{
  "id": 922811,
  "name": "NATIONAL BANK OF COMMERCE, et al. v. DOW CHEMICAL CO., et al.",
  "name_abbreviation": "National Bank of Commerce v. Dow Chemical Co.",
  "decision_date": "1997-03-03",
  "docket_number": "96-967",
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  "last_updated": "2023-07-14T16:50:41.435320+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [
      "Glaze, J., not participating."
    ],
    "parties": [
      "NATIONAL BANK OF COMMERCE, et al. v. DOW CHEMICAL CO., et al."
    ],
    "opinions": [
      {
        "text": "Annabelle Clinton Imber, Justice.\nThe appellants, National Bank of Commerce (\u201cNational Bank\u201d), as guardian of Ashley Smits\u2019s estate, and William J. Smits (\u201cSmits\u201d), 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.\nNational Bank and Smits filed a products liability action in federal court on January 24, 1994, against Dow Chemical, Rofan Services, Inc., and EPCO, Inc. (\u201cthe Dow defendants\u201d), as the manufacturers of Dorsban LO; and against Steam Services, Inc. (\u201cSteam Services\u201d), as the manufacturer of Firefog 404. According to National Bank and Smits, Ashley\u2019s 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. Flowever, 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. (\u201cMetro Builders\u201d), an Arkansas corporation, as the applicator/distributor of Firefog 404.\nThe 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.\nBased upon the pleadings and arguments of counsel, the trial court granted the defendants\u2019 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.\nThe 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.\n\u25a0 [2] According to the Reporter\u2019s Note to Rule 12, subsection (b)(8) is based upon Ark. Stat. Ann. \u00a7 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 \u201cjurisdiction,\u201d 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).\nWhereas, 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. \u00a7 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 offorum non conveniens has not been argued in this case and is not at issue.\nRule 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 \u201cjurisdiction,\u201d 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.\nReversed and remanded.\nGlaze, J., not participating.",
        "type": "majority",
        "author": "Annabelle Clinton Imber, Justice."
      }
    ],
    "attorneys": [
      "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.",
      "Hankins, Hicks, Madden & Blackwood, by: Stuart W. Hankins, for appellee Metro Builders & Restoration Specialists, Inc.",
      "Laser, Wilson, Bujford & Watts, P.A., by: Richard N. Watts and Brian A. Brown, for appellee Adams Pest Control of North Litde Rock, Inc.",
      "Barber, McCaskill, Jones & Hale, P.A., by: Michael J. Emerson and Derek J. Edwards, for appellee Steam Services, Inc."
    ],
    "corrections": "",
    "head_matter": "NATIONAL BANK OF COMMERCE, et al. v. DOW CHEMICAL CO., et al.\n96-967\n938 S.W.2d 847\nSupreme Court of Arkansas\nOpinion delivered March 3, 1997\nBernard Whetstone, P.A., by: Kevin Odum, and Bob Davidson, for appellants.\nWright, Lindsey & Jennings, by: Sammye L. Taylor and Stephen R. Lancaster, for appellees Dow Chemical Co., Rofan Services, Inc., and EPCO, Inc., of Indiana.\nHankins, Hicks, Madden & Blackwood, by: Stuart W. Hankins, for appellee Metro Builders & Restoration Specialists, Inc.\nLaser, Wilson, Bujford & Watts, P.A., by: Richard N. Watts and Brian A. Brown, for appellee Adams Pest Control of North Litde Rock, Inc.\nBarber, McCaskill, Jones & Hale, P.A., by: Michael J. Emerson and Derek J. Edwards, for appellee Steam Services, Inc."
  },
  "file_name": "0504-01",
  "first_page_order": 536,
  "last_page_order": 539
}