern and Hauq), even if that choice of forum involves forum

shopping, Burlinqton Northern, 746 P.2d at 1080. (Moreover, while

13
not discussing the application of the doctrine of forum non

conveniens to FELA cases, but consistent with that prior case law,

we recently reemphasized our commitment to "the strong national

policy favoring a plaintiff's selection of forum in actions brought

under the Federal Employer's Liability Act." Ford v. Burlington

Northern R. Co. (1991), 250 Mont. 188, 197 819 P.2d 169, 175

affirmed _ U.S.-, 112 s.ct. 2184, 119 L.Ed.2d 432);

3 . Montana maintains an "open court" or "open door" policy,

in that our Constitution requires that our courts shall be open to

every person, unrestricted by residence or citizenship, and a

speedy remedy shall be afforded for every injury to person,

property or character. (See, LaBella, Bevacqua, Burlinqton

Northern, and HauQ); and

4 . section 49-l-204, MCA, mandates that United States

citizens who are not Montana citizens are, nevertheless, entitled

to the same rights and duties as citizens of this State. (See,

LaBella).

Fifth, even under Montana's venue statutes, we have rejected

the application of the doctrine of forum non conveniens in FELA

cases. Hauq, 770 P.2d at 522. In that regard, while dicta in Hauq

states that the doctrine of forum non conveniens was "codified" in

§ 25-2-201, MCA, Hauq 770 P.2d at 521, we do not reaffirm here that

such statement is necessarily correct. Suffice it to say, that

while § 25-2-201(2) and (3), MCA, clearly authorize a district

court to change the place of trial from one Montana county to

another Montana county--an interpretation consistent with the

actual facts before this Court in Haug and m--we do not construe

14
that statute as providing authority for a <rial court to dismiss

altogether a case filed in Montana on the premise that,

theoretically, it can more conveniently be tried in some other

state or jurisdiction outside of the Montana court system.

In summary, while fully recognizing our ability to accept or

to reject the nondiscriminatory application of the doctrine of

forum non conveniens to non-FELA cases and to FELA cases, whether

denominated as resident or non-resident, in light of the clear and

unambiguous rationale of our prior case law discussed at length

above, and notwithstanding our statements of apparent willingness

to reexamine our refusal to apply the doctrine of forum non

conveniens to FELA cases based on the numbers of out-of-state

filings in Montana, we conclude that our paramount constitutional

and statutory mandates and the policy reasons which we have

repeatedly cited for denying application of the doctrine in FELA

cases must, once and for all, take precedence over lesser concerns

of alleged overcrowding of local court dockets.

The clear requirements of Article II, Section 16 of Montana's

Constitution and of 5 49-l-204, MCA, and the important policy

reasons supporting a liberal construction of the Act in favor of

the injured worker and the FELA plaintiff's choice of forum simply

cannot be denigrated to a secondary position because of the impact-

-whether theoretical or real--of the filing of these types of cases

on the dockets of local Montana courts. When balanced against the

mandates of our Constitution, our statute and the policies

underpinning the Act which are adopted and expressed in our own

cases spanning three and one-half decades, applying forum non

15
conveniens to FELA actions because of docket overcrowding is simply

non sequitur. That we opened such a door in the first place and

then allowed it to remain open for so long, speaks not so much to

the merits of the argument, as it does to our simple failure to

concede its obvious infirmity.

We again hold, as we clearly did in LaBella, that a district

court in this state may not dismiss a FELA action because it deems

itself to be an inconvenient forum. We again hold, as we clearly

did in Hauq, that a district court in this State is not empowered

to change the place of trial of a FELA action based on the doctrine

of forum non conveniens, whether the common law variety or,

arguendo, as codified in § 25-2-201, MCA. Moreover, in light of

the mandates of Article II, Section 16 of our Constitution, § 49-l204, MCA, and the policies underpinning the Act which are adopted

and expressed in our own cases spanning more than thirty years, we

will not, henceforth, reexamine this issue on the basis of the

numbers of out-of-state FELA cases filed in Montana's district

courts.

In light of our discussion above and our holding on Issue I.,

we conclude that it is unnecessary to further address Issues II.,

III., and IV.

Accordingly, we decline to issue a writ of supervisory control

ordering the Eighth Judicial District Court to dismiss Plaintiff's

complaint on the basis of forum non conveniens, and BN's

application for such a writ is DENIED.
we concur:

Chief Justice

I

Justices.

**Honorable Robert S. Keller, District Judge, sitting in place of

Justice John C. Harrison, Retired. t;,

17
Justice Fred J. Weber dissents as follows:

I respectfully dissent from the majority opinion. I am

particularly concerned with the breadth of the opinion and its

elimination of the ability of district courts to dismiss a FELA

action on a forum non conveniens theory.

The majority relies on LaBella. While LaBella did state that

the district court in that case could not dismiss a FELA action

because it deems itself an inconvenient forum, it did not make this

determination binding under all future conditions. The majority

has done that with its choice of wording: 'I. . . we conclude that

the numbers, whether accurate or inaccurate, are not dispositive of

this Issue and that the time has come to clarify, once and for all,

the law to be applied henceforth . . .'I I do not agree with such

a pronouncement.

In considering LaBella, we should look at the analysis in that

case. In LaBella this Court went back to the 1907 message by

President Theodore Roosevelt and discussed the 1910 Senate

Committee report which sets forth an analysis that the LaBella

Court suggested was still applicable. While the discussion of

these historical messages was correct, I suggest the reason for the

application of the principles is no longer present in Montana.

President Roosevelt was greatly concerned about the safety of

railway workers and the railroads' lack of concern for the welfare

and safety of its employees. Subsequent to that time, FELA was

passed and affords significant protection to railroad workers. The

conditions in Montana are no longer similar to those of eighty

18
years ago. I therefore suggest that the rationale is actually

outdated when considering railroads and their employees today.

While not discussing the change, LaBella points out that the

federal court systems are no longer bound by the requirements of

FELA in this context. That is because 28 U.S.C. 1404(a) was

enacted in 1948 and provides:

For the convenience of parties and witnesses, in the

interest of justice, a district court may transfer any

civil action to any other district or division where it

might have been brought.

As a result, the open court policy along the entire lines of the

railroad as provided in FELA is no longer applied by the federal

government. Had this case been filed in federal court in Montana,

the Federal District Court had the discretion under 11 1404(a) to

transfer the case to Wyoming on the basis set forth in the statute,

which is essentially a forum non conveniens theory.

While FELA has not been repealed by the Congress, 28 U.S.C.

1404(a) effectively neutralizes its provisions in this respect as

to federal courts.

The majority mentions our Haus case. Hauq held that in the

event of a substantial increase of filings, the door was left open

to reexamine the application of forum non conveniens to future nonresident FELA cases. The opinion here makes the determination for

all future courts that an increase in the number of non-resident

FELA cases is irrelevant and will never be considered. I question

that we should attempt to make such a determination. It is the

district courts which are in the position of considering the effect

of the filing of non-resident FELA cases. In the event there are

19
sufficient filings to impair the functioning of any of such courts,

we should not presume to eliminate their capacity to apply the

doctrine of forum non conveniens. Unfortunately the opinion

completely dismisses the idea that the number of non-resident FELA

cases could significantly impair the functioning of Montana courts.

I do not conclude that our Montana Constitution requires that we

maintain a court system which shall be at all times sufficient to

allow the trial in this State of FELA cases from throughout the

United States where there is no connection to the State of Montana

other than the fact that the railroad runs through this State. I

dissent from the majority opinion.

Chief Justice J. A. Turnage concurs in the foregoing dissent.

d

20
Justice James C. Nelson specially concurs as follows:

In view of certain statements made by the dissent, I feel

compelled to make a response.

First, while the dissent seems to believe that, at some point

in the future, the "numbers of cases" argument might become

relevant, that ignores the fact that this argument was interjected

into our case law as nothing more than an afterthought in the Great

Northern case. We paid mere lip service to the argument in that

case and have given nothing more than the most cursory lip service

to the argument in every case in which it has been raised ever

since. As our opinion points out, in every case dealing with the

FELA/forum non conveniens issue, we have rejected application of

the doctrine and, instead, have grounded our decision in the

humanitarian and remedial policies of the Act, in the policy

favoring the claimant's choice of forum, on the open court

provisions of Montana's Constitution and on § 49-l-204, MCA. Those

being the substantive grounds for our past decisions, it begs the

question, "What if some future litigant does show that there is

actually a 'numbers' problem?" Will that change the humanitarian

and remedial policies underpinning the Act, the policy favoring the

claimant's choice of forum, the provisions of our Constitution or

§ 49-l-204, MCA? I submit that, absent some substantial change in

federal law, in our State Constitution and in Montana's statutory

law, none of which are within the reach of this Court, the reasons

why we have rejected application of the forum non conveniens

doctrine in FELA cases for the last thirty years will be the same

21
in the future, numbers or no numbers. Given the rationale for our

past decisions and the current state of the law, the "numbers"

argument is, in fact, irrelevant.

Second, that federal courts may transfer FELA cases between

different federal courts in different states under the doctrine of

forum non conveniens or under federal statutory law is not the

issue. Montana has not adopted the common law doctrine of forum

non conveniens in any case, FELA or non-FELA, and, the dicta in

Hauq notwithstanding, Montana does not have a forum non conveniens

statute akin to 28 U.S.C. 5 1404(a). While the dissent maintains

that FELA has been effectively "neutralized" by Congress' adoption

of 28 U.S.C. § 1404(a) (a conclusion that, I suspect, may come as

a shock to courts, litigants and practitioners), it is not clear

why, how or under what authority this Court should apply federal

statutory law applicable to federal cases in our State court

proceedings. I am at a loss to understand why the federal forum

non conveniens statute is even relevant to our inquiry here.

Third, and finally, I disagree with the dissent's basic

premise. Our opinion is not broad at all. We simply follow thirty

years of clear and unequivocal precedent established in our own

case law in stating, in effect, that we are taking a theory that

was dead on arrival to begin with off of life support. If the

dissent wants to keep reexamining this issue every few years, then

I submit that it is obligated to explain why the policies

underpinning the Act and our prior cases have suddenly, after three

decades, changed, and while Article II, Section 16, of our

22
Constitution and § 49-l-204, MCA, really do not mean what we have

repeatedly said they do. There is no legal basis to reexamine this

issue. There was no legal basis for the numbers argument in the

first place (as we have implicitly acknowledged for thirty years),

and, unless the law and Constitution are changed, there will be no

basis for that argument in the future. Breathing into a corpse

periodically simply will not bring it to life.

Justices Karla M. Gray a

foregoing special concurrence.

Trieweiler join in the

23