Ten Insights Into Georgia's Doctrine of Forum Non Conveniens
| Publication year | 2008 |
| Pages | 0026 |
| Citation | Vol. 14 No. 2 Pg. 0026 |
A Look at the Law by Joseph G. Mitchell
by Joseph G. Mitchell
Forum non conveniens refers to the power of a court to decline jurisdiction because the convenience of the parties and ultimate justice are better served in an alternative forum.[1] Georgia's forum non conveniens statute, O.C.G.A. § 9-10-31.1, became effective on Feb. 16, 2005. Since that time, there have been decisions in several cases that shed light on the statute's construction and application. This article provides 10 insights into the interpretation of the forum non conveniens doctrine by courts in Georgia.
O.C.G.A. § 9-10-31.1(a) Has Been Held Constitutional
O.C.G.A. § 9-10-31.1(a), states, in part, as follows:
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.[2]
O.C.G.A. § 9-10-31.1(a) was one of a number of tort reform statutes passed by Georgia's General Assembly in 2005,[3] and as was the case with many of these statutes, its constitutionality was challenged. Specifically, in EHCA Cartersville, LLC v. Turner,[4] the Supreme Court of Georgia examined the constitutionality of O.C.G.A. § 9-10-31.1(a) and a separate venue transfer statute, O.C.G.A. § 9-10-31(c). O.C.G.A. § 9-10-31(c) provided that in medical malpractice actions "a nonresident defendant may require that the case be transferred to a county of that defendant's residence if the tortious act upon which the medical malpractice claim is based occurred in the county of that defendant's residence."[5] The Supreme Court of Georgia held that O.C.G.A. § 9-10-31.1 (a) was constitutional because it "vests the power to change venue in the court," but that O.C.G.A. § 9-10-31(c) was unconstitutional because it vests this same power in a defendant, and thus violated the joint tortfeasor venue provision of the Georgia Constitution.[6]
O.C.G.A. § 9-10-31.1(a) Applies Retroactively
O.C.G.A. § 9-10-31.1(a) became effective on Feb. 16, 2005.[7] In Kennestone Hospital, Inc. v. Lamb,[8] the Court of Appeals of Georgia held that the forum non conveniens statute should be applied retroactively to a civil case that was pending prior to the statute's effective date. In making this ruling, the Court of Appeals cited EHCA Cartersville, LLC v. Turner, in which the Supreme Court of Georgia held that the forum non conveniens statute is procedural and not substantive law because it is a statute that affects where an action may be tried.[9]
Seven Factors to Consider in the Application of the Statute
O.C.G.A. § 9-10-31.1(a) provides, in pertinent part, as follows:
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:
(1) Relative ease of access to sources of proof;
(2) Availability and cost of compulsory process for attendance of unwilling witnesses;
(3) Possibility of viewing of the premises, if viewing would be appropriate to the action;
(4) Unnecessary expense or trouble to the defendant not necessary to the plaintiff's own right to pursue his or her remedy;
(5) Administrative difficulties for the forum courts;
(6) Existence of local interests in deciding the case locally; and
(7) The traditional deference given to a plaintiff's choice of forum.[10]
The seven factors outlined by Georgia's forum non conveniens statute serve as a guide to the trial court in making a decision as to whether the case is one that "would be more properly heard in a forum outside this state or in a different county of proper venue within this state."[11] The trial court is to consider these seven factors when deciding whether to grant or deny a motion to dismiss, if the alternative forum is outside the state of Georgia, or a motion to transfer, if the alternative forum is within Georgia.[12]
The Trial Court Must Consider Each of the Seven Factors Set Forth in O.C.G.A. § 9-10-31.1(a)
Since the statute's adoption, there have been decisions in several Georgia cases holding that a trial court must make either oral or written findings that weigh and consider each of the seven factors, and failure to do so may result in the trial court's order being overturned.[13] Therefore, in presenting a proposed order to the trial court, counsel should ensure that the order addresses all of the factors that are outlined in the statute.
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