August 24, 2019

Tenth Circuit: In Mine Collapse Case, One Defendant Properly Dismissed for Lack of Jurisdiction; Dismissal of Remaining Defendants Under Forum Non Conveniens Doctrine Was Premature

The Tenth Circuit published its opinion in Fireman’s Fund Insurance Company v. Thyssen Mining Construction of Canada on Wednesday, December 19, 2012.

Fireman’s Fund Insurance Company and Zurich Insurance Company Ltd. (collectively “Plaintiffs”), as subrogees of Boart Longyear, Inc., sued Thyssen Mining Construction of Canada Ltd. (“Thyssen”) and Mudjatik Thyssen Mining Joint Venture (“MTM”) (collectively “Defendants”) in New Mexico for negligence relating to the collapse of a mine that MTM was excavating in Canada. The district court dismissed MTM for lack of personal jurisdiction and dismissed the entire case under the forum non conveniens doctrine. Plaintiffs appealed.

On appeal, Plaintiffs contest (1) the dismissal of MTM for lack of personal jurisdiction and (2) the grant of Defendants’ motion to dismiss under the forum non conveniens doctrine.

Personal jurisdiction over a nonresident defendant satisfies due process if there are sufficient minimum contacts between the defendant and the forum State, and jurisdiction over the defendant cannot offend traditional notions of fair play and substantial justice. Because Plaintiffs did not allege any facts to establish that MTM had the requisite minimum contacts with New Mexico to confer personal jurisdiction, nor did they allege facts showing that the New Mexico district court had personal jurisdiction over MTM under the agency theory, the Tenth Circuit affirmed dismissal of Defendant MTM for lack of personal jurisdiction.

Courts apply a two-step test to determine whether a case may be dismissed under the forum non conveniens doctrine when the only alternative forum is in a foreign country. First, there must be an adequate alternative forum in which the defendant is amenable to process. Second, the court must confirm that foreign law is applicable.

The Tenth Circuit held that the district court was premature in determining that the Canadian court was an adequate alternative forum. The forum non conveniens decision focused on the applicability of Canadian law and the inconvenience of New Mexico as a forum. The district court’s dismissal of Plaintiffs’ claims was premature because the Canadian court had not yet ruled on Defendants’ statute of limitations defense. Until this ruling occurs, the availability of the Canadian court as an adequate alternative forum was unclear and dismissal of the case in New Mexico risked depriving the Plaintiffs of any forum.

Dismissal of MTM AFFIRMED. Dismissal of Plaintiffs’ case under the forum non conveniens doctrine REVERSED and REMANDED.

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