ยถ 1 Plaintiff, John Cox, appeals the Denver District Court's dismissal of his complaint on the basis of forum non conveniens. We conclude that potential double recoveryโwhere a resident plaintiff is simultaneously suing different defendants in Colorado and another state for the same damagesโdoes not constitute "most unusual circumstances" under forum non conveniens as articulated in McDonnell-Douglas Corp. v. Lohn , 192 Colo. 200, 557 P.2d 373 (1976). We therefore reverse and remand the case with directions.
The Feldmans filed a response to the motion, asserting that they and their medical witnesses reside in Denver. The respondent court denied the motion to change venue because, in its view, the narrow limitation placed on the doctrine of forum non conveniens by this court's decision in McDonnell-Douglas Corp. v. Lohn, 192 Colo. 200, 557 P.2d 373 (1976), virtually prohibits a Colorado court from changing the venue of a case properly filed in an appropriate forum by a Colorado resident. We conclude the respondent court misapprehended the legal principles pertinent to a proper resolution of the department's motion to change venue.
In Colorado, the doctrine of forum non conveniens is available in only the most limited circumstances. The supreme court first considered the availability of forum non conveniens in Colorado courts inMcDonnell-Douglas Corp. v. Lohn, 192 Colo. 200, 557 P.2d 373 (1976). TheMcDonnell-Douglas court relied in part on Colo. Const. art. II, ยง 6, which provides: "Courts of justice shall be open to every person, and a speedy remedy afforded for every injury to person, property or character; and right and justice should be administered without sale, denial or delay."
The doctrine of forum non conveniens "is founded in considerations of fundamental fairness and sensible and effective judicial administration," Adkins v. Chicago, Rock Island and Pacific Railroad Co., 54 Ill.2d 511, 301 N.E.2d 729, 730 (1973), and it is widely recognized to be of common law origin. Gulf Oil Corp., 330 U.S. at 507, 67 S.Ct. 839; Price v. Atchison, T. S.F. Ry. Co., 42 Cal.2d 577, 268 P.2d 457, 461 (1954) (citing Gulf Oil Corp., 330 U.S. at 507-09, 67 S.Ct. 839); McDonnell-Douglas Corp. v. Lohn, 192 Colo. 200, 557 P.2d 373, 374 (1976); Picketts v. International Playtex, Inc., 215 Conn. 490, 576 A.2d 518, 524 (1990) (citing Koster v. (American) Lumbermens Mutual Casualty Co., 330 U.S. 518, 527, 67 S.Ct. 828, 91 L.Ed. 1067 (1947)); Yost v. Johnson, 591 A.2d 178, 182 (Del. 1991); Kinney System, Inc. v. Continental Insurance Co., 674 So.2d 86, 87 (Fla. 1996); Torres v. Walsh, 98 Ill.2d 338, 74 Ill.Dec. 880, 456 N.E.2d 601, 605 (1983); Gonzales v. Atchison Topeka and Santa Fe Railway Co., 189 Kan. 689, 371 P.2d 193, 196, 198 (1962) ("The doctrine of forum non conveniens is of ancient common law origin and has been recognized and applied in the federal courts and in the courts of most of the states."); Beaven v. McAnulty, 980 S.W.2d 284, 287 (Ky. 1998); Radeljak v. Daimler-Chrysler Corp., 475 Mich. 598, 719 N.W.2d 40, 42 (2006); Johnson v. Chicago, Burlington Quincy Railroad Co., 243 Minn. 58, 66 N.W.2d 763, 767 (1954) (citing Gulf Oil Corp., 330 U.S. at 507, 67 S.Ct. 839); Clark v. Luvel Dairy Products, Inc., 731 So.2
See Firelock Inc. v. Dist. Court, 776 P.2d 1090 (Colo. 1989); McDonnell-Douglas Corp. v. Lohn, 192 Colo. 200, 557 P.2d 373 (1976). B.
Of the scattered states which do not follow the doctrine, some have declined to do so because of peculiar provisions of their state constitutions which have been construed to guarantee residents a local forum. E. g., McDonnell Douglas Corp. v. Lohn, 557 P.2d 373 (Colo. 1976); Chapman v. Southern Ry., 230 S.C. 210, 95 S.E.2d 170 (1956). As indicated at note 12, infra, there is no such provision where admiralty jurisdiction is concerned. Apparently the only state where the court of last resort has continued to reject the doctrine as a matter of common law is Florida.
In the case of foreign corporations 'presence' has been construed to mean doing business within the state."); Begole Aircraft Supplies v. Pac. Airmotive Corp., 121 Colo. 88, 212 P.2d 860, 862 (1949) (concluding that the defendant "was not engaged in 'doing business' in Colorado in a way that would bring it within the jurisdiction of the Colorado courts"). The Budde court also concluded that Allison Drilling Co., Inc. v. Kaiser Steel Corp., 31 Colo.App. 355, 502 P.2d 967 (1972), disapproved of on other grounds by McDonnell-Douglas Corp. v. Lohn, 192 Colo. 200, 557 P.2d 373, 374 (1976), had "bearing" on the case. Budde, 565 F.2d at 1149
Given this framework, if Colorado courts have jurisdiction over a case, there should not be a circumstance under which venue compels that the case not be heard in Colorado, unless a court determines that the doctrine of forum non conveniens applies. See ยง 13-20-1004, C.R.S. (2007); McDonnell-Douglas Corp. v. Lohn, 192 Colo. 200, 201-02, 557 P.2d 373, 374 (1976). In its Motion to Dismiss, Defendants purported to seek dismissal for lack of subject matter jurisdiction.
Similarly, the California cases have been consolidated in the California Superior Court in San Diego. [1,2] As we indicated in McDonnell-Douglas v. Lohn, 192 Colo. 200, 557 P.2d 373, announced contemporaneously with this opinion, the doctrine of forum non conveniens has little place in Colorado courts. Absent the most unusual circumstances the choice of forum of a resident plaintiff will not be disturbed. Here the factors of convenience and expense considered by the trial court do not approach the circumstances necessary to deprive a resident of access to his own state's court system.
This appeal followed. PMI initially argues that the "open courts" provision of the Colorado Constitution, as interpreted by our supreme court in McDonnell-Douglas Corp. v. Lohn, 192 Colo. 200, 557 P.2d 373 (1976), precludes application of the doctrine of forum non conveniens whenever jurisdiction is properly established in Colorado. We do not agree.