In Re G.E. Co., No. 07-0195 (Tex. Dec. 5, 2008) (Johnson) (asbestos litigation, mandamus granted
against denial of forum non conveniens dismissal sought by defendant, trial court judge ordered to dismiss
defendants on inconvenient forum grounds, adequacy of alternative forum)
IN RE GENERAL ELECTRIC COMPANY, ET AL.; from Harris County; 1st district (01-06-01105-CV, ___ SW3d
___, 03-02-07) stay order issued March 20, 2007, lifted
The Court conditionally grants the petition for writ of mandamus [against MDL judge Mark Davidson
Justice Johnson delivered the opinion of the Court.
(Justice O'Neill not sitting)
Other legal terms: statutory construction | advisory opinion on abstract questions of law | forum selection |
duplication of litigation |
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In Re General Electric (Tex. 2008) (orig. proc.)
═════════════════════════════════════════════════════════════════════
Argued November 14, 2007
Justice Johnson delivered the opinion of the Court.
Justice O’Neill did not participate in the decision.
Although Austin Richards never lived or worked in Texas, he sued numerous defendants in Dallas County as a
result of alleged exposure to asbestos at his jobsite in Maine. He alleged that he developed mesothelioma as a
result of the exposure and that the defendants were liable to him because they produced or were involved in
furnishing the asbestos. Several defendants moved for dismissal on the basis of forum non conveniens. The
trial court denied the motions. At issue in this mandamus proceeding is whether the trial court abused its
discretion by denying the defendants’ motions to dismiss.
We conclude that it did and conditionally grant mandamus relief.
I. Background
Aside from a period of military service, Austin Richards lived in Maine his entire life. He worked in Maine for
over thirty years as a mason handling pipe-covering insulation. In December 2005, he was diagnosed with
mesothelioma. Richards[1] and his wife (collectively “Richards”) filed suit in Dallas County against General
Electric and over twenty other companies, three of which are headquartered in Texas. Richards alleged that
the defendants mined, processed, manufactured, sold, or distributed asbestos which caused or contributed to
his disease. The case was transferred to the asbestos multi-district litigation court in Harris County. See Tex.
R. Jud. Admin. 13.
Seven defendants moved for dismissal of Richards’s suit based on forum non conveniens. See Tex. Civ. Prac.
& Rem. Code § 71.051. They argued that the suit had no connection to Texas and that Maine was an
adequate alternative forum for the case. Richards responded that the trial court should deny the motions to
dismiss because the defendants had not met their burden of proof regarding the section 71.051 factors. He
especially emphasized that the defendants had not proved the existence of an adequate alternative forum in
which the claim could be tried. Richards asserted that if his case were dismissed and he refiled in Maine, the
case would be vulnerable to removal to federal court and if removed, it would be transferred to the federal
Multi-District Litigation Court No. 875 (MDL 875) for pretrial proceedings. See In re Asbestos Prods. Liab.
Litig., 771 F. Supp. 415, 422-24 (J.P.M.L. 1991). Richards further argued that cases transferred to MDL 875
do not get tried and “virtually nothing happens to them at all.” Richards urged that he was seriously ill from his
disease and that if the Texas trial court declined to exercise jurisdiction, MDL 875 would not be adequate
because he would not survive long enough to have his case tried.
At the hearing on the motion to dismiss, the judge asked whether the defendants would agree that they would
not attempt to remove the case to federal court if he granted the motion to dismiss. Several defendants,
including General Electric, did not agree to waive their removal rights. The judge sent a letter to the parties
indicating that he would deny the motion to dismiss and expressing concern that if he granted the motion and
the case were refiled in Maine, it would be removed to federal court and transferred to MDL 875 where it would
“sit . . . for several years.” The judge wrote that his ruling on the motion might have been different if the
defendants had waived their right of removal.
The defendants filed a motion to reconsider. They asserted that even if their motions to dismiss were granted
and Richards refiled his case in Maine, removal to federal court was speculative, the criticisms of MDL 875
were unfounded as recent activity there refuted any argument that it did not provide an adequate remedy, and
the court’s ruling should not depend on the defendants’ waiver of their removal rights. After another hearing,
the trial court granted the motion to reconsider, set aside the letter in which he stated the grounds for his
previous ruling, and denied the motion to dismiss without stating a reason.
Three defendants—General Electric, Warren Pumps, and Ingersoll-Rand (defendants)—seek mandamus relief
directing the trial court to grant their motions to dismiss. They argue that on this record, the statutory forum
non conveniens factors require dismissal.
II. Discussion
A. Availability of Mandamus Review
After the parties submitted briefs in this case, we held that an adequate remedy by appeal does not exist when
a motion to dismiss for forum non conveniens is erroneously denied. See In re Pirelli Tire, L.L.C., 247 S.W.3d
670, 679 (Tex. 2007). Accordingly, mandamus relief is available in this case, if warranted. Id.
B. Forum Non Conveniens
1. General
The defendants claim that the trial court had no discretion but to apply the factors found in the forum non
conveniens statute and dismiss Richards’s claim because those factors weigh in favor of a forum other than
Texas. Richards argues that even considering the statutory factors, the trial court had discretion to determine
whether a forum non conveniens dismissal would serve the interest of justice, which in this case it would not.
We review a trial court’s decision about whether to dismiss a case on forum non conveniens grounds for an
abuse of discretion. A court abuses its discretion if its decision is arbitrary, unreasonable, or without reference
to guiding principles. In re Pirelli, 247 S.W.3d at 676.
The applicable forum non conveniens statute provides:
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 a claim or action to which this section applies would be more properly heard in a forum outside
this state, the court shall decline to exercise jurisdiction under the doctrine of forum non conveniens and shall
stay or dismiss the claim or action. In determining whether to grant a motion to stay or dismiss an action under
the doctrine of forum non conveniens, the court shall consider whether:
(1) an alternate forum exists in which the claim or action may be tried;
(2) the alternate forum provides an adequate remedy;
(3) maintenance of the claim or action in the courts of this state would work a substantial injustice to the
moving party;
(4) the alternate forum, as a result of the submission of the parties or otherwise, can exercise jurisdiction over
all the defendants properly joined to the plaintiff’s claim;
(5) the balance of the private interests of the parties and the public interest of the state predominate in favor
of the claim or action being brought in an alternate forum, which shall include consideration of the extent to
which an injury or death resulted from acts or omissions that occurred in this state; and
(6) the stay or dismissal would not result in unreasonable duplication or proliferation of litigation.
Tex. Civ. Prac. & Rem. Code § 71.051(b).
Prior to 2003, section 71.051 provided that a case brought by a United States resident “may” be stayed or
dismissed under the doctrine of forum non conveniens. See Act of May 27, 1997, 75th Leg., R.S., ch. 424, § 1,
1997 Tex. Gen. Laws 1680. In 2003, the Legislature amended the statute. Among other changes, the
amended statute provided that a trial court “shall” dismiss a claim or action if the court found that in the
interest of justice and for the convenience of the parties a claim or action would be more properly heard in a
forum outside Texas. Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 3.04, 2003 Tex. Gen. Laws 847, 854.
Before the 2005 amendments the statute also provided that when determining whether to dismiss an action
based on forum non conveniens, a trial court “may” consider the factors specified in section 71.051(b). Id. In
2005, the Legislature amended the statute to its current form. Act of May 30, 2005, 79th Leg., R.S., ch. 248, §
1, 2005 Tex. Gen. Laws 448. It now provides that when determining whether to dismiss an action based on
forum non conveniens, a trial court “shall” consider the factors specified in section 71.051(b).
The defendants claim that the amended statute takes away much of a trial court’s discretion in regard to forum
non conveniens motions by requiring the court to weigh the statutory factors and decline to exercise
jurisdiction if the factors weigh in favor of granting the motion. Richards claims, however, that the Legislature
has always provided trial courts discretion to deny forum non conveniens motions, and the statute does not
remove that discretion. Instead, the statute merely requires that dismissals serve the interests of justice—an
inherently discretionary standard.
Use of the word “shall” in a statute imposes a duty. Tex. Gov’t Code § 311.016(2). We agree with defendants
that by using the word “shall” in regard to a trial court’s consideration of the factors listed in section 71.051(b),
the Legislature has essentially defined the terms “interest of justice” and “convenience of the parties” as they
are used in section 71.051(b). Tex. Civ. Prac. & Rem. Code § 71.051(b). The Legislature also, by use of the
word “shall,” requires dismissal of the claim or action if the statutory factors weigh in favor of the claim or action
being more properly heard in a forum outside Texas. See In re Pirelli, 247 S.W.3d at 675 n.3 (noting that with
the 2003 amendment, the Legislature now mandates dismissal if the trial court finds that the case would be
more properly heard in another forum).
Richards asserts that the defendants, as movants, had the burden to prove that each factor weighed in favor
of dismissal and urges that they failed to meet the burden. We disagree. Prior to 2003, the statute provided
that a trial court could stay or dismiss a claim under the forum non conveniens statute “if the party seeking to
stay or dismiss proves” the enumerated factors “by a preponderance of the evidence.” Act of June 2, 2003,
78th Leg., R.S., ch. 204, § 3.04, 2003 Tex. Gen. Laws 847, 854. However, the statute was amended to provide
only that a trial court “shall consider” the factors. Tex. Civ. Prac. & Rem. Code § 71.051(b). The statute does
not mandate that a movant prove each factor or that each factor must weigh in favor of dismissal to require a
motion to be granted. Compare Hart v. Kozik, 242 S.W.3d 102, 111 (Tex. App.—Eastland 2007, no pet.)
(concluding that Family Code Section 152.207(b), which contains a list of factors that a trial court “shall
consider” when determining whether a forum is inconvenient, does not require the trial court to make a finding
as to each factor, and the trial court did not abuse its discretion by dismissing the case even in the absence of
evidence on a factor). In construing statutes we presume that each word in the statute was put there for a
purpose and that each word not in the statute was omitted for a purpose. See Mauzy v. Legislative
Redistricting Bd., 471 S.W.2d 570, 573 (Tex. 1971). The statute does not contain language placing the burden
of proof on a particular party in regard to the factors, as was the situation with the prior version. Nor does the
statute require that a party prove each factor of section 71.051(b). The statute simply requires the trial court to
consider the factors, and it must do so to the extent the factors apply. To the extent evidence is necessary to
support the positions of the parties, the trial court must base its findings and decision on the weight of the
evidence, and certainly is entitled to take into account the presence or absence of evidence as to some issue
or position of a party.
With the foregoing in mind, we turn to the enumerated factors to determine whether the trial court abused its
discretion in failing to grant the motions to dismiss.
2. Section 71.051(b)(1) and (2)—Adequate Alternate Forum
The first two factors in section 71.051(b) are: (1) whether an alternate forum exists where the claim may be
tried, and (2) whether the alternate forum provides an adequate remedy. The defendants assert that Maine,
where Richards lived and was allegedly exposed to asbestos, is such an alternate forum. Richards does not
dispute that Maine state courts are an alternate forum or that those courts provide an adequate remedy. He
urges in his brief that had defendants agreed not to remove the case to federal court, the Texas case would
have been dismissed and the case would have been tried in Maine. But he contends the defendants have not
proved the availability of an alternate forum where the claims may be tried. He takes that position because
none of the defendants in this case maintain a principal place of business or are incorporated in Maine.
Therefore, his case would be vulnerable to removal to federal court on diversity jurisdiction grounds. See 28 U.
S.C. 1332 (a)(1). He claims that once removed to federal court, his case would almost certainly be transferred
to MDL 875, and it is widely accepted that cases transferred to MDL 875 do not get tried. For support, he
quotes from an opinion of the federal district court in Maine: “If these claims return to state court, they will
proceed to resolution. If they remain in federal court, they will encounter significant delay upon their transfer
[to MDL 875] where no asbestos trials or discovery takes place in deference to global settlement efforts.” In re
Maine Asbestos Cases, 44 F. Supp. 2d 368, 374 (D. Me. 1999). He also quotes from Madden v. Able Supply
Co., 205 F. Supp. 2d 695, 702 (S.D. Tex. 2002): “There are thousands of asbestos cases pending in [MDL
875] and, if history be any indicator, Plaintiff’s claims . . . will not be heard for many years.” Richards also
points to data from the Judicial Panel on Multidistrict Litigation indicating that as of August 10, 2000, 32,892
cases were pending in MDL 875 and only 199 cases had been remanded in the preceeding year. He claimed
in the trial court, and continues to claim in this Court, that because of the situation in MDL 875, dismissal would
not work justice, but would work injustice. Richards argued that a transfer to MDL 875 would work an injustice
because he would have no chance at a trial before his death and that because claims languish in MDL 875, it
is not an alternate forum in which the claim may be tried as required by section 71.051(b)(1).[2]
The defendants claim that because the state courts of Maine comprise an adequate alternate forum and
remedy, Richards’s arguments about MDL 875 are irrelevant. Section 71.051(b), they posit, does not allow the
trial court to deny their motions based on speculation about what might happen procedurally in another venue,
nor does it allow the trial court to speculate about whether the case would be refiled in Maine or some other
alternate forum. Even though their position is that the status of MDL 875 is irrelevant, they also counter
Richards’s claims as to that court with more recent documents showing that progress is being made in regard
to moving asbestos cases through the federal pretrial process.
Ordinarily, an alternate forum is shown if the defendant is “amenable to process” in the other jurisdiction. Piper
Aircraft Co. v. Reyno, 454 U.S. 235, 254 n.22 (1981). There may be circumstances where an alternate forum
is not adequate because the remedies it offers are so unsatisfactory that they really comprise no remedy at all.
Id. But, comparative analyses of procedures and substantive law in different forums should be given little
weight in forum non conveniens analysis because such analyses pose significant practical problems. Id. at
251. Comparison of the “rights, remedies, and procedures” available in each forum would require complex
exercises in comparative law that the forum non conveniens doctrine is designed to help courts avoid. Id.
Therefore, a comparative analysis of the procedures, rights, and remedies available in Texas, Maine, and
federal courts should only be given weight if Maine (and a potential transfer to MDL 875) would in substance
provide no remedy at all.
The disadvantages Richards perceives in MDL 875 proceedings are ones of comparative speed to disposition
of his case. His objection is based on comparative analysis of procedural processes and times to trial. That is
the type of exercise that is disfavored when forum non conveniens motions are considered. Delay in
disposition of a case might happen in any jurisdiction depending on docket congestion, statutes, and
procedures mandating preferential settings for certain types of cases, fiscal conditions of the judiciary, and
numerous other possible conditions and events. The many known and unknown matters affecting pretrial
events and trial settings are necessarily speculative and are reasons comparative analyses have been termed
“complex” and should be avoided in forum non conveniens consideration. See Piper Aircraft Co., 454 U.S. at
251.
Furthermore, even if Richards’s case is dismissed in Texas, filed in Maine, and transferred to MDL 875 for
pretrial proceedings, Richards will not be deprived of all remedies for purposes of forum non conveniens
analysis. See In re Union Carbide Corp. Gas Plant Disaster at Bhopal, India, 634 F. Supp. 842, 848-49 (S.D.N.
Y. 1986), aff’d, 809 F.2d 195 (2d Cir. 1987) (rejecting plaintiffs’ claims that a suit should not be dismissed on
forum non conveniens grounds because the alternate forum had problems of delay and backlog, and lacked
the wherewithal to deal effectively and expeditiously with the suit). Though Richards (and others) may be
critical of the methods used and time taken to dispose of pretrial matters in the federal asbestos MDL scheme,
the scheme is designed to resolve asbestos cases, not deprive injured parties of a remedy. The federal
Constitution guarantees Richards the right to a jury trial and due process, and the Maine and federal courts
are bound to afford those rights to Richards. U.S. Const. amend. VII, amend XIV, § 1. We believe, therefore,
that Maine, and even MDL 875, come within the Legislature’s intent that the alternate forum be one “in which
the claim or action may be tried.” Tex. Civ. Prac. & Rem. Code § 71.051(b).
We conclude that on balance, the factors set out in sections 71.051(b)(1) and (2) weigh strongly, if not
conclusively, in favor of Richards’s action being heard in a forum outside Texas.
3. Section 71.051(b)(3)—Substantial Injustice to Defendants by Litigating in Texas
The defendants point to private interest considerations in support of their assertion that litigating this case in
Texas will work a substantial injustice to them. See Tex. Civ. Prac. & Rem. Code § 71.051(b)(3). They also
point to the increased costs of traveling to Maine to depose witnesses for trial in Texas. Richards argues that
the defendants’ claims in this regard are conclusory allegations which are insufficient to support dismissal. He
also claims that regardless of the forum, expert witnesses in asbestos cases reside all over the country and
attorneys must routinely travel to take depositions.
While some travel in this case will almost certainly occur regardless of the forum in which the case is ultimately
litigated, that aspect does not override the fact that the evidence and witnesses relevant to the issue of
Richards’s asbestos exposure and his damages are outside the subpoena power of Texas courts. Tex. R. Civ.
P. 176.3. At the hearing on the defendants’ motions to dismiss, Richards agreed that if the trial court denied
the motions but it later became clear to the defendants that trial in Texas would be impossible due to the
unavailability of witnesses and evidence, Richards would not object to motions to dismiss on the basis of
timeliness, even if they were filed shortly before trial. But requiring parties to litigate a case such as this in
Texas until it becomes clear[3] that it is “impossible” to defend the case due to unavailability of evidence and
fact witnesses because they are beyond the reach of compulsory process is a waste of private and public
resources. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 511 (1947) (“Certainly to fix the place of trial at a point
where litigants cannot compel personal attendance and may be forced to try their case on deposition, is to
create a condition not satisfactory to court, jury or most litigants.”). Further, while Richards argues that
defendants have not identified any specific witness or evidence they are unable to obtain, such a showing is
not necessary. See Reyno, 454 U.S. at 258 (noting that requiring detail and extensive investigation regarding
witnesses beyond the reach of compulsory process would defeat the purpose of a forum non conveniens
motion).
We conclude that the section 71.051(b)(3) factor—whether maintaining the action in Texas would work a
substantial injustice to defendants—weighs strongly in favor of the claim being more properly heard in a forum
outside Texas.
4. Section 71.051(b)(4)—Jurisdiction Over all Defendants
Richards claims the evidence did not show that all the defendants in this case are subject to the jurisdiction of
Maine courts, or have consented to jurisdiction in Maine. See Tex. Civ Prac. & Rem Code § 71.051(b)(4). The
defendants that filed motions to dismiss stipulated to jurisdiction in Maine, agreed to submit to jurisdiction
there, or admitted they were subject to jurisdiction under the Maine long-arm statute. Further, the defendants
argue that under the Maine long-arm statute, courts in Maine will have jurisdiction over all defendants properly
joined as parties.
Maine courts have jurisdiction over any person as to a cause of action arising from “[d]oing or causing a
tortious act to be done, or causing the consequences of a tortious act to occur within this State.” 14 Me. Rev.
Stat. § 704-A(2)(B). Richards claims that this statute only allows an assumption that all defendants are subject
to jurisdiction in Maine and that dismissal of a case based on a mere assumption would itself be an abuse of
discretion. But there is no dispute that the exposure and injuries alleged by Richards occurred in Maine.
Richards has not identified any defendant over which Maine courts would not have jurisdiction under the Maine
long-arm statute. And this Court has recognized that the possibility an alternate forum may not accept
jurisdiction does not overcome other factors weighing in favor of dismissal, particularly when a court may
condition its dismissal order on the acceptance of jurisdiction by the alternate forum. In re Pirelli, 247 S.W.3d
at 677-78; see Tex. Civ. Prac. & Rem Code § 71.051(c) (allowing a court to set terms and conditions for
dismissal of a claim based on forum non conveniens).
Richards cites Tullis v. Georgia-Pacific Corp., 45 S.W.3d 118 (Tex. App.—Fort Worth 2000, no pet.), for his
assertion that the defendants were required to prove Maine courts have jurisdiction over all the defendants
rather than assume that jurisdiction would exist. In Tullis, the Texas trial court dismissed a suit arising out of an
automobile accident in Tennessee on forum non conveniens grounds. Id. at 119-20. The court of appeals
reversed. It noted that the defendant truck owner failed to produce any evidence that the truck driver, who had
been a Tennessee resident at the time of the accident, was “amenable to service and subject to jurisdiction,”
and that the trial court’s finding of fact that the truck driver “is a resident of Tennessee” was incorrect as the
driver had not been located and there was no evidence regarding his current residence. Id. at 131. In this
case, there is no defendant who has disappeared, and as noted previously, Richards does not claim that any
defendant is not amenable to service in Maine. Further, there was no mention in Tullis of a Tennessee long-
arm statute, as there has been here. Finally, the Tullis court also considered evidence related to the other
71.051(b) factors and its decision to reverse the dismissal of the case did not rest solely on the lack of
evidence regarding amenability to service and jurisdiction. Id. at 132-33.
The Maine long-arm statute is plain and speaks for itself. This record presents no reason to do what typically
is not done in forum non conveniens analyses—perform a comprehensive comparative consideration of Maine
jurisprudence in regard to each party to Richards’s suit. Requiring Texas trial courts and appellate courts to
engage in such exercises would slow down and complicate forum non conveniens hearings and decisions to
the point that they could become major detriments to disposition of cases. This record presents no reason, for
purposes of forum non conveniens analysis, to consider Maine’s long-arm statute further than its plain words.
The section 71.051(b)(4) factor—whether the alternate forum can exercise jurisdiction over all defendants
properly joined to the plaintiff’s claim—weighs in favor of the claim being more properly heard in a forum
outside Texas.
5. Section 71.051(b)(5)—Public and Private Interest
Richards contends the defendants did not demonstrate that the balance of public and private interests weigh
in favor of a Maine forum. Generally, the public interest factors to be considered are administrative difficulties
related to court congestion, burdening the people of a community with jury duty when they have no relation to
the litigation, local interest in having localized controversies decided at home, and trying a case in the forum
that is at home with the law that governs the case. See Gulf Oil, 330 U.S. at 508-09. The private interest
considerations generally are considered to be the ease of access to proof, the availability and cost of
compulsory process, the possibility of viewing the premises, if appropriate, and other practical problems that
make trial easy, expeditious, and inexpensive. Id. at 508; see In re Pirelli, 247 S.W.3d at 676.
As to the public interest factors, the parties do not disagree that Maine law will apply in this case. Maine
undoubtedly has an interest in ensuring that its citizens are not exposed to hazardous materials in the
workplace. Absent some overriding consideration, the citizens of Texas should not be burdened with jury duty
in a complex asbestos exposure case that has no relationship to Texas. In this case, most evidence and fact
witnesses are admittedly located in Maine. Richards’s treating physicians, co-worker witnesses, and family
members are there. The paper mill where Richards was allegedly exposed to asbestos is in Maine. Compulsory
process is unavailable to require attendance at a Dallas County trial by witnesses approximately two thousand
miles away. See Tex. R. Civ. P. 176.3. Richards says that he has already provided or will provide copies of his
medical records to the defendants. But a promise to produce some or even most evidence does not cure the
logistical problems created by lack of effective compulsory process for trial. See Gulf Oil, 330 U.S. at 508.
Richards also asserts the defendants’ claim that there is no compulsory process for witnesses who reside in
Maine is an insufficient, “unsubstantiated, conclusory allegation” because the defendants have never identified
a witness whose appearance they will be unable to obtain at a Texas trial. But detail regarding which witnesses
would be called and what evidence would be unavailable is not necessary in a case such as this where the
practical problems of trying a personal injury case hundreds of miles from the scene of the occurrence, the
place where the lay witnesses reside, and where most other evidence is located is manifest. See Reyno, 454 U.
S. at 258. Reasonable access to witnesses and evidence is a fundamental need in regard to any trial—
asbestos or otherwise.
Richards also points to the recently decided case of Sales v. Weyerhaeuser, 177 P.3d 1122 (Wash. 2008), in
which the Washington Supreme Court concluded that a trial court should have considered the effect of MDL
875 when analyzing the convenience of forums for forum non conveniens purposes. In Sales, Charles Sales
filed suit in Washington against Weyerhaeuser, a Washington corporation that owned a lumber mill in
Arkansas. Id. at 1124. Sales alleged he was exposed to asbestos in Arkansas and that the exposure caused
him to develop mesothelioma. Id. The trial court granted Weyerhaeuser’s motion to dismiss on forum non
conveniens grounds over Sales’s arguments that if he refiled the suit in Arkansas it would be removed to
federal court and transferred to MDL 875 which would impede the progress of his suit based on the inherent
delays there. Id. The Washington Supreme Court concluded that the trial court should have considered the
effect of MDL 875 on the convenience of litigating in Arkansas. Id. at 1126. It did not conclude that MDL 875
proceedings would make Washington the more convenient setting, but rather, it concluded that the trial court
should have considered whether MDL 875 proceedings would impact the speed, ease, and expense of the
proceedings which would weigh in favor of litigation in Washington over Arkansas. Id.
A trial court must take all relevant factors into consideration with regard to the public and private interest
factors. However, in this case, even including the effect of a possible transfer to MDL 875 does not change the
balance: the factors in section 71.051(b)(5) weigh in favor of Maine as an alternate forum for Richards’s claim.
First and foremost, and as previously noted, is the fact that both Maine and MDL 875 are subject to the federal
Constitution and the rights it guarantees to Richards. Further, there is only a potential that the case will end up
in MDL 875. There are a number of events that could occur that would prevent that from happening (such as if
Richards decides to file suit in a state other than Maine). Additionally, if Richards refiles the case in Maine and
it is transferred to MDL 875, there is still only the potential for delay. Richards presented statistics from 1999
and cases indicating that claims were left pending for many years and the MDL 875 judge, Judge Weiner,
resolved cases through negotiation not trial. The defendants pointed out that Judge Wiener was no longer
presiding over MDL 875. He was replaced by Judge Giles who had issued orders outlining changes to docket
management and directed quarterly meetings of all counsel to address the processing and administration of
claims.
Section 71.051(b)(5) requires a trial judge to balance the public and private interests to determine whether
those factors predominate in favor of the claim being more properly heard in a forum outside Texas, and on
balance, it is clear that the factors weigh in favor of Richards’s action being heard in Maine.
6. Section 71.051(b)(6)—Unreasonable Duplication of Litigation
Richards asserts that the defendants failed to show dismissal would not result in unreasonable duplication of
litigation. He claims dismissal would result in two lawsuits: the Texas case against the nonmoving defendants
would remain pending while a new suit would be filed against the moving defendants in Maine. We disagree
that had the trial court granted the defendants’ motions to dismiss, this would have resulted in unreasonable
duplication of litigation. Section 71.051(b) currently provides that if a court decides “a claim or action” would be
more properly heard in another forum, the court shall stay or dismiss “the claim or action.” The language is
broad and does not require that a trial court dismiss only the claims or actions against moving defendants. See
Tex. Civ. Prac. & Rem. Code § 71.051(b) (requiring dismissal of a claim or action on written motion of “a”
party).
In all the motions to dismiss, the defendants requested dismissal of the entire case, not just the claims against
themselves.[4] For example, General Electric concluded its motion by stating “this case should be dismissed
because it would be in the interest of justice and convenience to do so.” It argued throughout the motion that
the statutory factors weighed in favor of dismissal for all the defendants.
If Richards’s action or part of the action is dismissed for forum non conveniens, the extent to which his litigation
might be fragmented or duplicated lies in his hands, not those of the Texas court. If he were to refile suit in a
jurisdiction other than Maine, then he might again be met with assertions by defendants that the action or a
claim in the action is subject to a forum non conveniens challenge. But those contingencies depend on
decisions by Richards to file suits in forums other than Maine and run the risk of multiple suits in multiple
venues.
We disagree with Richards’s position in regard to the section 71.051(b)(6) factor. The potential that a trial
court might grant a motion to dismiss as to only part of an action and that some duplication of litigation could
occur, depending on Richards’s own litigation decisions, does not turn the trial court’s decision to grant
motions to dismiss such as the ones in this case into decisions causing unreasonable duplication of litigation.
Under the circumstances, the section 71.051(b)(6) factor—that the stay or dismissal would not result in
unreasonable duplication or proliferation of litigation—weighs in favor of the claim being more properly heard
in a forum outside Texas.
7. Waiver of Removal Rights
The defendants claim the trial court abused its discretion by denying their motions when they refused to waive
their right to remove the case to federal court. They also argue that section 71.051(c), which allows a court to
set terms and conditions for dismissing a claim, is unconstitutional to the extent it allows imposing such a
condition.
The trial court initially stated in a letter that he would deny the motions to dismiss, but he then granted the
defendants’ motions to reconsider and vacated the letter. The court then denied the motions to dismiss without
stating a reason. Thus, the trial court did not impose the condition of which defendants complain. We do not
address the issue because our opinion would be an advisory opinion on an abstract question of law that would
not bind the parties. S. Tex. Water Auth. v. Lomas, 223 S.W.3d 304, 307 (Tex. 2007).
III. Conclusion
When all section 71.051(b) factors in a case favor the conclusion that an action or claim would be more
properly held in a forum outside Texas, as they do here, the statute requires the trial court to grant motions
requesting that it decline to exercise its jurisdiction. The trial court’s denial of the relators’ motions to dismiss
violated the forum non conveniens statute and was an abuse of its discretion. We conditionally grant the
petition for writ of mandamus and direct the trial court to grant the relators’ motions. The writ will issue only if
the trial court fails to comply.
________________________________________
Phil Johnson
Justice
OPINION DELIVERED: December 5, 2008
[1] During oral argument, Richards’s attorney advised the Court that Richards had died. See Tex. R. App. P.
7.1(a)(1); Tex. R. Civ. P. 151.
[2] Even though Richards passed away before oral argument, we address his arguments as they were
presented to the trial court because we must examine the facts, record, and arguments before the trial court to
determine if the trial judge abused his discretion.
[3] Of course, what is clear to one party to a lawsuit is not always clear to the opposing party.
[4] One defendant, Spence Engineering, initially argued only for dismissal of the claims against it, but later
adopted and joined another defendant’s motion to dismiss the “Plaintiff’s claims.” Zy-Tech Global Industries
argued that section 71.051 factors “compel dismissal of Plaintiffs’ action or, in the alternative, dismissal of their
claims against Zy-Tech.”
═════════════════════════════════════════════════════════════════════
In Re General Electric, No. 01-06-01105-CV, ___ SW3d ___, (Tex.App.- Houston
[1st Dist.] March 2, 2007)
═════════════════════════════════════════════════════════════════════
IN RE GENERAL ELECTRIC COMPANY, WARREN PUMPS, L.L.C., AND INGERSOLL-RAND
COMPANY, Relators
Original Proceeding on Petition for Writ of Mandamus
MEMORANDUM OPINION
Relators, General Electric Company, Warren Pumps, L.L.C., and Ingersoll-Rand Company have filed
a petition for writ of mandamus complaining of Judge Davidson's (1) November 3, 2006 order
denying their motions to dismiss on grounds of forum non conveniens.
We deny the petition for writ of mandamus. See Tex. R. App. P. 52.8 (a),(d).
We withdraw our order dated January 26, 2007, staying the underlying case in the trial court. All other
pending motions filed in this cause number with the Clerk of this Court are denied as moot.
PER CURIAM
Panel consists of Justices Taft, Alcala, and Hanks.
1. The Honorable Mark Davidson, judge of the 11th District Court of Harris County, Texas. The
underlying lawsuit is Austin Richards & Gwendolyn Richards v. Acrowood Corp., et al., trial court
cause no. 2006-22116.