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Phipps v. Brunkhorst Trucking, Inc.

United States District Court, D. Colorado.

Jordan PHIPPS, Plaintiff,

v.

BRUNKHORST TRUCKING, INC., and Jensen Trucking Company, Inc., Defendants.

Civil Action No. 21-cv-03464-RM-NRN

Signed May 8, 2023

Attorneys and Law Firms

Isabel S. Johnson, Hunegs LeNeave & Kvas, P.A., Wayzata, MN, James E. Fitzgerald, Michael James Fitzgerald, The Fitzgerald Law Firm, Cheyenne, WY, Thomas W. Fuller, Cortney Scott LeNeave, Hunegs LeNeave & Kvas, P.A., Wayzata, MN, for Plaintiff.

Brian D. Kennedy, Paul Trafton Yarbrough, Hall & Evans LLC, Seth Adam Rider, Tyler Douglas Olson, Morgan Rider Riter Tsai P.C., Denver, CO, for Defendants.

ORDER

RAYMOND P. MOORE, United States District Judge

*1 This matter is before the Court on Defendants’ separate Motions for Summary Judgment. For the reasons below, the Court grants in part and denies in part the Motion by Defendant Brunkhorst Trucking, Inc. (“Brunkhorst”) and grants the Motion by Defendant Jensen Trucking Company, Inc. (“Jensen”).

I. BACKGROUND

This is a negligence action arising out of a collision between a train and a semi-truck at a railroad crossing. The driver of the truck, David McKnight, was employed by Brunkhorst, which also owned the truck. Jensen contracted with Brunkhorst for driving services and leased the truck pursuant to an Independent Contractor Lease Agreement. (ECF No. 48-4.) The Agreement states that Brunkhorst is “an independent contractor,” limits Jensen’s right to “control the manner or prescribe the method by which [Brunkhorst’s] obligations under this Agreement are performed,” and requires Jensen to comply with federal regulations “relating to the leasing of equipment by and operational safety of motor carriers.” (Id. at 2.)

On the day of the accident, Mr. McKnight drove a truck with a loaded trailer from his home in Peetz, Colorado, to a facility in Cozad, Nebraska, before driving the unloaded trailer to Brunkhorst’s terminal in Mitchell, Nebraska. From there, the owner and manager of Brunkhorst, David Brunkhorst, had Mr. McKnight switch trucks and take the truck (with a loaded trailer) that was in the accident. The plan was for Mr. McKnight to drive that truck to his home, where he would be off duty for at least thirty-six hours, and later, to the facility in Cozad. But the accident intervened, killing Mr. McKnight. There is no dispute that his negligence caused the accident. An autopsy report determined Mr. McKnight had illegal drugs in his system.

Plaintiff, the conductor of the train, was seriously injured in the accident, and asserts against each Defendant substantially similar claims for (1) agency, (2) negligence/negligence per se—respondeat superior—vicarious liability, (3) negligent entrustment, and (4) negligent hiring, supervision/training, and retention.

II. LEGAL STANDARD

Summary judgment is appropriate only if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Gutteridge v. Oklahoma, 878 F.3d 1233, 1238 (10th Cir. 2018). Applying this standard requires viewing the facts in the light most favorable to the nonmoving party and resolving all factual disputes and reasonable inferences in its favor. Cillo v. City of Greenwood Vill., 739 F.3d 451, 461 (10th Cir. 2013). However, “[t]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Scott v. Harris, 550 U.S. 372, 380 (2007).

“The substantive law of the case determines which facts are material.” United States v. Simmons, 129 F.3d 1386, 1388 (10th Cir. 1997). A fact is “material” if it pertains to an element of a claim or defense; a factual dispute is “genuine” if the evidence is so contradictory that if the matter went to trial, a reasonable jury could return a verdict for either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Whether there is a genuine dispute as to a material fact depends upon whether the evidence presents a sufficient disagreement to require submission to a jury or is so one-sided that one party must prevail as a matter of law. Id. at 251-52; Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1136 (10th Cir. 2000).

III. ANALYSIS

A. Brunkhorst’s Motion

*2 Brunkhorst seeks partial summary judgment on the first two claims against it, arguing that Plaintiff’s agency and respondeat superior claims fail as a matter of law. Plaintiff contends there are genuine issues of material fact which preclude summary judgment on these claims. The Court agrees with Plaintiff except to the extent Plaintiff’s claims are premised on Jensen’s conduct.

To the extent that these claims seek to impose liability on Brunkhorst for the conduct of Mr. McKnight, they both hinge on whether Mr. McKnight was acting within the course and scope of his employment at the time of the accident. “An employer may be held vicariously liable for an employee’s tort only when the tort is committed within the course and scope of employment.” Moses v. Diocese of Colo., 863 P.2d 310, 329 (Colo. 1993). “The employer is liable if the employee’s conduct was motivated by an intent to serve the employer’s interests and connected to acts the employee was authorized to perform.” Suydam v. LFI Fort Pierce, Inc., 490 P.3d 930, 934 (Colo. 2020) (quotation omitted). Although “[t]he existence of an agency relationship is ordinarily a question of fact to be determined by the fact finder,” a court can decide whether an agency relationship exists as a matter of law if the facts are not in dispute. Moses, 863 P.2d at 324. “The control a principal exercises over the manner of work performed by an agent is evidence that an agency relation exists.” Id.

Brunkhorst contends that at the time of the accident, Mr. McKnight was driving the truck for his own convenience, as a personal conveyance, because his home was not on the route that the truck otherwise would have followed. Brunkhorst further contends that Mr. McKnight was not paid for trips to and from his home and that he was not on duty when the accident occurred. However, there is no dispute that Mr. McKnight left Mitchell with a loaded truck he was expected to deliver to Cozad days later. Nor is it disputed that, as directed by Mr. Brunkhorst, Mr. McKnight took a specific truck for a specific purpose. “An employee is acting within the scope of his employment if he is doing the work assigned to him by his employer, or what is necessarily incidental to that work, or customary in the employer’s business.” Id. at 330. Considering that Brunkhorst’s business revolves around transporting trucks and cargo, the Court cannot conclude Mr. McKnight was not furthering Brunkhorst’s interests by driving a loaded truck from one location to another—albeit with a detour to his home—with his employer’s permission and on a schedule set by his employer.

Plaintiff’s reliance on the going-and-coming rule is misplaced in the context of this case. According to that rule, employees traveling between work and home are generally not considered to be within the service of the employers. See Stokes v. Denver Newspaper Agency, LLP, 159 P.3d 691, 693-94 (Colo. App. 2006). But unlike a case where an employee does little to serve the employer’s purposes by using a personal vehicle to drive to and from work, here there is evidence that Mr. McKnight was transporting work-related material in a vehicle provided and maintained by his employer and providing his employer with a benefit. See id. at 695-69. Nor is this a case where the employee was driving home from and then back to the same work location. Rather, because Mr. McKnight was bringing the truck to a different location, it appears his trip was “of such character or importance that it would have necessitated a trip by someone else if [he] had not handled it in combination with his otherwise personal journey to or from work.” Suydam, 490 P.3d at 935 (quotation omitted). Thus, the undisputed circumstances are sufficient to create a disputed issue of material fact as to Mr. McKnight’s status vis-a-vis Brunkhorst when the accident occurred.

*3 Brunkhorst also contends that it cannot be held liable for Mr. McKnight’s conduct because he used illegal drugs in contravention of Defendants’ policies. This contention is premised on the undisputed fact that Mr. McKnight’s autopsy revealed he had amphetamine, methamphetamine, and THC in his system. But this fact is insufficient to establish that he had wholly abandoned his employer’s business for personal reasons, as Brunkhorst argues. (ECF No. 46 at 11.) First, there is no evidence as to when Mr. McKnight used illegal drugs or his level of impairment at the time of the accident. Second, although driving a tractor-trailer while under the influence of illegal drugs may constitute negligence, this does not necessarily mean that the driver is outside the scope of his employment. See Frederick v. Swift Transp. Co., 616 F.3d 1074, 1080 (10th Cir. 2010) (applying New Mexico law). Accordingly, the Court finds that the autopsy report alone does not establish that there are no disputed issues of material fact as to whether Mr. McKnight was working within the scope of his employment at the time of the accident.

To the extent Plaintiff’s agency and respondeat superior claims against Brunkhorst are based on any conduct by Jensen, Plaintiff has failed to describe any such conduct that would plausibly give rise to liability or to adduce any evidence that Jensen was Brunkhorst’s agent or employee. His claims asserted against Jensen directly are addressed below, but in the context of Brunkhorst’s Motion, the Court separately concludes that Plaintiff has not shown that Brunkhorst may be held vicariously liable for Jensen’s conduct.

Therefore, Brunkhorst’s Motion is granted in part with respect to his agency and respondeat superior claims to the extent they are asserted against Jensen but otherwise denied, as there are genuine issues of material fact regarding whether Mr. McKnight was acting within the scope of his employment with Brunkhorst at the time of the accident.

B. Jensen’s Motion

1. Vicarious Liability

Jensen argues it is entitled to summary judgment on Plaintiff’s agency and respondeat superior claims because he has not shown that Mr. McKnight was its agent or employee. The Court agrees.

The doctrine of respondeat superior is based on the theory that the employee is the agent of the employer, but it “requires a special kind of agency relationship—a master-servant relationship in which the employer has the right to control the employee’s performance.” Daly v. Aspen Ctr. for Women’s Health, Inc., 134 P.3d 450, 452 (Colo. App. 2005). Thus, respondeat superior cannot give rise to vicarious liability for negligence of an independent contractor who, unlike an employee, is not subject to the principal’s control. Id.

There is no dispute that Defendants had a business relationship where shippers retained Jensen to transport cargo, that Jensen contracted with Brunkhorst to transport some of that cargo, paying by the load, or that Mr. McKnight was Brunkhorst’s employee. As noted above, Defendants’ Independent Contractor Lease Agreement defined Brunkhorst’s role as that of an independent contractor and explicitly limited Jensen’s ability to control the manner or prescribe the method by which Brunkhorst performs its obligations under the Agreement. (ECF No. 48-4 at 2.) Plaintiff’s contrary position, that Jensen had the right to control the details of Mr. McKnight’s performance, lacks support in the record. Further, Plaintiff concedes that Jensen did not determine the routes Mr. McKnight drove or specifically permit him to drive the truck on the day of the accident. (ECF No. 53 at 14.)

As contemplated by Defendants’ Agreement, there is evidence that Jensen monitored Brunkhorst drivers to ensure they complied with federal regulations applicable to motor carriers. There is also evidence that in order to coordinate with shippers and receivers about the timing of deliveries and pickups, Jensen monitored drivers’ locations. However, such evidence does not show that Jensen controlled the day-to-day operations of Brunkhorst’s business or dictated Mr. McKnight’s assignments. Thus, it is insufficient to establish an agency or employment relationship for purposes of imposing vicarious liability on Jensen.

*4 Plaintiff also relies on Jensen’s role in hiring drivers. There is no dispute that before drivers could be hired by Brunkhorst, they had to be screened, approved, and deemed insurable by Jensen in accordance with federal motor carrier safety regulations. Jensen’s involvement included handling drug and alcohol screening and monitoring the hours drivers were on duty. And there is evidence that Jensen had the authority to warn and even fire drivers who violated safety regulations. But this does not make Jensen their employer.1 Plaintiff offers no authority to the contrary. “The central element in an employer-employee relationship is the right of the employer to control the details of performance of the employee’s duties.” Perkins v. Reg’l Transp. Dist., 907 P.2d 672, 674 (Colo. App. 1995); see id. at 675 (“[C]ontrol over the means and methods of accomplishing the contracted-for result is inconsistent with ‘independent contractor’ status.”). Here, the evidence shows that Brunkhorst identified, hired, and supervised its employees, including Mr. McKnight, whose continued employment required them to comply with applicable regulations for truck drivers. In the absence of evidence that Jensen had actual control over or the right to control Mr. McKnight’s actions, Jensen is entitled to summary judgment on Plaintiff’s first two claims against it.

2. Negligent Entrustment

To recover on its negligent entrustment claim against Jensen, Plaintiff must show that (1) Jensen permitted Mr. McKnight to use the truck; (2) the truck was under Jensen’s control, and (3) Jensen either knew or should have known that Mr. McKnight was likely to use the truck in such manner as to create an unreasonable risk of harm to others. See Connes v. Molalla Transp. Sys., Inc., 817 P.2d 567, 572 (Colo. App. 1991). Jensen contends that Plaintiff has not established a genuine issue with respect to any of these elements, and the Court agrees.

First, Plaintiff has identified no evidence that Plaintiff was aware of, much less permitted, Plaintiff’s use of the truck on the day of the accident. The fact that Jensen played a role in assessing Mr. McKnight’s qualifications to be and remain hired does not mean it permitted him to drive the truck home on the day of the accident.

Second, although Jensen leased the truck from Brunkhorst, there is no evidence that it was under Jensen’s control for purposes of stating a negligent entrustment claim. Defendants’ Agreement purported to grant Jensen “exclusive possession and use” of the truck, but it also required Brunkhorst to operate the truck and to pay the costs associated with operating it, including any necessary repairs or maintenance. (ECF No. 48-8 at 1-3.) The Agreement and other relevant circumstances show that the truck was under Brunkhorst’s control when Mr. Brunkhorst directed Mr. McKnight drive it.

Third, there is no evidence that Jensen had any reason to believe Mr. McKnight posed an unreasonable risk of harm. On this point, Plaintiff contends that Jensen should have conducted a more thorough examination of Mr. McKnight. But he has not shown that the steps Jensen took to approve his hiring were inadequate or that it had a duty to do more. Nor has he identified or even alleged what information Jensen could have obtained that would have indicated Mr. McKnight posed an unreasonable risk of harm to others. Thus, evidence to support this element of a claim is lacking as well.

3. Negligent Hiring, Supervision, Training, or Retention

To recover on its negligent hiring claim against Jensen, Plaintiff needed to show (1) the existence of a legal duty by Jensen to Plaintiff; (2) breach of that duty by Jensen; (3) injury to Plaintiff; and (4) a sufficient causal relationship between Jensen’s breach and Plaintiff’s injury. See Connes v. Molalla Transp. Sys., Inc., 831 P.2d 1316, 1320 (Colo. 1992). Again, the Court the Court finds Plaintiff has failed to establish a genuine issue as to multiple elements of a claim.

*5 First, the Court has already found there is no evidence that Mr. McKnight was Jensen’s employee. Plaintiff offers no authority for the proposition that a legal duty to support a negligent hiring claim could arise in the absence of an underlying employment relationship. Nor has Plaintiff has identified any provision of Defendants’ Agreement or any other evidence which suggests Jensen rather than Brunkhorst was responsible for hiring, training, and supervision its employees.

Second, even if such a duty existed in circumstances such as these, where the defendant merely screens an applicant based on pertinent regulations, Plaintiff has not shown that Jensen had a duty to go beyond the background check it performed, which included checking Mr. McKnight’s motor vehicle report, contacting his previous employers, and having him pass a pre-employment drug screening. See Connes, 817 P.2d at 571 (concluding employer did not owe plaintiff a duty to investigate employee’s non-vehicular criminal record). Thus, Plaintiff has adduced no evidence that Jensen breached whatever duty it owed to him.

Third, Plaintiff has not shown a causal connection between the accident and Jensen’s alleged failure to perform its duty. In other words, Plaintiff has not identified anything that Jensen could have learned about Mr. McKnight that would have caused him not to be approved for hiring.

IV. CONCLUSION

Accordingly, Brunkhorst’s Motion (ECF No. 46) is GRANTED IN PART and DENIED IN PART, as stated in this Order, and Jensen’s Motion (ECF No. 47) is GRANTED.

All Citations

Footnotes

  1. This is so notwithstanding that Mr. McKnight received his pay from Jensen via direct deposit. (See ECF No. 70, ¶ 8.10.) Brunkhorst asserts that these payments were made on its behalf, and there is no evidence that this arrangement gave Jensen control over Mr. McKnight’s pay or the way he performed his job.  

© 2023 Thomson Reuters. No claim to original U.S. Government Works.  

End of Document

Pepper v. C.R. England

528 P.3d 587

Supreme Court of Nevada.

Chantel PEPPER, Individually and as Personal Representative of the Estate of Eric Pepper; and Travis Akkerman, Appellants,

v.

C.R. ENGLAND, a Utah Corporation; and Tesfaye Alamin, Individually, a Resident of Clark County, Nevada, Respondents.

No. 84009

Filed May 4, 2023

Synopsis

Background: After motorist, a resident of Texas, sustained fatal injuries when his vehicle collided with semi-truck parked on highway, motorist’s widow, individually and as personal representative of motorist’s estate, and motorist’s son filed wrongful death lawsuit in Nevada district court against driver of truck and trucking company. The District Court, Clark County, Joanna Kishner, J., granted truck driver’s motion to dismiss for forum non conveniens, in which company joined. Widow appealed.

Holdings: The Supreme Court, Herndon, J., held that:

[1] dismissal of complaint for forum non conveniens was abuse of discretion when defendants omitted a supporting affidavit, and

[2] as a matter of first impression, a sister-state-resident plaintiff should be treated as “foreign” for purposes of forum non conveniens analysis and thus be afforded less deference in her choice of forum unless she shows bona fide connections to Nevada.

Reversed and remanded.

[1] Courts Denial, dismissal, or transfer  

A district court must weigh several factors in considering whether to dismiss for forum non conveniens: first, the court must determine the level of deference owed to the plaintiff’s forum choice, second, the court must determine whether an adequate alternative forum exists, and third, if an adequate alternative forum does exist, the court must then weigh public and private interest factors to determine whether dismissal is warranted. Nev. Rev. St. § 13.050(2)(c).  

[2] Courts Alternate Forum  

Dismissal for forum non conveniens is appropriate only in exceptional circumstances in which factors strongly weigh in favor of another forum. Nev. Rev. St. § 13.050(2)(c).    

[3] Appeal and Error Forum non conveniens  

The Supreme Court reviews a district court’s balancing of the forum non conveniens factors for an abuse of discretion. Nev. Rev. St. § 13.050.  

[4]Appeal and Error Forum non conveniens  

For appellate purposes, a district court abuses its discretion in its forum non conveniens analysis by relying on insufficient evidence, by relying on an erroneous view of the law, by relying on clearly erroneous assessment of the evidence, or by striking an unreasonable balance of relevant factors. Nev. Rev. St. § 13.050.  

[5] Courts Parties’ choice of forum;  forum-shopping  

Applying the wrong level of deference to a plaintiff’s choice of forum is an abuse of discretion.    

[6] Courts Denial, dismissal, or transfer  

Dismissal of complaint for forum non conveniens was abuse of discretion, on defendants’ motion in motorist’s widow’s wrongful death suit against trucking company and driver of truck with which motorist’s vehicle collided, notwithstanding driver’s argument that another state, in which widow resided and motorist had resided, was the more appropriate forum, where driver and company failed to submit any affidavit in support of their motion to dismiss for forum non conveniens. Nev. Rev. St. § 13.050(2)(c).    

[7] Courts Conditions precedent

An affidavit is required before a complaint is dismissed for forum non conveniens.

[8] Courts Parties’ choice of forum;  forum-shopping  

Generally, a plaintiff’s choice of forum is entitled to great deference, but a foreign plaintiff’s choice of a United States forum is entitled to less deference.

[9] Courts Parties’ choice of forum;  forum-shopping  

A foreign plaintiff’s choice of forum in the United States is entitled to substantial deference only when the case has bona fide connections to the chosen forum and convenience favors the chosen forum. Nev. Rev. St. § 13.050(2)(c).

[10] Courts Residency of parties;  state of incorporation Courts Presumptions and burden of proof  

For purposes of the doctrine of forum non conveniens, a plaintiff’s residence is a proxy for convenience; if a plaintiff files suit where she resides, a court reasonably can conclude that forum is convenient. Nev. Rev. St. § 13.050(2)(c).  

[11] Courts Presumptions and burden of proof  

For purposes of a forum non conveniens analysis, when a foreign plaintiff sues in the United States, it is less reasonable to assume that the forum choice was made for convenience; the plaintiff may be forum shopping or selecting a forum for other strategic reasons, rather than selecting the most convenient forum. Nev. Rev. St. § 13.050(2)(c).

[12] Courts Presumptions and burden of proof  

Even without allegations of forum shopping, a court has no reason to assume that a United States forum would be more convenient for a foreign plaintiff, absent other considerations. Nev. Rev. St. § 13.050(2)(c).

[13] Courts Parties’ choice of forum;  forum-shopping

A sister-state-resident plaintiff should be treated as “foreign” for the purposes of a forum non conveniens analysis and thus be afforded less deference in her choice of forum, unless she proves that Nevada is a convenient forum by showing bona fide connections to Nevada. Nev. Rev. St. § 13.050(2)(c).

[14] Courts Parties’ choice of forum;  forum-shopping  

The justification for affording less deference to a foreign plaintiff’s choice of a Nevada forum holds true for a sister-state-resident plaintiff—there is no reason to presume that she chose Nevada as a forum for convenience, because she does not live in Nevada. Nev. Rev. St. § 13.050(2)(c).    

*588 Appeal from a district court order dismissing a complaint for forum non conveniens. Eighth Judicial District Court, Clark County; Joanna Kishner, Judge.

Attorneys and Law Firms

Matthew L. Sharp, Ltd., and Matthew L. Sharp, Reno; The Cowden Law Firm, PLLC, and George Cowden, IV, Tyler, Texas, for Appellants.

Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, and Michael P. Lowry, Las Vegas, for Respondents.

BEFORE THE SUPREME COURT, HERNDON, LEE, and PARRAGUIRRE, JJ.

OPINION

By the Court, HERNDON, J.:

In this appeal, we consider whether a district court abused its discretion by dismissing a complaint for forum non conveniens. In dismissing the complaint, the district court granted a motion that did not include a supporting affidavit, and it treated a Texan plaintiff as a foreign plaintiff, thereby affording her choice of a Nevada forum less deference. *589 We hold the district court abused its discretion by granting the motion because the moving parties did not include a supporting affidavit and therefore failed to meet their evidentiary burden. Accordingly, we reverse and remand for proceedings consistent with this opinion.

Although not affecting our disposition here, we take this opportunity to address a second issue because it presents an unresolved question in Nevada law and is likely to arise on remand—what level of deference is owed to a plaintiff who resides in a sister state and selects Nevada as a forum? Generally, a non-U.S.-resident (foreign) plaintiff’s choice of a Nevada forum is afforded less deference because a plaintiff’s residence is a proxy for convenience—a foreign plaintiff does not live in Nevada, so there generally is no reason to presume that her choice of a Nevada forum is convenient. We hold, as did the district court, that a sister-state-resident plaintiff is “foreign” for the purposes of forum non conveniens because this rationale applies to her.

BACKGROUND AND FACTS

Respondent C.R. England, Inc., is a trucking company incorporated and headquartered in Utah. C.R. England hired respondent Tesfaye Alamin, a Nevada resident, to drive its semitrucks. According to the complaint, Alamin was driving in Texas en route to Colorado when he parked his semitruck and trailer in the left lane of a snow-covered two-lane highway. Meanwhile, Eric Pepper, a Texas resident, and his passenger were driving on the same highway, miles behind Alamin’s semitruck. As Pepper approached the parked semitruck, a bend in the highway obstructed his view, and he collided with the semitruck. Pepper sustained a head injury and died a few days later.

Pepper’s widow, appellant Chantel Pepper, in her individual capacity and on behalf of Eric Pepper’s estate, and Eric’s son, appellant Travis Akkerman (collectively Pepper), filed a wrongful death lawsuit in Nevada district court against C.R. England and Alamin. Alamin moved to dismiss for forum non conveniens, arguing that Texas was the more appropriate forum. His motion, which C.R. England joined, did not include any supporting attachments or exhibits.

After a hearing on the motion to dismiss, the district court granted the motion. In its analysis, the district court treated Pepper as “foreign” and found that the case lacked a bona fide connection to Nevada. Accordingly, the district court afforded Pepper’s choice of a Nevada forum less deference. Pepper appealed.

DISCUSSION

Pepper makes three arguments. First, she argues the district court erred by dismissing for forum non conveniens because C.R. England and Alamin failed to attach a supporting affidavit and made only general allegations of inconvenience and thus did not meet their evidentiary burden. Second, she argues that she is not a “foreign” plaintiff, so her choice of a Nevada forum should not have received less deference on that basis. “Foreign,” in her view, refers only to non-U.S.-resident plaintiffs, not sister-state-resident plaintiffs. Third, even if she were considered foreign under a forum non conveniens analysis, Pepper argues, her choice of a Nevada forum should still receive great deference because her suit has bona fide connections to Nevada.

[1] [2]NRS 13.050 codifies the doctrine of forum non conveniens. Mountain View Recreation, Inc. v. Imperial Commercial Cooking Equip. Co., 129 Nev. 413, 419, 305 P.3d 881, 884 (2013). It provides that a “court may, on motion or stipulation, change the place of the proceeding … [w]hen the convenience of the witnesses and the ends of justice would be promoted by the change.” NRS 13.050(2)(c). In Provincial Government of Marinduque v. Placer Dome, Inc., this court set forth several factors that a district court must weigh in considering whether to dismiss for forum non conveniens. 131 Nev. 296, 300-01, 350 P.3d 392, 396 (2015). First, the “court must … determine the level of deference owed to the plaintiff’s forum choice.” Id. at 300, 350 P.3d at 396. Second, the court “must determine whether an adequate alternative forum exists.” Id. at 301, 350 P.3d at 396 (internal quotation marks omitted). And third, “[i]f an adequate alternative *590 forum does exist, the court must then weigh public and private interest factors to determine whether dismissal is warranted.” Id. The court “should also consider whether failure to apply the doctrine would subject the defendant to harassment, oppression, vexatiousness or inconvenience.” Id. at 305, 350 P.3d at 398 (internal quotation marks omitted). Dismissal is appropriate only in “exceptional circumstances” where the factors strongly weigh in favor of another forum. Id. at 301, 350 P.3d at 396.

Standard of review

[3] [4] [5]We review a district court’s balancing of the Placer Dome factors for an abuse of discretion. Id. at 300, 350 P.3d at 395-96. A district court abuses its discretion by relying on insufficient evidence, see Mountain View Recreation, 129 Nev. at 420, 305 P.3d at 885, “by relying on an erroneous view of the law, by relying on clearly erroneous assessment of the evidence, or by striking an unreasonable balance of relevant factors,” Carijano v. Occidental Petroleum Corp., 643 F.3d 1216, 1224 (9th Cir. 2011) (internal quotation marks omitted). Applying the wrong level of deference to a plaintiff’s choice of forum is an abuse of discretion. Id. at 1229.

C.R. England and Alamin did not meet their evidentiary burden, as they failed to support their motion to dismiss for forum non conveniens with an affidavit

Pepper argues that Nevada law requires a moving party to submit affidavits in support of a motion to dismiss for forum non conveniens.1 C.R. England and Alamin counter that affidavits are sufficient but not necessary to support dismissal for forum non conveniens.

[6] [7]In Mountain View Recreation v. Imperial Commercial Cooking Equipment Co., we held that a district court abused its discretion in dismissing for forum non conveniens where there was insufficient evidence in the record to support such a finding. 129 Nev. at 420, 305 P.3d at 885. In doing so, we held that “[a] motion for change of venue based on forum non conveniens must be supported by affidavits” to enable the district court to assess whether there are exceptional circumstances favoring dismissal. Id. at 419, 305 P.3d at 885 (emphasis added). Mountain View Recreation’s requirement is clear—an affidavit is required before a complaint is dismissed for forum non conveniens. Because C.R. England and Alamin omitted a supporting affidavit, the district court abused its discretion in dismissing Pepper’s complaint. Nonetheless, we consider whether the district court should categorize Pepper as a foreign plaintiff because it is an unresolved question of Nevada law likely to arise on remand.

Sister-state-resident plaintiffs are “foreign”

Pepper argues that she is not a “foreign” plaintiff, so her choice of a Nevada forum should not receive less deference on that basis. “Foreign,” in her view, refers only to non-U.S.-resident plaintiffs, not sister-state-resident plaintiffs.

[8] [9]In applying the first Placer Dome factor, “[g]enerally, a plaintiff’s choice of forum is entitled to great deference, but a foreign plaintiff’s choice of a United States forum is entitled to less deference.” Placer Dome, 131 Nev. at 301, 350 P.3d at 396 (citing Pollux Holding Ltd. v. Chase Manhattan Bank, 329 F.3d 64, 71 (2d Cir. 2003)). A foreign plaintiff’s choice of forum in the United States is “entitled to substantial deference only where the case has bona fide connections to and convenience favors the chosen forum.” Id.

In Placer Dome, a local government in the Philippines filed suit in Nevada district court against Placer Dome, Inc., a Canadian corporation, which owned subsidiaries operating in Nevada. Id. at 299-300, 350 P.3d at 395. We held that the district court properly determined that the Philippines government was “foreign” and entitled to less deference because its decision to sue in Nevada to obtain personal jurisdiction over Placer Dome was not a “bona fide” connection, given that *591 whether personal jurisdiction over Placer Dome existed in Nevada was unclear. See id. at 301-02, 350 P.3d at 395–96. Likewise, the Second Circuit Court of Appeals case we relied on, Pollux Holding Ltd. v. Chase Manhattan Bank, afforded foreign corporate plaintiffs’ (both plaintiff corporations were incorporated in Liberia with their principal place of business in Greece) choice of a United States forum less deference. 329 F.3d at 68, 74.

[10] [11] [12]To determine whether a sister-state-resident plaintiff should be treated like a Nevada resident or like a foreign plaintiff for the purposes of forum non conveniens, we turn to the rationale behind this rule. As the Second Circuit explained in Pollux, a plaintiff’s residence is a proxy for convenience. Id. at 71, 73-74. If a plaintiff files suit where she resides, a court reasonably can conclude that forum is convenient. Id. at 71 (citing Koster v. (Am.) Lumbermens Mut. Cas. Co., 330 U.S. 518, 519, 524, 67 S.Ct. 828, 91 L.Ed. 1067 (1947) (discussing plaintiff’s suit in his home district)). In contrast, when a foreign plaintiff sues in the United States, it is less reasonable to assume that choice was made for convenience. Id. In that case, the plaintiff may be forum shopping or selecting the forum for other strategic reasons, rather than selecting the most convenient forum. Id. Even without allegations of forum shopping, a court has no reason to assume a U.S. forum would be more convenient for a foreign plaintiff, absent other considerations. Id.

[13] [14]We conclude that the rationale behind affording less deference to a foreign plaintiff’s choice of a Nevada forum applies with equal force to a sister-state-resident plaintiff. See Fennell v. Ill. Cent. R.R. Co., 369 Ill.Dec. 728, 987 N.E.2d 355, 362 (Ill. 2012) (holding that because a plaintiff did not reside in Illinois and the cause of action did not arise in Illinois, the plaintiff’s choice of an Illinois forum was entitled to less deference “for this reason alone”). If a foreign plaintiff sues in Nevada, we do not presume that choice was made for convenience because the plaintiff does not live in Nevada. This justification holds true for a sister-state-resident plaintiff—there is no reason to presume that she chose Nevada as a forum for convenience because she does not live in Nevada. Accordingly, we hold that a sister-state-resident plaintiff should be treated as “foreign” for the purposes of a forum non conveniens analysis and thus be afforded less deference in her choice of forum, unless she proves that Nevada is a convenient forum by showing bona fide connections to Nevada. However, we do not resolve whether this case has bona fide connections to Nevada, given that we conclude C.R. England and Alamin did not meet their evidentiary burden.

CONCLUSION

In summary, a sister-state-resident plaintiff is “foreign” for the purposes of a forum non conveniens analysis. A foreign plaintiff’s, including a sister-state-resident plaintiff’s, choice of a Nevada forum is entitled to less deference unless she can show the case has bona fide connections to this state. Here, Pepper is a Texan, so her choice of a Nevada forum is entitled to less deference unless this case has a bona fide connection to this state. But we do not consider whether a bona fide connection exists in this case because the underlying motion to dismiss for forum non conveniens lacked a supporting affidavit. The district court therefore abused its discretion in granting the motion. Accordingly, we reverse the judgment of the district court and remand for proceedings consistent with this opinion.

We concur:

Lee, J.

Parraguirre, J.

All Citations

Footnotes

  1. In light of our disposition, we do not address Pepper’s remaining argument that C.R. England and Alamin did not meet their evidentiary burden by making only general allegations of convenience.  

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