United States District Court,

D. Nevada.

Javier Jesus ALVARES; Graciele Andrade; and Rolando Contraras, Plaintiffs,

v.

Adrain McMULLIN; Okelberry Trucking, LLC; Doe Owner, I–V, Doe Driver, I–V; Roe Employer; Roe Trucking Company; and Roe Companies, Defendants.

Adrain McMullin and Okelberry Trucking, LLC, Counter–Plaintiffs,

v.

Javier Jesus Alvares, Counter–Defendant.

No. 2:13–cv–02256–GMN–CWH. | Signed June 3, 2015. | Filed June 4, 2015.

Attorneys and Law Firms

Jacqueline Rae Bretell, Ryan M. Anderson, Morris Anderson, Las Vegas, NV, for Plaintiffs.

Kevin S. Smith, Kym S. Cushing, Wilson, Elser, Moskowitz, Edelman & Dicker LLP, Las Vegas, NV, for Defendants.

 

 

ORDER

GLORIA M. NAVARRO, Chief Judge.

*1 Pending before the Court is the Motion for Summary Judgment (ECF No. 33) filed by Plaintiff/Counter–Defendant Javier Jesus Alvares (“Alvares”). Defendant/Counter–Plaintiff Adrain McMullin (“McMullin”) and Defendant/Counter–Plaintiff Okelberry Trucking, LLC (“Okelberry Trucking”) (collectively “Defendants”) filed a Response in Opposition (ECF No. 38), and Alvares filed a Reply in Support (ECF No. 43).

 

Also pending before the Court is the Motion for Summary Judgment (ECF No. 35) filed by McMullin and the Motion for Partial Summary Judgment (ECF No. 37) filed by Okelberry Trucking. Alvares, along with Plaintiff Graciele Andrade (“Andrade”) and Plaintiff Rolando Contraras (“Contraras”) (collectively “Plaintiffs”), filed their Responses in Opposition (ECF Nos. 44 & 45), and Defendants filed their respective Replies in Support (ECF Nos. 48 & 49).

 

 

I. BACKGROUND

This case arises out of a motor vehicle collision that occurred on May 17, 2012, involving Plaintiffs and McMullin while McMullin was driving a vehicle in the course of his employment with Okelberry Trucking. (Compl. ¶¶ 1–5, 13–19, ECF No. 1–1). Plaintiffs allege that on the date in question, Alvares was driving a vehicle along a public road in Clark County, Nevada with Andrade and Contraras as passengers. (Id. ¶¶ 14–13). Plaintiffs further allege that McMullin was recklessly or negligently driving a vehicle owned by Okelberry Trucking along the same road when he changed lanes behind Plaintiffs and subsequently rear-ended Plaintiffs’ vehicle, resulting in substantial injuries to Plaintiffs. (Id. ¶¶ 15–17, 20–37). According to Plaintiffs, this collision occurred after the car in front of Plaintiffs’ stopped suddenly, forcing Plaintiffs’ to abruptly stop in front of McMullin, who was following Plaintiffs too closely to break in time and avoid hitting their vehicle. (Alvares MSJ 2:1–16, ECF No. 33).

 

Plaintiffs initiated this action in state court by filing their Complaint, alleging claims for negligence against both Defendants and for respondeat superior liability and negligent entrustment, hiring, training, supervision, and maintenance against Okelberry Trucking. (Compl. ¶¶ 20–47, ECF No. 1–1). Defendants removed the action to this Court on the basis of diversity jurisdiction. (Not. of Removal, ECF No. 1). In their Answer to the Complaint (ECF No. 13), Defendants raised a counterclaim against Alvares for contribution and indemnity based upon his alleged comparative negligence in causing the collision. The parties subsequently filed their respective summary judgment motions.

 

 

II. LEGAL STANDARD

The Federal Rules of Civil Procedure provide for summary adjudication when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Material facts are those that may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. See id. “Summary judgment is inappropriate if reasonable jurors, drawing all inferences in favor of the nonmoving party, could return a verdict in the nonmoving party’s favor.” Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th Cir.2008) (citing United States v. Shumway, 199 F.3d 1093, 1103–04 (9th Cir.1999)). A principal purpose of summary judgment is “to isolate and dispose of factually unsupported claims.” Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986).

 

*2 In determining summary judgment, a court applies a burden-shifting analysis. “When the party moving for summary judgment would bear the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial. In such a case, the moving party has the initial burden of establishing the absence of a genuine issue of fact on each issue material to its case.” C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir.2000) (citations omitted). In contrast, when the nonmoving party bears the burden of proving the claim or defense, the moving party can meet its burden in two ways: (1) by presenting evidence to negate an essential element of the nonmoving party’s case; or (2) by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element essential to that party’s case on which that party will bear the burden of proof at trial. See Celotex Corp., 477 U.S. at 323–24. If the moving party fails to meet its initial burden, summary judgment must be denied and the court need not consider the nonmoving party’s evidence. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 159–60 (1970).

 

If the moving party satisfies its initial burden, the burden then shifts to the opposing party to establish that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 631 (9th Cir.1987). In other words, the nonmoving party cannot avoid summary judgment by relying solely on conclusory allegations that are unsupported by factual data. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989). Instead, the opposition must go beyond the assertions and allegations of the pleadings and set forth specific facts by producing competent evidence that shows a genuine issue for trial. See Celotex Corp., 477 U.S. at 324.

 

At summary judgment, a court’s function is not to weigh the evidence and determine the truth but to determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at 249. The evidence of the nonmovant is “to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255. But if the evidence of the nonmoving party is merely colorable or is not significantly probative, summary judgment may be granted. See id. at 249–50.

 

 

III. DISCUSSION

A. Okelberry Trucking’s Motion for Partial Summary Judgement

In its Motion for Partial Summary Judgment, Okelberry Trucking acknowledges that because it has admitted that the vehicle collision occurred while McMullin was acting in the course and scope of his employment, Okelberry Trucking is liable for any negligent act by McMullin through a theory of respondeat superior liability. (Okelberry MSJ 2:15–3:2, ECF No. 35). However, Okelberry Trucking also asserts that because it has admitted respondeat superior liability for any negligence on the part of McMullin, it is entitled to summary judgment on Plaintiffs’ claims for negligent entrustment, hiring, training, supervision, and maintenance because these claims are redundant with their respondeat superior claim. (Id. 5:4–6:27).

 

*3 Though the Supreme Court of Nevada has not directly addressed the issue of whether a plaintiff may assert claims for negligent entrustment, supervision, or maintenance against an employer when it has admitted the employee was acting within the course and scope of employment when the injury occurred, the majority of jurisdictions—including California1—have held that such claims, when premised on the negligent act of the employee, are barred once respondeat superior liability is established. See, e.g., Diaz v. Carcamo, 253 P.3d 535, 538 (Cal.2011) (finding that a plaintiff in a vehicle collision action may not sue an employer for negligent entrustment when the employer has admitted respondeat superior liability); Durben v. Am. Materials, Inc., 503 S.E.2d 618, 619 (Ga.Ct.App.1998) (“Generally, when an employer admits the applicability of respondeat superior, it is entitled to summary judgment on claims for negligent entrustment, hiring, and retention.”). The rationale for this rule is that the employer is still only liable for the employee’s negligence, the plaintiff cannot recover any more in damages than he would recover under a theory of respondeat superior, and the collateral evidence of the other claims would likely be irrelevant and inflammatory. See Jeld–Wen, Inc. v. Superior Court, 32 Cal.Rptr.3d 351, 356 (Cal.Ct.App.2005) (citing Powell, Submitting Theories of Respondeat Superior and Negligent Entrustment/Hiring 61 Mo. L.Rev. 155, 162 (1996)). All three of these rationales are present in this case, and the Court predicts that Nevada would adopt the majority rule in situations like the present one, where the direct claims of negligence against the employer rest entirely upon the alleged negligence of the employee and are therefore superfluous with the claim for respondeat superior liability. See Adele v. Dunn, No. 2:12–CV–00597–LDG, 2013 WL 1314944, at *2 (D.Nev. Mar. 27, 2013) (“The court predicts that Nevada would adopt the majority rule such that, in situations in which a motor carrier admits vicarious liability for the conduct of a driver, direct claims of negligent entrustment or negligent training and supervision against a motor carrier would be disallowed where those claims are rendered superfluous by the admission of vicarious liability.”); cf. State, Dep’t of Human Res., Div. of Mental Hygiene & Mental Retardation v. Jimenez, 935 P.2d 274, 284–85 opinion withdrawn, reh’g dismissed, 941 P.2d 969 (Nev.1997) (“Therefore, while the State was liable on the theory of negligent supervision, we conclude that the district court erroneously awarded damages on that claim when John Doe was fully compensated on the theory of respondeat superior.”). But see Wright v. Watkins & Shepard Trucking, Inc., 968 F.Supp.2d 1092, 1094–96 (D.Nev.2013) (rejecting the argument that Nevada would adopt the majority rule). Furthermore, in their Response, Plaintiffs do not even dispute that Okelberry Trucking is entitled to summary judgment on these claims and have indicated that they are willing to dismiss those claims. (Pls’ Resp. to Okelberry Trucking MPSJ 5:1–4, ECF No. 44).

 

*4 Accordingly, Okelberry Trucking’s Motion for Partial Summary Judgment is granted. Okelberry Trucking is granted summary judgment in its favor on Plaintiffs’ claims against it for negligent entrustment, hiring, training, supervision, and maintenance.

 

 

B. McMullin’s Motion for Summary Judgement

In his Motion for Summary Judgment, McMullin asserts that he is entitled to summary judgment on Plaintiffs’ claims for negligence against him because Okelberry Trucking has admitted respondeat superior liability for any negligent act performed by McMullin and any damages award against McMullin would be duplicative with the award against Okelberry Trucking. (McMullin MSJ 7:1–12, ECF No. 35). McMullin, however, is incorrect. An employer’s admission of respondeat superior liability for the negligence of one of its employees does not remove liability from the tortfeasor employee for his own negligence. See generally, ETT, Inc. v. Delegado, No. 46901, 2010 WL 3246334, at *1, 6–8 (Nev. Apr. 29, 2010) (affirming the trial court’s finding of joint and several liability against both a trucking company for, inter alia, vicarious liability and its driver for negligence in driving while intoxicated). Though Plaintiffs may not obtain duplicative damages awards from both Defendants, they are still entitled to pursue their claims based on the each of the Defendant’s liability. See Diaz, 253 P.3d at 543 (Cal.2011) (“[I]f an employer admits vicarious liability for its employee’s negligent driving in the scope of employment, the damages attributable to both employer and employee will be coextensive.”) (quotations omitted). Accordingly, McMullin’s Motion for Summary Judgment is denied.

 

 

C. Alvares’s Motion for Summary Judgement

In his Motion for Summary Judgment, Alvares asserts that he is entitled to summary judgment on Defendants’ counterclaim against him for comparative negligence because “Defendants have provided no viable evidence that Counter–Defendant Alvares caused this accident in any way.” (Alvares MSJ 2:25–3:1, ECF No. 33). Specifically, Alvares alleges that the undisputed facts show that (1) the investigating police officer found McMullin’s actions to be the sole cause of the collision; (2) McMullin admitted that he changed lanes faster and with less distance between himself and Plaintiffs than he normally would; (3) Defendants have failed to produce any evidence demonstrating Alvares was negligent; and (4) there is no remaining discovery regarding liability. (Id. 3:3–4:24). Therefore, Alvares contends that there is no evidence even suggesting any comparative negligence on his part in causing the collision. (Id. 5:17–8:10).

 

In their Response, Defendants argue that (1) the officer’s opinion is not admissible evidence; (2) the fact that McMullin would normally leave more distance between himself and the vehicle in front of him is not an admission of negligent driving; and (3) discovery is not closed on liability and Defendants’ designated truck safety expert will testify about McMullin’s driving and has yet to be deposed. (Defs’ Resp. to Alvares MSJ 2:25–4:13, ECF No. 38). Defendants also present evidence showing that questions of fact relating to Alvares’s comparative negligence exist regarding whether Alvares was using his cellphone at the time of the accident and whether Alvares maintained a proper distance from the vehicle in front of him. (Id. 6:8–7:13).

 

*5 To obtain summary judgment, a party must show that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Moreover, it is well-settled that a comparative fault analysis is generally a factual determination for a jury that is not appropriate for resolution on summary judgment. See Sanderson v. Chapman, 487 F .2d 264, 266 (9th Cir.1973) (“The existence of negligence, vel non, on the part of the driver of the Ford was a question of fact.”); Marty ex rel. Marty v. Malin, 2012 WL 3139862, at *2 (Nev. July 31, 2012) (“The jury is responsible for the comparative negligence analysis as a question of fact.”) (citing Turner v. Mandalay Sports Entm’t, 180 P.3d 1172, 1177 n. 30 (Nev.2008)).

 

Here, there are at least two material fact issues relating to Alvares’s potential comparative negligence. Alvares’s incredulous claim that these issues are immaterial notwithstanding, (Alvares Reply in Supp. of MSJ 4:16–18, 4:27–28, ECF No. 43), whether Alvares was on his phone and whether he was maintaining a safe distance between himself and the car in front of him are material facts that could lead to a finding that Alvares was partially responsible for causing the accident. For example, if Alvares was following the car in front of him too closely, then his breaking more suddenly because of that close proximity would have given McMullin less time and distance to break and avoid rear-ending Plaintiffs. Likewise, if Alvares was using his cellphone at the time of the collision, he may have been slower to react to the car breaking in front of him, giving McMullin less time to break behind Plaintiffs. Therefore, the distance between Alvares and the car in front of him and Alvares’s use of his cellphone are material facts relating to Alvares’s alleged comparative negligence that are disputed by the parties and must be resolved by a jury. See Nehls v. Leonard, 630 P.2d 258, 260 (Nev.1981) (reversing summary judgment in an automobile collision case granted in favor of the automobile driver that was hit from behind because “factual issues exist as to whether respondent was negligent in stopping as she did, and … the evidence may persuade the jury that … the stop constituted a substantial factor in causing the collision in which appellant sustained injuries.”). Accordingly, Alvares is not entitled to summary judgment on the comparative negligence claim against him, and his motion is denied.

 

 

IV. CONCLUSION

IT IS HEREBY ORDERED that Defendant/Counter–Plaintiff Okelberry Trucking’s Motion for Partial Summary Judgment (ECF No. 37) is GRANTED. Okelberry Trucking is granted summary judgment on Plaintiffs’ claims against it for negligent entrustment, hiring, training, supervision, and maintenance.

 

IT IS FURTHER ORDERED that Defendant/Counter–Plaintiff Adrain McMullin’s Motion for Summary Judgment (ECF No. 35) is DENIED.

 

*6 IT IS FURTHER ORDERED that Plaintiff/Counter–Defendant Javier Jesus Alvares’s Motion for Summary Judgment (ECF No. 33) is DENIED .

 

 

 

Footnotes

 

1

 

“Nevada courts often look to California law where, as here, Nevada law is silent.” Hiekel v. 268 Ltd., 887 F.2d 1089 at, *1 n. 3 (9th Cir.1989) (citing Commercial Standard Ins. Co. v. Tab Constr., Inc., 583 P.2d 449, 451 (Nev.1978)).

 

 

Supreme Court of Alabama.

Ex parte QUALITY CARRIERS, INC., and Bennie Hugh Orcutt.

(In re: Robert Speer, as administrator of the Estate of Kimberly Shonta Livingston, deceased

v.

Quality Carriers, Inc., Bennie Hugh Orcutt, and Desmond Rachard Woods).

1140202. | June 5, 2015.

Synopsis

Background: Trucking company and truck driver filed petition for writ of mandamus directing the Circuit Court, Dallas County, No. CV–14–900079, to vacate order denying motion to transfer action arising out of fatal accident to the Circuit Court, Autauga County and to enter order granting motion.

 

Opinion

WISE, Justice.

 

*1 Quality Carriers, Inc., and Bennie Hugh Orcutt, two of the defendants below, filed a petition for a writ of mandamus requesting this Court to direct the Dallas Circuit Court to vacate its order denying their motion to transfer the underlying action to the Autauga Circuit Court and to enter an order granting the motion. We grant the petition and issue the writ.

 

 

Facts and Procedural History

On February 9, 2014, Desmond Rachard Woods was driving northbound on Interstate 65 in Autauga County in a Ford Crown Victoria automobile; Kimberly Shonta Livingston, Tory Danta Cooper, Marquita Shonay Speer (“Marquita”), and Aaron Randall Jones were passengers in the automobile. The automobile Woods was driving had a mechanical problem and stalled in the right travel lane; it was nighttime, and the lights on the automobile were not on. Woods, Cooper, and Jones got out of the automobile and started looking under the hood. Livingston and Marquita remained in the automobile.

 

Orcutt, who was employed by Quality Carriers, was also traveling northbound on Interstate 65 in a tractor-trailer rig that was owned by Quality Carriers. The tractor-trailer rig Orcutt was driving collided with the back of the automobile, which was stalled in the roadway. Both vehicles caught fire. Livingston and Marquita, who were in the automobile when it caught fire, were pronounced dead at the scene by Malvin O. Barber, the Autauga County coroner. Woods and Cooper were transported to Prattville Hospital. According to the accident report, marijuana was found on Woods’s person at the hospital. At the time the accident report was filed, toxicology results were pending to determine whether Woods was under the influence of marijuana at the time of the crash.

 

The deputy sheriff who was the first responder to the scene worked in Autauga County. Additionally, a member of the Autauga County Rescue Squad also responded to the scene and assisted in the care of the injured individuals. The Autauga County coroner also responded to the scene and pronounced Livingston and Marquita dead. Kenneth Barber and Catherine Ricketts, who were both assistant Autauga County coroners, also responded to the scene. In his affidavit, Kenneth Barber stated that he was also the chief of the Marbury Volunteer Fire Department (“MVFD”); that he was a resident of Autauga County; and that he directed the MVFD’s work and assisted with the pronouncements of death in this case. In her affidavit, Ricketts stated that she was also the assistant chief of the MVFD; that she also assisted in the pronouncements of death; and that she also assisted with MVFD’s work.

 

Livingston and Marquita were both residents of Autauga County. At all material times, Orcutt was a resident of Pensacola, Florida. Quality Carriers is an Illinois corporation, with its principal place of business in Tampa, Florida. Quality Carriers has never been an Alabama corporation and has never had its principal place of business in Alabama.

 

*2 On March 19, 2014, Robert Speer (“Speer”), as administrator of Livingston’s estate, filed a complaint in the Dallas Circuit Court against Quality Carriers, Orcutt, and Woods. Speer, a resident of Autauga County, asserted claims of negligence and wantonness against all the defendants. With regard to Woods, Speer asserted that Woods had negligently and wantonly failed to move his automobile out of the lane of traffic, which resulted in the collision. He asserted that Woods had breached his duty of care by

“failing to pay proper attention to the roadway and the traffic, failing to obey the laws and rules of the State of Alabama, failing to control the vehicle in order to avoid a collision, and failing to move his vehicle out of the lanes of traffic when stalled which resulted in a collision. Further, Defendant Woods was not fit to safely operate a motor vehicle at the time of the incident in question.”

Speer also asserted claims of negligent entrustment, negligent hiring, and negligent supervision against Quality Carriers. Woods subsequently answered the complaint and filed cross-claims against Quality Carriers and Orcutt.

 

On May 12, 2014, Quality Carriers and Orcutt filed a motion to transfer the action from Dallas County to Autauga County based on the doctrine of forum non conveniens, as codified in § 6–3–21.1, Ala.Code 1975. On August 19, 2014, Speer filed his first amended complaint and a response in opposition to the motion to transfer. In his amended complaint, Speer amended his negligence and wantonness claims against Woods to add the allegation that Woods had “negligently and wantonly inspected his vehicle.” On August 19, 2014, Woods filed a “Joinder in Opposition to the Motion to Transfer Venue.” On October 15, 2014, the trial court denied the motion to transfer. This petition followed.

 

 

Standard of Review

[1] [2] [3] “A petition for a writ of mandamus is the appropriate ‘method for obtaining review of a denial of a motion for a change of venue’ pursuant to § 6–3–21.1. Ex parte National Sec. Ins. Co., 727 So.2d 788, 789 (Ala.1998)….

“ ‘….?

“ ‘A party moving for a transfer under § 6–3–21.1 has the initial burden of showing, among other things, one of two factors: (1) that the transfer is justified based on the convenience of either the parties or the witnesses, or (2) that the transfer is justified “in the interest of justice.” ’ Ex parte Indiana Mills & Mfg., Inc., 10 So.3d 536, 539 (Ala.2008). Although we review a ruling on a motion to transfer to determine whether the trial court exceeded its discretion in granting or denying the motion, id., where ‘the convenience of the parties and witnesses or the interest of justice would be best served by a transfer, § 6–3–21.1, Ala.Code 1975, compels the trial court to transfer the action to the alternative forum.’ Ex parte First Tennessee Bank Nat’l Ass’n, 994 So.2d 906, 912 (Ala.2008) (emphasis added).’’

Ex parte Wachovia Bank, N.A., 77 So.3d 570, 573 (Ala.2011).

 

Discussion

*3 Quality Carriers and Orcutt argue that the trial court exceeded its discretion in denying their motion to transfer the action from Dallas County to Autauga County. Specifically, they contend that Autauga County has a strong connection to the case because all the material events that gave rise to Speer’s claims occurred there. In contrast, Quality Carriers and Orcutt assert, Dallas County has, at best, only a tenuous connection to the case—namely, the facts that Woods resides there and that maintenance on the automobile Woods was driving at the time of the accident may or may not have been performed in Dallas County. Quality Carriers and Orcutt assert that the interest-of-justice prong of Alabama’s forum non conveniens statute mandates a transfer to Autauga County.

 

[4] [5] [6] Quality Carriers and Orcutt have filed a motion to strike certain exhibits attached to the responses to the mandamus petition that were filed by Speer and Woods and to strike any arguments based upon those exhibits because those exhibits were not before the trial court at the time the trial court ruled on the motion to transfer. Neither Speer nor Woods has disputed the assertions of Quality Carriers and Orcutt in this regard. Additionally, it does not appear that Exhibits 2–11 to Speer’s response or Exhibits 10–12 to Woods’s response were before the trial court when it ruled on the motion to transfer.

“It is well settled that, ‘in a mandamus proceeding, this Court will not consider evidence not presented to the trial court.’ Ex parte Cincinnati Ins. Co., 51 So.3d 298, 310 (Ala.2010). See Ex parte Ford Motor Credit Co., 772 So.2d 437, 442 (Ala.2000) (“ ‘On review by mandamus, we must look only at those facts before the trial court.” ’ (quoting Ex parte Baker, 459 So.2d 873, 876 (Ala.1984))). ‘[T]his Court is bound by the [materials before it], and it cannot consider a statement or evidence in a party’s brief that was not before the trial court.’ Ex parte Pike Fabrication[, Inc.], 859 So.2d [1089,] 1091 [ (Ala.2002) ]. Accordingly, we have not considered those exhibits attached to Tinney’s answer in response to the mandamus petition. See Ex parte Pike Fabrication, 859 So.2d at 1091, and Verbena United Methodist Church, 953 So.2d 395, 399 (Ala.2006) (refusing to consider an affidavit submitted in opposition to a mandamus petition because the affidavit was not before the trial court when that court rendered the decision under review )….”

Ex parte East Alabama Med. Ctr., 109 So.3d 1114, 1117–18 (Ala.2012) (emphasis added). Accordingly, we grant Quality Carriers’ and Orcutt’s motion to strike Exhibits 2–11 to Speer’s response and Exhibits 10–12 to Woods’s response, and we will not consider those exhibits or any arguments based on those exhibits.

 

[7] [8] [9] [10] Section 6–3–21.1, Ala.Code 1975, provides, in pertinent part:

“With respect to civil actions filed in an appropriate venue, any court of general jurisdiction shall, for the convenience of parties and witnesses, or in the interest of justice, transfer any civil action or any claim in any civil action to any court of general jurisdiction in which the action might have been properly filed and the case shall proceed as though originally filed therein.”

*4 (Emphasis added.)

“Historically, the plaintiff has had the initial choice of venue under the system established by the legislature for determining venue. Before the enactment of § 6–3–21.1 by the Alabama Legislature in 1987, a plaintiff’s choice of venue could not be disturbed on the basis of convenience to the parties or the witnesses or in the interest of justice. With the adoption of § 6–3–21.1, trial courts now have ‘the power and the duty to transfer a cause when “the interest of justice” requires a transfer.’ Ex parte First Family Fin. Servs., Inc., 718 So.2d 658, 660 (Ala.1998) (emphasis added). In First Family, this Court noted that an argument that trial judges have almost unlimited discretion in determining whether a case should be transferred under § 6–3–21.1 ‘must be considered in light of the fact that the Legislature used the word “shall” instead of the word “may” in § 6–3–21.1.’ 718 So.2d at 660. This Court has further held that ‘Alabama’s forum non conveniens statute is compulsory.’ Ex parte Sawyer, 892 So.2d 898, 905 n. 9 (Ala.2004).”

Ex parte Autauga Heating & Cooling, LLC, 58 So.3d 745, 748–49 (Ala.2010).

“The ‘interest of justice’ prong of § 6–3–21.1 requires ‘the transfer of the action from a county with little, if any, connection to the action, to the county with a strong connection to the action.’ Ex parte National Sec. Ins. Co., 727 So.2d [788,] 790 [ (Ala.1998) ]. Therefore, ‘in analyzing the interest-of-justice prong of § 6–3–21.1, this Court focuses on whether the “nexus” or “connection” between the plaintiff’s action and the original forum is strong enough to warrant burdening the plaintiff’s forum with the action.’ Ex parte First Tennessee Bank Nat’l Ass’n, 994 So.2d 906, 911 (Ala.2008). Additionally, this Court has held that ‘litigation should be handled in the forum where the injury occurred .’ Ex parte Fuller, 955 So.2d 414, 416 (Ala.2006). Further, in examining whether it is in the interest of justice to transfer a case, we consider ‘the burden of piling court services and resources upon the people of a county that is not affected by the case and … the interest of the people of a county to have a case that arises in their county tried close to public view in their county.’ Ex parte Smiths Water & Sewer Auth., 982 So.2d 484, 490 (Ala.2007).”

Ex parte Indiana Mills & Mfg., Inc., 10 So.3d 536, 540 (Ala.2008).

 

[11] The parties do not dispute that the complaint was filed in an appropriate venue, namely, Dallas County. Likewise, they do not dispute that the action could properly have been filed in Autauga County.1 However, they do dispute whether the interest-of-justice prong of § 6–3–21.1 requires a transfer of this case from Dallas County to Autauga County.

 

In this case, Quality Carriers and Orcutt have established that Autauga County has a stronger connection to the claims in this case than has Dallas County. The accident from which all the claims in this case arise occurred in Autauga County. The deputy sheriff who was the first responder to the scene lives and works in Autauga County. A member of the Autauga County Rescue Squad, who was also an Autauga County resident, responded to the scene and assisted in the care of the injured individuals. The Autauga County coroner, who is also an Autauga County resident, responded to the scene and pronounced Livingston and Marquita dead. Kenneth Barber and Ricketts, the assistant Autauga County coroners and the chief and assistant chief, respectively, of the MVFD who had assisted in the pronouncements of death in this case and had directed and worked with the MVFD on the scene, both work and live in Autauga County. Both Alabama State Troopers who responded to the scene were assigned to the Montgomery post of the Alabama State Troopers, which covers Montgomery, Autauga, Chilton, Elmore, and Lowndes Counties; they did not patrol in Dallas County. One of the State Troopers was a resident of Autauga County. The accident report indicates that Woods and Cooper, who had also been a passenger in the automobile, were both taken to the hospital in Prattville, which is in Autauga County. The accident report also indicates that, while Woods was at the hospital, marijuana was found on his person.

 

*5 Both victims who died in the fire, Livingston and Marquita, were residents of Autauga County. The accident report indicated that Cooper was also a resident of Autauga County. Additionally, the accident report indicates that Kuambe Woods was the owner of the automobile and that he was a resident of Autauga County. Finally, Speer is also a resident of Autauga County.

 

In contrast, Woods was the only resident of Dallas County. In his amended complaint, Speer added a claim that Woods had negligently and wantonly failed to inspect and maintain the automobile. In his affidavit attached to Speer’s opposition to the motion to transfer, Woods does not state that he owned the automobile. Rather, he merely refers to “the vehicle we were traveling in on the night in question.” Woods goes on to make the bare assertion that “[a]ny maintenance on the subject vehicle would have occurred in Dallas County.” Based on this assertion, Speer argues:

“All of the maintenance of the vehicle occurred in Dallas County. Thus, documents and witnesses having information about the maintenance of the car will be in Dallas County.”

There was no evidence presented to the trial court to establish that Woods owned the automobile. In fact, the accident report indicated that Kuambe, who was a resident of Autauga County, was the owner of the automobile in which Woods, Livingston, and the others were traveling on the night in question. Additionally, Quality Carriers and Orcutt attached to their reply to Speer’s opposition to the motion to transfer and their reply to Woods’s joinder in the motion to transfer a copy of Speer’s responses to Quality Carriers’ first interrogatories. In his response, Speer listed Kuambe as a potential witness and stated: “Kuambe Woods: vehicle owner, may have knowledge concerning the vehicle.”

 

Further, Woods does not include any facts regarding how long he had been in possession of the automobile or any assertions that the automobile in question had ever been located in Dallas County. Rather, the only facts that were presented to the trial court indicated that the vehicle and its occupants were traveling from Livingston’s home in Autauga County to Calera, Alabama.

 

Finally, there was no evidence to establish that any maintenance had actually been performed on the automobile in Dallas County. Neither Speer nor Woods presented any evidence indicating that there were actually any witnesses in Dallas County who would testify as to any maintenance that had been performed on the automobile or that any documents actually existed in Dallas County regarding maintenance of the automobile.

 

Based on the foregoing, Dallas County has only a very weak overall connection to this case, while Autauga County has a much stronger connection. See Ex parte Manning, [Ms. 1131152, Dec. 5, 2014] ––– So.3d –––– (Ala.2014); Ex parte Morton, [Ms. 1130302, Aug. 29, 2014] ––– So.3d –––– (Ala.2014); Ex parte State Farm Mut. Auto. Ins. Co., 149 So.3d 1082 (Ala.2014); and Ex parte Indiana Mills & Mfg., Inc., supra. Therefore, the interest-of-justice prong of the forum non conveniens statute requires that the action be transferred to Autauga County.

 

 

Conclusion

*6 For the above-stated reasons, we conclude that the trial court exceeded its discretion in denying Quality Carriers and Orcutt’s motion for a transfer based on the interest-of-justice prong of the forum non conveniens statute. Accordingly, we grant the petition for the writ of mandamus and direct the trial court, in the interest of justice, to enter an order transferring the case from the Dallas Circuit Court to the Autauga Circuit Court.2

 

MOTION TO STRIKE GRANTED; PETITION GRANTED; WRIT ISSUED.

 

STUART, BOLIN, PARKER, SHAW, MAIN, and BRYAN, JJ., concur.

MOORE, C.J., dissents.

 

 

Footnotes

 

1

 

With regard to venue of actions against individuals, § 6–3–2, Ala.Code 1975, provides, in pertinent part:

“(a) In proceedings of a legal nature against individuals:

“….

“(3) All other personal actions [than for the recovery of land or on contracts], if the defendant or one of the defendants has within the state a permanent residence, may be commenced in the county of such residence or in the county in which the act or omission complained of may have been done or may have occurred.”

With regard to venue of actions against foreign and domestic corporations, § 6–3–7, Ala.Code 1975, provides, in pertinent part:

“(a) All Civil actions against corporations may be brought in any of the following counties:

“(1) In the county in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of real property that is the subject of the action is situated; or

“(2) In the county of the corporation’s principal office in this state; or

“(3) In the county in which the plaintiff resided, or if the plaintiff is an entity other than an individual, where the plaintiff had its principal office in this state, at the time of the accrual of the cause of action, if such corporation does business by agent in the county of the plaintiff’s residence; or

“(4) If subdivisions (1), (2), or (3) do not apply, in any county in which the corporation was doing business by agent at the time of the accrual of the cause of action.”

Rule 82(c), Ala. R. Civ. P., provides, in pertinent part:

“Where several claims or parties have been joined, the suit may be brought in any county in which any one of the claims could properly have been brought.”

 

2

 

Based on our disposition of the “interest of justice” prong of the forum non conveniens, we pretermit any argument regarding the “convenience of the parties and witnesses” prong.