By: Montford/Harris, Ike S.B. No. 2
73R2629 E
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the application of the doctrine of forum non conveniens
1-3 to certain actions.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Chapter 71, Civil Practice and Remedies Code, is
1-6 amended by adding Subchapter D to read as follows:
1-7 SUBCHAPTER D. FORUM NON CONVENIENS
1-8 Sec. 71.051. FORUM NON CONVENIENS. (a) With respect to a
1-9 claimant who is not a legal resident of the United States, if a
1-10 court of this state, on written motion of a party, finds that in
1-11 the interest of justice an action to which this section applies
1-12 would be more properly heard in a forum outside this state, the
1-13 court may decline to exercise jurisdiction under the doctrine of
1-14 forum non conveniens and may stay or dismiss the action in whole or
1-15 in part on any conditions that may be just.
1-16 (b) With respect to a claimant who is a legal resident of
1-17 the United States, on written motion of a party, an action to which
1-18 this section applies may be stayed or dismissed in whole or in part
1-19 under the doctrine of forum non conveniens if the party seeking to
1-20 stay or dismiss the action proves by a preponderance of the
1-21 evidence that:
1-22 (1) a forum outside this state is a more appropriate
1-23 forum that:
1-24 (A) offers a remedy for the causes of action
2-1 brought by a party to which this section applies;
2-2 (B) as a result of the submission of the parties
2-3 or otherwise, can exercise jurisdiction over all parties and claims
2-4 properly joined in the action by the claimant; and
2-5 (C) would provide a place of trial that is fair,
2-6 reasonable and convenient to the parties;
2-7 (2) maintenance of the action in the courts of this
2-8 state would work a substantial injustice to the moving party, and
2-9 that the balance of the private interests of all the parties and
2-10 the public interest of the state predominates in favor of the
2-11 action being brought in the other forum; and
2-12 (3) the stay or dismissal would not, in reasonable
2-13 probability, result in unreasonable duplication or proliferation of
2-14 litigation.
2-15 (c) No stay or dismissal shall be granted under Subsection
2-16 (b) until all properly joined defendants file with the clerk of the
2-17 court a written stipulation that each defendant will:
2-18 (1) submit to the personal jurisdiction of the courts
2-19 of the other forum; and
2-20 (2) waive any defense based on the statute of
2-21 limitations applicable in the other forum with respect to all
2-22 causes of action brought by a party to which this section applies.
2-23 (d) The court may, on motion and notice to the parties,
2-24 modify an order granting a stay or dismissal under this section and
2-25 take any further action in the proceeding as the interests of
2-26 justice may require. If the moving party violates a stipulation
2-27 required by Subsection (c), the court shall withdraw the order
3-1 staying or dismissing the action and proceed as if the order had
3-2 never been issued. Notwithstanding any other law, the court shall
3-3 have continuing jurisdiction for the purposes of this subsection.
3-4 (e) A request for stay or dismissal under this section is
3-5 timely if it is filed not later than the time required for filing a
3-6 motion to transfer venue of the action. Otherwise, any objection
3-7 under this section to the court's exercise of jurisdiction is
3-8 waived. The court may rule on a motion filed under this section
3-9 only after a hearing with notice to all parties not less than 21
3-10 days before the date specified for the hearing. The court shall
3-11 afford all of the parties ample opportunity to obtain discovery of
3-12 information relevant to the motion prior to a hearing on a motion
3-13 under this section. The moving party shall have the responsibility
3-14 to request and obtain a hearing on such motion at a reasonable time
3-15 prior to commencement of the trial, and in no case shall the
3-16 hearing be held less than 30 days prior to trial.
3-17 (f) A court may not stay or dismiss an action pursuant to
3-18 Subsection (b):
3-19 (1) if a claimant in the action who is properly joined
3-20 is a legal resident of this state;
3-21 (2) if a party opposing the motion under Subsection
3-22 (b) alleges and makes a prima facie showing that an act or omission
3-23 that was a proximate or producing cause of the injury or death
3-24 occurred in this state. Notwithstanding Subsection (h), said prima
3-25 facie showing need not be made by a preponderance of the evidence
3-26 and shall be deemed to be satisfied if said party produces credible
3-27 evidence in support of the pleading, which evidence need not be in
4-1 admissible form and may include affidavits, deposition testimony,
4-2 discovery responses or other verified evidence;
4-3 (3) in an action brought under the federal Employers'
4-4 Liability Act (45 U.S.C. 51 et seq., as amended), the federal
4-5 Safety Appliance Act (45 U.S.C. 1 et seq., as amended) or the
4-6 federal Boiler Inspection Act (45 U.S.C. 22 et seq., as amended);
4-7 (4) in an action in which it is alleged that the
4-8 personal injury or death was caused by a means of air
4-9 transportation designed, manufactured, sold, maintained, inspected
4-10 or repaired in this state, or occurred while traveling in or on a
4-11 means of air transportation during a trip originating from or
4-12 destined to a location in this state; or
4-13 (5) in an action in which it is alleged that harm was
4-14 caused by exposure to asbestos fibers.
4-15 (g) This section does not apply if the personal injury or
4-16 death that is the subject of the cause of action resulted from a
4-17 violation of the laws of this state or of the United States,
4-18 including but not limited to exposure to a substance referred to in
4-19 Section 33.013(c)(3) that was transported out of this state or the
4-20 United States in violation of the laws of this state or the United
4-21 States.
4-22 (h) The burden is on the party opposing a motion under
4-23 Subsection (b) to assert and prove by a preponderance of the
4-24 evidence an exception provided by Subsection (f), if applicable.
4-25 If a party opposing a motion under Subsection (b) fails to timely
4-26 raise an exception under Subsection (f), that party's right to
4-27 raise such exception is waived but such waiver does not relieve the
5-1 moving party as to any requirement of this section. An exception
5-2 filed not less than seven days before the hearing on a motion made
5-3 under Subsection (b) shall be deemed to be timely.
5-4 (i) Any time limit established by this section may be
5-5 extended by the court at the request of any party for good cause
5-6 shown.
5-7 (j) In this section:
5-8 (1) "Legal resident" means a person who intends the
5-9 specified political subdivision to be his permanent residence and
5-10 who intends to return to the specified political subdivision
5-11 despite temporary residence elsewhere or despite temporary
5-12 absences, without regard to the person's country of citizenship or
5-13 national origin. The term does not include a person who adopts a
5-14 residence in the specified political subdivision in bad faith for
5-15 purposes of avoiding the application of this section.
5-16 (2) "Claimant" means a party, including a plaintiff,
5-17 counterclaimant, cross-claimant or third-party plaintiff, seeking
5-18 recovery for personal injury or wrongful death. In a cause of
5-19 action in which a party seeks recovery of damages for personal
5-20 injury to or the wrongful death of another person, "claimant"
5-21 includes both that other person and the party seeking such
5-22 recovery. The term does not include a person who is assigned a
5-23 cause of action for personal injury, or who accepts an appointment
5-24 as a personal representative in a wrongful death action, in bad
5-25 faith for purposes of affecting in any way the application of this
5-26 section.
5-27 (k) This section applies to actions for personal injury or
6-1 wrongful death. This section shall govern the courts of this state
6-2 in determining issues under the doctrine of forum non conveniens in
6-3 the actions to which it applies, notwithstanding Section 71.031(a),
6-4 Civil Practice and Remedies Code, or any other law.
6-5 SECTION 2. This Act applies to a cause of action filed on or
6-6 after September 1, 1993.
6-7 SECTION 3. The importance of this legislation and the
6-8 crowded condition of the calendars in both houses create an
6-9 emergency and an imperative public necessity that the
6-10 constitutional rule requiring bills to be read on three several
6-11 days in each house be suspended, and this rule is hereby suspended.