S.B. No. 2
AN ACT
1-1 relating to the application of the doctrine of forum non conveniens
1-2 to certain actions.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Chapter 71, Civil Practice and Remedies Code, is
1-5 amended by adding Subchapter D to read as follows:
1-6 SUBCHAPTER D. FORUM NON CONVENIENS
1-7 Sec. 71.051. FORUM NON CONVENIENS. (a) With respect to a
1-8 claimant who is not a legal resident of the United States, if a
1-9 court of this state, on written motion of a party, finds that in
1-10 the interest of justice an action to which this section applies
1-11 would be more properly heard in a forum outside this state, the
1-12 court may decline to exercise jurisdiction under the doctrine of
1-13 forum non conveniens and may stay or dismiss the action in whole or
1-14 in part on any conditions that may be just.
1-15 (b) With respect to a claimant who is a legal resident of
1-16 the United States, on written motion of a party, an action to which
1-17 this section applies may be stayed or dismissed in whole or in part
1-18 under the doctrine of forum non conveniens if the party seeking to
1-19 stay or dismiss the action proves by a preponderance of the
1-20 evidence that:
1-21 (1) a forum outside this state is a more appropriate
1-22 forum that:
1-23 (A) offers a remedy for the causes of action
1-24 brought by a party to which this section applies;
2-1 (B) as a result of the submission of the parties
2-2 or otherwise, can exercise jurisdiction over all parties and claims
2-3 properly joined in the action by the claimant; and
2-4 (C) would provide a place of trial that is fair,
2-5 reasonable, and convenient to the parties;
2-6 (2) maintenance of the action in the courts of this
2-7 state would work a substantial injustice to the moving party and
2-8 the balance of the private interests of all the parties and the
2-9 public interest of the state predominates in favor of the action
2-10 being brought in the other forum; and
2-11 (3) the stay or dismissal would not, in reasonable
2-12 probability, result in unreasonable duplication or proliferation of
2-13 litigation.
2-14 (c) No stay or dismissal shall be granted under Subsection
2-15 (b) until all properly joined defendants file with the clerk of the
2-16 court a written stipulation that each defendant will:
2-17 (1) submit to the personal jurisdiction of the courts
2-18 of the other forum; and
2-19 (2) waive any defense based on the statute of
2-20 limitations applicable in the other forum with respect to all
2-21 causes of action brought by a party to which this section applies.
2-22 (d) The court may, on motion and notice to the parties,
2-23 modify an order granting a stay or dismissal under this section and
2-24 take any further action in the proceeding as the interests of
2-25 justice may require. If the moving party violates a stipulation
2-26 required by Subsection (c), the court shall withdraw the order
2-27 staying or dismissing the action and proceed as if the order had
3-1 never been issued. Notwithstanding any other law, the court shall
3-2 have continuing jurisdiction for the purposes of this subsection.
3-3 (e) A request for stay or dismissal under this section is
3-4 timely if it is filed not later than the time required for filing a
3-5 motion to transfer venue of the action. Otherwise, any objection
3-6 under this section to the court's exercise of jurisdiction is
3-7 waived. The court may rule on a motion filed under this section
3-8 only after a hearing with notice to all parties not less than 21
3-9 days before the date specified for the hearing. The court shall
3-10 afford all of the parties ample opportunity to obtain discovery of
3-11 information relevant to the motion prior to a hearing on a motion
3-12 under this section. The moving party shall have the responsibility
3-13 to request and obtain a hearing on such motion at a reasonable time
3-14 prior to commencement of the trial, and in no case shall the
3-15 hearing be held less than 30 days prior to trial.
3-16 (f) A court may not stay or dismiss an action pursuant to
3-17 Subsection (b):
3-18 (1) if a claimant in the action who is properly joined
3-19 is a legal resident of this state;
3-20 (2) if a party opposing the motion under Subsection
3-21 (b) alleges and makes a prima facie showing that an act or omission
3-22 that was a proximate or producing cause of the injury or death
3-23 occurred in this state. Notwithstanding Subsection (h), said prima
3-24 facie showing need not be made by a preponderance of the evidence
3-25 and shall be deemed to be satisfied if said party produces credible
3-26 evidence in support of the pleading, which evidence need not be in
3-27 admissible form and may include affidavits, deposition testimony,
4-1 discovery responses, or other verified evidence;
4-2 (3) in an action brought under the federal Employers'
4-3 Liability Act (45 U.S.C. Section 51 et seq.), the federal Safety
4-4 Appliance Act (45 U.S.C. Section 1 et seq.), or the federal Boiler
4-5 Inspection Act (45 U.S.C. Section 22 et seq.);
4-6 (4) in an action in which it is alleged that the
4-7 personal injury or death was caused by a means of air
4-8 transportation designed, manufactured, sold, maintained, inspected,
4-9 or repaired in this state or occurred while traveling in or on a
4-10 means of air transportation during a trip originating from or
4-11 destined for a location in this state; or
4-12 (5) in an action in which it is alleged that harm was
4-13 caused by exposure to asbestos fibers.
4-14 (g) This section does not apply if the personal injury or
4-15 death that is the subject of the cause of action resulted from a
4-16 violation of the laws of this state or of the United States,
4-17 including but not limited to exposure to a substance referred to in
4-18 Section 33.013(c)(3) that was transported out of this state or the
4-19 United States in violation of the laws of this state or the United
4-20 States.
4-21 (h) The burden is on the party opposing a motion under
4-22 Subsection (b) to assert and prove by a preponderance of the
4-23 evidence an exception provided by Subsection (f), if applicable.
4-24 If a party opposing a motion under Subsection (b) fails to timely
4-25 raise an exception under Subsection (f), that party's right to
4-26 raise such exception is waived, but such waiver does not relieve
4-27 the moving party as to any requirement of this section. An
5-1 exception filed not less than seven days before the hearing on a
5-2 motion made under Subsection (b) shall be deemed to be timely.
5-3 (i) Any time limit established by this section may be
5-4 extended by the court at the request of any party for good cause
5-5 shown.
5-6 (j) In this section:
5-7 (1) "Legal resident" means a person who intends the
5-8 specified political subdivision to be his permanent residence and
5-9 who intends to return to the specified political subdivision
5-10 despite temporary residence elsewhere or despite temporary
5-11 absences, without regard to the person's country of citizenship or
5-12 national origin. The term does not include a person who adopts a
5-13 residence in the specified political subdivision in bad faith for
5-14 purposes of avoiding the application of this section.
5-15 (2) "Claimant" means a party, including a plaintiff,
5-16 counterclaimant, cross-claimant, or third-party plaintiff, seeking
5-17 recovery for personal injury or wrongful death. In a cause of
5-18 action in which a party seeks recovery of damages for personal
5-19 injury to or the wrongful death of another person, "claimant"
5-20 includes both that other person and the party seeking such
5-21 recovery. The term does not include a person who is assigned a
5-22 cause of action for personal injury, or who accepts an appointment
5-23 as a personal representative in a wrongful death action, in bad
5-24 faith for purposes of affecting in any way the application of this
5-25 section.
5-26 (k) This section applies to actions for personal injury or
5-27 wrongful death. This section shall govern the courts of this state
6-1 in determining issues under the doctrine of forum non conveniens in
6-2 the actions to which it applies, notwithstanding Section 71.031(a)
6-3 or any other law.
6-4 SECTION 2. This Act applies to a cause of action filed on or
6-5 after September 1, 1993.
6-6 SECTION 3. The importance of this legislation and the
6-7 crowded condition of the calendars in both houses create an
6-8 emergency and an imperative public necessity that the
6-9 constitutional rule requiring bills to be read on three several
6-10 days in each house be suspended, and this rule is hereby suspended.