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Nixon Peabody LLP v. Beaupre2/7/2002
urden shifts to the plaintiff only where the plaintiff's claim has arisen in another jurisdiction which has more substantial contacts with the cause of action [than does the District]." Neale v. Arshad, 683 A.2d 160, 163 (D.C. 1996) (internal quotations and citation omitted). The trial court found that at least some of the significant alleged events - tortious conduct and breach of contractual and professional duties - occurred within the District of Columbia. "Unless the balance of factors is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed." Id. at 162-63 (internal quotation and citations omitted). Stated another way, "a defendant who invokes the doctrine of forum non conveniens bears the burden of establishing a case for dismissal." Id. at 163 (citation omitted). Despite a determination that appellee was entitled to less deference than a resident of the District, his choice of forum should stand since the public and private factors were in his favor. We conclude that the judge did not give undue deference to appellee's choice of forum.
Appellants also contend the trial court erred by disregarding factual evidence that nearly all material witnesses reside in Ohio, as supported by the affidavit of Robert C. Bernius. The Bernius affidavit names twenty-seven witnesses whom appellants characterize as necessary for the defense of this action. The trial court considered the affidavit and concluded that the document did not demonstrate "that another court would have greater access to the necessary evidence and witnesses." We agree. While the Bernius affidavit describes the testimony that each witness would give, beyond the assertion that they all live in Ohio, it does not show that appellants could not obtain the willing cooperation of the witnesses, or alternatively, depose them prior to trial.
Lastly, appellants argue that taking into account events that occurred in Virginia, the trial court erred by holding that the District has a strong interest in this case simply by relying on the events that occurred in Virginia. On February 20, 2001, in a supplemental order the court flatly rejected that assertion.
Applying our standard of review to this case, we observe that the trial judge was required to consider and balance all the relevant private and public interest factors identified in Gulf Oil, supra. The trial court did so. In considering the public interest factors, the court confronted the question whether the action could fairly be characterized as a foreign litigation. She viewed the underlying cause of action as occurring largely in the District of Columbia, and therefore not a case of foreign litigation. Her conclusion is a reasonable one, as much of the conduct involves alleged tortious action and breaches of contractual and professional duties by attorneys practicing in the District of Columbia. Upon review of these findings and conclusions made by the trial judge, we conclude that the pertinent factors were considered and applied in a manner consistent with the holdings and tenor of our existing decisions. Accordingly, finding no abuse of discretion by the trial judge, we uphold the order denying the motion to dismiss.
Affirmed.
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