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05/30/90 ANTHONY A. DUNKWU v. PATRICIA NEVILLE

May 30, 1990

ANTHONY A. DUNKWU, APPELLANT
v.
PATRICIA NEVILLE, ET AL., APPELLEES



Appeal from the Superior Court of the District of Columbia; Hon. Tim C. Murphy, Motions Judge

Newman, Steadman and Farrell, Associate Judges.

The opinion of the court was delivered by: Farrell

In this case, we take the unusual step of reversing a discretionary decision of the trial court denying a motion to dismiss on the ground of forum non conveniens. We do so because otherwise we would adopt a rule permitting a motion of this kind to be defeated by a showing of very little more than that the plaintiff chose the courts of the District of Columbia as her forum.

A.

Plaintiff Neville, a resident of Virginia, brought suit individually and as next friend of her infant daughter against appellant Dunkwu, a resident of Virginia and a physician specializing in obstetrics and gynecology licensed to practice medicine in Virginia and the District of Columbia, and maintaining offices in both jurisdictions. The complaint alleged negligence by Dr. Dunkwu in the obstetrical care and delivery of the infant from August 1986 through April 1987 when the child was born in Alexandria Hospital, resulting in injuries from which the plaintiffs suffered damages in the amount of $1,000,000. Defendant moved to dismiss the complaint on grounds of lack of personal jurisdiction and, alternatively, forum non conveniens, pointing out that the initial consultation by the mother and all subsequent treatment, including the delivery, had taken place in Virginia and that "at no time were the Plaintiffs seen, examined or treated in the District of Columbia." Plaintiffs responded by conceding these facts but asserting that under District of Columbia law a plaintiff's choice of forum should rarely be disturbed; that Dr. Dunkwu maintained an office in the District of Columbia and practiced there; and that he would suffer little practical inconvenience by a trial in any one of the jurisdictions in the "relatively compact and closely interrelated metropolitan area," citing Aiken v. Lustine Chevrolet, Inc., 392 F. Supp. 883, 887 n.20 (D.D.C. 1975). On May 18, 1989, the trial court denied the motion to dismiss without opinion. This interlocutory appeal followed. *fn1

B.

We have repeatedly held that trial court rulings on forum non conveniens motions are entitled to receive considerable deference from this court. We will not reverse such a ruling unless presented with clear evidence that the trial court abused its broad discretion.

Jenkins v. Smith, 535 A.2d 1367, 1369 (D.C. 1987) (en banc). "This deference, however, does not amount to carte blanche," id., because "unlike our review of most acts of judicial discretion, our review of rulings on forum non conveniens motions includes an independent evaluation of . . . 'private' and 'public' factors," id. (citation omitted), the latter referring to

those affecting the District's own interests including the congestion of its court dockets with foreign litigation, the imposition of jury duty on District residents for litigation in which the District has no concern, and the inappropriateness of calling on District of Columbia courts to construe the law of another jurisdiction.

Id. In sum, although only a "clear showing" of abuse of discretion will suffice to reverse the trial court's decision, "such rulings receive closer scrutiny than most exercises of trial court discretion," and "convincing circumstances" may demonstrate trial court error as a matter of law. Id. at 1370, quoting in part Washington v. May Dep't Stores, 388 A.2d 484, 486 (D.C. 1978).

There is a further important aspect of both the trial court's task and our standard of review. While in 'general, "unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed," Mills v. Aetna Fire Underwriters Ins. Co., 511 A.2d 8, 10 (D.C. 1986), quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 91 L. Ed. 1055, 67 S. Ct. 839 (1947), that rule pertains especially when the plaintiff is a resident of the District of Columbia. Id.; Jenkins, supra, 535 A.2d at 1370. "When the plaintiff is from another jurisdiction, however, it is much less reasonable to assume that his choice of a District of Columbia forum is convenient," and in that case "plaintiff's choice deserves less deference." Mills, supra, 511 A.2d at 10-11. Moreover,

Where it is shown that neither party resides in the District and the plaintiff's claim has arisen in another jurisdiction which has more substantial contacts with the cause of action, the burden normally allocated to the defendant to demonstrate why dismissal is warranted for forum non conveniens rests instead upon the plaintiff to show why it is not.

Id. at 11 (emphasis added). The plaintiff in that case "should be required to show some reasonable justification for his institution of the action in the forum state rather than in a state with which the defendant or the res, act or event in suit is more significantly connected." Id., quoting Pain v. United Technologies Corp., 205 U.S. App. D.C. 229, 238, 637 F.2d 775, 784 (1980) (emphasis and further citations omitted).

In explaining the concept of discretion, which inherently "signifies choice," we have stated that "an informed choice among the alternatives requires that the trial court's determination be based upon and drawn from a firm factual foundation," and that "it is an abuse [of discretion] if the stated reasons do not rest upon a specific factual predicate." Johnson v. United States, 398 A.2d 354, 361, 364 (D.C. 1979). We hold in this case that, "where it is shown that neither party resides in the District and the plaintiff's claim has arisen in another jurisdiction which has more substantial contacts with the cause of action," Mills, supra, 511 A.2d at 11, the trial court will have abused its discretion in denying a motion to dismiss on grounds of forum non conveniens unless that choice rests upon the sure factual ...


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