Appeal from the Superior Court of the District of Columbia (CA6006-00) (Hon. William M. Jackson, Trial Judge)
Before Wagner, Chief Judge, Terry, Steadman, Schwelb, Farrell, Ruiz, Reid,
Glickman, and Washington, Associate Judges.
The opinion of the court was delivered by: Glickman, Associate Judge
Reargued en banc May 12, 2003
This is an interlocutory appeal from the denial of a motion to dismiss a complaint for legal malpractice on grounds of forum non conveniens. See D.C. Code § 13-425 (2001). In Frost v. Peoples Drug Store, 327 A.2d 810, 812-13 (D.C. 1974), this court held such denials immediately appealable as a matter of right under the collateral order doctrine that the Supreme Court enunciated in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546 (1949). The full court reaffirmed that holding in 1985 by a five to four margin in Jenkins v. Smith, 499 A.2d 128 (D.C. 1985) (en banc) (per curiam); see also Jenkins v. Smith, 535 A.2d 1367 (D.C. 1987) (en banc) (issuing opinions expanding on per curiam decision). Subsequent to our decisions in those cases, however, a unanimous Supreme Court reached the opposite conclusion and held in Van Cauwenberghe v. Biard, 486 U.S. 517, 527-30 (1988), that denials of forum non conveniens motions are not appealable under the collateral order doctrine. Despite that holding, until the present case we have not revisited the issue, though individual judges have urged the court to do so. See Beard v. South Main Bank, 615 A.2d 203, 212-13 (D.C. 1992) (Terry, J., concurring).
The appellee in this case initially did not question our jurisdiction to hear this appeal. But "consent of the parties cannot enlarge our jurisdiction." Burtoff v. Burtoff, 390 A.2d 989, 991 (D.C. 1978). "[W]here a substantial question exists as to this court's subject matter jurisdiction, it is our obligation to raise it, sua sponte, even though no party has asked us to consider it." Murphy v. McCloud, 650 A.2d 202, 203 n.4 (D.C. 1994). After oral argument before a division of the court, the full court decided sua sponte to set this case for en banc review to consider whether to follow Van Cauwenberghe. We directed the parties to brief and argue that question.
As we have done in the past, we now decide again to adhere to the Supreme Court's teaching regarding the applicability of the collateral order doctrine. We are obliged to overrule Frost and Jenkins and hold that denials of forum non conveniens motions to dismiss are not immediately appealable as of right to this court. Since we therefore do not have jurisdiction to entertain the instant appeal, we dismiss it without reaching the merits. The dismissal is without prejudice to a potential future challenge to the trial court's ruling after a final judgment is entered in that court.
According to his complaint, *fn1 appellee Michael Lewis slipped and fell on the ice at a Mobil gas station in Arlington, Virginia on December 13, 1995. In addition to suffering physical injuries, Lewis was allegedly "the victim of racial and other discrimination and harassment" by a station attendant. Lewis hired appellant Sylvia Rolinski, a lawyer licensed in both Maryland and the District of Columbia, to sue Mobil and its employee. Lewis signed his contingency fee agreement with Rolinski in Maryland, where Rolinski lived and maintained her law office.
On August 28, 1998, Rolinski filed Lewis's lawsuit in the United States District Court for the District of Columbia. Lewis's complaint against Rolinski alleges that the case against Mobil had no connection with the District, "except that Plaintiff [Lewis] resided in the District of Columbia at the time of filing of suit, but not at the time of [the] incident." *fn2 On May 5, 1999, the District Court ruled that venue did not lie in the District of Columbia and granted Mobil's motion to transfer the case to the Eastern District of Virginia pursuant to 28 U.S.C. § 1406. A few months later, the Virginia District Court granted judgment on the pleadings to Mobil, holding that because Virginia rather than District of Columbia law applied to § 1406 transfers, Lewis's claim was barred by Virginia's two-year statute of limitations for personal injury actions.
A year later, in August 2000, Lewis filed suit against Rolinski in the Superior Court of the District of Columbia. By this time, Lewis was a resident of Maryland (as was Rolinski). Lewis's complaint charged that Rolinski was professionally negligent in failing to sue Mobil within the two-year Virginia statute of limitations, in lodging the Mobil lawsuit in the District of Columbia ("which was without jurisdiction to entertain such suit") instead of a proper forum, and in not appealing the District Court's decision to transfer that suit to Virginia.
Rolinski moved to dismiss the complaint on grounds of forum non conveniens. In ruling on the motion, the trial judge evaluated whether the District of Columbia was a convenient forum for the litigation by weighing the "private" and "public" interest factors listed in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09 (1947), assigning the burden of proof to Lewis because neither party was a resident of the District. The judge concluded that the private interests of the parties - e.g., the relative ease of access to sources of proof and the amenability of witnesses to compulsory process *fn3 - do not favor requiring Lewis and Rolinski to litigate their dispute in another jurisdiction. Rolinski conceded that the private interest factors in this case are "neutral."
The judge next considered the public interest factors, *fn4 which "emphasize the burden imposed on the forum in relation to its interest in the litigation, as well as the interest of other potential fora in addressing the dispute locally." Smith v. Alder Branch Realty Ltd. P'ship, 684 A.2d 1284, 1288 (D.C. 1996). Rejecting Rolinski's contention that the public interest factors favor dismissal, the judge reasoned that the District of Columbia has an interest in having its courts decide the case because Rolinski is licensed to practice law in the District and the dispute relates to her conduct here in bringing the lawsuit against Mobil. Although the parties disagreed about whether "the actual malpractice" occurred in the District of Columbia (where the Mobil suit was filed) or in Maryland (where Rolinski worked and allegedly allowed the statute of limitations to run on Lewis's claims), the judge decided that it was not necessary to resolve that issue for purposes of the forum non conveniens motion because "a tort need not occur within a particular jurisdiction for that jurisdiction to be connected to the occurrence" (quoting Cresta v. Neurology Center, P.A., 557 A.2d 156, 160 (D.C. 1989) (internal quotation marks and citations omitted)). Accordingly, the judge denied Rolinski's motion to dismiss.
Rolinski then appealed the judge's ruling to this court. Focusing on the public interest factors, Rolinski contends that the District has no real connection with this controversy and should not be burdened with it. The lawsuit belongs, she argues, in Maryland, where she has her law office, where Lewis hired her as his lawyer, where both parties were resident when Lewis filed his suit against her, and - of pivotal importance - where the malpractice cause of action arose. The cause of action arose in Maryland and not the District of Columbia, Rolinski explains, because her alleged malpractice lay only in her failure to sue Mobil before the applicable two-year statute of limitations ran. If she caused injury to Lewis, Rolinski continues, it was only by her inaction up to that point, and not by her subsequent filing of the complaint against Mobil in federal court in the District of Columbia (or anything else she did or omitted doing after the limitations period had expired). *fn5 Hence, Rolinski argues, neither her untimely filing in the District nor her membership in the D.C. Bar means that the District has any substantial contacts with or interest in the particular dispute at hand. Moreover, Rolinski adds, because Maryland has more substantial contacts with the cause of action than the District of Columbia has, the burden was on Lewis to justify his choice of forum in order to avoid dismissal of his complaint. The judge improperly shifted the burden of proof on the forum non conveniens issue to her, Rolinski claims, by not requiring Lewis to furnish such an affirmative justification.
Lewis responds that the judge properly deferred to his choice of forum because it is at best unclear where his malpractice cause of action arose and the District does have substantial contacts with the controversy. Lewis relies not only on Rolinski's conduct and Bar membership in the District of Columbia, but also on his own residence ...