                              No. 87-223
                                  87-231
             IN THE SUPREME COURT OF THE STATE OF MONTANA
                                 1987

STATE OF MONTANA, ex rel., BURLINGTON
RAILROAD COMPANY, a corporation,
              Relator
       -vs-
DISTRICT COURT OF THE EIGHTH JUDICIAL
DISTRICT, IN AND FOR THE COUNTY OF
CASCADE, et al.
              Respondents.
                                No. 87-234

STATE OF MONTANA, ex rel., BURLINGTON
NORTHERN RAILROAD COMPANY, a corporation,
              Relator,
       -vs-
DISTRICT COURT OF THE THIRTEENTH JUDICIAL
DISTRICT OF THE STATE OF MONTACTA, IN AND
FOR THE COUNTY OF YELLOWSTONE, et al.
              Respondents.

ORIGINAL PROCEEDINGS:
COUNSEL OF RECORD:
       For Relators:
              Crowley Law Firm; Bruce R. Toole, Billings, Montana
              Moulton Law Firm; K. Kent Koolen, Billings, Montana
         For Respondents:
                William G. Jungbauer, Minneapolis, Minnesota
                 John W. Larson, Missoula, Montana
                JT-- Tnkn *
                          -
                          1
                          ,         - I



               David B Kiker, Aurora, Colorado
                                                   :---L a:,
                                                          :,     -
               Wright, Tolliver & Guthals; Robert S Fain, Billings,
               Montana


                                 Submitted:   August 11, 1987
                                   Decided:   December 3, 1987
Filed:    D[S\fi-1987


                                 Clerk
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                                                                                            EDITORIAL DEPAR I'MENT,
                                                                                                                                       St.
                                                                                                                   West Pl~blishingCO., Paul, Minn.




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                                                                                            of any correction. This will be mutually advantageous.
                                                                          West Pub.   CO.                                                                West Pub. Co.
Mr. Justice John C.   Sheehy delivered the Opinion of the
Court.


     In cause no. 87-223, Burlington Northern Railroad
Company as relator petitions for a writ of supervisory
control directed to the District Court, Eighth Judicial
District, the Hon. Thomas M. McKittrick and the Hon. John M.
McCarvel, presiding judges therein, ordering dismissal of two
causes of action pending in that court.
     In cause no. 87-234, Burlington Northern Railroad
Company as relator has petitioned for a writ of supervisory
control directed to the District Court of the Thirteenth
Judicial District, and to the Hon. Diane G. Rarz, the
presiding judge therein, ordering dismissal of two causes of
action pending in that court.
     In each of the pending petitions in this Court, relator
contends that the district judges in each of the causes
should have dismissed the same on the basis of forum -    non
conveniens. Because the issues involved are the same, with
almost identical arguments being made in each case, we have
ordered that the petitions be consolidated for purposes of
our consideration and opinion.
     The first issue raised by the respondents is that the
applications filed by Burlington Northern Railroad are
insufficient in law for the issuance of writs of supervisory
control.   In each of these proceedings the jurisdictional
requisites for the issuance of writs of supervisory control
are inextricably interwoven with the merits of the
applications for such writs.    Since we have determined in
each cause that a writ of supervisory control should not
issue, we do not rule directly on the jurisdictional
question.
     In cause no. 87-223, the application of Burlington
Northern is supported by documents in two causes now pending
in the District Court, Eighth Judicial District, Cascade
County.    One is the case of Shirley Elaine Houser v.
Burlington Northern Railroad Company, in which the Hon.
Thomas M. McKittrick is the presiding district judge.     The
other is Charles M. O'Brien v. Burlington Northern Railroad
Company, in which the Hon. John M. McCarvel is the presiding
district judge. In each of those causes, Burlington Northern
has filed motions for dismissal on the basis of forum non
conveniens, and in each of the said causes, the respective
judges have denied such motions to dismiss.
     In cause no. 87-234, it appears that there are pending
in the District Court, Thirteenth Judicial District,
Yellowstone County, before the Hon. Diane G. Barz, the
presiding district judge, two causes of action. One is that
of Andrew Samrns v. Burlington Northern Railroad Company and
the other is Gary D. Epple v. Burlington Northern Railroad
Company.   In each of those pending causes of action in the
Yellowstone County District Court, Burlington Northern has
filed motions to dismiss on the basis of forum -          non
conveniens.    In each cause, the Hon. Diane G. Rarz, as
presiding district judge has denied said motions.
     In each of the foregoing pending District Court actions,
it is alleged by relator, and not refuted, that the accidents
giving rise to the claims against the railroad occurred in a
state other than the State of Montana; that the plaintiffs
are residents in a state other than Montana; that all factual
witnesses are residents of states other than the State of
Montana; that the plaintiffs are represented by counsel from
a state other than the State of Montana; and, that the
addition of these cases to the District Court's docket
imposes an unnecessary burden on the judicial resources and
the taxpayers of the State of Montana, as well as an
unnecessary impediment to litigants who do reside in Montana
and whose counsel are also Montana residents.
      In addition to the four cases pending in the District
Court, above cited, the applications show that there is
further pending in District Courts three additional causes of
action:    Averill v. BN, cause no. 85-200, Second Judicial
District; Lang v. BN, cause no. 65477, Fourth Judicial
District; and, Cheney v. BN, cause no. 86-319, Sixth Judicial
District.
      All of these pending actions in the district courts have
been brought against Burlington Northern under the provisions
of the Federal Employers Liability Act and the Federal Safety
Appliance Act (45 U.S.C. § 1-60).
      It is clear that the District Courts before us have
jurisdiction of FELA cases under 45 U.S.C. § 56. The federal
statute provides that an action may be brought in a district
court of the United States, in the district of the residence
of the defendant, the district in which the cause of action
arose, or in which the defendant railroad shall be doing
business at the time of commencing the action. Further, "the
jurisdiction of the courts of the United States under this
chapter shall be concurrent with that of the courts of the
several states."
      On four previous occasions, Burlington Northern, or its
predecessor, Great Northern Railway Company, has importuned
this Court for an application of the doctrine of forum non
conveniens in FELA cases.     Bevacqua v. Rurlington Northern
 (1979), 183 Mont. 237, 598 P.2d 1124; LaBella v. Burlington
Northern (1979), 182 Mont. 202, 595 P.2d 1184; State ex rel.
Great Northern Ry. Co. v. District Court (1961), 139 Mont.
453, 365 P.2d 512; Bracy v. Great Northern Ry. Co. (1959),
136 Mont. 65, 343 P.2d 848.
     In State ex rel. Great Northern Ry. Co. v. ~istrict
Court, supra, it appeared that 18 FELA cases had been filed
in the District Court in Silver Bow County in 11 years. This
Court said there in denying a dismissal on the ground of
forum non conveniens:
     ...   We do state, however, that if a substantial
     increase in this type of litigation is called to
     our attention in the future we will re-examine the
     situation in light of what we have herein stated.
139 Mont. at 457, 365 P.2d at 514.
     In LaBella v. Burlington Northern, supra, we had. a case
where the District Court dismissed a FELA case upon the
grounds of forum - conveniens.
                   non               This Court reversed in
LaBella, stating:
     We   fully recognize that the state is not
     constrained by federal law to reject the doctrine
     of forum - conveniens in FELA actions. However,
               non
     we find the policy favoring the injured railroad
     worker's choice of forum to be highly persuasive.
     This, in addition to the state's "open court
     policy" compels this Court to hold the doctrine of
     forum - conveniens inapplicable to FELA suits
            non
     filed in Montana District Courts. We repeat the
                                 ex rel. Great Northern
     warning set forth in State - -
     Ry., supra, 139 Mont. at 457, 365 P.2d 514..    ..
     "if a substantial increase in this type of
     litigation is called to our attention in the future
     we will reexamine the situation in light of what we
     have herein stated."
182 Mont. at 207, 595 P.2d at 1187.
     In the application now pending before us, ~urlington
Northern contends that the pendency of seven cases before the
District Court of Montana represents a substantial increase
in the number of FELA cases, and it is now time to apply the
doctrine of forum non conveniens, so as to order dismissal of
these actions in the circumstances described. In support of
its application, Burlington Northern offered in the District
Court of Cascade County and now here, affidavits showing that
for fiscal year 1986, the total expenditure for the District
Court budget was $903,444.00 and from that determined that
the daily costs of operating the District Court approximated
$3,475.00 per day.   It further showed that the direct costs
of conducting a civil jury trial approximated $822.79 per
day.
     In Yellowstone County, in fiscal year 1986, the total
expenditure for the District Court was $1,459,430.00.     Its
budget for 1987 is $1,576,776.00. The costs of operating the
District Court is calculated there at approximately $6,064
per day. It further appears that in Yellowstone County, that
since 1979, the number of cases to 1986 had increased to
4,231, an increase of nearly 20 percent.         That number
includes domestic actions, but excludes probate proceedings,
juvenile and insanity actions.     It is estimated that in
Yellowstone County, the direct costs of a district court
trial is about $3,000.00 per week.
     Burlington Northern also filed statistics obtained from
the Montana State Judicial Information System.     From those
statistics, it appears that in 1986, there were 16,397 civil
filings statewide, of which 1,828 related to tort.        The
numbers increased from 1984, when there were 15,045 civil
filings statewide, of which 1,640 represented tort actions.
     The statistics provided by Burlington Northern in its
applications fail to meet the "substantial increase" in FELA
cases so as to show an intolerable burden on this state in
maintaining its "open door" policy and meeting the obvious
intention of the federal statute that the plaintiff could
make a choice of forum in which to try his FELA claim.
Burlington Northern concedes that most FELA cases are settled
before they ever go to trial. The pendency of two FELA cases
in the District Court of Cascade County, two in Yellowstone
County, and one each in Missoula County, Silverbow County,
and Park County are insufficient in number to cause this
Court to move from its settled decision in the earlier cases
to maintain the "open door" policy and to follow the
provision of our Montana Constitution that "courts of justice
shall be open to every person and speedy remedy afforded for
every injury of person, property or character." Art. I1 , S
16, 1972 Mont. Const. LaBella, 182 Mont. at 207, 595 P.2d at
1187.
     The budgetary figures presented for Yellowstone and
Cascade Counties represent the total operation of the whole
District Court, and all the cases, civil and criminal, that
come before those courts.    There are three district judges
serving the Eighth Judicial District, including Cascade
County, and five district judges serving the Thirteenth
Judicial District, including Yellowstone County.     Although
the district judge in Yellowstone County indicated that a
trial may not be available in that county for two years, it
does not appear that the removal of two cases from its docket
will substantially lessen the burden on that District Court,
nor would the elimination of seven cases statewide have a
like effect on all state courts. Seven pending FELA cases,
where there are over 16,000 civil cases filed statewide per
year is not a significant number of cases as to require the
exercise of our power of supervisory control.
     Counsel for Burlington Northern submit that the filing
of FELA cases in Montana courts by out-of-state residents and
out-of-state counsel may represent a form of forum shopping.
However that may be, a choice of forum is given by federal
statute in FELA cases. The United States Court, in what may
be its first case acknowledging the doctrine of forum non
conveniens, Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501,
510, 67 S.Ct. 839, 844, 91 L.Ed. 1055, 1063, noted the
argument of the plaintiff in that case that he was more
likely to get a large verdict in a New York Court than in a
Virginia Court saying:
     ...    It is a strange argument on behalf of a
     Virginia plaintiff that the community which gave
     him patronage to make his business valuable is not
     capable of furnishing jurors who know the value of
     the goods they store, the building they are stored
     in, or the business their patronage creates
     The net of this is that we cannot say the District
                                                            ...
     Court was bound to entertain a provincial fear of
     the provincialism of a Virginia jury     ...
     In the light of the statements of this Court and
LaBella, supra, and earlier cases, and the paucity of
evidence submitted by the applicant that pending FELA cases
are a burden on the Montana courts or the taxpayers of this
state, the applications in each cause for a writ of
supervisory control are denied.
                                  -
                       DISMISSE : -\
     The petitions are DISMISSEP:           ,   c-
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