Court of Appeals of Missouri, Eastern District, Fourth Division
from the Circuit Court of St. Louis County 16SL-CC00482.
Honorable Ellen H. Ribaudo
Gary M. Gaertner, Jr., P. J., Lisa P. Page, J., and Robin
Rabago, et al., ("Appellants") appeal from the
judgment of the trial court dismissing their civil case
against Kansas City Southern, Inc. ("KCS"), Kansas
City Southern de Mexico, S.A. ("KCSM"), and Kansas
City Southern Railway Company ("KCSR") (together,
"Defendants") under the doctrine of forum non
conveniens. The trial court did not abuse its discretion
in finding Missouri to be an inconvenient forum. However, the
trial court did abuse its discretion in finding Mexico to be
an available forum, in light of Defendants' indication
that they would challenge Mexico's jurisdiction over
certain Appellants' claims as past the Mexican statute of
limitations, when the claims are not precluded by Missouri
law. We reverse and remand in accordance with this opinion.
February 13, 2015, a freight train owned by KCSR and operated
by KCSM collided with a bus at a railroad crossing in
Anahuac, Nuevo Leon, Mexico, resulting in the injury or death
of multiple passengers, all Mexican citizens. In February
2016, fourteen Appellants filed a petition for compensatory
and punitive damages in Missouri against Defendants,
asserting claims of negligence, wrongful death, and alter-ego
liability. Appellants alleged KCS is a transportation holding
company incorporated in Delaware with its headquarters in
Missouri that owns and controls railroad investments in the
United States of America and in Mexico, including, as
relevant to this appeal, KCSR and KCSM. Appellants argued KCS
exercised such control and dominion over KCSR and KCSM that
the three companies should be treated as a single entity.
Because KCS and KCSR are Missouri Corporations, Appellants
asserted venue was proper and convenient in Missouri pursuant
to Section 508.010.5(3), RSMo. (cum supp. 2016).
raised the issue of forum non conveniens in their
answers to Appellants' original petition as a
defense. On January 27, 2017, KCS and KCSR filed a
motion to dismiss for forum non conveniens, arguing
Mexico was a more convenient forum because the cause of
action accrued in Mexico and all witnesses were located in
Mexico. KCS and KCSR requested an evidentiary hearing after
an opportunity to conduct discovery on the matter. On January
12, 2018, over forty-five additional Appellants filed a
motion for leave to intervene for joinder as plaintiffs,
which Defendants opposed as time-barred under Mexico's
two-year statute of limitations for personal injury cases.
After a hearing, the trial court granted the motion for leave
to intervene for joinder. In their subsequent Third Amended
Petition, Appellants re-asserted their claims of negligence,
wrongful death, and alter-ego liability.
March 2018, Defendants each filed another motion to dismiss
for forum non conveniens. After an evidentiary
hearing, the trial court granted Defendants' motions and
dismissed Appellants' Third Amended Petition. The trial
court found that forum in Missouri was inconvenient because
it would be oppressive to Defendants and would place an undue
burden on Missouri courts, and that Mexico was an available
forum. This appeal follows.
their sole point on appeal, Appellants argue the trial court
abused its discretion in granting Defendants' motions to
dismiss on the basis of forum non conveniens because
Defendants failed to meet their burden to show
Appellants' venue choice was manifestly inconvenient for
them or that there was an available and adequate alternative
forum to hear Appellants' claims. We agree.
trial court has great discretion in determining whether a
forum is convenient and another more appropriate forum is
available, and we review the court's ruling on a motion
for forum non conveniens merely for an abuse of that
discretion, viewing the evidence in the light most favorable
to the ruling. Anglim v. Mo. Pac. R.R. Co., 832
S.W.2d 298, 302-03 (Mo. banc 1992); Chandler v. Multidata
Sys. Int'l Corp., 163 S.W.3d 537, 546 (Mo. App. E.D.
2005). An abuse of discretion occurs when the trial
court's ruling is so against the logic of the
circumstances or is so arbitrary and unreasonable as to shock
the sense of justice and indicate a lack of careful
consideration. Chandler, 163 S.W.3d at 546. When,
however, reasonable persons could differ about the propriety
of the action taken by the trial court, we will not find an
abuse of discretion. Id.
doctrine of forum non conveniens permits a trial
court to dismiss an action "when the facts of the case
show substantial inconvenience" and "so long as
there is an alternate forum available," even if venue
and jurisdiction are proper. Acapolon Corp. v. Ralston
Purina Co., 827 S.W.2d 189, 191, 194 (Mo. banc 1992).
Initially, we note Appellants argued during oral arguments
that the trial court abused its discretion in dismissing
their petition under a theory of forum non
conveniens without first addressing Section
508.010.5(3), which provides that when a plaintiff is injured
in a foreign country in connection with railroad operations,
venue is proper where the defendant's registered agent is
located: here, St. Louis County. However, the propriety of
venue is a separate inquiry from the trial court's
application of the doctrine of forum non conveniens.
While a plaintiff may bring suit in any venue allowed by law,
the right of choice is not absolute, and the suit is subject
to dismissal if it is filed in a forum that is manifestly
inconvenient. See Besse v. Mo. Pac. R.R. Co., 740
S.W.2d 721, 742 (Mo. banc 1986). The trial court was not
required to consider the issue of venue in determining
whether the requested forum was convenient and thus did not
abuse its discretion in failing to address Section
508.010.5(3) in its judgment.
determining whether to apply the doctrine of forum non
conveniens, trial courts are directed to consider six
main 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 to Appellants of another
court with jurisdiction over the cause of action that would
afford a forum for remedy. Anglim, 832 S.W.2d at 302
(citing State ex rel. Chicago, Rock Island & Pac.
R.R. Co. v. Riederer, 454 S.W.2d 36, 39 (Mo. banc
1970)). The trial court is not required to give primary
consideration to any one factor but is tasked with weighing
the evidence and credibility of the witnesses in making its
determination depending on the individual facts of each case.
See id. at 302-03. Further, in cases brought by
foreign nationals where the bulk of the operative facts took
place in a foreign nation, less deference is afforded the
plaintiff's choice of forum. Acapolon, 827
S.W.2d at 192. In the situation where the injury is caused in
a foreign country to a non-U.S. citizen, the consensus is
that "a case with substantial international factors is
best litigated in the venue in which the preponderance of the
operative facts took place." Id. at 194.
Nevertheless, "[i]n determining whether a foreign forum
is available, consideration must be given to whether the
foreign forum could and would adjudicate the
controversy." State ex rel. Rashid v. Drumm,
824 S.W.2d 479, 504 (Mo. App. E.D. 1992). The doctrine of
forum non conveniens is appropriate only where there
is "an alternate forum available."
Acapolon, 827 S.W.2d at 194.
trial court analyzed each of the six factors in a very
thorough judgment. While the record supports the trial
court's conclusion that Missouri is an inconvenient
forum, the record did not show another forum was available to
all Appellants, due to Defendants indication that it
would challenge Mexico's jurisdiction over the Appellants