ZEM C.S.S.B. 220 75(R)BILL ANALYSIS CIVIL PRACTICES C.S.S.B. 220 By: Bivins, et al. (Junell) 5-20-97 Committee Report (Substituted) BACKGROUND Currently, the Texas common law forum non conveniens doctrine, similar to federal and most other states' courts, gives judges broad discretion to dismiss lawsuits if in the interest of justice and convenience of the parties, an alternate jurisdiction is a more appropriate forum for the lawsuit. However, the Texas statutory forum non conveniens doctrine requires Texas judges to apply a different set of criteria to lawsuits filed by foreign plaintiffs and residents of other states. It exempts from the forum non conveniens doctrine claims based on any violation of federal law and claims related to air transportation, railroad companies, and asbestos and requires all defendants to unanimously consent to the jurisdiction of the alternate forum and waive all statutes of limitations defenses. S.B. 220 would eliminate these exemptions and give a court jurisdiction over certain claims. PURPOSE As engrossed, S.B. 220 authorizes a court in this state, under certain conditions, to decline to exercise jurisdiction under the doctrine of forum non conveniens, eliminates certain exemptions to forum non conveniens, and gives a court jurisdiction over certain claims. RULEMAKING AUTHORITY This bill does not grant any additional rulemaking authority to a state officer, institution, or agency. SECTION BY SECTION ANALYSIS SECTION 1. Amends Section 71.051, Civil Practice and Remedies Code as follows: (a) Provides that with respect to a plaintiff, rather than a claimant, who is not a legal resident of the United States, if a court of this state, on written notice of a party, finds that in the interest of justice, a claim or an action to which this section applies would be more properly heard in a forum outside this state, the court may decline to exercise jurisdiction under the doctrine of forum non conveniens and may stay or dismiss the claim or action in whole or part, on any conditions that may be just. (b) Provides that with respect to a plaintiff rather than a claimant, who is a legal resident of the United States, a claim or action may be stayed or dismissed in whole or in part under the doctrine of forum non conveniens on written motion of a party if the party proves by a preponderance of the evidence that an alternative forum exists, the alternate forum provides an adequate remedy, maintenance of the claim or action in this state would be a substantial injustice to the moving party, the alternate forum, as a result of the submission of the parties or otherwise, can exercise jurisdiction over all defendants, the balance of public and private interests favors the alternate forum, and the stay or dismissal would not result in duplication or proliferation of litigation. (c) Provides that the court may set terms and conditions for staying or dismissing a claim or action. Requires the court to withdraw the stay or dismissal order if the moving party violates a term or condition of it. Grants the court continuing jurisdiction for purposes of this subsection. (d) Provides that a request for a stay or dismissal is timely if filed not later than 180 days after the time for filing a motion to transfer venue. (e) Provides that a court may not stay or dismiss a claim if a party is properly joined, is a legal resident of this state, and the claim or action arose out of a single occurrence. Requires the court to dismiss a claim or action if the court finds by a preponderance of the evidence that a party was joined solely to obtain or maintain jurisdiction. (f) Makes conforming changes. Deletes existing statutory language relating to actions brought under FELA, relating to air transportation, and exposure to asbestos fibers. (g) Deletes existing statutory language relating to actions resulting from exposure to substances in violation of state or federal law and relating to burden of proof on certain exceptions. Makes conforming changes. (h) Replaces the word "person" with "individual" and "claimant" with "plaintiff." Provides that the term "plaintiff" does not include counterclaimant, cross-claimant, or third-party plaintiff. (i) Makes conforming changes. SECTION 2. Amends Subchapter D, Chapter 71, Civil Practice and Remedies Code by adding Section 71.052 as follows: (a) Provides that this section applies only to a claim for injury or death in which the plaintiff is a nonresident, the claim arose outside the state, and the harm was caused by asbestos. (b) Requires the court, on defendant's motion, to dismiss each claim filed on or after January 1, 1997 if the defendant stipulates that the claim in another forum would relate back to the date of filing in this state for limitations purposes. (c) Requires the court to dismiss each claim against the defendant that was filed after August 1, 1995 but before January 1, 1997 unless the plaintiff elects to abate the claim to file a new action in another state or to limit the recovery on exemplary damages to specified amounts. (d) Requires the court to deny the defendant's motion to dismiss if a plaintiff has made an election and not to require the plaintiff to refile the election against any subsequent motion. Requires the court to dismiss the plaintiff's claims at the end of the abatement period. (e) Provides that a court may not abate or dismiss a claim until the defendant stipulates that he waives statute of limitation defense in all other states so that limitations is tolled from the time the claim was filed in this state and ending on the date the claim was dismissed or the abatement ended. (f) Provides that the court may not abate or dismiss a claim until the defendant stipulates that for a new action filed in another state, the plaintiff and defendant can rely on previous discovery and conduct additional discovery under the procedural rules of the new forum state. (g) Requires the court to sever claims and consider them individually for actions in which some claims arose in state and some arose out of state. (h) Requires a court to determine jurisdiction based on the plaintiff's location at the time of exposure to asbestos. If the plaintiff was exposed in more than one jurisdiction, requires the court to base the determination by considering the relative amounts and lengths of exposure in each jurisdiction. SECTION 3. Amends Subsections (a) and (b), Section 71.031, Civil Practice and Remedies Code to provide that an action for damages for death or personal injury may be enforced in this state for residents of a foreign country or state if the action is begun within the time deadlines provided by the laws of the foreign country or state and to make conforming changes. SECTION 4. (a) Specifies that Section 1 applies to civil actions commenced on or after January 1, 1999 that is against a railroad company brought under FELA, the federal Safety Appliance Act, or the federal Boiler Inspection Act or an action alleging that injury or death was caused by air transportation travelling in or originating in or destined for this state and to other civil actions commenced on or after the effective date (b) Specifies that Section 2 applies to civil actions pending on the effective date for asbestos cases. Savings clause. (c) Specifies that Section 3 applies prospectively; savings clause. SECTION 5. Emergency Clause. Effective date: upon passage COMPARISON OF ORIGINAL TO SUBSTITUTE The committee substitute makes the following substantive changes: SECTION 1 1.Restores current statutory language distinguishing between plaintiffs who are not legal residents of the United States and plaintiffs who are legal residents. Provides that for plaintiffs who are legal residents of the United States, a claim or action may only be stayed or dismissed if the moving party proves by a preponderance of the evidence that an alternate forum exists which provides an adequate remedy, which can exercise jurisdiction over all defendants, and which is favored by the balancing of public and private interests. 2.Restores current statutory language and adds a new deadline for filing a request for stay or dismissal. Deletes language waiving objections to jurisdiction if a request is not timely filed. 3.Provides that a court may not stay or dismiss a claim if the plaintiff is a legal resident of the state, but specifies that in an action involving both plaintiffs who are Texas residents and nonresidents the court may not dismiss if the plaintiffs are properly joined and the action arose out of a single occurrence. 4.Restores current statutory language preventing stay or dismissal of an action if it occurred in Texas. 5.Restores current statutory definition of "legal resident" but replaces the word "person" with "an individual." Defines "plaintiff" and excludes counterclaimants, cross-claimants, and third-party plaintiffs from the definition. SECTION 2 1.Makes certain provisions for out-of-state asbestos claims filed by nonresidents: a.claims filed before August 1, 1995 are not subject to dismissal b.claims filed after August 1, 1995 and before January 1, 1997 are subject to an election by the plaintiff to either dismiss the claim and require the court to abate the claim for 180 days and defendant to stipulate that statute of limitations is tolled for the abatement period or to remain in Texas but accept Texas punitive damage caps. c.claims filed after January 1, 1997 are subject to dismissal if the defendant agrees that a claim refiled in another state will be treated as if it was filed on the same day the claim was filed in Texas. 2. Provides that before a claim may be dismissed, the defendant must stipulate that the plaintiff can choose either to use discovery obtained in Texas as well as any new discovery obtained in the other state or to rely on the other state's rules governing use of prior discovery. 3.Specifies that a court shall make the determination of where the claim arose based on where the plaintiff was exposed to asbestos fibers. If the plaintiff was exposed in more than one jurisdiction, the court shall determine which is most appropriate by considering the relative amounts and lengths of the plaintiff's exposure in each jurisdiction. SECTION 3 1.Provides that out-of-state residents must file out-of-state claims within the time period allowed by the statute of limitations in the state where the action arose. SECTION 4 1.Provides that SECTION 1 applies to actions against railroad companies under FELA or other federal statutes or actions based on air transportation accidents that are filed after January 1, 1999 and to all other civil actions filed on or after the effective date. 2. Provides that SECTION 2 applies to pending cases. 3.Provides that SECTION 3 applies prospectively.