SAN JOSE — The California Sixth Appellate panel of judges is directing a superior court to reconsider a bicycle part manufacturer's motion for a convenient and fair hearing.

Defendant and California-based Fox Factory Inc. (Fox) contends the personal injury suit brought against them by Santa Clara plaintiff Peter Isherwood falls under “forum non conveniens” and moved to dismiss the case, but the superior court denied the motion, claiming California to be a “seriously inconvenient” forum for the trials succession.

In an opinion delivered on April 27 by Sixth Appellate Associate Justices Franklin D. Elia, Eugene M. Premo and Adrienne M. Grover, the court ordered the superior court to reassess Fox’s motion for a lawsuit that dates back six years.

British Columbia resident and Canadian citizen, Isherwood’s blames California bicycle manufacturing company Fox for a 2011 biking accident, which resulted in a spinal cord injury from a bike he purchased at Oak Bay Bikes, British Columbia. The mountain bike was also assembled with specialized component parts Isherwood ordered from other manufacturers in California, Oregon and Washington.  

Isherwood claimed that the steerer tube, which was made by Fox, blew when he landed a jump, “alleging negligence, strict products liability, breach of the implied warranty of merchantability and breach of the implied warranty for a particular purpose.” 

In 2013, Isherwood also filed another complaint against SNC Cycles, three Doe corporations and three John Doe defendants, according to the opinion.

Due to the Doe naming, Fox argues they were unaware of any suit until hearing about it from Oak Bay Bikes, where the bike was purchased. Fox claims that after “multiple searches” in Vancouver courts, the misspelling of the plaintiff’s name kept them from finding any suit against them. 

“He had withheld the identities of the defendants by suing them as Doe corporations and alleging that he was unaware of their identities,” the justices said in their decision. Fox contends that they were purposefully kept in the dark.

Furthermore, “Fox believed it was at an unfair disadvantage because it had ‘no way to compel the appearance at trial of any of the crucial Canadian witnesses,’” according to the opinion, that further notes Fox’s argument that Oak Bay Bikes, which is also a defendant, and his company be tried together.

The superior court denied Fox’s motion of inconvenient forum, saying British Columbia was an appropriate arena to try the suit. However, that decision is now in question again since the appeals panel has directed the superior court to reconsider Fox’s motion to dismiss or stay on forum non conveniens.

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