Dayton Mall Motor Inn v. Honeywell, Inc

347 N.W.2d 15, 132 Mich. App. 174
CourtMichigan Court of Appeals
DecidedFebruary 8, 1984
DocketDocket 67766
StatusPublished
Cited by10 cases

This text of 347 N.W.2d 15 (Dayton Mall Motor Inn v. Honeywell, Inc) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dayton Mall Motor Inn v. Honeywell, Inc, 347 N.W.2d 15, 132 Mich. App. 174 (Mich. Ct. App. 1984).

Opinions

Per Curiam.

Plaintiffs appeal as of right from the dismissal of their commercial contract action against defendants. The circuit judge declined the exercise of jurisdiction based on the doctrine of forum non conveniens.

Plaintiffs are both limited partnerships with offices in Oakland County. The sole general partner of each limited partnership is a resident of Oakland County. Plaintiffs held an interest in a motel in Dayton, Ohio, known as the Mall Motor [177]*177Inn. Defendant Honeywell is a Delaware corporation with its principal place of business in Minnesota. It also does business in both Ohio and Michigan. Defendant Reliance is a Delaware corporation with its principal place of business in Cleveland. It also does business in Michigan.

On June 11, 1976, plaintiffs sued Honeywell and two other parties in the Oakland Circuit Court seeking damages for the failure of the air-conditioning system at the Dayton Mall Motor Inn. On June 28, 1976, Honeywell removed the action to the United States District Court for the Eastern District of Michigan. On July 27, 1976, Honeywell moved for a change of venue to the Southern District of Ohio. The district court judge denied the motion. Plaintiffs were allowed to file a second amended complaint adding a Michigan corporation as a party defendant. The amendment destroyed diversity jurisdiction and the case was remanded to the Oakland Circuit Court. Discovery continued and a trial was scheduled for September 30, 1980. On January 1, 1981, the circuit court ordered the case to be mediated. During 1981, plaintiffs settled with three of the defendants. Trial was again scheduled to commence on September 18, 1981. This date was adjourned three more times and finally set for March 17, 1982. On this date, the trial court suggested to counsel that the case might better be tried in Ohio, then adjourned the trial again, setting a new trial date for May 17, 1982. On May 13, 1982, Honeywell filed its motion for dismissal based on forum non conveniens. After hearing arguments from all of the parties, the circuit court granted the motion. The dismissal was conditioned upon defendant Honeywell’s promise not to plead the statute of limitations as a defense to plaintiffs’ Ohio complaint. Plaintiffs [178]*178appeal as of right. Defendant Reliance Electric concurs, in plaintiffs’ appeal.

The trial judge gave the reasons for his decision in a clear and cogent written opinion incorporated in the judgment. He stated:

"Resolution of the controversy will require application of Ohio law which is not familiar to the court and would impose a burden on the court; would require the attendance of numerous Ohio witnesses; involves essentially an Ohio dispute or disputes regarding events which have their situs in Ohio; the dispute related to incidents and physical structures in Ohio; could reasonably necessitate burden and expense for Oakland County of sending an Oakland County jury to Dayton, Ohio, to view the premises; and the crowded docket of Oakland County Circuit and the fairness to the county and the Oakland County residents to sit as a jury on this essentially Ohio case, would not be in the best interests of or convenience of the people of Oakland County and this court.”

The application of the doctrine of forum non conveniens lies in the discretion of the trial judge. Cray v General Motors Corp, 389 Mich 382, 395; 207 NW2d 393 (1973). In Cray, supra, the Supreme Court listed the following factors to be considered and weighed in deciding a motion for dismissal based on forum non conveniens:

"1. The private interest of the litigant.
"a. Availability of compulsory process for attendance of unwilling and the cost of obtaining attendance of willing witnesses;
"b. Ease of access to sources of proof;
"c. Distance from the situs of the accident or incident which gave rise to the litigation;
"d. Enforcibility [sic] of any judgment obtained;
"e. Possible harassment of either party;
[179]*179"f. Other practical problems which contribute to the ease, expense and expedition of the trial;
"g. Possibility of viewing the premises.
"2. Matters of public interest.
"a. Administrative difficulties which may arise in an area which may not be present in the area of origin;
"b. Consideration of the state law which must govern the case;
"c. People who are concerned by the proceeding.
"3. Reasonable promptness in raising the plea of forum non conveniens. ”

Plaintiffs first argue that defendant Honeywell’s motion to dismiss was untimely. Plaintiffs compare the motion for dismissal based on forum non conveniens to a motion for a change of venue. A motion for a change of venue must generally be filed before, or at the time, the defendant files an answer. GCR 1963, 401. Although we agree with plaintiffs that analogies can be drawn between changes of venue and dismissals based on forum non conveniens, they are not the same thing. The court rules governing changes of venue cannot reasonably be understood to apply to dismissals based on forum non conveniens. We conclude that the court rules governing changes of venue do not apply to dismissals based on forum non conveniens.

Because the court rules governing changes of venue do not specifically apply to dismissals based on forum non conveniens, the mandatory time limits on venue motions cannot be applied here. The court rules do not specifically discuss motions for dismissals based on forum non conveniens. We do believe that the court rules provide a good guideline for assessing the timeliness of a motion for dismissal based on forum non conveniens. Whether such a motion is compared to a motion [180]*180for a change of venue or to a motion to dismiss for want of jurisdiction (GCR 1963, 116.1) the same standard of timeliness is set. A defendant should make its motion before, or at the time of, its answer. Although a motion for dismissal based on forum non conveniens may be granted despite its being untimely, timeliness is an important factor. Cray, supra, p 396. We believe that a motion for dismissal based on forum non conveniens is untimely if filed after a defendant’s answer. Timeliness, however, is merely one factor to be considered by the trial judge.

In the present case, several trial dates had been set before the motion to dismiss was brought. The subject of a dismissal based on forum non conveniens did not arise until it was brought up by the trial judge on a date set for trial. Although no per se rule regarding timeliness has been established, courts in other jurisdictions have uniformly rejected last-minute requests for a dismissal based on forum non conveniens. Bussanich v United States Lines, Inc, 74 App Div 2d 510; 424 NYS2d 449 (1980); Abkco Industries, Inc v Lennon, 52 App Div 2d 435; 384 NYS2d 781 (1976); Deupree v Le, 402 A2d 428 (DC App, 1979); Cohane v Arpeja-California, Inc, 385 A2d 153 (DC App, 1978); Wilburn v Wilburn, 192 A2d 797, 801 (DC App, 1963);

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Manfredi v. Johnson Controls, Inc
487 N.W.2d 475 (Michigan Court of Appeals, 1992)
Robey v. Ford Motor Co.
400 N.W.2d 610 (Michigan Court of Appeals, 1986)
Duyck v. International Playtex, Inc
375 N.W.2d 769 (Michigan Court of Appeals, 1985)
Bellin v. Johns-Manville Sales Corp
366 N.W.2d 20 (Michigan Court of Appeals, 1984)
Kriko v. Allstate Insurance Co. of Canada
357 N.W.2d 882 (Michigan Court of Appeals, 1984)
Dayton Mall Motor Inn v. Honeywell, Inc
347 N.W.2d 15 (Michigan Court of Appeals, 1984)

Cite This Page — Counsel Stack

Bluebook (online)
347 N.W.2d 15, 132 Mich. App. 174, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dayton-mall-motor-inn-v-honeywell-inc-michctapp-1984.