In re Omega Protein


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[B]Case Name: [/B][I]In re Omega Protein Inc.
[/I][B]Date Decided: [/B]January 20, 2009
[B]Court: [/B]Court*of Appeals of Texas
[B]Judge: [/B]Judge Bland
[B]Citation: [/B]288 S.W.3d 17) [B]Background:
[/B]Railroad employer, against whom employee brought personal injury action sought mandamus relief, requesting order compelling trial court to dismiss the underlying suit for re-filing in other state in accordance with forum selection clause of a maritime employment contract.

George Mattews, entered a maritime employment agreement with Omega to work as a ring-setter aboard a fishing vessel owned and operated by Omega.

The employment agreement included a clause which “irrecovably” bound the parties to bring, any lawsuit between them, in any state or federal court in Virginia and submit to jurisdiction in Virginia.

Matthews, a resident of Virginia, completed the 2006 fishing season without reporting any on the job accident or injury. Upon returning to in 2007 Matthews signed an employment agreement with the forum selection clause.

In January 2008, Matthews sued Omega in Harris County District Court for negligence, gross negligence under the Jones Act and/or the general maritime law of the United States. Matthews alleged that a fellow employee injured him in 2006, and following the filing Matthews sought additional medical treatment from Texas physicians.

Omega moved to dismiss the suit for re-filing in Virginia based upon the forum selection clause and forum non conveniens. Matthews argued that venue was proper in Harris County the trial court denied the motion to dismiss.

Omega now seeks mandamus relief and to direct the trial court to vacate its order and order the trial court to dismiss the underlying suits for re-filing in Virginia.

[B]Issue:[/B]
Did this Court grant Omega’s request for mandamus relief to dismiss the action pursuant to a forum selection clause and forum non conveniens?

[B]Held:[/B]
Mandamus is appropriate to remedy an improper denial of a motion to dismiss for forum non conveniens.

When a state court hears an admiralty case, that court must apply substantive federal maritime law but follow state procedure.

Omega contended that the trial court abused its discretion by failing to follow Texas state procedure. Under Texas law a trial court [I]shall [/I]dismiss a claim or action if the court finds it would be more properly heard in a forum outside Texas.

The statutory factors under Texas are similar to the doctrine of forum non conveniens factors the US Supreme Court has set forth.

Private factors include relative ease of access to sources of proof (2) availability of the compulsory process for attendance of unwilling witnesses, cost of obtaining witnesses and possibility of viewing the premises, enforceability of the judgment, and all other practical problems that make trial easy.

Public factors include, administrative difficulties, jury duty imposed on people of a community that have no relation to the litigation, local interest in having localized controversies decided at home, and appropriate of having a trial in a diversity case in a forum that is familiar with the state law that must govern the case.

Matthews concedes that Virginia is an adequate alternate forum and provides an adequate remedy.

Omega contended that all the private-interest factors favored the forum of Virginia. This Court agreed and found these factors in favor of trying the case in Virginia. Because the incident occurred off the Virginia coast, the factor of ease of access to sources of proof favors Viriginia.

The vessel that Matthews claims is “unseaworthy” also operates [I]exclusively [/I]out of Omega’s Virginia facility. Moreover, Matthews, prior to filing this action, received medical care from physicians in Virginia. All crew members, except one, are from Virginia so the availability of the compulsory process weighs in favor of adjudicating in Virginia.

Also, the inspection of the vessel would take place in Virginia because it is located there.

As for public factors, this Court found that the suit does not involve a local dispute nor does the injury have a meaningful connection to Texas or Harris County. It involves a Virginia employee regarding a personal injury that allegedly occurred on a vessel operating exclusively out of Virginia. Accordingly Virginia has more of an interest in adjudicating the case than does Texas.

Accordingly, this Court dismisses Matthews’s action under the doctrine of forum non conveniens.

[B]Comment:
The doctrine of forum non conveniens is a tool used by defendants to select a different forum in which to adjudicate the plaintiff’s claim.[/B]

[B]Most states, as in Texas, give substantial weight to plaintiff’s choice of forum. The defendant then must show, based on private and public factors, that the case would be better heard in another forum than the plaintiff’s choosing. [/B]

[B]If defendant is successful, the plaintiff must then re-file in the appropriate court. [/B]

[B]Steve Gordon
http://www.offshoreinjuries.com [/B]

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