GA Code § 9-10-31.1 (2021)
2021 Georgia Code|Title 9 - Civil Practice|Chapter 10 - Civil Practice and Procedure Generally|Article 2 - Venue|Part 1 - General Provisions|§ 9-10-31.1. Forums Outside This State; Waiver of Statute of Limitations Defense

  If a court of this state, on written motion of a party, finds that in the interest of justice and for the convenience of the parties and witnesses a claim or action would be more properly heard in a forum outside this state or in a different county of proper venue within this state, the court shall decline to adjudicate the matter under the doctrine of forum non conveniens. As to a claim or action that would be more properly heard in a forum outside this state, the court shall dismiss the claim or action. As to a claim or action that would be more properly heard in a different county of proper venue within this state, the venue shall be transferred to the appropriate county. In determining whether to grant a motion to dismiss an action or to transfer venue under the doctrine of forum non conveniens, the court shall give consideration to the following factors:   Relative ease of access to sources of proof;   Availability and cost of compulsory process for attendance of unwilling witnesses;   Possibility of viewing of the premises, if viewing would be appropriate to the action;   Unnecessary expense or trouble to the defendant not necessary to the plaintiff's own right to pursue his or her remedy;   Administrative difficulties for the forum courts;   Existence of local interests in deciding the case locally; and   The traditional deference given to a plaintiff's choice of forum.     A court may not dismiss a claim under this Code section until the defendant files with the court or with the clerk of the court a written stipulation that, with respect to a new action on the claim commenced by the plaintiff, all the defendants waive the right to assert a statute of limitations defense in all other states of the United States in which the claim was not barred by limitations at the time the claim was filed in this state as necessary to effect a tolling of the limitations periods in those states beginning on the date the claim was filed in this state and ending on the date the claim is dismissed.     (Code 1981, §9-10-31.1, enacted by Ga. L. 2005, p. 1, § 2/SB 3.)   Editor's notes.   - Ga. L. 2005, p. 1, § 1, not codified by the General Assembly, provides: "The General Assembly finds that there presently exists a crisis affecting the provision and quality of health care services in this state. Hospitals and other health care providers in this state are having increasing difficulty in locating liability insurance and, when such hospitals and providers are able to locate such insurance, the insurance is extremely costly. The result of this crisis is the potential for a diminution of the availability of access to health care services and a resulting adverse impact on the health and well-being of the citizens of this state. The General Assembly further finds that certain civil justice and health care regulatory reforms as provided in this Act will promote predictability and improvement in the provision of quality health care services and the resolution of health care liability claims and will thereby assist in promoting the provision of health care liability insurance by insurance providers. The General Assembly further finds that certain needed reforms affect not only health care liability claims but also other civil actions and accordingly provides such general reforms in this Act."   Law reviews.   - For article on 2005 enactment of this Code section, see 22 Ga. St. U.L. Rev. 221 (2005). For annual survey of trial practice and procedure, see 57 Mercer L. Rev. 381 (2005). For survey article on trial practice and procedure, see 59 Mercer L. Rev. 423 (2007). For article, "Ten Insights Into Georgia's Doctrine of Forum Non Conveniens," see 14 Ga. St. B.J. 26 (2008). For annual survey on trial practice and procedure, see 65 Mercer L. Rev. 277 (2013).   JUDICIAL DECISIONS   Constitutionality.    - O.C.G.A. § 9-10-31(c) was not a proper exercise of the legislature's authority to enact laws which allowed the superior and state courts to change venue; furthermore, because O.C.G.A. § 9-10-31.1(a) vested power to change venue in the court, and not in a defendant, as did O.C.G.A. § 9-10-31(c), O.C.G.A. § 9-10-31.1(a) was proper under Ga. Const. 1983, Art. VI, Sec. II, Para. VIII, and did not violate Ga. Const. 1983, Art. VI, Sec. II, Para. IV. EHCA Cartersville, LLC v. Turner, 280 Ga. 333, 626 S.E.2d 482 (2006).    O.C.G.A. § 9-10-31.1(a) does not automatically divest a superior court of its jurisdiction; to the contrary, a transfer of venue under the statute occurs only after the trial court exercises initial jurisdiction over the case to determine whether, in the interest of justice and for the convenience of the parties and witnesses a claim or action would be more properly heard in a forum outside the state. Accordingly, § 9-10-31.1(a) remains constitutional under Ga. Const. 1983, Art. VI, Sec. IV, Para. I. Hawthorn Suites Golf Resorts, LLC v. Feneck, 282 Ga. 554, 651 S.E.2d 664 (2007).   Mandatory condition precedent to dismissal under doctrine of forum non conveniens.    - In light of the plain language of O.C.G.A. § 9-10-31.1(b), a written stipulation, which stated that "with respect to a new action on the claim commenced by the plaintiff," the defendants will waive the statute of limitations defense "in all other states of the United States," and which was filed with the trial court or with the clerk of court, was a mandatory condition precedent to the dismissal of a case under the doctrine of forum non conveniens.    O.C.G.A. § 9-10-31.1 is not one of the specific provisions listed in Ga. L. 2005, p. 1, § 15(b) (Act) as applying only with respect to causes of action arising on or after the effective date of the Act; thus, under § 15(b), O.C.G.A. § 9-10-31.1 shall apply to causes of action pending on the effective date, unless such application will be unconstitutional.    Trial court's dismissal of a case based on the doctrine of forum non conveniens was vacated as, even though the case was dismissed before O.C.G.A. § 9-10-31.1 was enacted, the appeal was pending on the effective date of the act and O.C.G.A. § 9-10-31.1 applied; the trial court's citation to a case in its summary dismissal order did not show that the trial court considered each O.C.G.A. § 9-10-31.1(a) factor in making a decision.    Georgia's forum non conveniens statute does not distinguish between motions to dismiss and motions to transfer, but rather states that in determining whether to grant a motion to dismiss an action or to transfer venue under the doctrine of forum non conveniens, the court shall give consideration to the seven factors. Therefore, trial courts must consider the factors in ruling on either kind of motion. Kennestone Hosp., Inc. v. Lamb, 288 Ga. App. 289, 653 S.E.2d 858 (2007).    Strictly construing O.C.G.A. § 9-10- 31.1, the Georgia Court of Appeals holds that the statute does not authorize a trial court to dismiss a case on the ground of forum non conveniens without a written motion from a party and the required stipulation. Nothing in the statute indicates that a trial court is authorized to raise the issue of forum non conveniens on its own or to dismiss a case on that ground without the required stipulation. Wegman v. Wegman, 338 Ga. App. 648, 791 S.E.2d 431 (2016).    Trial court abused the court's discretion by dismissing the complaint on the ground of forum non conveniens because O.C.G.A. § 9-10-31.1 does not authorize a trial court to dismiss a case on the ground of forum non conveniens without a written motion from a party and the required stipulation. Wegman v. Wegman, 338 Ga. App. 648, 791 S.E.2d 431 (2016).   Seven factors must be considered.    - It is an abuse of discretion for a trial court not to address each of the seven factors listed in O.C.G.A. § 9-10-31.1(a), and in order to ensure that the trial court's decision-making process was guided by the statutory requirements, the trial court must make specific findings either in writing or orally on the record demonstrating that the court has considered all seven of the factors. The same rules apply to a court considering whether the court should decline jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act, O.C.G.A. Art. 3, Ch. 9, T. 19, as an inconvenient forum in accordance with O.C.G.A. § 19-9-67. Murillo v. Murillo, 300 Ga. App. 61, 684 S.E.2d 126 (2009).   No authority to dismiss to another country.    - O.C.G.A. § 9-10-31.1 was inapplicable because it only allowed dismissal of actions to other states and not to other countries and, thus, did not authorize the dismissal of the instant action to another country based on forum non conveniens. La Fontaine v. Signature Research, Inc., 305 Ga. 107, 823 S.E.2d 791 (2019).   Forum non conveniens finding proper.    - In a suit by a Delaware company against a consultant with regard to property the consultant had managed in Louisiana, the trial court properly held that Louisiana was a more convenient forum than Georgia; the relative ease of access to sources of proof favored Louisiana, the witnesses could more easily be compelled to testify there, any premises to be viewed were in Louisiana, the company would not be inconvenienced by traveling to Louisiana while the consultant would be inconvenienced by traveling to Georgia, a Georgia court would have difficulty in administering the case, and Georgia's interest in the matter was insignificant. Hawthorn Suites Golf Resorts, LLC v. Feneck, 282 Ga. 554, 651 S.E.2d 664 (2007).    Fulton County Superior Court did not err in transferring patients' medical malpractice case to Cobb County because the court made written findings of fact reflecting an analysis of the procedural framework of the forum non conveniens statute, O.C.G.A. § 9-10-31.1(a), specifically considering and weighing each of the seven factors enumerated, and the court further expressly included additional specifics with regards to those of the seven factors the court deemed relevant in the court's consideration and determination that transfer was warranted; the Cobb County Superior Court had subject-matter jurisdiction over medical malpractice cases, and venue was also proper in that county, and because the patients made no showing of harm by the adjudication of their case in Cobb County Superior Court, the patients demonstrated no basis to disturb the judgment entered against the patients upon the Cobb County jury's verdict. Lamb v. Javed, 303 Ga. App. 278, 692 S.E.2d 861 (2010).    Trial court did not abuse the court's discretion in granting dismissal of the breach of contract action based on forum non conveniens, because the written finding of fact, supported by the evidence including lack of a showing that the computer equipment in Georgia would be necessary in the case and that the hirer had already filed a related suit in California, reflected an analysis of all seven factors. Woodard Events, LLC v. Coffee House Indus., LLC, 341 Ga. App. 526, 801 S.E.2d 322 (2017).    Appellants' complaint was properly dismissed as to the appellees based on forum non conveniens because most of the evidence relevant to the appellants' breach of fiduciary duty claim arose out of the trust agreements that were executed in Florida and pertained to real and personal property, including money deposits and expenditures, in Florida; all of the appellees and two of the appellants resided in Florida; there was minimal local interest in adjudicating the matter in Georgia; and Florida had an interest as it had determined the limited guardianship of the appellant father. Waldon v. Alger, 352 Ga. App. 496, 835 S.E.2d 312 (2019).   Specific findings required.    - Before dismissing a case on the ground of forum non conveniens, a trial court must make specific findings either in writing or orally on the record demonstrating that the court has considered all seven of the factors set forth in O.C.G.A. § 9-10-31.1(a); a summary order is not sufficient.    When a trial court denied a motion to transfer venue without making findings of fact considering the factors in O.C.G.A. § 9-10-31.1, remand was required. The statute did not require findings only with regard to motions to dismiss, and it did not require findings only when a motion was granted. Kennestone Hosp., Inc. v. Lamb, 288 Ga. App. 289, 653 S.E.2d 858 (2007).    Because a superior court dismissed an action between two insurers on forum non conveniens grounds without finding on the record that: (1) an adequate alternative forum existed; (2) dismissal served the interest of justice and the convenience of the parties and witnesses, as guided by a consideration of the seven enumerated factors in O.C.G.A. § 9-10-31.1(a); and, therefore, (3) the claim or action was more properly heard in a forum outside the state, said dismissal amounted to an abuse of discretion warranting vacation of the dismissal, reinstatement of the case, and an order remanding the case for further hearing. Fed. Ins. Co. v. Chicago Ins. Co., 281 Ga. App. 152, 635 S.E.2d 411 (2006).    In a declaratory judgment action filed by an insurer seeking an order that the insurer had no duty to provide a defense or coverage under the insurance policy with the insured, because the trial court failed to comply with all the factors under O.C.G.A. § 9-10-31.1(a), and the vanishing venue doctrine did not apply, the venue transfer order was vacated, and the case was remanded for further hearing. Ga. Cas. & Sur. Co. v. Valley Wood, Inc., 290 Ga. App. 177, 659 S.E.2d 410 (2008).    A trial court erred in denying Florida defendants' motion to dismiss a Georgia suit for forum non conveniens because the court failed to make specific findings, either in writing or orally, on the record, demonstrating that it had considered all of the factors in O.C.G.A. § 9-10-31.1(a) as required. GrayRobinson, P.A. v. Smith, 302 Ga. App. 375, 690 S.E.2d 656 (2010).    Although a trial court was authorized to dismiss the child custody portion of a husband's case on the basis of forum non conveniens under O.C.G.A. § 19-9-67(a), the court erred in dismissing the husband's divorce case as well because he had a right to litigate his divorce in his county of residence. Although the trial court could arguably decline to exercise jurisdiction over the divorce case under O.C.G.A. § 9-10-31.1, the trial court did not invoke § 9-10-31.1 or consider the factors that the statute enumerated. Spies v. Carpenter, 296 Ga. 131, 765 S.E.2d 340 (2014).   Requiring a finding on each statutory factor.    - With regard to a motion to dismiss under the doctrine of forum non conveniens, the Georgia Supreme Court supposes that some case might require a finding on each factor under O.C.G.A. § 9-10-31.1(a) to adequately explain the decision but cannot say that such findings always or even usually are required; however, to the extent that the Georgia Court of Appeals has held otherwise in Park Ave. Bank v. Steamboat City Dev. Co., 317 Ga. App. 289 (2012); GrayRobinson, P.A. v. Smith, 302 Ga. App. 375 (2010); Ga. Cas. & Sur. Co. v. Valley Wood, Inc., 290 Ga. App. 177 (2008); Kennestone Hosp. v. Lamb, 288 Ga. App. 289 (2007); Federal Ins. Co. v. Chicago Ins. Co., 281 Ga. App. 152 (2006); Hewett v. Raytheon Aircraft Co., 273 Ga. App. 242 (2005), the Georgia Supreme Court overrules those decisions. By the statute's express terms, the trial court is required to consider each of the statutory factors enumerated in O.C.G.A. § 9-10-31.1(a), but the statute does not expressly require specific findings of fact on each factor. Wang v. Liu, 292 Ga. 568, 740 S.E.2d 136 (2013).   Denial of motion to transfer not improper.    - Hospital failed to meet its burden of showing an abuse of the trial court's discretion in the denial of its motion to transfer venue of a medical malpractice case; among other things, there was no showing that litigating the matter in Bibb County, where several of the defendants resided, posed difficulties with regard to interviewing or securing witnesses and evidence or that relocating the case to Pulaski County would allow easier access; further, since Bibb and Pulaski Counties were not at great distance from one another, it was difficult to accept the assertions that what was at issue affected the receipt of medical care solely in Pulaski County or that there was no local interest in deciding the case in Bibb County. R.J. Taylor Mem. Hosp., Inc. v. Beck, 280 Ga. 660, 631 S.E.2d 684 (2006).    In a medical malpractice case, the trial court properly denied a hospital owner's motion to transfer the case from Fulton county to Spalding county, where the hospital was located, as the physician resided in Fulton county, the plaintiff's expert witnesses would be flying into an airport there, the attorneys were located there, and the record did not show a need for compulsory process or a need to view the premises or that litigation there would inconvenience the owner; furthermore, O.C.G.A. § 9-10-31.1(a) did not single out medical malpractice actions for different consideration or treatment as to venue. Blackmon v. Tenet Healthsystem Spalding, Inc., 288 Ga. App. 137, 653 S.E.2d 333 (2007), rev'd on other grounds, 284 Ga. 369, 667 S.E.2d 348 (2008).    In an auto negligence suit, a trial court did not abuse the court's discretion by denying the defendant's motion to dismiss for forum non conveniens under O.C.G.A. § 9-10-31.1(a) because the court held a hearing and evaluated the defendant's claim as to the non conveniens factors and denied the motion based on the location of the collision, the close proximity of the two venues at issue, the comparative inconveniences to the parties, the location of the witnesses, and the difficulties of compulsory process in either venue. Gowdy v. Schley, 317 Ga. App. 693, 732 S.E.2d 774 (2012).    Trial court was not shown to have erred by denying the defendant's motion to dismiss under the doctrine of forum non conveniens because the defendant's counsel approved the form of the order on the motion to dismiss; therefore, the defendant could not complain that the record had no explanation of the decision of the trial court so as to permit meaningful appellate review and because the record had no explanation of that decision, the defendant could not carry the burden to show that the trial court abused the court's discretion when the court denied the motion. Wang v. Liu, 292 Ga. 568, 740 S.E.2d 136 (2013).   Granting of motion to transfer improper.    - Trial court erred in granting a debtor's motion to transfer a bank's action alleging breach of a loan agreement and promissory note because the trial court's focus solely on the note and the note's venue clause was in contradiction of O.C.G.A. § 13-2-2(4); the promissory note was a loan document subject to the document protocols that were attached to the loan agreement, and no showing was contained in the record that the forum selection clause in the document protocols was unenforceable. Park Ave. Bank v. Steamboat City Dev. Co., 317 Ga. App. 289, 728 S.E.2d 925 (2012).   Dismissal on forum non conveniens grounds proper.    - An appellant's suit to collect under a contract was properly dismissed on the ground of forum non conveniens under O.C.G.A. § 9-10-31.1(a) where: seven of the nine appellees were Puerto Rican corporations; the hotel project involved was in Puerto Rico; evidence and witnesses pertaining to the appellees' defense were primarily in Puerto Rico; any site visit would have to take place in Puerto Rico; over 60,000 documents relating to the project were being maintained there; other cases arising from the project were pending there; a Puerto Rican court had appointed a special master; and there was a question as to whether the appellees had sufficient minimum contacts with Georgia. John Hardy Group, Inc. v. Cayo Largo Hotel Assocs., 286 Ga. App. 588, 649 S.E.2d 826 (2007).    Alleged wife's suit for a declaration that she was the common law wife of a decedent was properly dismissed for forum non conveniens under O.C.G.A. § 9-10-31.1(a) because the issue was already pending in a Florida probate court, where the wife had filed for letters of administration, and involved mainly Florida residents and a Florida estate. Collier v. Wehmeier, 313 Ga. App. 421, 721 S.E.2d 919 (2011).    Trial court did not err by ruling on the motion to dismiss without allowing the appellants to obtain discovery related to the issue of forum non conveniens because the appellants did not articulate any evidence which the appellants hoped such discovery would uncover that would be relevant to that issue. Hawkins v. Blair, 334 Ga. App. 898, 780 S.E.2d 515 (2015).    Trial court did not err in dismissing the appellants' complaint on the ground of forum non conveniens because the relative ease of access to sources of proof favored dismissal as every party to the suit was a resident of South Carolina and the law offices were located in South Carolina; the appellants' right to pursue the appellants remedy would not be adversely affected if the case was dismissed from the Georgia court as both parties were South Carolina residents and the alleged injury occurred in South Carolina where the money taken from the accounts was received by the law firm; and the alleged injury would have been suffered in South Carolina, and the appellees' last acts to make the appellees liable also would have occurred in South Carolina. Hawkins v. Blair, 334 Ga. App. 898, 780 S.E.2d 515 (2015).   Appeal dismissed as moot.    - Patients' appeal of a judgment entered against them in a medical malpractice action on the ground that it was error to grant a motion to transfer filed by a hospital and corporation pursuant to the forum non conveniens statute, O.C.G.A. § 9-10-31.1, was dismissed as moot because the patients admitted in their appellate brief that their case had already been adjudicated, and it was too late for the patients to obtain an adjudication of their case in the Fulton County Superior Court; therefore, any determination by the court of appeals regarding whether the Fulton County Superior Court was authorized under the forum non conveniens statute to transfer their case to Cobb County Superior Court for adjudication would be an abstract exercise unrelated to any existing facts or rights. Lamb v. Javed, Ga. App. , S.E.2d (Jan. 19, 2010).   Waiver of claim.    - Patients waived their claim that the Fulton Superior Court failed to make oral or written findings of fact reflecting an analysis of the seven factors enumerated in O.C.G.A. § 9-10-31.1(a) because they acquiesced to the transfer order; the patients chose not to challenge the propriety of the transfer ruling on the grounds they asserted on appeal, despite having options and the opportunity to do so, and there was no dispute that the Cobb County Superior Count had subject-matter jurisdiction over medical malpractice cases and that venue was also proper in that county. Lamb v. Javed, Ga. App. , S.E.2d (Jan. 19, 2010).    In a payee's action alleging that the makers breached promissory notes, the trial court erred in granting the makers' motion to dismiss under the forum non conveniens statute, O.C.G.A. § 9-10-31.1, because the language of the forum selection clauses in the notes precluded the makers from seeking to dismiss the cases based on the doctrine of forum non conveniens and since the makers agreed in the makers' promissory notes to waive any claims contrary to the provisions of the forum selection clauses, the makers waived the ability to seek such a determination under the statute; O.C.G.A. § 9-10-31.1(a) provides for the forum non conveniens determination to occur on written motion of a party, and the statute does not prohibit contracting parties from waiving the parties' option of moving for transfer or dismissal under the statute. Int'l Greetings USA, Inc. v. Cammack, 306 Ga. App. 786, 703 S.E.2d 386 (2010).   Appellate review.    - When an appeal properly is taken from the grant or denial of a motion to dismiss under the doctrine of forum non conveniens, the appellant is entitled to meaningful appellate review, even if that review is only for an abuse of discretion. Wegman v. Wegman, 338 Ga. App. 648, 791 S.E.2d 431 (2016).    Cited in In the Interest of M. P., 338 Ga. App. 696, 791 S.E.2d 592 (2016).