FELA Suit Dismissed for Inconvenient Forum

A Norfolk Circuit Court dismisses on forum non conveniens grounds plaintiff administrator’s suit against defendant railroad company under the Federal Employers Liability Act, over a North Carolina employee’s death in North Carolina.

Plaintiff chose to bring this FELA action in Norfolk Circuit Court, not in a federal district court. Plaintiff incorrectly points to the venue provisions under FELA, not the Code of Virginia, as controlling law for the transfer of venue motion. Plaintiff fails to address the long line of Supreme Court cases establishing venue as a procedural matter governed by the local forum’s laws.

The Virginia venue statutes enable a court to dismiss the action for a more convenient forum within or outside the commonwealth, upon motion by any party and for good cause shown.

The case before the court today clearly has a greater nexus between the underlying action and the Asheville, North Carolina forum than the present one. Plaintiff here can establish only a formal association with the Norfolk forum. The nexus arises solely from the location of defendant’s headquarters in Norfolk. Plaintiff avers there are witnesses located in Norfolk who will be deposed and may turn out to be witnesses at trial. Even if they do not turn out to be witnesses, plaintiff cites his desire to depose them as sufficient cause to retain the case in the Norfolk Circuit Court. These witnesses are employees of defendant and will be available for depositions regardless of where the trial is to occur.

In contrast, the injury arose in North Carolina. Decedent was employed by defendant in North Carolina and decedent’s estate remains there. The majority of known potential witnesses are residents of western North Carolina and holding the trial in Norfolk would cause them substantial inconvenience. There is no known witness in the southeast Virginia region.

The court grants defendant’s motion to dismiss for forum non conveniens.

Budd, Adm’r v. Norfolk Southern Railway Co. (Doyle) No. CL 14-8300, April 28, 2015; Norfolk Cir.Ct.; John M. Cooper, Samuel J. Webster, William G. Jungbauer for the parties. VLW 015-8-049, 3 pp.