discussing common law doctrine of forum non conveniens and subsequent codification of separate forum non conveniens statute in response to Morris v. Crown Equip. Corp., 219 W.Va. 347, 633 S.E.2d 292 (2006)
How later courts described this case
- discussing common law doctrine of forum non conveniens and subsequent codification of separate forum non conveniens statute in response to Morris v. Crown Equip. Corp., 219 W.Va. 347, 633 S.E.2d 292 (2006)
- discussing common law doctrine of forum non conveniens and subsequent codification of separate forum non con- *30 veniens statute in response to Morris v. Crown Equip. Corp., 219 W.Va. 347, 633 S.E.2d 292 (2006)
- "In considering whether an alternate forum exists in which the claim or action may be tried' pursuant to West Virginia Code § 56-1-1a(a)(i) (Supp. 2010), an alternate forum is presumed to ‘exist’ where the defendant is amenable to process. Such presumption-may be defeated, however, if the remedy provided by the alternative forum is so clearly inadequate or unsatisfactory that it is no remedy at all. In such cases, the alternate forum ceases to 'exist' for purposes of forum non conveniens, and dismissal in favor of that forum would constitute error,”
- “Undeniably, the interest of justice would not be served, nor would a plaintiff be conve-nienced, if an action over which a court in this state had proper jurisdiction was dismissed in favor of an alternate jurisdiction in which the remedy provided is so clearly inadequate or unsatisfactory that it is no remedy at all.”
Written by the judges who cited it.
The opinion
BENJAMIN, J.,
concurring in part and dissenting in part:
I agree in part with the result reached in the majority opinion insofar as it recognizes that the existence of a viable alternative forum is a prerequisite to the application of the doctrine of forum non conveniens. However, I dissent to the majority opinion insofar as it declares W. Va.Code 56-1-la (Supp. 2010) ambiguous. I do not believe that it is.
“The existence of a viable alternate forum is a prerequisite to the application of the doctrine of forum non conveniens.” C.J.S. Courts § 94 (footnote omitted). Commentators have further explained:
A court may not dismiss an action on the ground of forum non conveniens unless the plaintiff could have brought the action before a court other than the court in which he or she did bring it, and he or she still has such an alternate forum. In other words, the doctrine of forum non conveniens presupposes the existence of more than one forum in which jurisdiction may be obtained over the parties and the subject matter of a ease in which the controversy may be tried. Thus, the doctrine generally may not be applied where the plaintiffs cause of action was barred by the statute of limitations prevailing in the jurisdiction of the other court. AmJur. Courts § 117 (footnotes omitted).
Though North Carolina would appear at first blush to be the best forum for this action, West Virginia is nevertheless a legally viable alternative forum. In the instant case, the appellant’s cause of action is barred by the applicable statute of limitations in North Carolina. Therefore, North Carolina is not a viable alternative forum and the doctrine of forum non conveniens is not properly applicable. Under our existing law, plaintiff may maintain his action in Monongalia County where venue does lie. I would note that the appellant would have to successfully argue that the discovery rule would apply lest this ease be likewise time-barred in West Virginia.