Photo Credit: Swift, Currie, McGee & Heirs, LLP, Alabama Venue Map (2018), https://www.swiftcurrie.com/assets/htmldocuments/al_venue_map.pdf.
Authored By: Porter Simpler
June 26, 2023
Across Alabama’s 67 counties, courts treat damages and the plaintiff’s rights to recover those damages differently. Although Alabama is a pure contributory negligence state where contributory negligence on the part of the plaintiff is a total bar to recovery for personal injury damages, in some ways, and although not intentionally, courts have accounted for this by implementing a patchwork idea of how large recovery amounts should be, where the amounts can differ drastically between two forums that may be less than a 20-minute drive from one another. Aside from affecting the parties to the lawsuit, it can also affect their counsel, specifically as it relates to counsel with terms that call for a contingency fee provided by the amount of damages recovered. The result is often that defendants will move to transfer the matter to a forum more favorable to their case, rather than the forum where the plaintiffs filed the action, perhaps for similar reasons. There are several ways in which courts may point out flaws in a defendant’s motion to transfer for forum non conveniens,[1] and these avenues live and die by the evidence that defendants present when moving the court to allow a transfer. Although this guide is not exhaustive, it can provide a good look at what weaknesses typically plague defendants who are unsuccessful in their attempts to transfer to a different forum based on forum non conveniens where they contend that the interest of justice requires such a transfer.
Although the Alabama Code allows for the transfer of actions in any venue where the action could have been filed,[2] courts give great deference to the plaintiff’s chosen forum.[3] In any event, upon enactment of the relevant section, the legislature sought to not only allow such a transfer, but if the moving party satisfactorily demonstrated that a transfer was proper in the interest of justice, the transfer was compulsory; the court was required to grant the motion.[4] Contrary to what many defendants contend in their motions to transfer under this section, the court’s decision on the matter is not a simple balancing test. The burden is on the defendant to demonstrate, after a highly intensive factual analysis, that the interest of justice trumps litigating the case in the plaintiff’s chosen forum.[5]
Many defendants’ motions to transfer for forum non conveniens rely on the location of the act or omission giving rise to the claim as the end-all-be-all when it comes to getting their motion granted.[6] This is misguided. The Alabama Supreme Court has made it clear that “[a]lthough [they] assign ‘considerable weight’ to the location where the accident occurred, it is not, and should not be, the sole consideration for determining venue under the ‘interest of justice’ prong of § 6-3-21.1.”[7] The court wants to see material connections to the defendant’s requested forum, and the tort alone is insufficient to demonstrate such.[8] But demonstrating a material (i.e., strong) connection to the transferee forum is not all that defendants must do to succeed under the interest of justice prong of the forum non conveniens statute. They must also present evidence of a weak nexus between the plaintiff’s chosen forum and the case at hand.[9] The court will consider the evidence of a strong connection to the requested forum and the weak connection to the plaintiff’s forum together before deciding whether a transfer is proper.[10]
A defendant may prove a weak nexus between the plaintiff’s chosen forum and the case in a few ways. They may present affidavits from the parties stating that they live in the transferee forum, evidence indicating that travel to the plaintiff’s chosen forum would be a significant burden on the parties or witnesses, or they may prove that the evidence associated with the tort is such that the transferee forum would be far more convenient.[11] Courts have also allowed defendants certain inferential liberties when presenting their evidence of a weak connection. In Ex parte Indiana Mills & Mfg. Co.,the moving defendants supported their assertion that the plaintiff’s chosen forum had a weak connection to the case at hand with demonstrable proof that all relevant evidence in the case had a strong connection only with the defendant’s requested forum rather than the plaintiff’s chosen forum.[12] Although the defendants did not affirmatively prove the required “weak nexus,” the evidence they presented regarding the transferee county was sufficient for the court to conclude that there could be no more relevant evidence obtained from a county other than the transferee county the defendants requested.[13]
Where a defendant cites the imposition of jury duty on citizens of a county other than where the tort occurred as against public policy, courts look for certain facts before ruling. Courts accept the principle that “[j]ury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation.”[14] But, this is not apparent on its face merely by demonstrating that the tort occurred in a county other than where the plaintiffs now seek to litigate the matter.[15] Where the act occurred somewhere other than the plaintiff’s chosen forum, the court wants to see that the litigation “[touches] the affairs of many persons” in a county other than the plaintiff’s chosen venue, rather than just say, the parties to a two-car collision.[16] Proving that the tort will affect only a limited number of citizens of a county other than where the tort occurred is paramount in rebutting a defendant’s motion to transfer when they contend that citizens of the plaintiff’s chosen forum are too distant to necessitate being compelled to serve on a jury.
Alabama’s forum non conveniens statute should not be mistaken for one that does not require a factual analysis of all the relevant factors to the case at hand. By presenting the right evidence regarding the case’s connection to each forum and how the subsequent decision will affect citizens of each respective county, a plaintiff can survive a motion to transfer under forum non conveniens and can litigate their case in the forum of their choosing.
[1] This discussion will be of Alabama’s forum non-conveniens statute as it relates to intrastate transfer under Ala. Code § 6-3-21.1 (1975). The code section for interstate transfer under the same doctrine is Ala. Code § 6-5-430 (1975), and Alabama courts permit the same arguments between the two statutes as it relates to what must be presented as evidence to succeed on the motion. See Ex parte Transp. Leasing Co., 138 So. 3d 722, 729 (Ala. 2013) (permitting reciprocity between the application of Ala. Code § 6-3-21.1 (1975) and Ala. Code § 6-5-430 (1975)).
[2] Ala. Code § 6-3-21.1 (1975).
[3] Ex parte Townsend, 589 So. 2d 711, 715 (Ala. 1991).
[4] Id. (“With respect to civil actions filed in an appropriate venue, any court of general jurisdiction shall, for the convenience of parties and witnesses, or in the interest of justice, transfer any civil action or any claim in any civil action to any court of general jurisdiction in which the action might have been properly filed and the case shall proceed as though originally filed therein.”) (emphasis added).
[5] Ex parte J&W Enters., LLC, 150 So. 3d 190 (Ala. 2014).
[6] Compare Ex parte Wachovia Bank, N.A., 77 So. 3d 570 (Ala. 2011) with Ex parte Burgess, 298 So. 3d 1080 (Ala. 2020).
[7] Ex parte Burgess, 298 So. 3d 1080, 1083 (Ala. 2020) (internal citations omitted).
[8] Id.
[9] Ex parte Verbena United Methodist Church, 953 So. 2d 395, 400 (Ala. 2006); See Ex parte Indiana Mills & Mfg., Inc., 10 So. 3d 546 (Ala. 2008).
[10] Indiana Mills, 10 So. 3d at 541.
[11] Ex parte Tyson Chicken, Inc., 291 So. 3d 477, 481 (Ala. 2019).
[12] Indiana Mills, 10 So. 3d at 541.
[13] Id.
[14] Ex parte Smiths Water & Sewer Auth., 982 So. 2d 484 (Ala. 2007).
[15] Id.
[16] Id.
American Journal of Trial Advocacy 