Opinion issued March 24, 2020




                                       In The

                                Court of Appeals
                                       For The

                           First District of Texas
                              ————————————
                               NO. 01-19-00760-CV
                             ———————————
                    IN RE CEVA GROUND US, LP., Relator



            Original Proceeding on Petition for Writ of Mandamus


                           MEMORANDUM OPINION

      Relator, CEVA Ground US, L.P., has filed a petition for writ of mandamus

challenging the trial court’s denial of relator’s motion to dismiss the underlying case

on forum non conveniens grounds.1 We conditionally grant the petition.



1
      The underlying case is Geneva Sisco Timmons, Individually, Malinda Brown as
      Representative of the Estate of Adrianne Laneal Sisco, Decedent, and Joseph
      Donald Taylor, ANF to J.N.T. and J.M.T., Minors, cause number 2019-27415,
      pending in the 164th District Court of Harris County, Texas, the Honorable Michael
      Gomez presiding.
                                    Background

      The underlying suit concerns a fatal auto accident in Oklahoma on April 11,

2019, involving decedent Adrianne Laneal Sisco and Abno Salad Olow, an

employee of CEVA operating one of its vehicles.

      One week later, Geneva Sisco Timmons, individually and purporting to act as

representative of Sisco’s estate, and Joseph Donald Taylor, as next friend of J.N.T.

and J.M.T., minors, filed the underlying suit against CEVA in Harris County, Texas.

Timmons is Sisco’s mother, Joseph Taylor is Sisco’s divorced spouse, and the

minors are Sisco’s daughters. Timmons, an Oklahoma resident, had petitioned an

Oklahoma probate court to be appointed as the personal representative of Sisco’s

estate, but had not been appointed as the representative before filing the suit.

      Sisco’s father separately petitioned an Arkansas probate court to appoint

Armis Advisers as Special Administrator and Personal Representative of Sisco’s

estate. The Arkansas probate court appointed Armis Advisers as personal

representative. On May 2, 2019, attorney Malinda Brown requested that an

Oklahoma probate court appoint her as the personal representative of Sisco’s estate.

Armis Advisers intervened in the Oklahoma probate action to contest Brown’s

petition for appointment. The next week, Armis Advisers filed a separate wrongful

death and survival lawsuit against CEVA in Arkansas arising out of the same

accident as the Harris County, Texas lawsuit. Then, the Oklahoma probate court


                                           2
appointed Brown as personal representative of Sisco’s estate. Brown, as the

representative of Sisco’s estate, was subsequently added as a plaintiff in an amended

petition filed in the Harris County case. Armis Advisers filed another suit against

CEVA in federal court in Oklahoma. The Arkansas and Oklahoma actions were later

voluntarily dismissed.

       Prior to the dismissal of the Arkansas and Oklahoma actions, CEVA filed a

motion to abate the Harris County case pending resolution of which representative

properly represents Sisco’s estate and the proper forum for the suit. In conjunction

with its motion to abate, CEVA filed a motion to dismiss the Harris County case on

grounds of forum non conveniens, asserting that Oklahoma is the more convenient

forum. In support of its motion to dismiss, CEVA asserted that (1) suit could be

brought in Oklahoma; (2) Oklahoma provides an adequate remedy because, like

Texas, Oklahoma has statutes authorizing wrongful death and survival claims; (3)

key witnesses and persons with knowledge of relevant facts reside in Oklahoma and

could not be compelled to testify if the case were held in Harris County; (4) there is

no injustice to plaintiffs by requiring them to sue in Oklahoma; (5) public interest

favors dismissal in light of “[c]ourt congestion and the burdens of jury duty in Harris

County to resolve an accident centered in Oklahoma and involving Oklahoma law;”

(6) Oklahoma law will apply in the case; and (7) dismissal will not duplicate

litigation.


                                          3
      After a hearing, the trial court denied both the motion to abate and the motion

to dismiss for forum non conveniens. Following the voluntary dismissals of the

Arkansas and Oklahoma suits, only the Harris County suit remains pending. CEVA

requested that the trial court reconsider its denial of the motion to dismiss and the

trial court denied reconsideration. This mandamus petition challenging the denial of

the motion to dismiss followed. CEVA subsequently filed a motion requesting a

temporary stay of discovery in the underlying proceeding pending our ruling on the

mandamus petition. We granted the motion and ordered discovery in the proceeding

stayed pending our ruling.

                                Standard of Review

      Mandamus is appropriate to remedy an improper denial of a motion to dismiss

for forum non conveniens. See In re Pirelli Tire, L.L.C., 247 S.W.3d 670, 679 (Tex.

2007). “An appeal is not adequate when a motion to dismiss on forum non

conveniens grounds is erroneously denied, so mandamus relief is available, if it is

otherwise warranted.” In re ENSCO Offshore Int’l Co., 311 S.W.3d 921, 923 (Tex.

2010) (orig. proceeding). “As a general rule, the forum non conveniens decision is

committed to the trial court’s sound discretion and may be set aside only for a clear

abuse of discretion.” In re Mahindra, USA Inc., 549 S.W.3d 541, 545 (Tex. 2018)

(citations omitted). “It may be reversed only when there has been a clear abuse of

discretion; where the court has considered all the relevant public and private interest


                                          4
factors, and where its balancing of these factors is reasonable, its discretion deserves

substantial deference.” Quixtar Inc. v. Signature Mgmt. Team, LLC, 315 S.W.3d 28,

31 (Tex. 2010) (citation omitted).

                                   Applicable Law

      Section 71.051 of the Texas Civil Practice and Remedies Code governs

motions to dismiss for forum non conveniens in all actions for personal injury or

wrongful death. See In re Pirelli Tire, 247 S.W.3d at 674; In re Mantle Oil & Gas,

LLC, 426 S.W.3d 182, 187 (Tex. App.—Houston [1st Dist.] 2012, no pet.). Section

71.051(b) provides:

      If a court of this state, on written motion of a party, finds that in the
      interest of justice and for the convenience of the parties a claim or
      action to which this section applies would be more properly heard in a
      forum outside this state, the court shall decline to exercise jurisdiction
      under the doctrine of forum non conveniens and shall stay or dismiss
      the claim or action. In determining whether to grant a motion to stay or
      dismiss an action under the doctrine of forum non conveniens, the court
      shall consider whether:

      (1) an alternate forum exists in which the claim or action may be tried;
      (2) the alternate forum provides an adequate remedy;

      (3) maintenance of the claim or action in the courts of this state would
         work a substantial injustice to the moving party;

      (4) the alternate forum, as a result of the submission of the parties or
          otherwise, can exercise jurisdiction over all the defendants properly
          joined to the plaintiff's claims;
      (5) the balance of the private interests of the parties and the public
          interest of the state predominate in favor of the claim or action
          being brought in an alternate forum, which shall include

                                           5
           consideration of the extent to which an injury or death resulted from
           acts or omissions that occurred in this state; and
      (6) the stay or dismissal would not result in unreasonable duplication
          or proliferation of litigation.

TEX. CIV. PRAC. & REM. CODE § 71.051(b); see also In re Mantle Oil & Gas, 426

S.W.3d at 187–88.

      Section 71.051 does not require that the movant prove every statutory factor

or that every factor must weigh in favor of dismissal for the movant to be entitled to

relief. See In re Gen. Elec. Co., 271 S.W.3d 681, 687 (Tex. 2008); see also In re

Mantle Oil & Gas, 426 S.W.3d at 188. The statute also does not contain any language

placing the burden of proof on either party; instead, section 71.051 “simply requires

the trial court to consider the factors, and it must do so to the extent the factors

apply.” In re Gen. Elec., 271 S.W.3d at 687; see also In re Mantle Oil & Gas, 426

S.W.3d at 188.

      If these statutory factors weigh in favor of the action being more properly

heard in a forum outside of Texas, then dismissal is required. See In re ENSCO, 311

S.W.3d at 924 (“The word ‘shall’ in the statute ‘requires dismissal . . . if the statutory

factors weigh in favor of the claim or action being more properly heard in a forum

outside Texas.’”) (quoting In re Gen. Elec., 271 S.W.3d at 686); see also In re

Mantle Oil & Gas, 426 S.W.3d at 188.




                                            6
      The doctrine of forum non conveniens affords great deference to the plaintiff’s

choice of forum. In re Pirelli Tire, 247 S.W.3d at 675; In re Mantle Oil & Gas, 426

S.W.3d at 188. But, as here, the doctrine “generally affords substantially less

deference to a nonresident’s forum choice.” In re Pirelli Tire, 247 S.W.3d at 675; In

re Mantle Oil & Gas, 426 S.W.3d at 188; see also Quixtar Inc., 315 S.W.3d at 31

(holding same in common-law forum non conveniens context and noting “that a

plaintiff is not a Texas resident speaks directly to a defendant’s burden” in

establishing propriety of dismissal).

      The forum non conveniens doctrine recognizes “that the plaintiff’s choice

must sometimes yield in the public interest, and in the interest of fundamental

fairness.” In re Pirelli Tire, 247 S.W.3d at 675. Dismissal on forum non conveniens

grounds is appropriate when sufficient contacts between the defendant and the forum

state exist to confer personal jurisdiction, but the case itself has no significant

connection to the forum state. Id. at 675–76; In re Mantle Oil & Gas, 426 S.W.3d at

188–89. “It is fundamentally unfair to burden the people of Texas with the cost of

providing courts to hear cases that have no significant connection with the State.” In

re Pirelli Tire, 247 S.W.3d at 681 (quoting In re Smith Barney, Inc., 975 S.W.2d

593, 598 (Tex. 1998)).




                                          7
                                      Analysis

      Plaintiffs filed suit in Harris County, Texas because CEVA’s corporate

headquarters is in Houston. Although the parties assert various arguments as to

which forum—Texas or Oklahoma—is appropriate, the central dispute here hinges

on the nature of the claims asserted in the underlying suit. CEVA asserts that the

underlying suit concerns fault for an auto accident in Oklahoma, while Plaintiffs

assert that the suit is focused on CEVA’s negligence in its hiring, training, and

supervision practices—all of which presumably originate from its headquarters in

Houston. A determination on this issue necessarily guides analysis of the Section

71.051(b) factors the trial court was required to consider in ruling on CEVA’s

motion to dismiss for forum non conveniens. For instance, if CEVA is correct that

the underlying suit is focused on the accident in Oklahoma, then the majority of

evidence and witnesses would be in Oklahoma. But if Plaintiffs are correct that the

suit is focused on alleged negligence of CEVA in its training, hiring, and its policies

and procedures, then evidence and pertinent witnesses would be located in CEVA’s

headquarters in Houston. Accordingly, before applying the section 71.051(b)

factors, we first examine the nature of the claims asserted in the underlying case. We




                                          8
conclude that the record demonstrates that the suit is focused on the accident in

Oklahoma rather than actions taken at CEVA’s headquarters in Houston.

A.    Waiver

      CEVA asserts in its reply in support of its mandamus petition that Plaintiffs

waived the argument in their response that their claims concern allegations that

CEVA was negligent in its hiring, training, and supervision of the driver involved in

the accident. CEVA asserts that such claims were neither argued to the trial court

nor included in any of Plaintiffs’ pleadings, including Plaintiffs’ first amended

petition (the live pleading in the case). CEVA is correct that these claims are not

asserted in plaintiff’s petition, but incorrect that they were not argued in any pleading

before the trial court.

      Plaintiffs’ First Amended Petition does not provide clear allegations of

negligence against CEVA beyond its being vicariously liable for its driver. The

relevant portion of the petition provides as follows:

      6.1 At the time of the accident, CEVA GROUND US, L.P. was the
      owner/operator of the tractor trailer being driven by one of its drivers.
      At all times said driver while operating the tractor trailer was an
      employee and/or agent of CEVA GROUND US, L.P. and was acting
      within the course and scope of his employment. Therefore, CEVA
      GROUND US, L.P. is vicariously responsible for the negligence of its
      driver based on the theory of Respondeat Superior.

      6.2 Plaintiffs further assert and allege that at the time of the collision
      made the basis of this suit CEVA GROUND US, L.P. was guilty of
      various acts and/or omissions, which collectively and severally
      constituted negligence, which negligence was a proximate cause of the

                                           9
      injuries to ADRIANNE LANEAL SISCO, the physical pain and mental
      anguish she suffered, her death, and of the damages suffered by
      Plaintiffs.

Plaintiffs point to paragraph 6.2 of their petition as support for their argument that

the case involves claims against CEVA for negligent hiring, training, and

supervision practices. But, unlike the dismissed suits that were filed in Oklahoma

and Arkansas, the petition in this case does not contain any claims or allegations that

CEVA was negligent in its hiring, training, and supervision practices. Plaintiffs’

reliance on a vague assertion in their petition that CEVA “was guilty of various acts

and/or omissions, which collectively and severally constituted negligence” fails to

demonstrate that they are asserting claims against CEVA for alleged negligence in

its hiring, training, policies, and procedures.

      Although Plaintiffs did not assert these claims in their petition, the record does

include a single instance in which Plaintiffs nevertheless argued to the trial court that

CEVA’s motion to dismiss should be denied because the case is about whether

CEVA was independently negligent in its hiring, training, polices, and procedures.

Specifically, Plaintiffs asserted the following in their brief opposing CEVA’s motion

to dismiss:

      [T]he instant case is focused on the negligence of this Defendant
      company in its training, hiring, and its policies and procedures—all of
      which are presumably devised in and from its headquarters in Houston.
      Therefore, the pertinent witnesses to prove and defend the case will be



                                           10
      individuals of the company located at their principal office in Houston,
      Texas, and the information and documents located at that office. 2

This single argument is insufficient to demonstrate the merits of the proposition but,

because Plaintiffs at least raised the argument in their opposition brief, we decline

to hold that the argument is waived.

B.    Nature of the Claims

      Although inclusion of the argument in Plaintiffs’ opposition brief defeats

CEVA’s claim that the argument is waived, the lack of any claims or allegations of

negligent training, hiring, and supervision practices in the petition significantly

undermines Plaintiffs’ argument that the case is primarily about CEVA’s corporate

policies in Houston rather than the facts on the ground in Oklahoma. Moreover,

Plaintiffs did not argue at the hearing on CEVA’s motion to dismiss that the case

concerned claims against CEVA for negligent training, hiring, policies and

procedures emanating from its Houston headquarters. Instead, Plaintiffs’ counsel

acknowledged that the case centered on the accident in Oklahoma, arguing that

CEVA would not be significantly burdened by trying the case in Houston because

the case is “basically a rear-end case.” Specifically, counsel asserted:

      So – but that’s one of the things that – again, if we’re looking at just the
      18-wheeler driver and the trooper, I mean, I don’t see where there’s a
      big burden on the defendants to be able to try their case here in Houston.

2
      CEVA did not include Plaintiffs’ opposition brief in the record filed with its
      petition, but the pleading was included in a supplemental record provided by
      Plaintiffs.
                                          11
      I mean, it’s a simple – I mean, I hate to simplify it because it’s serious;
      but it’s basically a rear-end case.

At the hearing, the only connection that Plaintiffs’ counsel alleged that the case had

with Texas was that CEVA’s headquarters is in Houston. Notably, the trial court

expressed concern about this being the sole connection to the State:

      THE COURT: I agree, Counselor; but I’m just pointing that out.
      There’s nothing here in Texas related to this case, except the fact that
      these folks are—the principal office is here. And so, when that’s the
      case and—well, it’s given no—usually somebody has a relation to—
      the plaintiff is here. Somebody is—so, there is the forum non
      convenience that the Court is generally not—so, this may—my concern
      is it’s—it may be outside even the Court’s discretion. That’s the
      problem I’m—the concern I’m having.

Despite the trial court expressing concern about the suit’s lack of connection to

Texas, Plaintiffs’ counsel did not argue that Plaintiffs’ claims were based on

allegations of negligence involving CEVA’s headquarters in Houston.

      Both the record and the arguments before the trial court demonstrate that the

underlying case is centered on fault for the accident in Oklahoma, which CEVA

contests. Among other things, CEVA seeks to contest fault by introducing evidence

that (1) an eyewitness observed decedent’s car stopped on the highway, the

eyewitness honked her horn and slowed to alert the driver that what she was doing

was dangerous, and the eyewitness subsequently observed the truck strike the car;

(2) when informed of her daughter’s death, the decedent’s mother (an Oklahoma

resident) said that the decedent had recently “been sleeping in her vehicle” and might


                                          12
“have been intoxicated;” and (3) Oklahoma toxicologists determined that the

decedent “had methamphetamine, amphetamine, and tetrahydrocannabinol in her

bloodstream.”

      Accordingly, we conclude that the record clearly demonstrates that the case is

focused on the accident in Oklahoma rather than alleged negligence at CEVA’s

Houston office. The crux of the case and the direct cause of the injury was a vehicle

collision in Oklahoma. Any negligent training or supervision allegedly emanating

from CEVA’s office in Houston was, at most, a “remote cause.” See In re BPZ Res.,

Inc., 359 S.W.3d 866, 880 (Tex. App.—Houston [14th Dist.] 2012, orig.

proceeding); see In re Mantle, 426 S.W.3d at 197 (noting that, aside from general

contention that “big decisions” were made at relator’s headquarters in Houston,

plaintiffs failed to point to any specific negligent act or omission occurring in Texas

that was a proximate cause of injury).

C.    Application of Section 71.051(b) Factors

      Having determined that the underlying suit is focused on the automobile

accident in Oklahoma, we now evaluate the Section 71.051(b) factors to determine

whether the trial court abused its discretion in denying CEVA’s motion to dismiss

on forum non conveniens grounds. As discussed below, we conclude that the trial

court abused its discretion because the factors heavily weigh in favor of dismissal.




                                          13
      The only connection the suit has to Texas is that CEVA’s corporate

headquarters are in Houston. We have held that the location of a company’s

headquarters is, by itself, insufficient to defeat a motion to dismiss for forum non

conveniens. See In re XTO Energy, Inc., No. 01-17-00652-CV, 2018 WL 2246216,

*9–12 (Tex. App.—Houston [1st Dist.] May 17, 2018, orig. proceeding) (mem. op.).

Our decision in In re XTO Energy is instructive. In re XTO involved a lawsuit

brought in Harris County, Texas by non-residents involving injuries sustained from

a well fire in North Dakota. The plaintiffs alleged negligence claims against XTO,

which owned and operated the well, and Weatherford and KLX, which provided

equipment for the well. Id. at *2. The suit was filed in Texas because XTO,

Weatherford, and KLX had their principal places of business in Texas. Id. Plaintiffs

alleged that venue was appropriate in Harris County because “it is a county where a

substantial portion of the events and/or omissions giving rise to the subject claims

occurred, including critical operational and safety decisions that contributed to

and/or caused the accident made the basis of this lawsuit.” Id. at *1. The trial court

denied the defendants’ motion to dismiss for forum non conveniens and the

defendants filed a mandamus petition challenging the denial. Our Court granted

mandamus relief compelling the trial court to grant the motion to dismiss for forum

non conveniens because the location of the defendant companies’ principal places




                                         14
of business was insufficient to overcome all of the other factors weighing in favor

of dismissal. We reach the same conclusion in this case.

      1. An alternate forum exists in Oklahoma.

      The first factor under Section 71.051 is whether an alternate forum exists for

trial. TEX. CIV. PRAC. & REM. CODE § 71.051(b)(1). Although a plaintiff initially has

the right to choose a forum, a plaintiff’s choice of forum is given “substantially less

deference” whenever the plaintiff is—as here—a non-resident of Texas. See Quixtar,

315 S.W.3d at 33; In re Pirelli Tire, 247 S.W.3d at 675; see also In re Friede &

Goldman, LLC, No. 01-18-00409-CV, 2019 WL 2041071, at *3 (Tex. App.—

Houston [14th Dist.] May 9, 2019, orig. proceeding) (mem. op.); In re Mantle, 426

S.W.3d at 188. An alternative forum exists if a defendant can be sued there. In re

ENSCO, 311 S.W.3d at 924. Oklahoma courts can exercise specific personal

jurisdiction over CEVA because the accident occurred in Oklahoma. See McKinnis

v. Kelly, 773 P.2d 772, 773 (Ok. Ct. App. 1989) (“We find that the operation of a

motor vehicle by a non-resident motorist on the roads and highways of this state,

when combined with an act or omission in this state in the operation of that motor

vehicle that causes injury to another, is a sufficient ‘minimum contact’ with the State

of Oklahoma so as to vest jurisdiction over a non-resident motorist in the District

Courts of this state.”); 12 OKLA. STAT. § 187 (“In addition to the other counties in

which an action may be brought against a nonresident of this state, an action where


                                          15
all defendants are nonresidents of the state may be brought in the county where the

cause of action arose or in the county where the plaintiff or one of the plaintiffs

resides.”). Plaintiffs do not dispute that CEVA is amenable to process in Oklahoma

and that, therefore, Oklahoma is an available alternate forum. This first factor weighs

in favor of dismissal.

      2. Oklahoma provides an adequate remedy.

      The second factor is whether the alternate forum provides an adequate

remedy. TEX. CIV. PRAC. & REM. CODE § 71.051(b)(2). An alternate forum is

inadequate if the remedies that it offers are so unsatisfactory that they really are no

remedy at all. In re ENSCO, 311 S.W.3d at 924; In re Gen. Elec., 271 S.W.3d at

688. Comparative analysis of procedures in different forums is generally not

appropriate in a forum non conveniens analysis because comparison of the rights,

remedies, and procedures available in each forum requires complex exercises in

comparative law that the forum non conveniens doctrine is “designed to help courts

avoid.” In re ENSCO, 311 S.W.3d at 924–25 (quoting In re Gen. Elec., 271 S.W.3d

at 688). Thus, comparative analyses are relevant to the forum non conveniens

decision “only if a potential transfer would effectively result in no available remedy

at all.” Id. at 925; In re Gen. Elec., 271 S.W.3d at 688; see also In re Pirelli Tire,

247 S.W.3d at 678 (“That the substantive law of an alternative forum may be less

favorable to the plaintiff is entitled to little, if any, weight.”). Oklahoma, like Texas,


                                           16
has a statute authorizing wrongful-death and survival claims. 12 OKLA. STAT. §§

1051, 1054. This is sufficient to provide an adequate remedy. See In re

Oceanografia, S.A. de C.V., 494 S.W.3d 728, 732 (Tex. 2016) (per curiam) (orig.

proceeding) (lesser remedies are acceptable unless “they really comprise no remedy

at all”); In re ENSCO, 311 S.W.3d at 925 (same). Plaintiffs do not dispute that

Oklahoma provides an adequate remedy. This second factor weighs in favor of

dismissal.

       3. Maintaining the action in Texas would cause substantial injustice to
          CEVA.

       The third factor is whether litigating the case in Texas will result in substantial

injustice to the moving party. TEX. CIV. PRAC. & REM. CODE § 71.051(b)(3). “When

examining this factor, the trial court considers, among other things, the location of

relevant documents and evidence and whether a majority of witnesses may be

reached by compulsory process in Texas, which are also considerations under the

fifth factor—the balance of private interest factors.” In re Mantle, 426 S.W.3d at

192.

       Location of relevant documents and evidence. As discussed, the suit is focused

on fault for the accident that occurred in Oklahoma. Relevant documents and

evidence regarding the accident are located in Oklahoma, not Texas. Among other

things, the toxicology screens and autopsy were conducted in Oklahoma. Moreover,

the Oklahoma Highway Patrol’s case files on the accident are in Oklahoma.
                                           17
      Location of witnesses. The suit is focused on fault for the accident that

occurred in Oklahoma. CEVA demonstrates that at least 13 witnesses reside in

Oklahoma, including the sole eyewitness, the plaintiffs themselves, investigating

officers, the attending medical personnel, and the autopsy and toxicology experts.

No witness identified by the parties resides in Texas. Maintaining the suit in Texas

would work a substantial injustice on CEVA because the great majority of witnesses,

including key witnesses, are in Oklahoma and are beyond the compulsory subpoena

power of the Texas trial court. Plaintiffs nevertheless contend that litigating in Texas

would not work a substantial injustice to CEVA because CEVA is headquartered

here. But our Court has rejected similar contentions. See In re XTO, 2018 WL

2246216, at *9; In re Mantle, 426 S.W.3d at 192-93.

      We therefore conclude that the location of witnesses weighs in favor of

dismissal. See ENSCO, 311 SW.3d at 925 (“ENSCO argues, and we agree . . . that

the lack of compulsory process in Texas for reaching the great majority of witnesses

would be substantially unjust.”); In re Gen. Elec., 271 S.W.3d at 689 (holding that

this factor weighed strongly in favor of dismissal because witnesses with relevant

knowledge of the plaintiff’s asbestos exposure and damages were outside subpoena

power of Texas courts); In re XTO Energy, 2018 WL 2246216, at *7 (“When the

great majority of witnesses are not subject to compulsory process in Texas, litigating

a case in Texas can result in a substantial injustice to the defendant.”); In re Mantle,


                                          18
426 S.W.3d at 192-93 (holding this factor weighed in favor of dismissal where the

subject accident occurred in Louisiana and significant witnesses with relevant

knowledge were located in Louisiana, outside the subpoena power of Texas courts);

In re BPZ Res., 359 S.W.3d at 875 (“The lack of compulsory process in Texas for

reaching the great majority of witnesses would be substantially unjust.”).

      4. Oklahoma has jurisdiction over CEVA.

         The fourth factor is whether the alternate forum may exercise jurisdiction

over all the defendants. TEX. CIV. PRAC. & REM. CODE § 71.051(b)(4). CEVA is the

only defendant in the suit. As discussed in our analysis of the first factor, Oklahoma

courts can exercise specific personal jurisdiction over CEVA because the accident

occurred there. See McKinnis, 773 P.2d at 773 (Ok. Ct. App. 1989); see also 12

OKLA. STAT. § 187. Plaintiffs do not dispute that Oklahoma has jurisdiction over

CEVA. This fourth factor weighs in favor of dismissal.

      5. Balance of private and public interests favors litigating in Oklahoma.

      The fifth factor is whether the balance of private and public factors

predominate in favor of the claim being heard in Oklahoma. TEX. CIV. PRAC. & REM.

CODE § 71.051(b)(5). We examine these private and public interest factors in turn

below.

           a) Private Interest Factors

      “The private interest considerations generally are considered to be the ease of


                                         19
access to proof, the availability and cost of compulsory process, the possibility of

viewing the premises, if appropriate, and other practical problems that make trial

easy, expeditious, and inexpensive.” In re Gen. Elec., 271 S.W.3d at 691.

      Ease of access to proof. Ease of access to proof favors Oklahoma because the

accident occurred there, the great majority of witnesses are there, and the toxicology

screens and autopsy were conducted there. Witnesses located in Oklahoma include

Oklahoma Highway Patrol officers who investigated the accident, an eyewitness,

EMT personnel who responded to the scene, the medical examiner who performed

the autopsy, the toxicologist who performed the toxicology screen on Sisco, and the

toxicologist who screened a blood sample taken from CEVA’s driver.

      Cost of Compulsory Proof. “[B]ecause the majority of the pertinent evidence

and witnesses are in” Oklahoma, “the expense of litigating in Texas will be greater

than it would be to litigate in” Oklahoma. Vinmar Trade Fin. Ltd. v. Util. Trailers

de Mexico, S.A. de C.V., 336 S.W.3d 664, 677 (Tex. App.—Houston [1st Dist.] 2010,

no pet.). Moreover, most key witnesses reside in Oklahoma—beyond subpoena

power of a Texas court—but they could be subpoenaed to testify in Oklahoma.

     Possibility of viewing the premises. Because the accident occurred in

Oklahoma, a jury view of the accident site, if needed, could easily be performed if

the trial were held in Oklahoma. Conversely, viewing the premises would be




                                         20
impractical if the trial were held in Houston, requiring out-of-state travel and

accommodations.

      We conclude that these private-interest factors weigh in favor of dismissal.

We next consider the public interest factors.

          b) Public Interest Factors

      “Generally, the public interest factors to be considered are administrative

difficulties related to court congestion, burdening the people of a community with

jury duty when they have no relation to the litigation, local interest in having

localized controversies decided at home, and trying a case in the forum that is at

home with the law that governs the case.” In re Gen. Elec., 271 S.W.3d at 691.

      Court Congestion. Given the suit’s lack of connection with Texas, holding the

trial in Harris County would unduly add to court congestion. “Administrative

difficulties follow for courts when litigation is piled up in congested centers instead

of being handled at its origin.” In re Pirelli, 247 S.W.3d at 679 (quoting Gulf Oil

Corp. v. Gilbert, 330 U.S. 501, 508-09 (1947)). As the Texas Supreme Court has

recognized, “[i]t is fundamentally unfair to burden the people of Texas with the cost

of providing courts to hear cases that have no significant connection with the State.”

Id. at 681(quoting In re Smith Barney, 975 S.W.2d at 598). We conclude that, in

addition to the financial cost, hearing cases with no significant connection to Texas




                                          21
similarly poses an unfair administrative cost by increasing congestion in an already

busy court system.

       Jury Duty. Given the lack of connection, trying the case in Harris County

would also impose an undue burden on Harris County jurors. See id. at 679 (“As the

Supreme Court has stated, ‘[j]ury duty is a burden that ought not to be imposed upon

the people of a community which has no relation to the litigation.’”) (quoting Gulf

Oil Corp. 330 U.S. at 508-09). Moreover, the Harris County system has been

operating under a smaller temporary jury assembly system since Hurricane Harvey

flooded the jury plaza in 2017, making jury duty “increasingly unattractive to

potential jurors.” Samantha Ketterer, Battling the jury duty problem, where fewer

than    1    in   4    show     up,    HOUSTON      CHRONICLE,       Jan.    25,   2020,

https://www.houstonchronicle.com/news/houston-texas/houston/article/Battling-

the-jury-duty-problem-where-fewer-than-15010187.php.

       Local interest in resolving local disputes. Because this case arises out of an

Oklahoma motor-vehicle accident, Oklahoma has a significant interest in ensuring

that the claims are properly determined under Oklahoma law, including its traffic

laws. This points to trying the case where it happened—in Oklahoma. See In re

Pirelli, 247 S.W.3d at 679 (finding public interests favored Mexican forum over

Texas where “[t]he safety of Mexican highways and products within the country’s

borders are also Mexican interests.”). Plaintiffs assert that there is a local interest in


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resolving the dispute in Texas because CEVA’s headquarters are in Texas. But

CEVA has nationwide operations and Oklahoma’s interest in the safety of

individuals within its borders and the conduct of companies doing business in the

State is greater than any interest Texas might have in the suit. See In re XTO Energy,

Inc., 2018 WL 2246216, at *9 (“North Dakota’s interest in the safety of individuals

who are working within its borders and the conduct of companies doing business in

the state is stronger than any interest Texas may have in this lawsuit simply because

the corporate defendants are located in Houston.”).

      Governing law. Which state’s law governs an issue is a question of law for

the court to decide. Torrington Co. v. Stutzman, 46 S.W.3d 829, 848 (Tex. 2000). In

deciding choice-of-law issues, Texas courts use the “most significant relationship”

test from the Restatement. Id.; Schippers v. Mazak Properties, Inc., 350 S.W.3d 294,

300 (Tex. App.—San Antonio 2001, pet. denied). In a tort case, where the injury and

tortious behavior occurred, the domicile of the parties, and the place where the

relationship between the parties is centered are all relevant factors to consider.

Torrington Co., 46 S.W.3d at 848 (citing RESTATEMENT (SECOND) OF CONFLICT OF

LAWS § 145(2) (1971)). In such instances, the Restatement's “most significant

relationship test” includes a presumption in favor of applying the law of the place of

the injury. See RESTATEMENT (SECOND) OF CONFLICT OF LAWS §§ 145, 146; see also

Enter. Products Partners, L.P. v. Mitchell, 340 S.W.3d 476, 480 (Tex. App.—


                                         23
Houston [1st Dist.] 2011, writ dism’d). In this case, the injuries occurred in

Oklahoma and Plaintiffs have not rebutted the presumption that Oklahoma law

governs the dispute. Oklahoma trial courts and courts of appeals will be more

efficient and comfortable with determining and applying Oklahoma law. See

ENSCO, 311 S.W.3d at 928.

         c) Weighing the Private and Public Interest Factors

      Section 71.051(b)(5) requires a trial judge to balance the private and public

interests to determine whether those factors predominate in favor of the claim being

more properly heard in a forum outside Texas. In this case, both the private and

public interest factors weigh in favor of the underlying action being heard in

Oklahoma.

      6. Dismissal Would Not Result in Unreasonable Duplication of Litigation.

      The final factor we consider is whether the dismissal would result in

unreasonable duplication or proliferation of litigation. TEX. CIV. PRAC. & REM. CODE

§ 71.051(b)(6). The cases filed in Arkansas and Oklahoma have been dismissed.

Dismissing this case and requiring Plaintiffs to pursue their claims in a new case

filed in Oklahoma, where a probate court has appointed an estate representative,

would not duplicate litigation. This sixth factor weighs in favor of dismissal.




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                                     Conclusion

      When all section 71.051(b) factors in a case favor the conclusion that an

action would be more properly held in a forum outside Texas, as they do here,

the statute requires the trial court to grant motions requesting that it decline to

exercise its jurisdiction. In re Gen. Elec., 271 S.W.3d at 693-94. The trial court’s

denial of the CEVA’s motion to dismiss violated the forum non conveniens statute

and was an abuse of its discretion. Id.

      For the forgoing reasons, we conditionally grant the petition for writ of

mandamus and direct the trial court to (1) vacate its order denying CEVA’s motion

to dismiss for forum non conveniens and (2) grant the motion to dismiss. We are

confident that the trial court will promptly comply, and our writ will issue only if it

does not. We dismiss any pending motions as moot.




                                               Sarah Beth Landau
                                               Justice


Panel consists of Chief Justice Radack and Justices Landau and Hightower.




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