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Trial Procedure: Court of Appeals Addresses Comity, Preferred Venue
Posted in Litigation

In two cases late this week, the Indiana Court of Appeals addressed two issues of trial procedure.

On Friday, in Jallali v. National Board of Osteopathic Medical Examiners, Inc., the court addressed principles of comity and held that a trial court should dismiss the NBOME’s Indiana suit, which was filed after Jallali filed suit against the NBOME in Florida.  The underlying dispute concerned Jallali’s attempt to obtain access to osteopathic physician licensing exams administered by the NBOME, their answer keys, and NBOME’s scoring methodology.  Jallali sued NBOME in Broward County, Florida, on August 7, 2007, and the Florida court denied NBOME’s motion to dismiss.  The NBOME filed suit against Jallali in Marion County, Indiana, on February 26, 2008.  The Marion Circuit Court denied Jallali’s motion to dismiss that suit. 

The Indiana Court of Appeals examined the doctrine of comity, which Indiana courts have described as “a willingness to grant a privilege, not as a matter of right, but out of deference and good will.  Its primary value is to promote uniformity of decision by discouraging repeated litigation of the same question.”  Under the doctrine, the Court wrote, “an Indiana state court may dismiss a case in order to respect proceedings pending in another state’s court.”  The Court examined several factors – including “whether the first filed suit has been proceeding normally, without delay, and whether there is a danger the parties may be subjected to multiple or inconsistent judgments” – and also analogized the principles in Indiana Trial Rule 12(B)(8), which permits dismissal of cases when a substantially similar case is already pending in an Indiana state court.  Ultimately, the court concluded that the Indiana suit should have been dismissed in lieu of the pending Florida action.

On Thursday, in Gulf Stream Coach, Inc. v. Cronin, the Indiana Court of Appeals addressed issues related to Indiana’s preferred venue rule, Trial Rule 75.  In Cronin, the plaintiffs alleged that Gulf Stream breached warranties made in the sale of an RV.  The plaintiffs, who lived in Pennsylvania, were required by contract to sue in Indiana, and chose to file suit in Madison County.  Gulf Stream moved to transfer venue to Elkhart County, where Gulf Stream is located.  The central issue was whether venue was appropriate in Madison County because that is where the RV was located, and where it had been located for months prior to the Cronins’ complaint. Answering the question, the Indiana Court of Appeals examined Trial Rule 75(A)(2), which provides that preferred venue lies in the county where “the chattels . . . are regularly located or kept, if the complaint includes a claim for injuries thereto.”  There was no dispute that the RV was a “chattel” and that the complaint included a claim for injuries relating to the RV.  The dispute, though, was over the meaning of the phrase “regularly located or kept.”  Finding no precedent to guide it, the court turned to the ordinary meaning of “regularly”:  “customary, usual, or normal.”  The Court concluded that the RV was not “regularly kept” in Madison County; the RV was located there only for purposes of the litigation. 

The Court then summarized its holding:  "[W]hen a party moves a chattel to a county, whether from out-of-state or from another Indiana county, solely for purposes of litigation, that county does not become the county where the chattel is ‘regularly located and kept’ under Rule 75(A)(2) and therefore is not a preferred venue under Rule 75.”  As a result, the Court concluded, the case should have been transferred.

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