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The 2nd U.S. Circuit Court of Appeals has clarified the law on the selection of forums for civil suits filed in federal court. In a decision that follows a rehearing en banc by the 2nd Circuit, the court set forth the degree of deference to be afforded a plaintiff’s choice of forum in the United States where the forum is different from the one in which the plaintiff resides. The court ruled that the degree of deference given a plaintiff’s choice of forum diminishes to “the extent it was motivated by tactical advantage.” The case, Iragorri v. United Technologies Corporation, 99-7481, involved a Florida family that sued in Connecticut for an elevator accident that killed a man in Cali, Colombia. The 2nd Circuit also used the case to make clear the standard for reviewing a district court’s decision on forum non conveniens, which refers to the discretionary power of the court to decline jurisdiction when justice or the convenience of the parties dictates it should be brought elsewhere. The Circuit said the lower court’s ruling will be reversed only for “clear abuse of discretion.” The suit against UTC, Otis Elevator Company and International Elevator Inc. was filed in Connecticut in 1994 by the widow of Mauricio Iragorri, who died in 1992 after falling down an open elevator shaft in a Cali apartment building. The family charged that the accident happened because an employee of International had wedged the elevator door open with a screwdriver in order to perform repairs. They also alleged that International was acting as an agent for UTC and Otis, and that those two companies were liable under Connecticut law for defective design and manufacture of the elevator, which was ultimately sold and installed by an affiliate in Brazil. Otis and UTC argued that the case should be dismissed for forum non conveniens because the accident occurred in Colombia. Connecticut District Judge Janet B. Arterton dismissed the suit on condition that the defendant companies agree to appear in Cali. A three-judge panel of the 2nd Circuit vacated and remanded the case, but the 2nd Circuit voted to rehear en banc, a procedure allowing all active judges of the circuit to review a case after a majority of the court feel that a particularly important legal issue needs to be resolved. “Our court convened this rehearing en banc not out of dissatisfaction with the panel’s disposition . . . but because we believed that it would be useful for the full court to review the relevance of a plaintiff’s residence in the United States but outside the district in which an action is filed when the defendants seek dismissal for forum non conveniens, especially in light of our recent decision.” Senior Judge Pierre N. Leval and Judge Jose A. Cabranes wrote an unusual, co-authored decision for the 2nd Circuit. MUCH DEFERENCE GIVEN Under U.S. Supreme Court case law, courts normally give plaintiffs a great deal of deference on their choice of forum, but a district court may still dismiss for forum non conveniens if it is convinced, after balancing the conveniences, that the chosen forum would unduly burden the court or the defense. Judges Leval and Cabranes said the Supreme Court has ruled that a foreign resident’s choice receives less consideration, and “the degree of deference to be given a plaintiff’s choice of forum moves on a sliding scale depending on several relevant considerations.” Because convenience does not usually motivate a plaintiff to sue in another state or country, the court said “a plausible likelihood exists that the selection was made for forum shopping reasons, such as the perception that United States courts award higher damages than are common in other countries.” “The more it appears that a domestic or foreign plaintiff’s choice of forum has been dictated by reasons the law recognizes as valid, the greater the deference that will be given to the plaintiff’s forum choice,” they said. “Stated differently, the greater the plaintiff’s or the lawsuit’s bona fide connection to the United States and the forum of choice and the more it appears that considerations of convenience favor the conduct of the lawsuit in the United States, the more difficult it will be for the defendant to gain dismissal.” FORUM FACTORS Factors that weigh in a plaintiff’s favor include the convenience of the plaintiff’s residence in relation to the chosen forum, the availability of witnesses or evidence to the forum district and the availability of appropriate legal assistance, the court said. However, if it appears that forum-shopping drove the decision, the court said, less deference will be afforded the plaintiff and “the easier it becomes for the defendant” to win a forum non conveniens motion by “showing that convenience would be better served by litigating in another country’s courts.” Stating that the district court’s decision should be reviewed for clear abuse of discretion, the court said it was not the place of the Circuit to undertake a de novo review, and that it would only vacate forum non conveniens dismissals where a district court “misapplied the basic rules.” Leval and Cabranes cautioned that the rule is not “abrupt or arbitrary,” and that other considerations can come into play, such as in a hypothetical case where a New Jersey resident sues in the neighboring state of New York, or where plaintiffs opt for a forum where they can be sure of perfecting jurisdiction over the defendant. “It is not a correct understanding to accord deference only when the suit is brought in plaintiff’s home district,” the judges said. “Rather, the court must consider a plaintiff’s likely motivations in light of all the relevant indications.” BALANCING TEST After applying the appropriate amount of deference, the Circuit said, a district court must then balance two sets of factors, “private interest factors” relating to the convenience of the litigants and “public interest factors” such as “the local interest in having localized controversies decided at home.” “We believe that the District Court in the case before us, lacking the benefit of our most recent opinions concerning forum non conveniens, did not accord appropriate deference to the plaintiff’s chosen forum,” the court said. Iragorri’s widow and children had lived only temporarily in South America; there was little indication they were engaged in forum shopping. And they were apparently unable to obtain jurisdiction over International in Florida, but were able to obtain jurisdiction over all three defendants in Connecticut, the court said. “It appears furthermore that witnesses and documentary evidence relevant to plaintiffs’ defective design theory are to be found at the defendants’ installations in Connecticut,” the court said. “Also in assessing where the greater convenience lies, the District Court must of course consider how great would be the inconvenience and difficulty imposed on the plaintiffs were they forced to litigate in Cali.” The court then remanded the case to the lower court. Anthony J. Natale and Richard F. Wareing of Pepe & Hazard in Hartford, Conn., represented the Iragorri family. Allan B. Taylor of Day, Berry & Howard in Hartford, and Edward W. Mayer Jr. and Patrick Noonan of Delaney, Zemetis, Donahue, Durham & Noonan in Wallingford, Conn., represented the defendants.

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