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Bourke v. Grey Wolf Drilling Co., LP

Supreme Court of Wyoming

July 31, 2013

Kelvin BOURKE, Appellant (Plaintiff),
v.
GREY WOLF DRILLING COMPANY, LP, now known as Precision Drilling Company, LP, Appellee (Defendant).

Page 1165

Representing Appellant: Hampton M. Young, Jr., Attorney at Law, Casper, Wyoming.

Representing Appellee: Amanda W. Wiley of Taylor Anderson, LLP, Denver, Colorado.

Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, JJ.

DAVIS, Justice.

[¶ 1] Appellant Kelvin Bourke sued his former employer Grey Wolf Drilling Company, LP, for fraud and wrongful termination in the Seventh Judicial District Court. Unbeknownst to Bourke, Grey Wolf had been sold to a foreign corporation, Precision Drilling,[1] which affected the venue of this action

Page 1166

under Wyoming Statute § 1-5-107. Precision Drilling was not a resident of Wyoming as Grey Wolf had been. Precision Drilling moved to dismiss the case for improper venue and failure to state a claim upon which relief could be granted. The district court granted the motion on both grounds.

[¶ 2] Bourke claims that the district court erred in dismissing his complaint for improper venue, and that his claims were summarily dismissed when he should have been granted leave to amend his complaint. We affirm the district court's dismissal for improper venue, but we conclude that the court erred as a matter of law when it reached the merits of the case after determining that it had to be dismissed on venue grounds. We accordingly reverse and remand for entry of a dismissal without prejudice based only upon improper venue.

ISSUES

[¶ 3] Appellant states the issues as follows:

A. Whether the venue outlined in Wyo. Stat. § 1-5-107 is mandatory, requiring a case filed in the improper County be dismissed.
B. Whether or not the Court abused its discretion by denying Plaintiff's Motion to Amend.

[¶ 4] We believe the issues are more aptly summarized as follows:

1. Was venue proper in Natrona County?
2. If venue was not proper, should the district court have transferred the case to a proper venue?
3. Did the district court err as a matter of law in reaching the merits of a motion to dismiss on W.R.C.P. 12(b)(6) grounds after it determined that the case had to be dismissed on venue grounds?

FACTS

[¶ 5] Appellant Bourke lived in Carbon County and worked as a motorman on a drilling rig operated by Grey Wolf in Lincoln County. The rig's deck or floor hand did not report for work on August 13, 2007, and Bourke had to perform his duties as well as his own. The crew was " tripping pipe" that day, i.e., placing sections of drill pipe back into the wellbore after removing them. The sections of pipe weighed approximately one ton, and they tended to swing as they were pulled up by the draw works (winch) in the derrick.

[¶ 6] Bourke claims that he was hit by a joint of pipe and seriously injured because he was required to work without assistance from the missing deck hand. He also contends that he was not properly trained in the use of a " tail rope" used to control the pipe, and that the tail rope was tied off so as to make it ineffective to prevent the pipe from swinging.

[¶ 7] Bourke's complaint alleges that he reported the accident to Grey Wolf the day it happened, that a worker's compensation report of injury was completed, and that he expected the company to submit the report to the Wyoming Workers' Safety and Compensation Division (the Division). The company did not in fact submit a report of injury to the Division at that time, and Bourke alleges that co-employee witnesses to the report were told not to provide any statements concerning the claimed injury.

[¶ 8] Bourke continued to work with no restrictions for several months after he claims he was injured. Grey Wolf then fired Bourke for smoking in an unauthorized area on November 13, 2007. His complaint alleges that on December 3, 2007, Grey Wolf forwarded the form Bourke had filled out the day after the accident to the Division, noting that it was " unsure" if he had been injured on the job or not. The Division denied the claim.

[¶ 9] Bourke filed suit in the Seventh Judicial District on August 8, 2011, five days before the statute of limitations for negligence and fraud found in Wyoming Statute § 1-3-105(a)(iv) would have expired. He alleged negligence against other rig workers named only as " Does," and fraud and wrongful termination against Grey Wolf. None of the coworkers were ever identified.

Page 1167

[¶ 10] Service was attempted at the Casper address reflected in the Wyoming Secretary of State's records for the Grey Wolf limited partnership, but the company no longer had an office there because it had been bought out by Precision Drilling. Bourke amended his complaint to add Precision Drilling as a party, and then amended his complaint a second time to allege additional facts regarding negligence and wrongful termination. He served Precision Drilling's agent for process both times.

[¶ 11] Precision Drilling responded by filing a motion to dismiss under Wyoming Rules of Civil Procedure 12(b)(3) and 12(b)(6). It claimed that venue was improper under Wyoming Statute § 1-5-107[2] because Precision Drilling is a foreign corporation and Bourke failed to file suit where he resided (Carbon County) or where the cause of action arose (Lincoln County) as required by that statute. It also claimed that Bourke failed to state a claim upon which relief could be granted because his fraud claim was not pled with particularity, and because he failed to allege that he was fired for exercising a protected right in his retaliatory discharge claim.

[¶ 12] Bourke filed a response to the motion to dismiss and a motion for change of venue. He asserted that the case should be transferred to a different venue under W.R.C.P. 40.1(a) rather than dismissed as Precision Drilling had asked if in fact it was improperly venued. He also asked the court for leave to amend his complaint to cure the deficiencies Precision Drilling identified, but he failed to file a proposed third amended complaint or to specify how he would amend the existing pleading in the motion for leave to amend.

[¶ 13] The district court held a hearing on all motions, and ultimately entered a written order providing as follows: [3]

1. Precision Drilling's Motion to Dismiss is Granted as it relates to the arguments of Rule 12(b)(3). [Improper venue]
2. Precision Drilling's Motion to Dismiss is Granted as it relates to the arguments of Rule 12(b)(6). Specifically, the Court finds that Plaintiff failed to state ...

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