National Bank of Commerce v. Dow Chemical Co.

NATIONAL BANK OF COMMERCE, et al. v. DOW
CHEMICAL CO., et al.

96-967                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered March 3, 1997


1.   Civil procedure -- dismissal of cause not permitted when pending action is
     in jurisdiction served by courts other than Arkansas courts. -- When the
     pending action is in a jurisdiction served by courts other
     than the courts of this state, dismissal on the basis of Ark.
     R. Civ. P. 12(b)(8) is not permitted.

2.   Civil procedure -- Ark. R. Civ. P. 12(b)(8) prohibits identical cases from
     proceeding in different courts within state. -- Rule 12(b)(8) of the
     Arkansas Rules of Civil Procedure applies only to actions
     filed in separate Arkansas courts; thus, Rule 12(b)(8)
     prohibits identical cases from proceeding in different courts
     within this state.

3.   Civil procedure -- Ark. R. Civ. P. 12(b)(8) does not apply where same
     action is pending in federal court or court of another state -- trial
     court lacked authority to dismiss state action. -- Rule 12(b)(8) of
     the Arkansas Rules of Civil Procedure does not confer any
     discretion upon an Arkansas court confronted with a motion to
     dismiss when the same action is pending between identical
     parties in a different "jurisdiction," such as a federal court
     or the court of another state; in such a case, as in this
     case, Rule 12(b)(8) simply does not apply; the supreme court
     therefore concluded that the trial court lacked authority to
     dismiss appellants' state action without prejudice.


     Appeal from Pulaski Circuit Court; John B. Plegge, Judge;
reversed and remanded.
     Bernard Whetstone, P.A., by: Kevin Odum, and Bob Davidson, for
appellants.
     Wright, Lindsey & Jennings, by:  Sammye L. Taylor and Stephen
R. Lancaster, for appellees Dow Chemical Co., Rofan Services, Inc.,
and EPCO, Inc., of Indiana.
     Laser, Wilson, Bufford & Watts, P.A., by: Richard N. Watts and
Brian A. Brown, for appellee Adams Pest Control of North Little
Rock, Inc.
     Barber, McCaskill, Jones & Hale, P.A., by: Michael J. Emerson
and Derek J. Edwards, for appellee Steam Services, Inc.

     Annabelle Clinton Imber, Justice. 
     The appellants, National Bank of Commerce ("National Bank"),
as guardian of Ashley Smits's estate, and William J. Smits
("Smits"), individually and as parent and next friend of the minor
Ashley Smits, filed a products liability action against the
manufacturers and applicators/distributors of two chemicals which
allegedly caused Smits to develop severe birth defects.  The trial
court dismissed the action without prejudice pursuant to Ark. R.
Civ. P. 12(b)(8).  National Bank and Smits appeal the dismissal. 
We reverse and remand.
     National Bank and Smits filed a products liability action in
federal court on January 24, 1994, against Dow Chemical, Rofan
Services, Inc., and EPCO, Inc. ("the Dow defendants"), as the
manufacturers of Dorsban LO; and against Steam Services, Inc.
("Steam Services"), as the manufacturer of Firefog 404.  According
to National Bank and Smits, Ashley's mother, Maria V. Smits, was
exposed to these chemicals while she was pregnant with Ashley
thereby causing Ashley to develop severe birth defects. 
Approximately eight months later, on September 16, 1994, National
Bank and Smits also filed this products liability action in the
Pulaski County Circuit Court alleging the same occurrence as in the
federal action.  However, two additional parties were joined as
defendants in the state action:  Adams Pest Control, an Arkansas
corporation, as the applicator/distributor of Dorsban LO, and Metro
Builders & Restoration Specialists, Inc. ("Metro Builders"), an
Arkansas corporation, as the applicator/distributor of Firefog 404.
     The Dow defendants, Steam Services, and Metro Builders
responded to the state lawsuit by filing separate motions to
dismiss pursuant to Ark. R. Civ. P. 12 (b)(8).  During the hearing
on February 9, 1996, the defendants asserted that the dismissal was
proper because they had already spent approximately $100,000
deposing expert witnesses for the federal case, and that these
depositions would have to be duplicated in the state action because
the applicator/distributors were not present during the previous
depositions for the federal action.  Moreover, the defendants
argued that defending the simultaneous state action would be unduly
burdensome in light of the fact that the federal lawsuit was
scheduled to go to trial on April 15, 1996.  
     Based upon the pleadings and arguments of counsel, the trial
court granted the defendants' motions to dismiss pursuant to Ark.
R. Civ. P. 12(b)(8) and dismissed the state action without
prejudice as to all defendants.  National Bank and Smits appeal
from this order of dismissal.
     The sole issue on appeal is whether Ark. R. Civ. P. 12(b)(8)
should be applied to dismiss an Arkansas circuit court action on
the ground that the action is simultaneously pending between the
same parties in a federal court.  We hold that when the pending
action is in a jurisdiction served by courts other than the courts
of this state, dismissal on the basis of Rule 12(b)(8) is not
permitted.
     According to the Reporter's Note to Rule 12, subsection (b)(8)
is based upon Ark. Stat. Ann.  27-1115(3) (Repl. 1962).  In Carter
v. Owens-Illinois, Inc., 261 Ark. 728, 551 S.W.2d 209 (1977), we
interpreted that statute as applying only to prohibit identical
actions from proceeding between identical parties in two courts of
this state.  We opined that the matter was one of venue, not at all
implicated when one of the actions was in a different
"jurisdiction," i.e. a federal court which, we said, was like the
court of another state.  As successor to the statute, our Rule
12(b)(8), which is not found in F.R.C.P. 12(b) upon which the
remainder of our Rule 12(b) was modeled, applies only to actions
filed in separate Arkansas courts.  Thus, this court has
consistently held that Rule 12(b)(8) prohibits identical cases from
proceeding in different courts within this state.  Tortorich v.
Tortorich, 324 Ark. 128, 919 S.W.2d 213 (1996); Mark Twain Life
Ins. Corp. v. Cory, 283 Ark. 55, 670 S.W.2d 809 (1984).
     Whereas, when identical cases between the same parties are
pending in both state and federal courts, a trial court may, but is
not required to, exercise the forum non conveniens discretion 
given it by Ark. Code Ann.  16-4-101 D  (Supp. 1995) (formerly
Ark. Stat. Ann. 27-2502 E).  Helm v. Mid-American Indus., Inc., 301
Ark. 521, 785 S.W.2d 209 (1990), cert. denied, 498 U.S. 850 (1990);
Country Pride Foods Ltd. v. Medina & Medina, 279 Ark. 75, 648 S.W.2d 485 (1983). The doctrine of forum non conveniens has not
been argued in this case and is not at issue.
     Rule 12(b)(8) does not confer any discretion upon an Arkansas
court confronted with a motion to dismiss when the same action is
pending between identical parties in a different "jurisdiction,"
such as a federal court or the court of another state.  In such a
case, as in this case, it is enough to say Rule 12(b)(8) simply
does not apply.  We must therefore, conclude that the trial court
lacked authority to dismiss the state action without prejudice.
     Reversed and remanded.       
     Glaze, J., not participating.