Businesses file brief in N.D. forum-shopping debate

By Jessica M. Karmasek | Jul 27, 2010

North Dakota Chief Justice Gerald VandeWalle

BISMARCK, N.D. (Legal Newsline) - Business groups say they would be "adversely affected" should the North Dakota Supreme Court issue a decision that would effectively allow "blatant forum shopping."

The business groups, including the U.S. Chamber of Commerce and the North Dakota Chamber of Commerce, filed an amicus brief last week in an asbestos case.

The U.S. Chamber Institute for Legal Reform owns Legal Newsline.

The case involves claims by 13 plaintiffs alleging exposure to asbestos -- none of whom has any connection to North Dakota, the groups argue.

According to the brief, the plaintiffs' attorney admitted that all 13 plaintiffs missed the statute-of-limitations, or the period within which a lawsuit must be filed, in all other jurisdictions.

The business groups argue that if the state's Supreme Court "hangs out a 'welcome' sign for expired (and often flimsy) claims from other states," the state will be inundated with claims because the plaintiffs have nowhere else to go.

The brief noted North Dakota's already "excellent" legal reputation.

"There is simply no basis or reason for this Court to tarnish that image here by effectively endorsing blatant forum shopping and saddling North Dakota courts, taxpayers, and jurors with the heavy burden of hosting out-of-state litigation 'tourists,'" the business groups wrote.

In the brief, the groups also note the state's lengthy general tort statute of limitations - giving plaintiffs six years to file a claim.

"By providing a six-year period for general torts, the North Dakota legislature struck this balance heavily on the side of injured residents," the groups wrote.

The brief suggests that public policy decisions of sister legislatures should be respected in North Dakota, just as states with shorter statutes of limitations should apply North Dakota's longer period when those who live or who are injured in North Dakota file suit in the courts of other states.

The business groups, in their brief, also point to the Uniform Law, which aims to prevent such forum shopping. North Dakota adopted the law in 1985.

The Uniform Law's "escape clause," also adopted in the state, was meant to provide a court with discretion to avoid harsh results where a plaintiff did not have a "fair opportunity" to litigate his or her claim.

The clause, as the brief points out, was not designed to provide an "easy escape."

"It does not, as the plaintiffs here assert, provide additional elements of proof to be shown by the party asserting a statute of limitation defense," the groups wrote.

The brief also suggests the court should be careful to avoid a ruling that would augment asbestos or other tort filings in the state, particularly those where the plaintiffs have no connection to the state.

"It may seem far-fetched that residents of other states would come en masse to file claims in North Dakota, but the specter of many new claims becomes clearer when, as here, the choice is between no claim and a potentially large award."

A decision to apply the state's six-year general tort statute of limitations would "essentially make the state a place where otherwise time-barred personal injury lawsuits from all over the country can spring back to life" and would have "far-reaching and negative effects."

Such a ruling would damage the reputation of North Dakota's judiciary of "having a fair, reliable and predictable civil justice system," the business groups wrote.

The groups also argue it would place an unfair burden on the state's courts, including its judges, litigants and jurors, as well as its taxpayers.

"Businesses price their goods and services based on what they reasonably expect to be the costs of doing business, including their tort liability," the groups wrote.

"If liability can be imposed after the statute of limitations that they reasonably expect to apply to their claims has expired, then businesses may be unjustly harmed."

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