Edwards v. Carey

2019 UT App 182
THE UTAH COURT OF APPEALS
JOSEPH EDWARDS,
Appellant,
v.
M ICHAEL C AREY , WENDY C AREY , AND
S EIRUS I NNOVATIVE A CCESSORIES I NC .,
Appellees.
Opinion
No. 20180427-CA
Filed November 15, 2019
Third District Court, Salt Lake Department
The Honorable Mark S. Kouris
No. 150905215
Peter W. Billings and David P. Billings,
Attorneys for Appellant
Andrew G. Deiss and Shannon Petersen,
Attorneys for Appellees Michael Carey and
Wendy Carey
Nathan D. Thomas and Elizabeth M. Butler,
Attorneys for Appellee Seirus Innovative
Accessories Inc.
JUDGE GREGORY K. O RME authored this Opinion, in which
JUDGES M ICHELE M. C HRISTIANSEN F ORSTER and K ATE A PPLEBY
concurred.
ORME, Judge:
¶1 	Joseph Edwards appeals the district court’s dismissal of
his lawsuit against Michael Carey, Wendy Carey, and Seirus
Innovative Accessories, Inc. (Seirus) (collectively, Defendants)
for 	forum 	non 	conveniens. 	We 	reverse. 	In 	admittedly
oversimplified 	terms, 	the 	district 	court 	erred 	in 	according
Edwards’s choice of forum only some deference instead of

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greater 	deference 	and 	by 	considering 	whether 	the 	relevant
criteria merely outweighed, as opposed to strongly outweighed,
the deference properly to be accorded the plaintiff’s forum
choice.
BACKGROUND1
¶2 	In 1985, Edwards and Michael2 co-founded Seirus, a Utah
company with its principal place of business in San Diego,
California. Until 2015, Edwards and Michael each held a 50%
interest in Seirus and, together with Wendy, served as the
officers and directors of the company, each holding various
positions throughout the years.
¶3 	Between 	2003 	and 	2009, 	Edwards 	and 	Michael 	each
loaned money to Seirus. These debts were memorialized in the
form of several promissory notes. Edwards held six such notes
(the 	Promissory 	Notes), 	each 	providing 	that 	it 	“shall 	be
governed by and construed in accordance with the laws of the
State of California.”3 On July 10, 2015, Edwards filed suit against
Seirus in Utah for failure to pay the full interest owed on the
1. “When reviewing a motion to dismiss, we view the facts and
construe the complaint in the light most favorable to the plaintiff
and indulge all reasonable inferences in his favor.” Energy Claims
Ltd. v. Catalyst Inv. Group Ltd., 2014 UT 13, ¶ 3 n.1, 325 P.3d 70
(quotation simplified).
2. 	As 	is 	our 	practice 	when 	parties 	share 	a 	last 	name, 	we
sometimes refer to them by their first names, with no disrespect
intended by the apparent informality.
3. 	Five 	of 	the 	six 	promissory 	notes 	include 	this 	identical
language. The sixth note provides that it “shall be governed as to
validity, 	interpretation, 	construction, 	effect 	and 	in 	all 	other
respects by the laws and decisions of the State of California.”

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Promissory 	Notes. 	The 	court 	ultimately 	granted 	partial
summary judgment to Edwards in February 2016, ordering
Seirus to pay Edwards $215,883.92 in withheld interest, and the
parties stipulated to a dismissal of the remainder of that case.
¶4 	On July 27, 2015, shortly after Edwards initiated the prior
suit, the Careys called a special meeting of Seirus’s board of
directors. During that meeting, the Careys outvoted Edwards
and 	removed 	him 	from 	his 	positions 	as 	co-president 	and
secretary of Seirus. The Careys also voted, again over Edwards’s
objection, to adopt a proposed debt-to-equity exchange, which
“provided that additional stock could be issued to existing
shareholders, through conversion of debt, owed by [Seirus] to a
shareholder, 	into 	equity.” 	Michael 	elected 	to 	exchange 	the
entirety of Seirus’s debt owed to him for additional equity in the
company. Edwards, conversely, did not.4 As a result, Michael’s
ownership interest increased to 55.44% and Edwards’s decreased
to 44.56%.
¶5 	Two days later, Edwards filed the current action against
Defendants. In his initial complaint he (1) asserted conflict of
interest against the Careys, (2) asserted breach of fiduciary duty
against the Careys, (3) sought removal of the Careys as directors
of Seirus, and (4) sought a declaratory judgment undoing the
July 27 votes of the board of directors. Edwards amended his
complaint (the First Amended Complaint), adding a claim for
(5) deprivation 	of 	preemptive 	rights 	against 	the 	Careys.
Although Edwards named Seirus as a defendant in his third,
fourth, 	and 	fifth 	causes 	of 	action, 	he 	did 	not 	allege 	any
wrongdoing on Seirus’s part but apparently named the company
as an aid to obtaining complete relief.
4. Edwards alleged that he elected not to make the exchange
because the plan required him to come up with $762,534 within a
week to maintain his 50% ownership interest in Seirus, which he
could not do.

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¶6 	The Careys moved the district court to compel arbitration,
which motion the court denied. The Careys appealed the district
court’s decision, and this court affirmed. See Edwards v. Carey,
2017 UT App 73, ¶ 22, 397 P.3d 797. During the pendency of the
prior appeal, Edwards began splitting his time between Utah
and California, and his residency for tax withholding purposes
was eventually changed to California.5 Following the resolution
of the Careys’ prior appeal in May 2017, the parties agreed to an
informal stay of proceedings so that Seirus could focus on a
patent infringement suit it was defending that was scheduled for
trial that September.
¶7 	In December 2017, the parties filed a stipulated motion
authorizing Edwards to amend his complaint for a second time.
The court granted the motion, and Edwards filed his second
amended complaint (the Second Amended Complaint) in which
he still alleged he was a Utah resident. The proposed amended
complaint was attached to the motion, and Defendants did not
raise an objection to such a complaint being properly brought in
Utah.
¶8 	The Second Amended Complaint differed significantly
from the First Amended Complaint. Edwards brought five new
causes of action, keeping only three from the First Amended
Complaint: 	(1) breach 	of 	fiduciary 	duty 	against 	the 	Careys,
5. In a sworn declaration, Edwards stated that he was a Utah
resident at the time he filed the First Amended Complaint. The
following year, in 2016, he “spent more than half of the year in
Utah.” And in February 2017, he emailed Wendy requesting that
Seirus 	send 	mail 	to 	his 	residence 	in 	San 	Diego. 	Wendy
responded, asking if she should change his residency status for
tax purposes to California. She later followed up on her earlier
email, writing that unless he replied in the negative—which he
apparently did not—she would make the change. Wendy then
changed Edwards’s tax withholding from being split between
Utah and California to California only.

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(2) deprivation 	of 	preemptive 	rights 	against 	Defendants,
and (3) removal of the Careys as directors of Seirus. Edwards
newly 	alleged 	that 	although 	Seirus 	had 	recommenced
making regular payment on the Promissory Notes following the
court’s February 2016 order in the now-dismissed case,6 it had
again 	stopped 	paying 	on 	the 	notes 	in 	the 	spring 	of 	2017.
Accordingly, Edwards brought new claims against Seirus for
(4) breach of contract, (5) breach of the implied covenant of good
faith and fair dealing, and (6) entitlement to a declaratory
judgment in the form of “an order directing [Seirus] to make
regularly scheduled payments [on the Promissory Notes], as
they become due.” Edwards also brought new claims against
Defendants related to a non-compete clause in an agreement (the
Buy-Sell 	Agreement) 	that 	he 	had 	entered 	into 	with 	them,
(7) asserting breach of the implied covenant of good faith and
fair dealing, and (8) seeking declaratory relief in the form of “an
order directing Defendant[s] . . . to consent to Edwards being
released [from the] non-competition [clause] contained in the
Buy-Sell Agreement.”
¶9 	Less 	than 	a 	month 	after 	Edwards 	filed 	the 	Second
Amended Complaint pursuant to stipulation, Defendants moved
the 	district 	court 	to 	dismiss 	the 	complaint 	for 	forum 	non
conveniens. They argued that because Edwards, “a California
resident, assert[ed] claims against California residents, related to
contracts 	to 	which 	California 	law 	applies, 	and 	where 	the
witnesses reside in California, California provides a substantially
more convenient forum.”
6. Seirus properly did not make payment on the Promissory
Notes 	during 	the 	last 	four 	months 	of 	2016 	pursuant 	to 	a
subordination agreement Edwards had signed, see infra ¶¶ 10,
12, 	but 	Edwards 	alleged 	that 	the 	subordination 	agreement
permitted Seirus to resume making regular payments beginning
in January 2017, which it did until spring of that year when it
again ceased making payments.

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¶10 	Seirus’s primary lender is a bank located in San Diego
County, California (the Bank). Whenever Seirus seeks either to
renew or modify its credit arrangement, “the Bank evaluates the
strength of Seirus’ financial position and, depending on the
circumstances, requires personal guarantees and subordination
agreements from shareholders holding promissory notes.” In
August 2016, Edwards entered into one such agreement (the
2016 Subordination Agreement), which expressly provided that
it was to be governed by federal and California law.
¶11 	Six months later, in April 2017, Seirus sought renewal of
its 	line 	of 	credit. 	The 	Bank 	required 	Seirus 	to 	execute 	an
agreement (the Change of Terms Agreement) which, among
other things, required that Seirus cause Edwards to execute a
new subordination agreement that would indefinitely suspend
payment 	on 	the 	Promissory 	Notes 	(the 	2017 	Subordination
Agreement). Edwards declined to sign the 2017 Subordination
Agreement. Like the 2016 Subordination Agreement, the 2017
Subordination Agreement expressly provided that it was to be
governed by federal and California law, and the Change of
Terms 	Agreement 	invoked 	the 	California 	Code 	of 	Civil
Procedure.
¶12 	In his Second Amended Complaint, Edwards alleged that
the 	2016 	Subordination 	Agreement 	“remains 	the 	effective
agreement between the parties” and that, although “the [2016]
Subordination Agreement briefly suspended monthly payments
[on the Promissory Notes] at the end of 2016,” it permitted
Seirus 	to 	recommence 	payment 	in 	January 	2017. 	Seirus,
conversely, argued that it “underst[ood] the terms of the . . . 2016
Subordination Agreement and subsequent modifications to its
line of credit to prohibit Seirus from making—and Mr. Edwards
from accepting—payment on the Promissory Notes.”
¶13 	Accordingly, 	in 	their 	motion 	to 	dismiss 	the 	Second
Amended Complaint, Defendants argued that “resolution of the
question of whether Seirus breached any obligation to pay on the
Promissory Notes requires the Court to construe and apply the
. . . 2016 Subordination Agreement as well as the Change of

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Terms Agreement and associated documents[,] all of which
invoke 	California 	Law.” 	Similarly, 	the 	Buy-Sell 	Agreement,
which formed the basis for Edwards’s seventh and eighth causes
of action, also invoked California law.
¶14 	In addition to asserting that Edwards’s new causes of
action “stem from business conducted in California and [are]
subject to California law,” Defendants pointed to the following
factors 	in 	support 	of 	their 	motion 	to 	dismiss: 	although
incorporated in Utah, Seirus’s principal place of business—along
with all of its employees and business records—is located in
California; potential third-party witnesses employed by the Bank
are also located in California; although Edwards alleged he was
a Utah resident in the Second Amended Complaint, he resided
in California at the time of filing and represented himself to be a
resident of California and employed by a California company on
social media; and the Careys are residents of California.
¶15 	In 	his 	memorandum 	opposing 	Defendants’ 	motion,
Edwards argued that he still maintained “bona fide and ongoing
connections 	to 	Utah” 	and 	that 	Defendants 	“provide[d] 	no
authority to support the proposition that if a plaintiff moves his
primary residence to another state during the course of litigation
and amends his complaint, all deference due to a plaintiff’s
choice of venue vanishes.” He asserted that his “choice of forum
was motivated by legitimate reasons: it was more convenient for
him to litigate in Utah and [he] ha[d] the ability to obtain
jurisdiction over Defendants in Utah.” He further argued that
Utah was not any less convenient of a forum in which to litigate
the new claims related to the Promissory Notes than it was when
Edwards initially filed suit in Utah. He also contended that
“[t]he costs related to beginning litigation anew in California
would be quite high and the burden would fall entirely on [his]
shoulders” and that a dismissal would “greatly harm[]” him
“[b]oth in terms of time and expense.”
¶16 	Following a hearing on the matter, the district court
granted 	Defendants’ 	motion 	to 	dismiss 	for 	forum 	non
conveniens. 	Although 	the 	court 	“found 	Edwards 	had 	no

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illegitimate 	reason 	for 	choosing 	Utah 	as 	a 	forum,” 	and
recognized that his choice was entitled to “some deference,” it
concluded that “any deference due to Edwards’ chosen forum
was outweighed by the remaining Summa factors.”7 Specifically,
the court determined that California was a more convenient
forum, finding that
(a) the parties are now located in California; (b) the
controversy arose in California; (c) the access to
proof including witnesses is easier in California,
given the relevant witnesses are in California, most
relevant documents are located in California and
may require assistance of California courts to be
obtained 	from 	third 	parties; 	(d) 	the 	judgment
would be equally enforceable in Utah or California;
and (e) in light of the Second Amended Complaint,
it is slightly more of a burden to continue this case
in Utah than for Edwards to renew litigation in
California.
7. The Summa factors are:
(1) the location of the primary parties; (2) the place
where the fact situation creating the controversy
arose; (3) the ease of access to proof, including the
availability and costs of obtaining witnesses; (4) the
enforceability 	of 	any 	judgment 	that 	may 	be
obtained; (5) the burdens that may be imposed
upon the court in question in litigating matters
which may not be of local concern; (6) the practical
burden plaintiffs will face in filing a new action
after 	dismissal 	for 	forum 	non 	conveniens; 	and
(7) any other relevant considerations.
Diversified Striping Sys., Inc. v. Kraus, 2014 UT App 287, ¶ 8, 341
P.3d 932 (quotation simplified). See Energy Claims Ltd. v. Catalyst
Inv. Group Ltd., 2014 UT 13, ¶¶ 36–37, 325 P.3d 70; Summa Corp.
v. Lancer Indus., Inc., 559 P.2d 544, 546 (Utah 1977).

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¶17 	The district court stated that Edwards’s decision “to bring
the Second Amended Complaint,” in which he “assert[ed] direct
claims against Seirus that were not asserted in the original or
First Amended Complaint and that . . . involve[d] California
law,” was what had swayed it to rule as it had. “Absent the
Second Amended Complaint,” the court stated it “would have
found 	the 	prejudice 	to 	Edwards 	by 	dismissal 	would 	have
outweighed any potential inconvenience to Defendants.”
¶18 	Edwards appeals.
ISSUE AND STANDARD OF REVIEW
¶19 	Edwards challenges the district court’s dismissal of his
lawsuit for forum non conveniens. “We review a dismissal on
forum non conveniens grounds for an abuse of discretion” and
“reverse only if (1) the district court relied on an erroneous
conclusion of law or (2) there was no evidentiary basis for its
ruling.” Energy Claims Ltd. v. Catalyst Inv. Group Ltd., 2014 UT 13,
¶ 27, 325 P.3d 70 (quotation simplified).
ANALYSIS
¶20 	“Forum non conveniens is a well-established doctrine that
allows a court with jurisdiction over a lawsuit to decline to
exercise that jurisdiction, as a matter of discretion, when the
cause could better be tried in a more convenient court.” Rocky
Mountain Builders Supply Inc. v. Marks, 2017 UT App 41, ¶ 5 n.3,
392 P.3d 981 (quotation simplified). Its purpose “is to provide
protection against a plaintiff selecting a remote court where
added time, trouble and expense would result in unreasonable
inconvenience and hardship to the defendant.” Summa Corp. v.
Lancer Indus., Inc., 559 P.2d 544, 545–46 (Utah 1977). Although
the doctrine is discretionary, courts should grant motions to
dismiss for forum non conveniens “only with great caution and
under compelling circumstances.” Id. at 546.

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20180427-CA 	10 	2019 UT App 182
¶21 	Forum non conveniens involves a three-step analysis.
First, “courts must determine whether the plaintiff’s choice of
forum is entitled to deference.” Energy Claims Ltd. v. Catalyst Inv.
Group Ltd., 2014 UT 13, ¶ 26, 325 P.3d 70. Second, courts must
“determine whether an adequate alternative forum exists.”8 Id.
(quotation simplified). And third, if an adequate alternative
forum does exist, courts must analyze and weigh what have
come to be known as the Summa factors against the deference
owed to the plaintiff’s choice, as determined under the first step.
See id. ¶¶ 26, 35–37.
¶22 	Edwards argues that “the district court failed to give [his]
choice of forum adequate deference under step one” of the
forum non conveniens analysis. He also contends that the court’s
analysis of the Summa factors “is hardly a finding of compelling
circumstances” sufficient to overcome the deference owed to his
choice of Utah as the forum in which to bring suit.9 We agree
with Edwards on both points and address each in turn.
I. Deference to the Plaintiff’s Forum Selection
¶23 	Although “a plaintiff’s choice of forum is entitled to
deference 	when 	the 	plaintiff 	has 	brought 	suit 	in 	its 	home
jurisdiction,” Energy Claims Ltd. v. Catalyst Inv. Group Ltd., 2014
8. In the current case, Edwards concedes “that California is an
adequate alternative forum.”
9. A significant portion of Edwards’s argument on appeal is
directed toward the temporal aspect of the district court’s forum
non conveniens analysis. He argues that the court erred in
analyzing the facts as they existed at the time he filed the Second
Amended Complaint instead of at the time he filed his original
complaint. Because the court’s dismissal warrants reversal even
under its analysis of the facts as they existed at the time Edwards
filed the Second Amended Complaint, we do not reach this
particular issue.

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UT 13, ¶ 30, 325 P.3d 70, the primary focus of the step-one
analysis is whether the plaintiff’s choice “was motivated by
legitimate reasons,” id. ¶ 33. See Diversified Striping Sys., Inc. v.
Kraus, 2014 UT App 287, ¶ 8 n.2, 341 P.3d 932. And courts “give
greater deference to a plaintiff’s forum choice to the extent that it
was motivated by legitimate reasons.” Energy Claims, 2014 UT
13, ¶ 32 (quotation simplified). Factors courts consider in making
this determination include “the plaintiff’s or the lawsuit’s bona
fide 	connection 	to 	the 	forum 	of 	choice,” 	id. 	(quotation
simplified), and whether “it appears . . . that the plaintiff has
selected an inconvenient forum for the purpose of harassing or
annoying the defendant,” Summa Corp. v. Lancer Indus., Inc., 559
P.2d 	544, 	546 	(Utah 	1977), 	or 	for 	“tactical 	advantage,”10
Diversified 	Striping, 	2014 	UT 	App 	287, 	¶ 	8 	n.2 	(quotation
simplified). The factors courts consider should relate to whether
the “plaintiff’s choice of forum has been dictated by reasons that
the law recognizes as valid.” Iragorri v. United Techs. Corp., 274
F.3d 65, 71–72 (2d Cir. 2001), cited with approval in Energy Claims,
2014 UT 13, ¶¶ 31–33.
¶24 	In the current case, the district court determined that
Edwards’s 	forum 	selection 	was 	entitled 	to 	only 	“some
deference.” But in reaching this conclusion, the court expressly
stated that it “found Edwards had no illegitimate reason for
choosing Utah as a forum,” a determination that triggers the
“greater deference” regimen under Energy Claims, and the court
did not articulate any appropriate considerations that would
have steered it toward according Edwards less deference than
the “greater deference” due him under Energy Claims. To the
10. “Courts should [also] be mindful that, just as plaintiffs
sometimes 	choose 	a 	forum 	for 	forum-shopping 	reasons,
defendants also may move for dismissal under the doctrine of
forum non conveniens . . . [for] similar forum-shopping reasons.”
Iragorri v. United Techs. Corp., 274 F.3d 65, 75 (2d Cir. 2001). But
such considerations are better reserved for the third step of the
forum non conveniens analysis. See id.

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contrary, the court specifically stated that it did not believe
Edwards originally filed the case in Utah to gain advantage or
that he desired to retain the case in Utah for strategic reasons.
¶25 	The only factor that the court relied on in reducing the
level of deference to be accorded to Edwards was that Edwards
chose to file the Second Amended Complaint 	in 	which he
“add[ed] . . . extra counts” and “br[ought] Seirus into the case”
in 	a 	more 	substantial 	way. 	The 	court 	stated 	that 	these
considerations decreased the level of deference “quite a bit.” But
absent additional findings detailing how these facts relate to the
legitimacy of Edwards’s motivations in seeking to litigate the
new claims in Utah, they are irrelevant to the deference analysis.
Indeed, 	Defendants 	stipulated 	to 	the 	filing 	of 	the 	Second
Amended 	Complaint, 	and 	the 	court 	expressly 	found 	that
Edwards did not seek to retain the case in Utah for strategic
reasons. And because the court found that Edwards filed the
Second Amended Complaint and sought to keep the case in
Utah 	for 	no 	illegitimate 	reason, 	such 	facts 	are 	more
appropriately considered under the third step of the forum non
conveniens analysis—and not the first.
¶26 	In light of the totality of the court’s findings in this matter
weighing in favor of according “greater deference” to Edwards’s
choice and no appropriate consideration supporting a reduction
in the level of deference to that of “some deference,” the court
exceeded its discretion in not according a high level of deference
to Edwards’s selection of Utah as the forum in which to litigate
his 	claims 	against 	Defendants—a 	Utah 	company 	and 	its
principals. See Energy Claims, 2014 UT 13, ¶ 27.
II. Weighing of the Summa Factors
¶27 	After 	determining 	the 	appropriate 	level 	of 	deference
owed to a plaintiff’s forum choice, and if an adequate alternative
forum exists, as Edwards concedes it does, see supra ¶ 21 n.8,
courts must lastly analyze and weigh the Summa factors. As
previously noted, these factors are

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20180427-CA 	13 	2019 UT App 182
(1) the location of the primary parties; (2) the place
where the fact situation creating the controversy
arose; (3) the ease of access to proof, including the
availability and costs of obtaining witnesses; (4) the
enforceability 	of 	any 	judgment 	that 	may 	be
obtained; (5) the burdens that may be imposed
upon the court in question in litigating matters
which may not be of local concern; (6) the practical
burden plaintiffs will face in filing a new action
after 	dismissal 	for 	forum 	non 	conveniens; 	and
(7) any other relevant considerations.
Diversified Striping Sys., Inc. v. Kraus, 2014 UT App 287, ¶ 8, 341
P.3d 932 (quotation simplified). See Energy Claims Ltd. v. Catalyst
Inv. Group Ltd., 2014 UT 13, ¶¶ 36–37, 325 P.3d 70; Summa Corp.
v. Lancer Indus., Inc., 559 P.2d 544, 546 (Utah 1977).
¶28 	Courts may grant motions to dismiss for forum non
conveniens only when “the [Summa] factors . . . preponderate so
strongly against trying the case here, and in favor of the greater
convenience of trying it somewhere else, that to deny the motion
would work a great hardship upon the defendant.” Summa, 559
P.2d at 546 (emphasis added). See Iragorri v. United Techs. Corp.,
274 F.3d 65, 70 (2d Cir. 2001) (“Unless the balance is strongly in
favor of the defendant, the plaintiff’s choice of forum should
rarely be disturbed.” (emphasis added) (quotation otherwise
simplified)), cited with approval in Energy Claims, 2014 UT 13,
¶¶ 31–33; Iragorri, 274 F.3d at 74–75 (“The action should be
dismissed only if the chosen forum is shown to be genuinely
inconvenient and the selected forum significantly preferable.”)
(emphasis added); 20 Am. Jur. 2d Courts § 116 (2019) (“Deference
is to be given to the plaintiff’s choice of forum; unless the
balance, upon weighing the relative advantages and obstacles to
a fair trial, is strongly in favor of the defendant, the plaintiff’s
choice of forum should not be disturbed.”) (emphasis added).
¶29 	Here, the district court erred in dismissing Edwards’s suit
on the ground that, with our emphasis, “in light of the Second

Edwards v. Carey
20180427-CA 	14 	2019 UT App 182
Amended Complaint . . . any deference due to Edwards’ chosen
forum was outweighed by the remaining Summa factors.” To
dismiss an action for forum non conveniens, courts must find
that the Summa factors strongly outweigh the deference owed to
the plaintiff’s choice, which the district court did not find in this
case.
¶30 	Defendants assert that “[b]ecause the [Summa] factors
weigh so heavily in favor of litigating this matter in California
and 	outweigh 	any 	deference 	afforded 	to 	Edwards’ 	chosen
forum, 	no 	amount 	of 	deference 	the 	district 	court 	afforded
Edwards’ chosen forum would have been sufficient to surmount
them.” 	Defendants’ 	argument 	on this point 	is limited 	to 	a
recitation of the court’s Summa analysis followed by the assertion
that, “[p]lainly, the Summa factors collectively heavily favored
dismissal 	of 	the 	litigation 	for 	forum 	non 	conveniens 	and
outweighed any deference to Edwards’ chosen forum.” We are
unconvinced.
¶31 	As an initial matter, the district court did not so indicate
when 	it 	stated 	that 	the 	Summa 	factors 	“outweighed”—as
opposed to strongly outweighed—even the lower threshold of
deference it had accorded to Edwards’s forum selection. Thus, in
analyzing the Summa factors, the district court found, with our
emphasis, that
(a) the parties are now located in California; (b) the
controversy arose in California; (c) the access to
proof including witnesses is easier in California,
given the relevant witnesses are in California, most
relevant documents are located in California and
may require assistance of California courts to be
obtained from third parties;[11] (d) the judgment
11. We note that our Supreme Court recently clarified “that the
location of documentary evidence is of little relevance to the
(continued…)

Edwards v. Carey
20180427-CA 	15 	2019 UT App 182
would be equally enforceable in Utah or California;
and (e) in light of the Second Amended Complaint,
it is slightly more of a burden to continue this case
in Utah than for Edwards to renew litigation in
California. [12]
¶32 	Although the district court concluded that several of the
Summa factors favored dismissal for forum non conveniens,13 in
weighing those considerations against “the practical burden
[Edwards] will face in filing a new action after dismissal,” see
Energy Claims, 2014 UT 13, ¶ 37, the court concluded that “it is
slightly more of a burden to continue this case in Utah than for
Edwards to renew litigation in California.” And where the
totality 	of 	the 	Summa 	considerations 	weighing 	in 	favor 	of
dismissal only slightly outweighed the final factor considered by
the court, i.e., the inconvenience dismissal of the suit would
cause Edwards, such slight tipping of the scales in the Summa
(…continued)
overall forum non conveniens analysis.” Energy Claims Ltd. v.
Catalyst Inv. Group Ltd., 2014 UT 13, ¶ 39, 325 P.3d 70.
12. In its oral ruling, the court also found that “the burdens of
this Court retaining the case . . . favor . . . moving the case.” But
this consideration “carries little weight” where plaintiffs have
selected a forum “for legally legitimate reasons.” Id. ¶ 40.
13. One factor cutting the other way that the district court did
not 	consider, 	but 	perhaps 	should 	have, 	is 	Defendants’
stipulation to Edwards’s motion seeking leave to file the Second
Amended 	Complaint. 	The 	motion 	included 	the 	proposed
amended complaint as an attachment. If Defendants were truly
concerned that Utah would prove an inconvenient forum for
resolution of the Second Amended Complaint, it is curious that
they forwent any objection to the proposed amended complaint
on those grounds and, indeed, went so far as to stipulate to its
filing in Utah.

Edwards v. Carey
20180427-CA 	16 	2019 UT App 182
analysis in favor of dismissal is insufficient to strongly outweigh
the 	greater 	level 	of 	deference 	to 	which 	Edwards’s 	forum
selection is entitled.
¶33 	Accordingly, the district court exceeded its discretion by
concluding that the balance of the Summa factors need merely
outweigh, as opposed to strongly outweigh, the deference owed
to the plaintiff’s choice of forum. In so doing, the court “relied on
an erroneous conclusion of law” in rendering its decision. See id.
¶ 27 (quotation simplified).
III. Remand Is Unnecessary
¶34 	Defendants argue that in the event we conclude that “the
district court did not award the proper level of deference [to
Edwards’s 	choice 	of 	forum], 	remand 	is 	required 	for 	a
rebalancing 	of 	the 	remaining 	forum 	non 	conveniens 	factors.”
Although the fact intensive nature of the forum non conveniens
analysis would ordinarily necessitate remand, our resolution of
this case does not require the court to consider or weigh new
facts or make additional findings. Cf. Energy Claims Ltd. v.
Catalyst Inv. Group Ltd., 2014 UT 13, ¶¶ 33, 37–41, 325 P.3d 70
(remanding 	for 	the 	district 	court 	to 	consider 	whether 	the
plaintiff’s 	choice 	of 	forum 	“was 	motivated 	by 	legitimate
reasons” and providing additional guidance as to what the court
should consider under the second and third steps of the forum
non conveniens analysis); Diversified Striping Sys., Inc. v. Kraus,
2014 UT App 287, ¶¶ 10–11, 341 P.3d 932 (remanding for the
district court to consider the parties’ forum non conveniens
arguments in light of the recent clarification of the issue of
deference set forth in Energy Claims and to “fully analyze the
other factors relevant to the forum non conveniens analysis” that
the court had not previously considered). The district court
already made all the necessary findings and weighed the various
forum non conveniens considerations against each other. And
where the court determined that the balance of the Summa
factors merely outweighed the reduced level of deference it
afforded Edwards’s choice of forum, it is clear that those same

Edwards v. Carey
20180427-CA 	17 	2019 UT App 182
factors do not strongly outweigh the greater level of deference to
which Edwards is entitled.
CONCLUSION
¶35 	The district court exceeded its discretion in reducing the
degree of deference owed to Edwards’s choice of forum where it
expressly found that “Edwards had no illegitimate reason for
choosing Utah as a forum” and did not wish to retain the case in
Utah for strategic reasons. The court also exceeded its discretion
when it erroneously concluded that the balance of its analysis of
the Summa factors need not strongly outweigh the deference
owed to Edwards’s forum selection.
¶36 	We 	reverse 	and 	remand 	for 	trial 	or 	such 	other
proceedings as may now be appropriate.