|March 17, 2014|
Previously published on March 1, 2014
- The law of forum non conveniens may be changing.
- Currently, a defendant seeking a transfer of venue under forum non conveniens must show that the plaintiff’s chosen venue is oppressive and vexatious.
- The Pennsylvania Supreme Court will consider both the defendant’s and the claim’s connections to the plaintiff’s chosen forum in deciding whether to grant a transfer petition.
For years, defendants have been at the mercy of a plaintiff’s choice of venue. Other than removing to federal court or objecting to an improper venue, defendants have little control over where a matter will be litigated. Forum non conveniens has long been somewhat of a mirage: an option that, at least in theory, provides defendants a vehicle to seek a change of venue, but which courts rarely utilize, so as to not disturb a plaintiff’s choice of forum. But the law of forum non conveniens may be changing.
In Pennsylvania, a forum non conveniens transfer petition is brought under Pennsylvania Rule of Civil Procedure No. 1006(d)(1). The rule allows a court, “[f]or the convenience of parties and witnesses,” to “transfer an action to the appropriate court of any other county where the action could originally have been brought.” Pa.R.C.P. 1006(d)(1).
A court reviewing a petition for transfer under Rule 1006(d)(1), however, is not looking at convenience, at least not when the petition is submitted by the defendant. Rather, under the current standard, “a petition to transfer venue should not be granted unless the defendant meets its burden of demonstrating, with detailed information on the record, that the plaintiff’s chosen forum is oppressive and vexatious to the defendant.” Cheeseman v. Lethal Exterminator, Inc., 701 A.2d 156, 162 (Pa. 1997) (emphasis added).
A defendant seeking a transfer under forum non conveniens can prove that a plaintiff’s choice of venue is vexatious by showing that the plaintiff chose the forum to harass the defendant, even at the expense of inconveniencing the plaintiff himself. Alternatively, a defendant can prove that the plaintiff’s chosen forum is oppressive by showing that litigating in another forum would allow easier access to witnesses or other sources of proof. By contrast, claims that the forum is unrelated to the case or that litigating in another forum would be more convenient are not sufficient to establish that the chosen venue is oppressive and vexatious. Thus, in a way, convenience plays a very small role in forum non conveniens analysis.
In Bractic v. Rubendall, 2009 Phila. Ct. Com. Pl. LEXIS 198, 4-5 (2009), reversed by Bractic v. Rubendall, 43 A.3d 497 (Pa.Super. 2012), the Philadelphia Court of Common Pleas ruled in favor of the defendant’s transfer petition because the lawsuit was filed in Philadelphia, but all the acts giving rise to the suit occurred in Dauphin County, more than 100 miles away. The plaintiff in Bractic filed a lawsuit in Philadelphia for wrongful use of civil proceedings and abuse of process against three defendants. The prior action that gave rise to this wrongful use of civil proceedings and abuse of process claim was litigated in Dauphin County. Furthermore, all the defendants and potential witnesses resided in Dauphin County. In fact, as the trial court noted in its decision, the defendants’ sole connection to Philadelphia was the occasional business they conducted in that forum. As a result, the potential witnesses would have to travel distances greater than 100 miles to attend trial in Philadelphia, and access to the records of the prior proceeding would be complicated by the fact that these records were kept in Dauphin County.
Citing the facts above, the trial court determined that “[t]rying this case in Dauphin County would provide better access to all potential witnesses and other sources of proof such as court documents from the prior Dauphin County action.” To that end, the trial court granted the transfer to Dauphin County, finding the plaintiff’s choice of forum was vexatious and oppressive to the defendants.
In considering the defendant’s connection to Philadelphia and the claim’s ties to Dauphin County, factors not previously considered in the forum non conveniens analysis, the court arguably altered the standard for forum non conveniens transfers. For the first time, a court was willing to look at the burden on the defendant of litigating in a distant forum. The court was also willing to look at the connection between the claim and the plaintiff’s chosen forum, a factor that, arguably, should also weigh in the analysis. Yet, before this change could gain momentum, the decision was appealed.
In 2012, the Pennsylvania Superior Court, in a 6-3 opinion, reversed the trial court in Bractic, despite operating under the most deferential standard of review. Bractic v. Rubendall, 43 A.3d 497 (Pa.Super. 2012), appeal granted by Bractic v. Rubendall, 2013 Pa. LEXIS 702 (2013). First, the appellate court found that the trial court, in its analysis, improperly considered the fact that the defendants were not from Philadelphia County. Secondly, the appellate court noted that there is “a vast difference between a finding of inconvenience and one of oppressiveness.” Consequently, the fact that the prior proceeding took place in Dauphin County and that the defendants had minimal connections to Philadelphia were not enough to merit the transfer.
As for the witnesses, the court highlighted that four of the eight witnesses were employees of the defendant. For that reason, it did not credit the hardships they would face because, implicitly, it expected that those witnesses would be compensated. As for the costs to the defendants, the court saw them as normal litigation expenses. The court also noted that the remaining four witnesses, all engaged in client-based professions, failed to establish how the trial would affect their business.
The dissent noted that the effect of this opinion was to create an “excessively high burden.” The dissent would have found that the burden for forum non conveniens was met and would have affirmed the lower court’s decision.
The trial court’s decision in Bractic is not dead. In 2013, the Pennsylvania Supreme Court heard arguments on appeal in Bractic v. Rubendall, 65 A.3d 294 (Pa. 2013). A decision is expected in 2014. Should the Superior Court’s decision be overturned, the trial court’s opinion may be the first step towards considering the defendant’s burden of litigating in a forum that is simply not convenient.