Opposition Brief — Jefferd's Corp. Corp. v. Morris (No. 06-487)

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Nos. 06-487, 06-503

IN THE

Supreme Court of the United States

JEFFERDS CORPORATION and

CROWN EQUIPMENT CORPORATION,

Petitioners,

JEREMIAH “BART” MORRIS,

Respondent.

On Petition for a Writ of Certiorari to the

West Virginia Supreme Court of Appeals

RESPONDENT’S BRIEF IN OPPOSITION

ALLISON M. ZIEVE JOUN COOPER

Public Citizen Litigation Group Counsel of Record

1600 20th Street, NW Cooper, Preston & Douglas

Washington, DC 20009 333 2nd Street

(202) 588-1000 Parsons, WV 26287

(304) 478-4600

Counsel for Respondent

November 2006

QUESTION PRESENTED

Whether West Virginia’s venue statute, W. Va. Code

§ 56-1-1, requires a West Virginia state court to decline to

exercise jurisdiction over a case brought by a non-resident

plaintiff against a West Virginia resident.

TABLE OF CONTENTS

QUESTION PRESENTED

TABLE OF AUTHORITIES

STATEMENT OF THE CASE

REASONS FOR DENYING THE WRIT

A. This Court Lacks Jurisdiction To Review

The Non-Final Decision Below

The West Virginia Supreme Court Of Appeals

Articulated Independent State Grounds

For Its Decision

No Conflict Exists Among The State High

Courts On The Issue Decided Below

1. Petitioners’ reliance on forum non

conveniens cases is misplaced

The cases Petitioners cite involving

venue statutes do not conflict with the

judgment below

The Decision Below Is Consistent With

Supreme Court Jurisprudence

CONCLUSION

ill

TABLE OF AUTHORITIES

CASES

Baltimore & Ohio Railroad Co. v. Ballie,

148 N.E. 233 (Ohio 1925)

Belknap v. Hale,

463 U.S. 491 (1983)

Cox Broadcasting Corp. v. Cohn,

420 U.S. 469 (1975)

Douglas v. New York, New Haven & Hartford Railroad Co.,

279 U.S. 377 (1929)

Flynt v. Ohio,

451 U.S. 619 (1981)

Gober v. Federal Life Insurance Co.,

237 N.W. 32 (Mich. 1931)

Gore v. United States Steel Corp.,

104 A.2d 670 (N.J. 1954)

Grovey v. Washington National Insurance Co.,

119 S.W.2d 503 (Ark. 1938)

Harvey v. Eastman Kodak Co.,

610 S.W.2d 582 (Ark. 1981)

Jefferson v. City of Tarrant,

522 U.S. 75 (1997)

Loftus v. Pennsylvania Railroad Co.,

140 N.E. 94 (Ohio 1923)

Missouri ex rel. Southern Railway Co. v. Mayfield,

340 U.S. 1 (1950)

Mooney v. Denver & Rio Grande Western Railroad Co.,

221 P.2d 628 (Utah 1950)

Owens Corning v. Carter,

997 S.W.2d 560 (Tex. 1999)

Rosenthal v. Unarco Industries,

297 S.E.2d 638 (S.C. 1982)

Southland Corp. v. Keating,

465 US. 1 (1984)

Walker v. Ohio River Co.,

205 A.2d 43 (Pa. 1964)

Westerby v. Johns-Manville Corp.,

32 Pa. D. & C.3d 164 (Pa. Com. Pl. 1982)

STATUTES

28 U.S.C. § 1257(a)

W. Va. Code § 56-1-1(a)

W. Va. Code § 56-1-1(c)

STATEMENT OF THE CASE

While operating a forklift that went out of control,

respondent Jeremiah “Bart” Morris suffered a severe injury that

required amputation of his leg. Mr. Morris is a Virginia

resident, and the incident occurred in Virginia.

Petitioner Jefferds Corporation (“Jefferds”), a West

Virginia Corporation, is the distributor of the forklift and

responsible for servicing the product. Petitioner Crown

Equipment Company (“Crown”), an Ohio corporation,

designed, manufactured, and distributed the forklift. Mr.

Morris sued Petitioners in state court in West Virginia, where

Jefferds is incorporated and has its principal place of business

and where its officers reside. The complaint alleges negligence,

strict liability, failure to warn, and breach of warranty.

Both Jefferds and Crown moved to dismiss for improper

venue based on a West Virginia statute, W. Va. Code § 56-1-

1(c) (2003), which, in pertinent part, provides: “[ A] nonresident

of the state may not bring an action in a court of this state unless

all or a substantial part of the acts or omissions giving rise to

the claim asserted occurred in this state.”

In response to the motions to dismiss, Mr. Morris argued

that application of § 56-1-1(c) as urged by Petitioners would

violate the Privileges and Immunities Clause of the United

States Constitution, that their argument ran counter to the Open

Courts Clause of the West Virginia Constitution, that venue was

proper under W. Va. Code § 56-1-1(a) because Jefferds is a

West Virginia corporation, and that venue was proper under

§ 56-1-1(c) because “‘a substantial part of the acts or omissions

giving rise to the claim asserted occurred in” West Virginia.

Mr. Morris also moved to amend his complaint and to take

discovery limited to venue issues.

The trial court denied Mr. Morris’s motions and granted

Petitioners’ motions to dismiss. Mr. Morris appealed to the

state Supreme Court of Appeals, which reversed and remanded

the case to the trial court for proceedings on the merits. The

court explained that a reading of W. Va. Code § 56-1-1(c) that

“categorically immunize[d] a West Virginia defendant... from

suit in West Virginia by a nonresident” would run afoul of the

Privileges and Immunities Clause and “established West

Virginia law.” Jefferds App. 19. The court therefore gave a

“narrow-breadth reading” to the state statute and held that § 56-

1-1-(c) does not apply to civil actions filed against West

Virginia citizens and residents, such as Jefferds. Jd. 20-21. The

court therefore did not reach the state constitutional issue. The

court also did not decide whether “a substantial part of the acts

or omissions involved” occurred in West Virginia, although the

majority stated that “it seems clear that the plaintiff's Second

Amended Complaint does sufficiently allege that a ‘substantial’

portion of the acts or omissions giving rise to Morris’ claims

occurred in West Virginia.” Jd. 11-12.'

In a concurrence, Justice Benjamin stated that the case

should be remanded to resolve factual questions about “whether

‘all or a substantial part of the acts or omissions giving rise to

the claim occurred in’” West Virginia. Jd. 31 (quoting § 56-1-

19(c)); see id. 35 (same). He also stated that venue was proper

under W. Va. Code § 56-1-1(a), based on the residence of

Jefferds’s officers. Jd. 34. Justice Albright concurred to

emphasize that residency may be taken into consideration along

with other factors in a forum non conveniens context, but that

'The court also held that, under state law, venue was

proper as to petitioner Crown because “once venue is proper for

one defendant, it is proper for all other defendants subject to

process.” Jefferds App. 22-25. Crown has not sought this

Court’s review of this state-law holding.

it should not be used as a “categorical ground requiring”

dismissal. Jd. 43. Justice Maynard dissented. Jd. 26.

REASONS FOR DENYING THE WRIT

Review is unwarranted for four reasons. First, the court

lacks jurisdiction because the state court decision below is not

a “final judgment” within the meaning of 28 U.S.C. § 1257(a).

Second, the decision below rests on independent state grounds.

Third, there is no conflict among the state courts regarding the

question presented here. Finally, the decision below is not

inconsistent with this Court’s jurisprudence.

A. This Court Lacks Jurisdiction To Review

The Non-final Decision Below.

This Court’s review of state-court decisions is limited

to “[f]inal judgments or decrees rendered by the highest court

of a State in which a decision could be had.” 28 U.S.C.

§ 1257(a). Here, the ruling of the West Virginia Supreme Court

of Appeals reversed the trial court’s dismissal of the case and

remanded the case for further proceedings. Jefferds App. 25.

Thus, the decision below is not a “final judgment” within the

meaning of § 1257.

This Court has identified four exceptions to § 1257’s

finality requirement. Cox Broadcasting Corp. v. Cohn, 420

U.S. 469, 477-87 (1975). As to the first three, this Court

recognizes exceptions where (1) “the federal issue is conclusive

or the outcome of further proceedings preordained,” (2) the

federal issue “will survive and require decision regardless of the

outcome of further state court proceedings,” and (3) “later

review of the federal issue cannot be had, whatever the ultimate

outcome of the case.” Jd. at 479-81; see also Jefferson v. City

of Tarrant, 52 U.S. 75, 82 (1997). As to these three categories,

the judgment involved here does not even arguably apply. If

Petitioners prevail in the trial court on remand, the question

presented will no longer require decision. Thus, as in Jefferson

v. City of Tarrant, “[t]he outcome of those further proceedings

could moot the federal question” presented here. Jd. at 78. On

the other hand, if Petitioners do not prevail on remand, they

“will be free to seek [Supreme Court] review when the state-

court proceedings reach an end.” Jd.

The fourth Cox Broadcasting exception applies only

when two requirements are met. First, the state court judgment

must represent the final word within the state court system on

a federal issue, “with further proceedings pending in which the

party seeking review here might prevail on the merits on

nonfederal grounds, thus rendering unnecessary review of the

federal issue by this Court, and where reversal of the state court

on the federal issue would be preclusive of any further litigation

on the relevant cause of action.” Second, “a refusal

immediately to review the state-court decision” must present a

risk of “seriously erod[ing] federal policy.” Cox Broadcasting,

420 US. at 482-83.

For two reasons, this category is also inapplicable here.

First, reversal of the state court decision below would not

preclude further litigation on Mr. Morris’s claims. As the state

supreme court recognized, “it seems clear that [Mr. Morris’s]

Second Amended complaint does sufficiently allege that a

‘substantial’ portion of the acts or omissions giving rise to [his}

claims occurred in West Virginia.” See Jefferds App. 11-12

n.4. Ifthe allegations of that complaint are correct, then venue

is proper under § 56-1-1(c), regardless of the answer to the

question presented in the petitions. See also id. 31, 35

(Benjamin, J., concurring) (case should be remanded to resolve

factual question whether substantial part of acts or omissions

giving rise to the claim occurred in West Virginia). Moreover,

as concurring Justice Benjamin observed below, venue in this

;

case would also be proper under a different provision of the

West Virginia Code, § 56-1-1(a), which provides for venue in

the West Virginia county where the chief officer of a defendant-

corporation resides. Jefferds App. 34; see id. at 19 (majority

opinion, noting that Petitioners’ argument contravenes W. Va.

Code § 56-1-19a)).

Second, “refusal immediately to review the state-court

decision” presents no risk of “seriously erod[ing] federal

policy.” No federal policy precludes West Virginia, or any

state, from giving its venue statute the reading adopted by the

court below. Indeed, Petitioners do not suggest—nor could

they—that West Virginia’s decision allowing a non-resident to

sue a West Virginia resident in West Virginia state court runs

afoul of any federal constitutional or statutory right or privilege.

Defining the scope of § 56-1-1(c) is well within the province of

the West Virginia Supreme Court of Appeals. Because there is

no conceivable argument that the scope of that statute, as

articulated in the opinion below, violates any federal policy, the

fourth Cox Broadcasting exception does not confer jurisdiction

on this Court here. See Flynt v. Ohio, 451 U.S. 619, 621 (1981)

(“there is no identifiable federal policy that will suffer if the

state .. . proceeding goes forward” in case presenting Equal

Protection Clause question). Compare Southland Corp. v.

Keating, 465 U.S. 1, 6-8 (1984) (holding that to allow litigation

to go forward where parties had contracted for arbitration might

erode federal policy embodied in Federal Arbitration Act);

Belknap v. Hale, 463 U.S. 491, 497 n.5 (1983) (holding that to

allow case to go forward would risk eroding federal policy

requiring matter at issue to be decided by NLRB, not by state

courts); Cox Broadcasting, 420 U.S. at 485-87 (holding that

delaying review would leave important question regarding

freedom of press in “uneasy and unsettled constitutional posture

[that] could only further harm the operation of a free press’’).

In short, because this case does not fit any exception to

§ 1257’s final judgment requirement, this Court lacks

jurisdiction to review the decision below.

B. ~ The West Virginia Supreme Court of

Appeals Articulated Independent State

Grounds For Its Decision.

In this case, the West Virginia Supreme Court of

Appeals was asked to construe a state venue law, W. Va. Code

§ 56-1-1(c). The court held that, because petitioner Jefferds is

a West Virginia corporation, “the provisions of W. Va. Code

§ 56-1-1(c) (2003) do not apply to Morris’ suit against

Jefferds.” Jefferds App. 21.

In choosing to give the West Virginia venue statute a

narrow reading, the state court started by discussing its concerns

about whether Petitioners’ reading of the state law was

“constitutionally permissible.” It then explained that,

“{ajdditionally,” Petitioners’ reading “would contravene

established West Virginia law, including other provisions of W.

Va. Code § 56-1-1.” Jefferds App. 19 (citing W. Va. Code 56-

1-1(a)); see also id. 34 (Benjamin, J., concurring). Section 56-

1-1(a) provides, in pertinent part, that “venue lies against a

domestic corporation doing business in this State wherein its

principle office is located, or where its president or principal

officer resides.” The state supreme court’s reading of W. Va.

Code § 56-1-1(a), which provides an independent basis for the

decision below, presents no question appropriate for this

Court’s review. Therefore, the petition should be denied.

C, No Conflict Exists Among The State High

Courts On The Issue Decided Below.

Below, the court rejected a reading of a state venue

statute that would “categorically immunize a West Virginia

defendant” from suit in West Virginia by a nonresident.

Jefferds App. 19. Attempting to fashion a conflict worthy of

this Court’s review, both Petitioners cite cases from various

state courts addressing the relationship between the Privileges

and Immunities Clause and forum non conveniens doctrine and

venue statutes. See Jefferds Pet. 18-24; Crown Pet. 12-15.

These cases do not conflict with the decision below.

1. Petitioners’ reliance on forum non

conveniens cases is misplaced.

Unlike the instant case, the majority of the cases cited by

Petitioners do not involve venue statutes. Rather, they address

the balance of factors that justify discretionary dismissal under

the common-law doctrine of forum non conveniens. None of

these cases conflicts with the decision below, which considers

whether a state statute imposes a categorical bar on suit by out-

of-state plaintiffs against in-state defendants.

For example, in Gore v. United States Steel Corp., 104

A.2d 670 (N.J. 1954), the New Jersey court construed the forum

non conveniens doctrine “not [to] turn on considerations of

domestic residence or citizenship as against foreign residence

or citizenship. It turns, rather, on considerations of convenience

and justice.” Jd. at 675-76. Thus, the court held that an action

by or against a nonresident will not “ordinarily” be dismissed,

but “only in those exceptional cases where a weighing of all of

the many relevant factors” establishes that another forum will

be more convenient and better serve the ends of justice. /d. at

676. Similarly, in Mooney v. Denver & Rio Grande Western

Railroad Co., 221 P.2d 628, 647 (Utah 1950), the court stated:

“Granting discretionary power in the trial court to dismiss the

cause for reasons of inconvenience, the power should only be

exercised in exceptional circumstances and when an adequate

showing has been made that the interests of justice require a

trial in a more convenient forum.” The court reversed a trial

court’s forum non conveniens dismissal and remanded for fuller

consideration of the facts concerning the convenience of

witnesses, costs, the convenience of the court, and the condition

of the court calendar in the alternate jurisdiction. Jd. at 648-49.

Thus, the forum non conveniens cases do not pose the question,

decided below, whether a state venue statute may impose a

strict rule requiring dismissal based on the presence or absence

of a specific factor.

Petitioner Crown suggests that the decision below

generally rejects the notion of forum non conveniens and runs

counter to decisions that apply forum non conveniens doctrine.

See Crown Pet. 14. That suggestion is wrong. The decision

below addresses only the narrow question whether a state

statute requires dismissal of an action against a state resident

when the plaintiff is a nonresident. The court held that West

Virginia’s venue statutes do not authorize a “categorical”

dismissal of such an action. The decision neither states nor

implies that forum non conveniens cannot be applied in

appropriate circumstances. Indeed, the concurrence of Justice

Albright (who also joined the majority opinion in full)

emphasizes that nothing in the court’s opinion suggests that

forum non conveniens may not be applied in appropriate cases

to dismiss suits by nonresidents, precisely because forum non

conveniens—unlike a categorical venue statute—does not erect

a Classification that discriminates solely on the basis of state

citizenship. Rather, the focus of forum non conveniens is on

the convenience of parties, witnesses, and courts, and it may

result in the dismissal even of claims brought by residents of a

state. Jefferds App. 43. Nothing in the majority opinion is to

the contrary, and the contention that the opinion conflicts with

decisions upholding the application of forum non conveniens

doctrine is therefore unwarranted.

Most of the forum non conveniens cases cited by

Petitioners are also irrelevant because they involve cases filed

by nonresident plaintiffs against nonresident defendants. All

but two of the forum non conveniens cases cited, Gore, 104

A.2d 670, and Westerby v. Johns-Manville Corp., 32 Pa. D. &

C.3d 164 (Pa. Com. PI. 1982), fall into this category. Asserting

the discretionary power to dismiss cases on convenience

grounds where the defendant is not a resident of the forum state

is a far cry from imposing a mandatory prohibition on suits by

nonresident plaintiffs against resident defendants. Indeed, the

holdings in Harvey v. Eastman Kodak Co., 610 S.W.2d 582

(Ark. 1981), and Grovey v. Washington National Insurance Co.,

119$.W.2d 503 (Ark. 1938) (both cited in Jefferds Pet. 24), are

expressly limited to actions “between nonresidents.” Harvey,

610 S.W.2d at 585; see Grovey, 119 S.W.2d at 504. Grovey

even distinguishes a situation involving resident defendants. Jd.

at 506.

Aside from Gore, discussed above, the only other cited

forum non conveniens case involving a resident defendant is

from a state trial court in Pennsylvania, Westerby v. Johns-

Manville Corp., 32 Pa. D. & C.3d 164 (Pa. Com. Pl. 1982).

Westerby involved one in-state and several foreign corporate

defendants. The trial court held that “Pennsylvania law” did not

prohibit dismissal based on forum non conveniens whcre a

Pennsylvania corporation is a defendant. Jd. at 178. The court

explained that flexibility was an important part of forum non

conveniens doctrine, which in Pennsylvania derives from case

law, not statute. /d. See also Walker v. Ohio River Co., 205

A.2d 43, 46 (Pa. 1964) (Pennsylvania Supreme Court reversing

forum non conveniens dismissal, largely because defendant did

business in and had principal office in the state). The West

Virginia Supreme Court’s decision does not conflict with the

analysis of the trial court in Westerby. Rather, the decision

below expressly rejects Petitioners’ reading of West Va. Code

§ 56-1-1(c) because, rather than allowing the state courts

flexibility to balance factors, their reading would treat Mr.

Morris’s residency as a “categorical bar to his bringing suit in

West Virginia against” the resident defendant Jefferds. See

Jefferds App. 20-21; id. 43 (Albright, J., concurring)

(permissible to take residency “into account,” but impermissible

to treat residency as a “categorical ground” requiring dismissal

without regard to other factors that may be relevant).

2. The cases Petitioners cite involving

venue statutes do not conflict with the

judgment below.

The petitions cite only two cases involving venue

statutes that discriminate against filings by nonresidents:

Rosenthal v. Unarco Industries, 297 S.E.2d 638 (S.C. 1982);

and Loftus v. Pennsylvania Railroad Co., 140 N.E. 94 (Ohio

1923). These cases present no conflict over the Privileges and

Immunities Clause that requires resolution by this Court.

Indeed, Rosenthal does not even discuss the Privileges and

Immunities Clause and relies exclusively on South Carolina

case law.

Moreover, neither of the two cases involved resident

defendants. This distinction is critical because a flat prohibition

on a suit by a nonresident against a resident is obviously a much

more burdensome discrimination against nonresidents and a

much more naked preference for state citizens than a rule

permitting dismissal of suits entirely between nonresidents.

Suing where a defendant resides is usually the most dependable

way of ensuring jurisdiction over the defendant, and a rule

prohibiting nonresident plaintiffs from suing state residents is

a significant impairment of plaintiffs’ access to the courts. See

also Gober v. Federal Life Ins. Co., 237 N.W. 32, 33 (Mich.

1931) (although Michigan venue statute seems to restrict suits

against nonresidents, “[i]f defendant were a domestic

corporation, there would be no doubt of plaintiffs right to sue

in this state on her cause of action’’).

In fact, although both Petitioners rely on Loftus, which

involved a nonresident defendant, the Ohio Supreme Court later

considered a case brought against both a New Jersey

corporation doing business in the Ohio county where suit was

brought and a railroad company that did not do business in that

county. See Baltimore & Ohio R.R. Co. v. Ballie, 148 N.E. 233

(Ohio 1925). In Ballie, the Ohio court stated that, “admittedly,”

the case could be maintained against the company that did

business in the county. Thus, the decisions of the Ohio

Supreme Court are not inconsistent with the holding of the

West Virginia court below.

Petitioners also cite Owens Corning v. Carter, 997

S.W.2d 560 (Tex. 1999), which concerns a state statute.

However, the portion of the opinion on which Petitioners rely

does not address a categorical venue statute. Rather, it

addresses a forum non conveniens provision that provides for

discretionary dismissal based on consideration of a variety of

factors. /d. at 568 (discussing Tex. Civil Prac. & Rems. Code

§ 71.051), cited in Jefferds Pet. 19-21; Crown Pet. :3. In

another part of the opinion, Owens Corning discusses a state

statute (since repealed) requiring dismissal of certain asbestos

claims filed in Texas by nonresidents. Claims dismissed under

that provision, however, could be refiled in Texas. See Owens

Corning, 997 S.W.2d at 580.

D. The Decision Below Is Consistent With

Supreme Court Jurisprudence.

Petitioners, focusing on Douglas v. New York, New

Haven & Hartford Railroad Co., 279 U.S. 377, 387 (1929), and

Missouri ex rel. Southern Railway Co. v. Mayfield, 340 U.S. 1

(1950), argue that the decision below is wrong under this

Court’s precedents. Both Douglas and Mayfield held that

application of forum non conveniens to dismiss the case did not

contravene the Privileges and Immunities Clause under the facts

presented. As is true with regard to most of the state cases cited

in the petitions, both of these cases considered dismissal under

forum non conveniens doctrine, not a categorical discrimination

under a venue statute. In addition, and again as is true with

regard to nearly all of the state cases cited, both Douglas and

Mayfield involved out-of-state defendants. Douglas, 279 U.S.

at 385; Mayfield, 340 U.S. at 2-3. Thus, the specific issue

decided by the West Virginia court in this case was not

presented in those cases. In addition, in contrast to this case, no

substantial part of the acts or omissions giving rise to the

plaintiff's cause of action occurred in the state where either

Douglas or Mayfield was brought.

Petitioners point to language from these older cases

stating that, to comply with the Privileges and Immunities

Clause, states may not discriminate between citizens and non-

citizens, but they may discriminate between residents and non-

residents. The West Virginia Supreme Court was aware of

these cases, see Jefferds App. 26, 28 (dissent), but based its

analysis on this Court’s more recent view that “resident” and

“citizen” are “essentially interchangeable.” /d. 8 (quoting

Austin v. New Hampshire, 420 U.S. 656, 662 n.8 (1975)); see

also id. (citing United Bldg. & Constr. Trades Council v. Mayor

& Council of City of Camden, 465 U.S. 208, 216 (1984)). The

decision below is fully consistent with the Court’s recent cases.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

Allison M. Zieve John Cooper