Leung v. Nunes

²²⁰ RODOWSKY, Judge. This motor tort case involves three vehicles, each of which was owned and operated by nonresidents of Maryland. The plaintiffs chose the Circuit Court for Baltimore City as their forum, but shortly thereafter that court transferred the action to the Circuit Court for Howard County. We shall hold that the transfer constituted reversible error, thereby affirming the judgment, based on an unreported opinion, of the Court of Special Appeals.

The accident occurred in Howard County on August 3,1990, at approximately 9:00 p.m. in the northbound lanes of Interstate 95 approximately one-quarter mile south of the entrance to the throughway leading to the Baltimore Harbor Tunnel. Suit was filed in the Circuit Court for Baltimore City on July 2,1992, by Joao and Maria Nunes, husband and wife, individually and on behalf of their two minor children. All were occupants of a vehicle driven by Mr. Nunes. The caption of the complaint reflected that the Nuneses reside in Newark, New Jersey. ' Five defendants were named in the complaint.

They were Jennifer Chan Leung (Leung) of Washington, D.C., the owner and operator of one of the vehicles involved in the accident; Denver Patrick Commock (Commock) of Alexandria, Virginia, the operator of another vehicle involved in the accident; and three corporations. All of the corporate defendants were alleged to own the motor vehicle operated by Commock. They were Ready Key, Inc. of Caldwell, New Jersey, Rapid Rentals, Inc. d/b/a Budget Rent-A-Car, as to whom service was directed to be made on a resident agent in Baltimore City, and Budget Rent-A-Car of Maryland, Inc., as to whom service was directed to be made on a resident agent in Prince George’s County, Maryland. Service on all of the defendants was accomplished by July 30,1992.

Prior to filing any answer, Leung, on August 13, moved to dismiss the complaint or, in the alternative, to transfer the action to the Circuit Court for Howard County. No affidavit accompanied that motion; it was supported exclusively by the ²²¹ motor vehicle accident report that was completed by a Maryland State Police trooper who investigated the accident. Less than two weeks later the Nuneses filed their opposition to the motion. That opposition added no additional facts.

By order of September 23, 1992, the Circuit Court for Baltimore City transferred the action to the Circuit Court for Howard County and canceled a hearing on the Leung motion that had been scheduled. The police report described the accident as occurring when the Leung vehicle had completed a lane change into the middle lane and lowered its speed. The vehicle operated by Commock in the middle lane struck the Leung vehicle, and then the vehicle operated by Mr. Nunes struck the Commock vehicle. A twenty-eight year old woman who resided in Washington, D.C. was a passenger in the Leung vehicle.

A thirty-one year old male who was a resident of either Montgomery or Prince George’s County, Maryland was a passenger in the Commock vehicle. 1 There were three passengers in the Nunes vehicle, Mrs. Nunes, the Nuneses’ daughter Nancy, then age eleven, and their daughter Marget, then age nine. The report stated that the owner of the Commock vehicle was Rapid Rentals, Inc., with an address in Arlington, Virginia. The accident report further reflected that the Leung vehicle and the Commock vehicle were driven away from the accident scene and that the Nunes vehicle was towed away. A Howard County ambulance and a Baltimore County ambulance responded, and the patients were taken to St. Agnes Hospital in Baltimore City.

In the course of the proceedings in the Circuit Court for Howard County the Nuneses sought retransfer to Baltimore City which Leung, joined by Commock, successfully resisted. The individual defendants filed counterclaims against Mr. Nunes and cross-claims against each other and the corporate defendants. Ready Key, Inc. of Caldwell, New Jersey was ²²² voluntarily dismissed, and Rapid Rentals, Inc. and Budget Rent-A-Car of Maryland, Inc. were granted summary judgment. The remaining claims proceeded to trial before a jury on liability only.

The jury found that there was no liability on the part of any individual party, as defendant to the complaint, as a counterclaim defendant, or as a cross-claim defendant. The Nuneses appealed to the Court of Special Appeals, contending that the action should not have been transferred to Howard County. They obtained permission from the Court of Special Appeals to proceed without a transcript. Consequently, neither that court nor we know who actually testified at the trial on liability issues.

The Court of Special Appeals agreed with the Nuneses’ contention that the action was erroneously transferred. That court further held that it would “not require the Nuneses to demonstrate specific prejudice because when choosing a particular venue, tactical and strategic reasons usually dictate the decision. Thus, a litigant’s attempt to demonstrate why he or she chooses a particular venue necessarily is not subject to strict evidentiary proof. We therefore presume prejudice or injury when the court improperly deprives a litigant of his or her permitted venue of choice.” We granted petitions for certiorari filed by Leung and Com-mock which are limited to the issues of error and prejudice.

I Petitioners’ first issue is whether the Circuit Court for Baltimore City properly applied Maryland Rule 2—327(c) which reads: “On motion of any party, the court may transfer any action to any other circuit court where the action might have been brought if the transfer is for the convenience of the parties and witnesses and serves the interests of justice.” Rule 2-327(c) does not deal with a transfer for want of venue; it confers on a circuit court the discretionary power to transfer even if the transferring court is a proper venue. ²²³ Here the venue is determined by Maryland Code (1974, 1995 Repl.Vol.), § 6-202(11) of the Courts and Judicial Proceedings Article (CJ). An action for damages against a nonresident individual may be brought in any county in this State. Id. See also Md.Code (1974), Revisor’s Note following § 6-202 and Alcarese v. Stinger, 197 Md. 236 , 78 A.2d 651 (1951).

Further, the directions for service of the complaint, indicating that two of the corporate defendants had resident agents in Maryland, does not establish that either corporation carried on a regular business or maintained a principal office in this State. See CJ § 6-201(a). Each Maryland corporation must have at least one resident agent, but so must any foreign corporation which has registered or qualified to do business in this State. Md.Code (1975, 1993 Repl.Vol.), §§ 2-108(a)(2) and 7-205(a)(l) of the Corporations and Associations Article (CA).

It is, however, optional with a foreign corporation that has registered or qualified to do business in Maryland whether to certify to the State Department of Assessments and Taxation “a principal office in this State, which may be a business office of the corporation.” CA § 7-205(b)(l). Leung, as the movant for transfer, did not demonstrate that any corporate defendant carried on a regular business or had a principal office in Maryland. Under the venue statute an “[a]ction against a corporation which has no principal place of business in the State [may be brought w]here the plaintiff resides.” CJ § 6-202(3). In this action, all of the plaintiffs reside in New Jersey.

Accordingly, the Nuneses had a right to select Baltimore City as the venue for their action, and the issue is one of transfer under Rule 2-327(c). In Odenton Development Co. v. Lamy, 320 Md. 33 , 575 A.2d 1235 (1990), this Court articulated how trial courts should approach motions for transfers under Rule 2-327(c) motions. There, we stated: “When determining whether a transfer of the action for the convenience of the parties and witnesses is in the interest of justice, a court is vested with wide discretion.... It is the moving party who has the burden of proving that the interests of justice would be best served by transferring ²²⁴ the action ... and a motion to transfer should be granted only when the balance weighs strongly in favor of the moving party. [A] court ‘must weigh in the balance the convenience of the witnesses and those public-interest factors of systemic integrity and fairness that, in addition to private concerns, come under the heading of “the interest of justice.” ’ ” Id. at 40 , 575 A.2d at 1238 (citations omitted).

In the instant case the petitioners essentially have one factor to argue in support of transfer, namely, that Howard County is the situs of the accident. Thus, the question presented resolves into whether that factor, under the circumstances of this case, weighs strongly in favor of transfer. Proper regard for the plaintiffs choice of forum is the reason why “a motion to transfer [from the forum chosen by the plaintiff] should be granted only when the balance weighs strongly in favor of the moving party.” Urquhart v. Simmons, 339 Md. 1 , 18 n. 7, 660 A.2d 412 , 420 n. 7 (1995) (citing Odenton, 320 Md. at 40 , 575 A.2d at 1238 ). Commentators on Rule 2-327(c) have recognized that “due consideration must ... be given to the plaintiffs selection of forum, and this selection will not be altered solely because it is more convenient for the moving party to be in another forum.” P.V. Niemeyer & L.M. Schuett, Maryland Rules Commentary 215-16 (2d ed. 1992) (Niemeyer & Schuett).

This respect for the plaintiffs choice of forum is derived largely from federal law developed under Title 28 U.S.C. § 1404 (a). 2 See Urquhart, 339 Md. at 10 , 660 A.2d at 416 ; Niemeyer & Schuett at 215. See also Doe v. Connors, 796 F.Supp. 214, 221 (W.D.Va.1992) (“[T]he plaintiff has the primary right to choose his forum and that selection is not to be easily overthrown.”); M. Moore, Federal Practice ²²⁵ § 111.13[l][c][i], at 111-67 (Mathew Bender 3d ed. 1997) (Moore) (“As a general rule, the plaintiffs choice of forum is given significant weight....”); Annotation, Questions as to Convenience and Justice of Transfer Under Forum Non Conveniens Provision of Judicial Code (28 U.S.C. § HOJp(a)), 1 A.L.R. Fed. 15 , 49-50 (1969) (“Unless the balance of convenience is strongly in favor of the defendant, or such balance weighs heavily in favor of the defendant, the plaintiffs choice of forum should not, or should rarely, be disturbed.”). The plaintiffs choice, however, is not an absolute and uncontrolled privilege that is determinative under present forum non conveniens law. 1 A.L.R. Fed. at 51. In the two decisions of this Court applying Rule 2-327(c), Urquhart and Odenton, we sustained the transfers there involved.

Each of these cases, however, is substantially different on its facts from the instant matter. Urquhart was a wrongful death action based on alleged medical malpractice. The plaintiffs decedent was a resident of Howard County, 339 Md. at 18 n. 8, 660 A.2d at 420 -21 n. 8, and the action was filed in Prince George’s County. The defendants were members of a professional association, all of whom lived in Montgomery County where they maintained two offices.

Each of them also had privileges at' every hospital within Montgomery County. The defendants also maintained an office in Prince George’s County and had privileges at one hospital located there. The alleged malpractice occurred following a cardiac catheterization performed at a hospital in Montgomery County. The alleged negligence included a failure properly to advise the patient prior to discharge from the hospital and a failure properly to respond to the patient’s telephone calls placed to one of the defendants’ Montgomery County offices.

Eventually the patient presented to a hospital in Prince George’s County where he died. We sustained transfer of the case to Montgomery County. Id. at 21 , 660 A.2d at 422 . Urquhart involved many factors, in addition to the place where the negligent acts or omissions were alleged to have occurred, that weighed in favor of trial in Montgomery County.

In the instant matter the only relevant contact that the ²²⁶ petitioners have with Howard County is that they happened to have been passing through that county on an interstate highway when the accident occurred. Odenton was a tort action for damages sustained when the plaintiff slipped on ice on the sidewalk outside of a grocery store located in Anne Arundel County. The plaintiff was a resident of that county, but chose to bring her action against the store and the landlord in Baltimore City. 320 Md. at 36 , 575 A.2d at 1236 . We sustained a transfer of the action to Anne Arundel County.

There were many factors pointing in that direction in addition to the situs of the alleged tort. In addition to the plaintiffs being a resident of Anne Arundel County, each of the defendants carried on a regular business there. Because the accident involved a fixed commercial location, the transferring court could also have inferred that witnesses on liability could be found among the customers and employees of the store. As matters actually developed, five of the six witnesses who testified at trial were residents of Anne Arundel County.

Id. at 41 , 575 A.2d at 1238-39 . The discretionary decision by a trial court on whether to transfer an action, and appellate review of that exercise of discretion, are predominantly fact driven. Very few generalizations can be made in this area of the law. Nevertheless, decisions under 28 U.S.C. § 1404 (a) reflect the rather general opinion that a transfer is not sustainable solely on the ground that the transfer requested is to the place where the claim arose.

Illustrative is Headrick v. Atchison, T. & S.F. Ry. Co., 182 F.2d 305 (10th Cir.1950). There the plaintiff, a resident of Missouri, was injured in an accident while a passenger in a bus being operated by the defendant in California. The plaintiff sued in New Mexico after settlement negotiations had broken down and the statute of limitations in California had run.

The defendant sought a transfer to California, primarily to implead another bus company which was said by the defendant to have caused the accident. The district court ²²⁷ dismissed the action, but the Tenth Circuit reversed. The fact that limitations had run in California was not a factor in the court’s decision. On that aspect of the case the court held that, within the system of federal courts, a diversity of citizenship action that is transferred to a court in another state remains controlled by the law of the state of the transferor court, that is, that New Mexico limitations would have to be applied to the action in California.

Id. at 309-10 . We quote below the appellate court’s rationale against transfer. “Here the court had before it only an agreement that the cause of action arose in California, that the defendant was [amenable] to process in California, that the plaintiff and defendant are not residents of New Mexico, that none of the witnesses likely to be called in the trial of the case reside in New Mexico, that the Key System