June 20th, 2016
The procedure cases from the spring 2016 term fell into two broad categories. First, there were cases applying the familiar doctrine of forum non conveniens. No new syllabus points emerged. However, the Supreme Court gave us some concrete examples of how the doctrine will likely be applied in the future, especially in cross-border situations. Second, the Supreme Court decided a jurisdictional due process case providing needed guidance to both the bench and the bar.
On February 10th, the Supreme Court decided State ex rel. Khoury v. Cuomo, No. 15-0852, a case involving surgical malpractice. Even though the malpractice occurred in Belmont County, Ohio, Dr. Khoury lived and maintained his offices in West Virginia. The Supreme Court focused on two or three of the traditional non conveniens factors. Factor #2 was hotly contested, i.e., whether proceeding in West Virginia would cause a substantial injustice to Dr. Khoury. The Court was swayed by Dr. Khoury’s physical connections to West Virginia, including the location of his home and office. Dr. Khoury also had entered into a tolling agreement, which by its own terms was to be governed by West Virginia law. It was also noted that Dr. Khoury himself had voluntarily brought legal proceedings in West Virginia on prior occasions. Factor #6 dealt with the public interest. Regarding this factor, the Court upheld a finding that many physicians in the Northern Panhandle practice in both West Virginia and Ohio, and that applying Ohio law would “pose no unusual difficulty.” Furthermore, West Virginia had a greater interest in the litigation because Dr. Khoury and others in his surgical group were practicing under a license issued by the state.
The plaintiffs in State ex rel. American Electric Power Co. v. Nibert, No. 15-0819, sued for damages caused by toxic emissions from a power plant, landfill and related facilities in Gallipolis, Ohio. Two points warrant special attention. Like Cuomo, decided the same day, the Court noted that when a defendant “seek[s] the benefits of this state through licensure, a corresponding public interest in insuring that they comply with their licensure requirements is created.” Though not a distinct factor, it certainly reinforced the conclusion that there was a strong public interest in retaining jurisdiction. The Court also formally adopted an abuse of discretion standard for reviewing determinations involving forum non conveniens. The deference given to trial courts can be seen in the Court’s parting words: “On balance, we simply cannot conclude that trial in the [plaintiffs’] chosen forum [of West Virginia] would establish…oppressiveness and vexation to [the] defendant[s]…out of proportion to [the] [plaintiffs’] convenience.”
Cuomo and Nibert both suggest that the Supreme Court is willing to honor the plaintiff’s choice of forum in cross-border cases. Where the defendant has demonstrable ties to West Virginia, including residency, transacting business, or operating under a state-issued license, the Court seems much more likely to find that the state has a compelling interest in retaining jurisdiction.
The Supreme Court also tackled a case raising a due process jurisdictional challenge.
The plaintiffs in State ex rel. Ford Motor Co. v. McGraw, No. 15-1149 brought a product liability case against the defendant, Ford, alleging that a defective seatbelt caused the driver to be ejected and sustain a fatal head trauma. The vehicle was manufactured in Kentucky. The original sale occurred in Florida. Through a series of sales, the vehicle came into the hands of a West Virginia dealership and eventually was purchased by a West Virginia resident. The wreck itself also happened in West Virginia.
Ford moved to dismiss, alleging that jurisdiction in West Virginia violated due process. The trial court concluded that Ford was a “global” company and that it had been the “leading automobile manufacturer in the United States for more than a century.” Because Ford did a sufficient volume of business in West Virginia to be “at home” here, exercising jurisdiction was proper. Ford petitioned for a writ of prohibition.
In the end, the Supreme Court found that the record was not fully developed on the jurisdictional issue and, therefore, remanded the case with specific instructions. In the process, however, the court provided us with a 50 page guidebook on how to support, brief and argue these issues in the future.
The Court recognized that two different kinds of jurisdiction can be asserted over a nonresident, i.e., general jurisdiction and specific jurisdiction.
General jurisdiction is lesser known, but it remains a vitally important part of our due process law. Citing Daimler v. Bauman, 134 S.Ct. 746 (2014), the Court acknowledged that a nonresident’s contacts with the state can be so “substantial, continuous, and systematic” that it is, in effect, “present” within the state for jurisdictional purposes. There are only a few state law cases discussing general jurisdiction. Because the Court relied so heavily on federal cases, it is likely they will continue to provide the fodder for briefing general jurisdiction issues for years to come.
Specific jurisdiction is by far better known and litigated far more frequently. Canvassing the case law, the court summarized the basic principles in Syllabus Point 8:
“A court may assert specific personal jurisdiction over a nonresident defendant to hear claims against the defendant arising out of or relating to the defendant’s contacts or activities in the state by which the defendant purposefully avails itself of conducting activities in the state so long as the exercise of jurisdiction is constitutionally fair and reasonable.”
Much of the Court’s discussion focused on the “stream of commerce” theory of minimum contacts. In Hill v. Denko, 188 W.Va. 654, 425 S.E.2d 609 (1992), the Court had concluded that “[p]ersonal jurisdiction premised on the placement of a product into the stream of commerce is consistent with the due process clause and can be exercised without the need to show additional conduct by the defendant aimed at the forum state.” Ford argued that the Court had rejected Hill’s stream of commerce approach in later cases or, at a minimum, had backed away from it. The Court, however, reaffirmed its commitment to Hill--broadening the power of West Virginia trial courts to exercise jurisdiction over manufacturers in product liability cases. Despite the lack of a syllabus point, the fact that the Court devoted nearly 15 pages to this particular issue indicates that it is, indeed, well settled.
