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Civil Procedure Fall 2014

Notes on Forum Non Conveniens

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American Citizenship or Residency

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In adjudicating a case in which the real parties in interest were foreign, the Piper Court indicated that “a foreign plaintiff’s choice deserves less deference” than that of a plaintiff suing in his or her “home forum.”  See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 256–57 (1981).  For treatment of U.S. citizens and residents in forum non conveniens disputes, compare Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88 (2d Cir. 2000) (reversing district court’s dismissal of suit by three lawful resident aliens in part because “deference increases as the plaintiff’s ties to the forum increase”), with Carey v. Bayerische Hypo- und Vereinsbank AG, 370 F.3d 234 (2d Cir. 2004) (noting that “the deference given to a resident’s choice of home forum is not a guarantee against forum non conveniens dismissal” in affirming dismissal of suit with U.S. citizen plaintiff).

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Availability of Alternative Forum

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The existence of an alternative forum is key to the forum non conveniens analysis, but in many states it is not a prerequisite to dismissal.  In Islamic Republic of Iran v. Pahlavi, 467 N.E.2d 245 (N.Y. 1984), the government of Iran sued Iran’s former ruler, Shah Mohammed Reza Pahlavi, and his wife, Empress Farah Diba Pahlavi, in New York state court.  See id. at 246.  The government sought to recover “35 billion dollars in Iranian funds” that defendants had allegedly “misappropriated, embezzled or converted,” plus “20 billion dollars in exemplary damages.”  Id. at 246–47.  Although the defendants were served in New York, “the parties had no connection with New York other than a claim that the Shah had deposited funds in New York banks.”  Id. at 247.  The plaintiff argued that New York courts could not dismiss on forum non conveniens grounds because the record indicated no available alternative forum.  See id.  The New York Court of Appeals disagreed.  See id.  Despite identifying “the availability of another suitable forum” as “a most important factor to be considered in ruling on a motion to dismiss,” id. at 249, the court held that the district court could dismiss the case on forum non conviens grounds even if there was no available alternative forum, see id. at 250.

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International tribunals raise important questions in the forum non conveniens context.  In Nemariam v. Federal Democratic Republic of Ethiopia, 315 F.3d 390 (D.C. Cir. 2003), the D.C. Circuit considered whether the Ethiopia/Eritrea Claims Commission was a more appropriate forum for the plaintiffs’ claims, which arose out of “property damage they suffered during the border war between Ethiopia and Eritrea.”  Id. at 391.  “The district court [had] rejected Nemariam’s argument that the remedy provided by the Commission was inadequate because Eritrea and Ethiopia might negotiate a set-off of each other's claims, thereby denying her an award even if she had a meritorious claim.”  Id. at 393.  The district court reversed, noting that “it would be peculiar indeed to dismiss Nemariam’s claim in the United States District Court—a forum in which . . . she is certain to be awarded full relief if she wins on the merits of her claim—in favor of a forum in which she has no certainty of getting any relief for a meritorious claim.”  Id. at 395.

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Remedies in the Alternative Forum

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“Many motions to dismiss on grounds of forum non conveniens are granted conditionallyConditions often require the defendant to agree to waive objections or defenses that they might otherwise assert in the foreign forum once the case is refiled there.”  Thomas Orin Main, Toward A Law of “Lovely Parting Gifts”: Conditioning Forum Non Conveniens Dismissals, 18 Sw. J. Int’l L. 475, 478 (2012).  Common conditions include waiver of statute of limitations defenses or service of process in the foreign jurisdiction.  See id. at 480.

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Despite these conditions, plaintiffs may still harbor concerns about the adequacy of remedies in an alternative jurisdiction.  For example, in Tuazon v. R.J. Reynolds Tobacco Co., 433 F.3d 1163 (9th Cir. 2006), the plaintiff, a Philippine citizen residing in America, “argued that the Philippine courts [were] too corrupt and plagued with delays to provide an adequate forum.”  Id.at 1178.  The Ninth Circuit disagreed:

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Tuazon’s assertions about the court system rest[ed] primarily on his own experience as a lawyer and businessman in the Philippines. . . . Notably, however, he failed to mention a single episode that he directly observed or of which he has personal knowledge.  His corruption claims face[d] the same evidentiary void[,] . . . provid[ing] insufficient basis for the district court’s dramatic holding that the courts of the Philippines [were] an inadequate forum . . . . With no personal testimony on corruption, Tuazon instead offer[ed] State Department Country Reports that reference[d] corruption, judicial bias and inefficiency, and the potentially improper influence that corporate defendants wield[ed] over the judicial process. . . . [S]uch a general indictment provide[d] insufficient substance to condemn the adequacy of Philippine courts in the face of the expert evidence offered by Reynolds.  Id. at 1178–79.

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Nevertheless, the Ninth Circuit affirmed the district court’s denial of the defendant’s motion to dismiss on forum non conveniens grounds.  See id.at 1182.

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Jurisdictional Issues

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In Sinochem International Co. Ltd. v. Malaysia International Shipping Corp., 549 U.S. 422 (2007), the Supreme Court considered “whether forum non conveniens can be decided prior to matters of jurisdiction.”  Id. at 428–29.  Malaysia International, a Malaysian company, had sued Sinochem, a Chinese state-owned company, in the Eastern District of Pennsylvania.  See id. at 426–27.  The district court had dismissed the suit on forum non conveniens grounds, despite failing to establish conclusively whether it had personal jurisdiction over Sinochem.  See id. at 427–28.  The Supreme Court “h[eld] that a district court has discretion to respond at once to a defendant’s forum non conveniens plea, and need not take up first any other threshold objection,” such as “whether it has authority to adjudicate the cause (subject-matter jurisdiction) or personal jurisdiction over the defendant.”  Id. at 425.

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Forum Selection Clauses and Forum Non Conveniens

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If you remember from venue (6.1.2.5), in 2014, the Supreme Court decided Atlantic Marine v. U.S. District Court for W.D.T.X., 134 S.Ct. 568 (2014). As you may recall, Atlantic Marine had subcontracted with another company for construction work; their contract included a forum selection clause specifying that all disputes would be litigated in E.D.V.A.. However, the subcontractor sued Atlantic Marine in W.D.T.X. The Court held that 28 U.S.C. § 1404(a) was the proper means to transfer the case from W.D.T.X. to E.D.V.A. However, the question came up as to what would happen if the forum selection clause pointed to a state or foreign court, and not to another Federal Court, given that § 1404 only enables transfers among Federal courts.

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The Court's answer was that forum non conveniens was the appropriate method for a defendant to petition for a case to be dismissed given a valid forum selection clause. See Atlantic Marine, 134 S.Ct. at 580.