1-1 By: Montford, et al. S.B. No. 2 1-2 (In the Senate - Filed January 25, 1993; January 25, 1993, 1-3 read first time and referred to Committee on Economic Development; 1-4 January 26, 1993, reported favorably by the following vote: Yeas 1-5 11, Nays 0; January 26, 1993, sent to printer.) 1-6 COMMITTEE VOTE 1-7 Yea Nay PNV Absent 1-8 Parker x 1-9 Lucio x 1-10 Ellis x 1-11 Haley x 1-12 Harris of Dallas x 1-13 Harris of Tarrant x 1-14 Leedom x 1-15 Madla x 1-16 Rosson x 1-17 Shapiro x 1-18 Wentworth x 1-19 A BILL TO BE ENTITLED 1-20 AN ACT 1-21 relating to the application of the doctrine of forum non conveniens 1-22 to certain actions. 1-23 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-24 SECTION 1. Chapter 71, Civil Practice and Remedies Code, is 1-25 amended by adding Subchapter D to read as follows: 1-26 SUBCHAPTER D. FORUM NON CONVENIENS 1-27 Sec. 71.051. FORUM NON CONVENIENS. (a) With respect to a 1-28 claimant who is not a legal resident of the United States, if a 1-29 court of this state, on written motion of a party, finds that in 1-30 the interest of justice an action to which this section applies 1-31 would be more properly heard in a forum outside this state, the 1-32 court may decline to exercise jurisdiction under the doctrine of 1-33 forum non conveniens and may stay or dismiss the action in whole or 1-34 in part on any conditions that may be just. 1-35 (b) With respect to a claimant who is a legal resident of 1-36 the United States, on written motion of a party, an action to which 1-37 this section applies may be stayed or dismissed in whole or in part 1-38 under the doctrine of forum non conveniens if the party seeking to 1-39 stay or dismiss the action proves by a preponderance of the 1-40 evidence that: 1-41 (1) a forum outside this state is a more appropriate 1-42 forum that: 1-43 (A) offers a remedy for the causes of action 1-44 brought by a party to which this section applies; 1-45 (B) as a result of the submission of the parties 1-46 or otherwise, can exercise jurisdiction over all parties and claims 1-47 properly joined in the action by the claimant; and 1-48 (C) would provide a place of trial that is fair, 1-49 reasonable, and convenient to the parties; 1-50 (2) maintenance of the action in the courts of this 1-51 state would work a substantial injustice to the moving party and 1-52 the balance of the private interests of all the parties and the 1-53 public interest of the state predominates in favor of the action 1-54 being brought in the other forum; and 1-55 (3) the stay or dismissal would not, in reasonable 1-56 probability, result in unreasonable duplication or proliferation of 1-57 litigation. 1-58 (c) No stay or dismissal shall be granted under Subsection 1-59 (b) until all properly joined defendants file with the clerk of the 1-60 court a written stipulation that each defendant will: 1-61 (1) submit to the personal jurisdiction of the courts 1-62 of the other forum; and 1-63 (2) waive any defense based on the statute of 1-64 limitations applicable in the other forum with respect to all 1-65 causes of action brought by a party to which this section applies. 1-66 (d) The court may, on motion and notice to the parties, 1-67 modify an order granting a stay or dismissal under this section and 1-68 take any further action in the proceeding as the interests of 2-1 justice may require. If the moving party violates a stipulation 2-2 required by Subsection (c), the court shall withdraw the order 2-3 staying or dismissing the action and proceed as if the order had 2-4 never been issued. Notwithstanding any other law, the court shall 2-5 have continuing jurisdiction for the purposes of this subsection. 2-6 (e) A request for stay or dismissal under this section is 2-7 timely if it is filed not later than the time required for filing a 2-8 motion to transfer venue of the action. Otherwise, any objection 2-9 under this section to the court's exercise of jurisdiction is 2-10 waived. The court may rule on a motion filed under this section 2-11 only after a hearing with notice to all parties not less than 21 2-12 days before the date specified for the hearing. The court shall 2-13 afford all of the parties ample opportunity to obtain discovery of 2-14 information relevant to the motion prior to a hearing on a motion 2-15 under this section. The moving party shall have the responsibility 2-16 to request and obtain a hearing on such motion at a reasonable time 2-17 prior to commencement of the trial, and in no case shall the 2-18 hearing be held less than 30 days prior to trial. 2-19 (f) A court may not stay or dismiss an action pursuant to 2-20 Subsection (b): 2-21 (1) if a claimant in the action who is properly joined 2-22 is a legal resident of this state; 2-23 (2) if a party opposing the motion under Subsection 2-24 (b) alleges and makes a prima facie showing that an act or omission 2-25 that was a proximate or producing cause of the injury or death 2-26 occurred in this state. Notwithstanding Subsection (h), said prima 2-27 facie showing need not be made by a preponderance of the evidence 2-28 and shall be deemed to be satisfied if said party produces credible 2-29 evidence in support of the pleading, which evidence need not be in 2-30 admissible form and may include affidavits, deposition testimony, 2-31 discovery responses or other verified evidence; 2-32 (3) in an action brought under the federal Employers' 2-33 Liability Act (45 U.S.C. Section 51 et seq.), the federal Safety 2-34 Appliance Act (45 U.S.C. Section 1 et seq.) or the federal Boiler 2-35 Inspection Act (45 U.S.C. Section 22 et seq.; 2-36 (4) in an action in which it is alleged that the 2-37 personal injury or death was caused by a means of air 2-38 transportation designed, manufactured, sold, maintained, inspected, 2-39 or repaired in this state or occurred while traveling in or on a 2-40 means of air transportation during a trip originating from or 2-41 destined for a location in this state; or 2-42 (5) in an action in which it is alleged that harm was 2-43 caused by exposure to asbestos fibers. 2-44 (g) This section does not apply if the personal injury or 2-45 death that is the subject of the cause of action resulted from a 2-46 violation of the laws of this state or of the United States, 2-47 including but not limited to exposure to a substance referred to in 2-48 Section 33.013(c)(3) that was transported out of this state or the 2-49 United States in violation of the laws of this state or the United 2-50 States. 2-51 (h) The burden is on the party opposing a motion under 2-52 Subsection (b) to assert and prove by a preponderance of the 2-53 evidence an exception provided by Subsection (f), if applicable. 2-54 If a party opposing a motion under Subsection (b) fails to timely 2-55 raise an exception under Subsection (f), that party's right to 2-56 raise such exception is waived, but such waiver does not relieve 2-57 the moving party as to any requirement of this section. An 2-58 exception filed not less than seven days before the hearing on a 2-59 motion made under Subsection (b) shall be deemed to be timely. 2-60 (i) Any time limit established by this section may be 2-61 extended by the court at the request of any party for good cause 2-62 shown. 2-63 (j) In this section: 2-64 (1) "Legal resident" means a person who intends the 2-65 specified political subdivision to be his permanent residence and 2-66 who intends to return to the specified political subdivision 2-67 despite temporary residence elsewhere or despite temporary 2-68 absences, without regard to the person's country of citizenship or 2-69 national origin. The term does not include a person who adopts a 2-70 residence in the specified political subdivision in bad faith for 3-1 purposes of avoiding the application of this section. 3-2 (2) "Claimant" means a party, including a plaintiff, 3-3 counterclaimant, cross-claimant, or third-party plaintiff, seeking 3-4 recovery for personal injury or wrongful death. In a cause of 3-5 action in which a party seeks recovery of damages for personal 3-6 injury to or the wrongful death of another person, "claimant" 3-7 includes both that other person and the party seeking such 3-8 recovery. The term does not include a person who is assigned a 3-9 cause of action for personal injury, or who accepts an appointment 3-10 as a personal representative in a wrongful death action, in bad 3-11 faith for purposes of affecting in any way the application of this 3-12 section. 3-13 (k) This section applies to actions for personal injury or 3-14 wrongful death. This section shall govern the courts of this state 3-15 in determining issues under the doctrine of forum non conveniens in 3-16 the actions to which it applies, notwithstanding Section 71.031(a) 3-17 or any other law. 3-18 SECTION 2. This Act applies to a cause of action filed on or 3-19 after September 1, 1993. 3-20 SECTION 3. The importance of this legislation and the 3-21 crowded condition of the calendars in both houses create an 3-22 emergency and an imperative public necessity that the 3-23 constitutional rule requiring bills to be read on three several 3-24 days in each house be suspended, and this rule is hereby suspended. 3-25 * * * * * 3-26 Austin, 3-27 Texas 3-28 January 26, 3-29 1993 3-30 Hon. Bob Bullock 3-31 President of the Senate 3-32 Sir: 3-33 We, your Committee on Economic Development to which was referred 3-34 S.B. No. 2, have had the same under consideration, and I am 3-35 instructed to report it back to the Senate with the recommendation 3-36 that it do pass and be printed. 3-37 Parker, 3-38 Chairman 3-39 * * * * * 3-40 WITNESSES 3-41 FOR AGAINST ON 3-42 ___________________________________________________________________ 3-43 Name: J. Donald Bowen 3-44 Representing: Texas Trial Lawyers 3-45 City: Houston x 3-46 Name: Louis Austin 3-47 Representing: Jobs for Texas 3-48 City: Dallas x 3-49 Name: Fred Baron 3-50 Representing: Texas Trial Lawyers 3-51 City: Dallas x 3-52 Name: Joe D. Gunn 3-53 Representing: Texas AFL/CIO 3-54 City: Austin x 3-55 Name: Stephen Scheurer 3-56 Representing: Texas Recreation Corp. 3-57 City: Austin x 3-58 Name: Bill Barton 3-59 Representing: Texas Railroad Association 3-60 City: Austin x 3-61 Name: Mark Ellison 3-62 Representing: Texas Department of Agriculture 3-63 City: Austin x 3-64 Name: Paul Drummond 3-65 Representing: Groce, Locke and Hebdon 3-66 City: San Antonio x 3-67 Name: James Scott 3-68 Representing: Public Citizen 3-69 City: Austin x 3-70 Name: Ralph Wayne 4-1 Representing: Texas Civil Justice League 4-2 City: Austin x 4-3 Name: Rob Looney 4-4 Representing: Texas Mid. Cont. Oil & Gas 4-5 City: Austin x 4-6 Name: Joe C. Tooley 4-7 Representing: Texas Assoc. of Defense Counsel 4-8 City: Dallas x 4-9 NAME: James H. Holmes, III 4-10 Representing: Texas Assoc. Defense Counsel 4-11 City: Dallas x 4-12 NAME: Byron Tunnell 4-13 Representing: Jobs for Texas 4-14 City: Austin x 4-15 NAME: W. P. Whitworth 4-16 Representing: Texas Chemical Council 4-17 City: Austin x 4-18 NAME: Robert Howden 4-19 Representing: Natl. Fed. of Ind. Business 4-20 City: Austin x 4-21 NAME: Michael White 4-22 Representing: Greater Houston Partnership 4-23 City: Houston x 4-24 NAME: Gerald Holtzman 4-25 Representing: Jobs of Texas 4-26 City: Houston x 4-27 NAME: Larry Milner 4-28 Representing: Texas Chamber of Commerce 4-29 City: Austin x 4-30 NAME: Chris Shields 4-31 Representing: Texas Chamber of Commerce 4-32 City: Austin x