IN THE SUPREME COURT OF THE STATE OF NEVADA 

JOHN BORGER; AND SHERRI 

BORGER. 

Appellants, 

vs. 

POLARIS INDUSTRIES, INC., 

Respondent. 

No. 81764 

FILED 

MAR 1 6 2022 

ELIZABETH A. BROWN 

CLERK OF S ?RENE COURT 

ORDER OF AFFIRMANCE 

BY 

This is an appeal from a district court order dismissing a 

products liability action. Eighth Judicial District Court, Clark County; 

Kathleen E. Delaney, Judge. 

Appellants John and Sherri Borger (collectively, "the Borgers") 

appeal from a district court order dismissing their products liability action 

for forum non conveniens. In October 2016, while vacationing at Lake 

Havasu, Arizona, Sherri Borger was severely injured in an off-road vehicle 

accident.1The Borgers, who lived in Minnesota at the time of the accident, 

had rented the off-road vehicle shortly before the accident from Sandbar 

Powersports, LLC, a Nevada company operating in Arizona. While the 

family was driving in the vehicle, it rolled, pinning Sherri's right arm above 

the elbow and nearly severing it. Lake Havasu's fire department and 

emergency medical services, the Lake Havasu police department, and the 

Mohave County Sheriffs Office all responded to the accident. Sherri was 

initially flown to Havasu Regional Medical Center in Arizona and then 

transferred that sarne day to University Medical Center (UMC) in Las 

Vegas, where her arrn was amputated. 

1We recount the facts only as necessary for our disposition. 

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The vehicle was designed, tested, and manufactured in 

Minnesota by Polaris Industries, Inc., a Minnesota company, who sold it to 

an Arizona dealership. Sandbar's vehicle rental agreement, which the 

Borgers signed, stated that the agreement and any disputes arising from it 

would be governed by Arizona law. 

In March 2017, the Borgers sued Sandbar in Nevada, and 

Sandbar filed a counterclaim. In November 2017, the Borgers amended the 

complaint to include claims against Polaris for product liability design and 

marketing defects, breach of warranty, and negligent design and 

marketing. Sandbar thereafter reached a settlement agreement with the 

Borgers, and in January 2019, Polaris moved to dismiss for forum non 

conveniens. Polaris argued that because Sandbar had settled, the Borger's 

case was entirely about the vehicle's design and manufacture. Polaris 

pointed out that it had not yet produced any documents, nor had any of its 

representatives been deposed or expert discovery conducted. Polaris argued 

that the case no longer had connections to Nevada and explained that it 

would be difficult to compel key witnesses to testify unless trial proceeded 

in Arizona. 

The district court granted Polaris's motion to dismiss for forum 

non conveniens. The Borgers appeal. 

NRS 13.050 allows a court, upon a party's motion, to move the 

trial's location when doing so would be convenient for the witnesses and 

promote the ends of justice. In deciding a motion to dismiss for forum non 

conveniens, the court must consider three factors: (1) "the level of deference 

owed to the plaintiffs forum choice," (2) "whether an adequate alternative 

forum exists," and (3) whether dismissa] is warranted given public and 

2 
private interest factors.2 Provincial Gov't of Marinduque v. Placer Dome, 

Inc., 131 Nev. 296, 300-01, 350 P.3d 392, 396 (2015) (internal quotation 

marks omitted). Dismissal is appropriate where exceptional circumstances 

exist and the factors "weigh strongly in favor of another forum." Id. at 301, 

350 P.3d at 396 (internal quotation marks omitted). We review a district 

court's order dismissing an action for forum non conveniens for an abuse of 

discretion. Id. at 300, 350 P.3d at 395-96. An abuse of discretion occurs 

where the decision is "arbitrary, fanciful, or unreasonable, or where no 

reasonable [person] would take the view adopted by the trial court." 

Imperial Credit v. Eighth Judicial Dist. Court, 130 Nev. 558, 563, 331 P.3d 

862, 866 (2014) (alternation in original) (internal quotation marks 

omitted)). 

2A party must also support a motion for dismissal based on forum non 

conveniens with affidavits so that the district court can assess whether 

extraordinary circumstances exist. Mountain View Recreation, Inc. v. 

Imperial Commercial Cooking Equip. Co., 129 Nev. 413, 419, 305 P.3d 881, 

885 (2013). Here, Polaris submitted an affidavit stating that the product at 

issue was designed, tested, and manufactured in Minnesota; all employees 

with relevant information and documents are in Minnesota; and the vehicle 

was sold to an Arizona dealership. The motion to dismiss also included 

excerpts from transcripts of sworn depositions and other apparently 

admissible evidence. We therefore conclude that the district court had 

sufficient information here to determine that dismissal was appropriate. 

The dissent points out that the affidavit does not directly address the 

hardships or convenience of its witnesses, and this is a true observation. 

However, the district court could reasonably conclude that the evidence 

strongly favored litigation in Arizona even without more specific allegations 

of hardship. After all, the district court has to engage with numerous 

"public and private interest factors." Placer Dome, 131 Nev. at, 302-305, 

350 P.3d at 397-98. 

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We conclude the district court did not abuse its discretion under 

these facts. Although t he Borger's choice of forum is entitled to deference,3 

the other two Placer Dome factors weigh heavily in favor of dismissal here.4 

The Borgers did not include claims against Polaris until over eight months 

after they filed their initial complaint and over a year after the accident, 

and the record shows that minimal, if any, discovery has been conducted as 

to the specific claims against Polaris.5The Borgers do not reside in Nevada 

and the record suggests that none of the key witnesses reside in Nevada. 

We deterrnine the following to be persuasive: (1) the vehicle was designed, 

tested, and manufactured in Minnesota; (2) the vehicle was sold to an 

Arizona dealership, the Borgers rented the vehicle in Arizona and agreed 

Arizona law would control in the event of any dispute; (3) the accident 

occurred in Arizona; (4) the first responders were from Arizona; and (5) 

Sherri was initially treated at an Arizona hospital. Therefore, all of the 

witnesses testifying to the accident's immediate aftermath, as well as to the 

vehicle's design, testing, manufacture, and upkeep, reside outside Nevada.6 

3Whi1e we have never held that a plaintiff s Nevada forum choice is 

entitled to less deference when the plaintiffs are not Nevada residents, and 

we do not resolve that point here, we note that we have held a foreign 

plaintiffs choice of foruni inside the United States is entitled to less 

deference. Placer Dome, 131 Nev. at 301, 350 P.3d at 396. 

4The Borgers conceded below that Arizona is an appropriate 

alternative forum. 

5Moreover, the district court ordered that discovery produced during 

the Nevada case may be used in the re-filed case and that Polaris is to waive 

formal service of process requirements for the re-filed case. 

6We recognize Polaris could have compelled first responders in 

Arizona to submit to a deposition in Arizona for the Nevada case. See Quinn 

v. Eighth Judicial Dist. Court, 134 Nev. 25, 29-30, 410 P.3d 984, 987-88 

continued on next page . . . 

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Sherri's treatment at UMC is not the subject of this dispute, and because 

Sandbar has been dismissed from the case, the case no longer has ties to 

Nevada.7Arizona is therefore an adequate alternative forum for the case, 

and both public and private interests weigh in favor of dismissal, whereas 

nothing remains to tie the case to Nevada, there are substantial ties to 

Arizona, and Arizona is a convenient forum for the accident's witnesses. In 

this complex product liability case that will undoubtedly require extensive 

testimony and many expert witnesses, we cannot say the district court's 

decision was arbitrary, fanciful, or unreasonable.8 See Imperial Credit, 130 

Nev. at 563, 331 P.3d at 866. Accordingly, we 

ORDER the judgment of the district court AFFIRMED. 

Ale;11-Lt..0 

Stiglich 

J. 

Silver 

(2018). Under the facts of this particular case, however, witness 

convenience strongly favors an Arizona forum. 

7Notab1y too, the parties can subpoena certified records from UMC 

should the case proceed in Arizona. See NRS 53.100-.200 (Nevada's version 

of the Uniform Interstate Depositions and Discovery Act). To the extent the 

Borgers argue the settlement is not grounds for a forum non conveniens 

motion, we note the settlement is one of multiple factors demonstrating 

extraordinary circumstances favoring dismissal here. 

8As neither NRS 13.050 nor Placer Dome impose a time restriction on 

a party's ability to bring a motion for forum non conveniens, we disagree 

with the Borgers argument that the m otion here was untimely, particularly 

where Polaris had only been in the action for a little over a year at the time 

it made the motion, and little, if any, discovery relevant to the complex 

product liability claims against Polaris has been conducted. 

5 
HARDESTY, J., dissenting: 

"Dismissal for forum non conveniens is appropriate only in 

exceptional circumstances when the factors weigh strongly in favor of 

another forum." Provincial Gov't of Marinduque v. Placer Dome, Inc., 131 

Nev. 296, 301, 350 P.3d 392, 396 (2015) (emphasis added) (internal 

quotation marks omitted). Further, "[a] motion . . . based on forum non 

conveniens must be supported by affidavits so that the district court can 

assess whether there are any factors present that would establish such 

exceptional circumstances." Mountain View Recreation, Inc. v. Imperial 

Commercial Cooking Equip. Co., 129 Nev. 413, 419, 305 P.3d 881, 885 

(2013) (emphasis added). "General allegations regarding inconvenience or 

hardship are insufficient because [a] specific factual showing must be 

made." Id. (alteration in original) (internal quotation marks omitted). And 

we have opined that a party's or its employees convenience is irrelevant 

when considering such motions. Id. at 419 n.4, 305 P.3d at 885 n.4 (citing, 

among others, Said v. Strong Mem'l Hosp., 680 N.Y.S.2d 785, 786 (App. Div. 

1998)). 

This court has established a clear framework to determine 

whether a case shall be dismissed for forum non conveniens. We review a 

district court's application of the framework for an abuse of discretion, 

Placer Dome, 131 Nev. at 300, 350 P.3d at 395-96, and disregarding the 

affidavit requirement in the framework, or adding an entirely new standard 

concerning a plaintiffs preference, constitutes an abuse of that discretion. 

For these reasons, I respectfully dissent. 

NRS 13.050(2)(c) provides that "[t]he court may, on motion or 

stipulation, change the place of the proceeding . . [w]hen the convenience 

of the witnesses and the ends of justice would be promoted by the change." 

We have established a three-part test for district courts to consider "[w]hen 

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deciding a motion to dismiss for forum non conveniens." Placer Dome, 131 

Nev. at 300-01, 350 P.3d at 396. First. the "court must . . . determine the 

level of deference owed to the plaintiffs forum choice." Id. at 300, 350 P.3d 

at 396. Second, "a district court must determine whether an adequate 

alternative forum exists." Id. at 301, 350 P.3d at 396 (internal quotation 

marks omitted). And third, TV an adequate alternative forum does exist, 

the court must then weigh public and private interest factors to determine 

whether dismissal is warranted." Id. 

In the first instance, Polaris has not met the evidentiary burden 

necessary for the district court to decide its motion to dismiss for forum non 

conveniens. It is undisputed that the affidavit supporting Polaris's motion 

to dismiss did not address the hardships or convenience of its witnesses, or 

exceptional circumstances to warrant dismissal, as required under 

Mountain View. See Mountain View, 129 Nev. at 419, 305 P.3d at 885. 

InAead, Polaris argues that the affidavit requirement "is a matter of form 

over substance," and that "the record already contained most of the facts 

speaking to Nevada's three-part test." Similarly, the majority also 

dismisses this issue by concluding, without analysis, that "the district court 

could reasonably conclude that the evidence strongly favored litigation in 

Arizona even without more specific allegations of hardship." Majority, ante 

at 3 n.2. But this is not what Mountain View requires! Mountain View 

clearly requires an affidavit be attached to a forum non conveniens motion 

to dismiss that demonstrates specific instances of inconvenience or 

hardship. 129 Nev. at 419, 305 P.3d at 885. 

The only affidavit that Polaris provided was from Blake 

Anderson, a "Senior Project Engineee at Polaris. Anderson merely attested 

generally to the facts contained in the motion to dismiss, the headquarter 

location of Polaris, the model of off-road vehicle involved, and where the 

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vehicle was manufactured and sold. Anderson did not attest as to why 

Arizona is more convenient. The fact that Polaris is located out of state is 

of no consequence, because both the chosen forum and the alternative forum 

are not Polaris's headquarters. Polaris will have to travel to the west coast 

regardless. Further, there is no evidence in the record, beyond Polaris's 

counsel's statements, to demonstrate that the Sandbar employees and the 

first responders are unwilling to travel to Nevada. See Nev. Ass'n Servs., 

Inc. v. Eighth Judicial Dist. Court, 130 Nev. 949, 957, 338 P.3d 1250, 1255 

(2014) (explaining that lalrguments of counsel . . . are not evidence and do 

not establish the facts of the case" (internal quotation marks omitted)). In 

fact, to the contrary, Polaris was present and participated in the depositions 

of the Sandbar employees in Nevada during the one year and three months 

before it brought the motion to dismiss for forum non conveniens. 

This is the type of speculation that this court was trying to avoid 

in Mountain View when it required an affidavit and stated that Ideneral 

al1egations regarding inconvenience or hardship are insufficient." 129 Nev. 

at 419, 305 P.3d at 885. The majority, like the district court, minimize this 

requirernent and instead change the standard for forum non conveniens 

motions, allowing any minimal showing to dismiss a case, rather than 

"exceptional circumstances." Placer Dome, 131 Nev. at 301, 350 P.3d at 396 

(internal quotation marks omitted). The lack of a proper affidavit under 

Mountain View alone requires reversal. 

Lastly, the majority completely disregards the district court's 

erroneous application of the three-part Placer Dome test. The first 

requirement in Placer Dorne is that a district court "must . . . determine the 

level of deference owed to the plaintiff s forum choice." 131 Nev. at 300, 350 

P.3d at 396. Here, the district court found that "the [Borgers] choice of 

forum is entitled to lesser deference because it is not the [Borgersr] 

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residence." This court has held that a "plaintiff s choice of forum is entitled 

to great deference, but a foreign plaintiffs choice of a United States forum 

is entitled to less deference." Placer Dome, 131 Nev. at 301, 350 P.3d at 396. 

However, we have never made a distinction between a plaintiff who resides 

within the state versus one who resides outside of the state. And why would 

we? At the inception of this lawsuit, Nevada was the only place that the 

Borgers could properly bring suit against Sandbar because it is a Nevadabased LLC. Polaris and the majority fail to provide any reasoning as to why 

a plaintiff should be entitled to lesser deference, after correctly filing a 

lawsuit in a proper forum, just because the plaintiff does not live in that 

forum. By ignoring the district court's conclusion, the majority is adopting 

an entirely new standard in Nevada regarding deference to a plaintiffs 

forum choice, devoid of analysis. The district court made an erroneous 

conclusion of law, which requires reversal. See Dewey v. Redevelopment 

Agertcy of Reno, 119 Nev. 87, 93, 64 P.3d 1070, 1075 (2003) (reviewing 

questions of law de novo). 

Accordingly, for the foregoing reasons, I respectfully dissent. 

J. 

cc: Hon. Kathleen E. Delaney, District Judge 

Stephen E. Haberfeld, Settlement Judge 

Chad A. Bowers, Ltd. 

Kaster, Lynch, Farrar & Ball, LLP 

Sgro & Roger 

Faegre Drinker Biddle & Reath, LLP 

Eighth District Court Clerk 

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