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Lawyers seeking to sue U.S. defendants on behalf of foreign plaintiffs on claims that arise outside of the United States know that they will be in for a tough fight. Defendants will make, and federal courts are likely to grant, motions to dismiss such cases on forum non conveniens grounds (FNC). In Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981), the U.S. Supreme Court made it clear that the axiom that the plaintiff’s choice of forum deserves great deference does not apply in the case of foreign plaintiffs. Moreover, the court ruled that FNC dismissals are proper even though the foreign jurisdiction would not provide for as favorable a result, so long as the foreign forum is “adequate.” A notable example is In re Union Carbide Corp. Gas Plant Disaster, 809 F.2d 195 (2d Cir.), cert. denied, 484 U.S. 871 (1987), in which citizens of India sued Union Carbide for personal injuries arising out of a blast at a Carbide subsidiary’s plant in India that killed and injured thousands of Indian nationals. Differences in state and federal FNC doctrine It must be remembered, however, that state courts are not always as likely to grant FNC dismissals. For example, Texas enacted a statute that divests its courts of the discretion to dismiss on FNC grounds. See Section 71.031 of the Texas Civil Practice and Remedies Code; and Dow Chem. Co. v. Alfaro, 786 S.W.2d 674 (1990). Other state court decisions show considerable restraint in favor of retaining jurisdiction. See, e.g., Mar-Land Indus. Contrs. Inc. v. Caribbean Petroleum Ref. L.P., 777 A.2d 774 (Del. 2001). Thus, a plaintiff’s attorney seeking to avoid an FNC dismissal obviously should file in such a state court if possible. Additionally, the attorney should structure the case in a way to avoid removal to federal court under 28 U.S.C. 1441(a), because it is unclear whether state FNC rules or the federal FNC approach applies. The issue presents a complicated reverse- Erie problem. An FNC dismissal arguably is substantive in nature. Accordingly, a good argument can be made that state FNC principles apply to a nonfederal-question case in federal court. Most federal courts have held that federal FNC principles pre-empt state rules (see, e.g., Ikospentakis v. Thalassic S.S. Agency, 915 F.2d 176 (5th Cir. 1990)), and the Piper case itself involved a diversity-based case removed to federal court. However, the Supreme Court in American Dredging Co. v. Miller, 510 S. Ct. 443 (1994), held that in admiralty cases originally filed in state court under the Jones Act, federal FNC principles did not pre-empt the otherwise applicable Louisiana FNC principles. Assuming a federal court decides that federal FNC principles apply in a removed case, the proper disposition of the grant of an FNC motion is to dismiss the case rather than to remand to the state court from which the case was removed in order to avoid the possibility of remanding any of the actions to an equally inconvenient state forum. See Nolan v. Boeing Co., 919 F.2d 1058, 1069-70 (rejecting the plaintiffs’ argument that “a federal court [should] remand rather than dismiss when a case is removed from a state court jurisdiction that would not dismiss on forum non conveniens grounds” because “it would be anomalous to conclude that while a district court may properly invoke the federal law of forum non conveniens to decline jurisdiction over a properly removed case, it must order the case to be reinstituted in an equally if not more inconvenient forum.”) Next, we need to examine recent federal courts of appeals decisions to see how they are fine-tuning the FNC analysis. Over the last few years, the federal courts have had occasion to decide numerous FNC issues-such as the meaning of an adequate forum, whether FNC dismissals are inappropriate when plaintiffs allege certain federal claims and how courts should evaluate attempts at forum shopping-that are evolving rapidly. A sample of a few recent cases shows how the courts are dealing with such problems. In Iragorri v. United Technologies Corp., 274 F.3d 65 (2d Cir. 2001), the 2d U.S. Circuit Court of Appeals openly discussed the problem of forum shopping. The reason why it is relatively more difficult for a defendant to prevail on a forum non conveniens motion when a plaintiff is suing in his or her own country is that a home forum is presumed to be convenient. That presumption is “much less reasonable” when a foreign plaintiff chooses a U.S. court as the forum, especially to resolve a dispute arising outside of the United States. Rather, “a plausible likelihood exists that the selection was made for forum-shopping reasons, such as the perception that United States courts award higher damages.” Iragorri, 274 F.3d at 71. The court adopts a sliding scale to determine the degree of deference to the plaintiff’s choice of forum depending on whether the choice of forum has been dictated by reasons that the law recognizes as valid, such as the ability to obtain evidence, as opposed to whether it appears that the plaintiff’s choice of a U.S. forum was motivated by forum-shopping reasons. See also DiRienzo v. Philip Servs. Corp., 294 F.3d 21 (2d Cir. 2002). The 2d Circuit, however, also reminded district courts that defendants may move for dismissal because of similar forum-shopping reasons and, therefore, that district courts should “arm themselves with an appropriate degree of skepticism in assessing whether the defendant has demonstrated genuine inconvenience and a clear preferability of the foreign forum.” Another recent case involving the question of deference to the plaintiff’s choice is Hyatt Int’l Corp. v. Coco, 302 F.3d 707 (7th Cir. 2002). There, the 7th Circuit vacated a district court order of dismissal on FNC grounds because the district court had failed to consider all the Piper factors. It is a noteworthy case, however, because the 7th Circuit also commented that in cases in which the plaintiff seeks declaratory relief, the plaintiff’s choice of forum deserves less deference. How does a forum selection clause affect the application of the FNC doctrine? The general rule is for the court to begin its analysis with a heavy presumption that the plaintiff is entitled to its choice of a proper forum. Then the court is to weigh the various public and private factors. When there is a forum selection clause, however, the 2d Circuit has ruled that the analysis begins with a level playing field, rather than with the strong presumption that the plaintiff should be divested of its choice of forum only when the factors weigh heavily in favor of dismissal. Evolution Online Systems Inc. v. Koninklijke PTT Nederland N.V., 145 F.3d 505 (2d Cir. 1998). Another case bears on this issue as well. Other recent decisions remind us that a district court may not grant a motion to dismiss on forum non conveniens or comity grounds unless the defendant agrees to submit itself to the jurisdiction of the foreign court. See Dole Food Co. v. Watts, 393 F.3d 1104 (9th Cir. 2002); Jota v. Texaco Inc., 157 F.3d 153 (2d Cir. 1998). A basic requirement for dismissal is that there be an adequate alternative foreign forum. If the defendant does not agree to submit itself to jurisdiction in that forum, there is no assurance that there will be an adequate forum. Jota involved toxic tort claims against a U.S. company for destroying the Ecuadoran rain forest. The district court had ordered dismissal on forum non conveniens grounds. The 2d Circuit vacated it, and ordered the district court on remand to weigh as an additional factor the newly adopted Ecuadoran policy that such suits should be brought in the U.S. After remand, the 2d Circuit dealt with the problem of the adequacy of the foreign forum. Aguinda v. Texaco Inc., 303 F.3d 470 (2d Cir. 2002). It ruled that it was proper to dismiss a class action on FNC grounds because Ecuador was an adequate forum even though its judicial procedures were less streamlined than those of the U.S. courts, and the Ecuadoran courts were more susceptible to corruption and bias. Ecuador does not recognize class actions, which arguably would make it difficult for the 55,000 Ecuadorans who comprised the class action that had been filed in federal court. Nonetheless, noting how onerous it would be for a federal court to deal with the translation problems of such a class of different indigenous groups speaking various dialects, the 2d Circuit ruled that the FNC dismissal was proper. The 5th Circuit recently ruled that Mexico was an adequate forum although Mexico does not recognize strict liability theories of recovery and imposes a cap of $2,500 on damages that could be awarded for the loss of a child’s life. Gonzalez v. Chrysler Corp., 301 F.3d 377 (5th Cir. 2002). A twist of the problem of adequate forum In contrast, in a twist of the problem of adequate forum, in Nemariam v. The Federal Democratic Republic of Ethiopia, 315 F.3d 390 (D.C. Cir. 2003), the court ruled that a commission set up to deal with claims arising out of the border conflict between Ethiopia and Eritrea is not an adequate forum for FNC analysis purposes. Another problem is whether the doctrine may be applied in cases implicating various treaties. For example, there is a question of whether FNC may be used as a ground to refuse to confirm a foreign arbitration award that would be otherwise subject to enforcement in federal courts pursuant to the New York Convention. In Monegasque de Reassurances S.A.M. v. Nak Naftogaz, 311 F.3d 488 (2d Cir. 2002), the 2d Circuit refused to confirm an award on FNC grounds. This is an important case of first impression that casts doubt on the viability of the New York Convention, which is designed to facilitate the enforcement of transnational arbitration awards. On the other hand, in another important recent case of first impression in this country, the 9th Circuit ruled in Hosaka v. United Airlines Inc., 305 F.3d 989 (9th Cir. 2002), that Article 28(1) of the Warsaw Convention, which limits awards in connection with air travel, overrides a district court’s discretionary power to dismiss on FNC grounds. Georgene M. Vairo is a professor of law and a William M. Rains Fellow at Loyola Law School, Los Angeles. She can be reached via e-mail at

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