In Jose Rabago v. Kansas City Southern, the Missouri Court of Appeals, Eastern District found that the trial court abused its discretion in finding that plaintiffs had an alternative available forum and reversed the trial court’s determination that plaintiffs’ suit should be dismissed on the basis of forum non conveniens. To understand the significance of this decision, it is important to review the underlying facts of this dispute and analyze the court’s reasoning in reaching its decision.
In February 2016, Jose Rabago and 13 other plaintiffs filed suit against Kansas City Southern, Inc. (KCS), Kansas City Southern de Mexico, S.A. (KCSM) and Kansas City Southern Railway Company (KCSR) for damages arising from a collision between a bus filled with Mexican nationals and a train operated by KCSM and KCSR at a railroad crossing in Mexico. The collision occurred on February 13, 2015 and, under Mexican law, there was a two-year statute of limitations for personal injury cases.
In January 2018, another 45 plaintiffs moved for leave to intervene in the initial lawsuit. Defendants opposed joinder as those 45 plaintiffs were time-barred under two-year time bar. After a hearing, the trial court granted the motion for leave to intervene.
In March 2018, defendants moved to dismiss the entire lawsuit on the basis of forum non conveniens, arguing it would be oppressive to force defendants to litigate the case in Missouri when the incident occurred in Mexico and all relevant witnesses were located in Mexico.
In determining whether the case should be dismissed on the basis of forum non conveniens, the trial court looked at six factors: (1) the place of accrual of the cause of action, (2) the location of witnesses, (3) the residence of the parties, (4) any nexus with the place of suit, (5) the public factor of the convenience to and burden upon the court, and (6) the availability of an alternative forum. In analyzing all the factors, the trial court concluded that all the factors favored defendants and dismissed the lawsuit in its entirety. Plaintiffs appealed.
While the appellate court agreed that Missouri was a substantially inconvenient forum, and there was an adequate remedy under Mexican law, the appellate nevertheless reversed because it concluded that Mexico was not available as an alternative forum. In reaching this conclusion, the appellate court took notice of the fact that defendants did not agree to waive the 2 year time bar against the following 45 plaintiffs for filing after February 13, 2017. The appellate court concluded: “When a claim is time-barred in another forum, the motion to dismiss for forum non conveniens should be denied and the failure to do so constitutes an abuse of discretion.” The appellate court relied on Carijano v. Occidental Petroleum Corp., 643 F.3d 1216 (9th Cir. 2011) as precedent for this decision. The appellate court observed that if the trial court had ordered defendants to stipulate to not raising time bar as an affirmative defense to all claims in any Mexican proceeding, then there would have been no abuse of discretion by the trial court. Such an order would have cured any concerns about Mexico as an alternative forum.
Under the circumstances, the appellate court reversed the trial court and remanded for the trial court to determine whether Mexico is an available forum for all plaintiffs, regardless of when they joined the suit.
David Y. Loh is a member with Cozen O'Connor in New York City, New York.
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