Capitol Research Services of Texas > Reports

Forum Non Conveniens (1997 Amendment)

eBook

  • Senate Bill 220 (1997)
  • Sec. 71.051, Civil Practice and Remedies Code
  • PDF Format eBook (Fully searchable)
  • Report: 207 pages
  • Exhibits: 380 pages
  • Fee: $295
  • Download the eBook directly from the Capitol Research website


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Hard Copy Report

  • Senate Bill 220 (1997)
  • Sec. 71.051, Civil Practice and Remedies Code
  • PDF Format eBook (Fully searchable)
  • Report: 207 pages
  • Exhibits: 380 pages
  • Fee: $395
  • Shipping: $20


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Abstract

The House Research Organization summarized the 1997 amendment to the forum non conveniens statute (§ 71.051, Civil Practice and Remedies Code) as follows:

Background

The doctrine of forum non conveniens allows civil courts to dismiss a lawsuit brought by a citizen of another state or country when the convenience of the parties and the ends of justice would be better served if the action were brought and tried in another jurisdiction. In 1993, SB 2 by Montford, et al., enacted by the 73rd Legislature as TEX. CIV. PRAC. & REM. CODE § 71.051, reinstated the doctrine of forum non conveniens in Texas after that doctrine had been held inapplicable to personal injury and death cases by the Texas Supreme Court in Dow Chemical v. Alfaro, 786 S.W.2d 674 (Tex. 1990).

The Alfaro case involved 82 Costa Rican farm workers who sued because they were required to handle pesticides allegedly manufactured by Dow Chemical and Shell Oil. The Supreme Court found that a Texas state district court could not refuse to hear the case because the Legislature had expressly authorized that all civil suits based on personal injury or death may be tried in Texas no matter who the parties were or where the injury occurred. The 1993 law permits a Texas court to decline to hear the case of a claimant who is not a legal resident of the United States on grounds of forum non conveniens "on any conditions that may be just."

To dismiss claims brought by a citizen of another state, however, the court must still make several findings, specified in sec. 71.051(b), and the defendant must agree to numerous conditions, including the waiver of any defense of statute of limitations in the new jurisdiction. Additionally, sec. 71.051(b) does not allow the application of forum non conveniens to cases brought under the Federal Employers’ Liability Act, the Federal Safety Appliance Act and the Federal Boiler Inspection Act; cases involving air travel originating from or destined for Texas; and cases alleging injury due to asbestos.

Digest

CSSB 220 would allow more permissive application of the doctrine of forum non conveniens to suits brought in Texas by residents of other states and would allow the dismissal of suits currently pending in Texas brought by residents of other states or countries alleging injury due to asbestos.

CSSB 220 would take immediate effect if finally passed by a two-thirds record vote of the membership of each house.

Personal Injury or Death Claims

CSSB 220 would allow a court to use the doctrine of forum non conveniens to dismiss individual claims as well as entire actions brought by residents of other states and other countries. However, the claims that could be dismissed or stayed by a court would include only those claims brought by a plaintiff.

In order to dismiss a claim brought by a resident of another state, the party seeking to dismiss or stay the claim would be required to show:

  • an alternative forum existed in which the claim could be tried;
  • the alternative forum provided an adequate remedy;
  • maintenance of the claim in Texas would work a substantial injustice to the party seeking to dismiss the claim;
  • the alternative forum could exercise jurisdiction over the claim;
  • the balance of interests, both of the parties and of the state, favored that the action be brought in an alternate forum; and
  • the stay or dismissal would not result in duplicative litigation.

If a court found, by a preponderance of the evidence, such claims to be true, the court would then be allowed to set the terms of the stay or dismissal of the claim. If the party who wished to stay or dismiss the action violated the terms of the order, the court would be allowed to withdraw the stay or dismissal order. A request for a stay or dismissal on the grounds of forum non conveniens could only be made within six months of the time required for filing the motion to transfer venue. (Motions to transfer venue must be filed before a defendant’s answer to a plaintiff’s complaints; defendants must file answers to plaintiff’s petitions within 20 days of service.) A court could extend any time period at the request of any party upon a showing of good cause.

CSSB 220 would allow a court to dismiss an action brought by plaintiffs who are Texas residents and non-Texas residents on the grounds of forum non conveniens only if the court found that the Texas residents were joined solely for the purpose of obtaining or maintaining jurisdiction in Texas courts.

A court would not be allowed to dismiss or stay a claim on the grounds of forum non conveniens if a plaintiff made a prima facie showing that an act or omission that was a proximate or producing cause of the claim occurred in Texas. The prima facie showing would not need to be made by a preponderance of the evidence and could be sufficiently shown by any evidence including affidavits, depositions, or discovery responses regardless of whether such evidence would be admissible at trial.

CSSB 220 would require a resident of a foreign state or country, in order to bring an action for personal injury or death in a Texas court, to commence such actions within the time provided by the laws of the state or country in which the wrongful act or omission took place.

CSSB 220 would apply to claims brought under the federal Employers’ Liability Act, the federal Safety Appliance Act, the federal Boiler Inspection Act, or cases involving air travel originating from or destined for Texas commenced on or after January 1, 1999. CSSB 220 would apply to all other personal injury or death claims commenced after the effective date of the act.

Asbestos Claims

CSSB 220 would establish a procedure for dismissal of claims alleging harm caused by exposure to asbestos fibers if the plaintiff was not a Texas resident at the time the claim arose and the claim arose outside the state.
Claims filed on or after January 1, 1997. On a motion of a defendant in any asbestos-related suit brought by an out-of-state plaintiff on or after January 1, 1997, a court would be required to dismiss the claim if a defendant made a stipulation that, for purposes of limitations, the filing of a claim in another forum would relate back to the date the plaintiff filed the claim in Texas.

Claims filed August 1, 1995 - January 1, 1996. A court would be required, on a motion of a defendant, to dismiss an asbestos-related claim brought on or after August 1, 1995, and before January 1, 1996, unless the plaintiff filed a written statement electing to:

  • abate the plaintiff’s claim for 180 days to afford the plaintiff an opportunity to file a new action in another state, or
  • keep the plaintiff’s claim in Texas but limit the punitive damages available to the plaintiff to the limits established in SB 28 by Sibley, enacted in 1995. Under SB 28, punitive damages are capped at the greater of two times the amount of economic damages plus up to $750,000 of the amount of noneconomic damages or $200,000.

Any election made by a plaintiff would be binding on all defendants in the plaintiff’s claim.

A court could not dismiss or abate a claim until a defendant filed a written stipulation waiving the right to assert a statute of limitations defense in all other states which the claim was not barred by limitations at the time that the plaintiff filed the action in Texas. The written stipulation would allow the limitations period in other states to be tolled at the time that the claim was filed in Texas until the date of dismissal or the end of the abatement period.
Defendants would also be required to file a written stipulation stating that if an action were commenced in another state, the plaintiff could elect to rely on the discovery responses already provided and use such responses to the extent permissible under the laws and procedural rules of the other state.

If the claims made by a plaintiff arose both within Texas and in another state, the court would be allowed to sever claims that arose outside of the state. If a plaintiff alleged to be exposed to asbestos fibers in more than one jurisdiction and such a claim were unseverable, the court would be allowed to determine which of the jurisdictions in which exposure was alleged would be the most appropriate forum for the claim, considering the lengths of exposure in each jurisdiction.

CSSB 220 would apply to all asbestos-related claims pending in Texas courts on the effective date of the act in which a trial, new trial, retrial or appeal scheduled after the effective date. Any cases in which a trial was in progress on the effective date of the act would continue under current law.

Exhibits

1993
1. Act of March 4, 1993, 73rd Leg., R.S., ch. 4, 1993 Tex. Gen. Laws, 10

1995
2. Act of June 14, 1995, 74th Leg., R.S., ch. 567, 1995 Tex. Gen. Laws, 3363

1997
3. Tex. S.B. 220, 75th Leg., R.S., Master Bill History Report (1997)
4. Tex. S.B. 220, As Introduced, 75th Leg., R.S. (1997)
5. Tex. S.B. 220, Senate Committee Report, 75th Leg., R.S. (1997)
6. Tex. S.B. 220, House Committee Report, 75th Leg., R.S. (1997)
7. Tex. H.B. 7, 75th Leg., R.S., Master Bill History Report (1997)
8. Tex. H.B. 7, As Introduced, 75th Leg., R.S. (1997)
9. SENATE STAFF SERVICES, Hearings on S.B. 220 Before the Senate Committee on Economic Development, 75th Leg. R.S. (February 20, 1997)
10. SENATE STAFF SERVICES, Hearings on S.B. 220 Before the Senate Committee on Economic Development, 75th Leg. R.S. (February 27, 1997)
11. SENATE STAFF SERVICES, Hearings on S.B. 220 Before the Senate Committee on Economic Development, 75th Leg. R.S. (March 4, 1997)
12. CAPITOL RESEARCH SERVICES, Hearings on S.B. 220 Before the House Committee on Civil Practices, 75th Leg. R.S. (April 15, 1997)
13. CAPITOL RESEARCH SERVICES, Debate on S.B. 220 On the Floor of the House (Second Reading), 75th Leg. R.S. (May 23, 1997)
14. CAPITOL RESEARCH SERVICES, Debate on S.B. 220 On the Floor of the House (Third Reading), 75th Leg. R.S. (May 24, 1997)
15. CAPITOL RESEARCH SERVICES, Debate on S.B. 220 On the Floor of the House (House Amendments), 75th Leg. R.S. (May 27, 1997)
16. S.J. of Tex., 75th Leg., R.S. 616-618, 3160-3167 (1997)
17. HOUSE RESEARCH ORGANIZATION, S.B. 220 Bill Analysis (May 23, 1997)
18. H.J. of Tex., 75th Leg., R.S. 3444-3453, 3556 (1997)
19. Act of May 29, 1997, 75th Leg., R.S., ch. 424, 1997 Tex. Gen. Laws, 1680
20. TEXAS CIVIL PRACTICE & REMEDIES CODE, § 71.051 (Vernon 1997 & Supp. 2003)