Courts developed the forum non conveniens doctrine to protect defendants from being sued in an inconvenient location. When the doctrine was established, companies were subject to personal jurisdiction wherever they conducted substantial business, and plaintiffs could “forum shop” to bring suit in a U.S. court that might have little to do with the matters at issue in the litigation. Recent U.S. Supreme Court decisions, however, have sharply restricted the locations where a defendant is subject to personal jurisdiction. Plaintiffs must now sue in the defendant’s place of incorporation or headquarters; where the injury occurred; or where the defendant engaged in activities relevant to the claim. Although these new developments restricting personal jurisdiction render forum non conveniens largely redundant, courts continue to apply the doctrine to dismiss cases. This can be seen in the large number of forum non conveniens dismissals involving foreign plaintiffs injured or killed in aviation disasters.
Foreign plaintiffs often choose to file suit in the United States because our civil justice system offers substantial rights to victims compared to the courts of most other countries. These include the potential for greater compensation, a fair and non-corrupt court system with liberal discovery rules and the right to a jury trial in most cases. Defendants often move for forum non conveniens dismissal, arguing that the relevant private and public interest factors make the U.S. an inconvenient forum to defend their products and conduct. Defendants sometimes even secure dismissals even though the plaintiff could not have originally filed suit in the alternative foreign court because that court lacked personal jurisdiction. Defendants commonly agree to waive any personal jurisdiction defense to make the alternative forum available for the litigation.
In recent aviation accident litigation, courts have applied the forum non conveniens doctrine to dismiss the vast majority of lawsuits filed by foreign plaintiffs involving accidents outside the United States. Yet, in its landmark 1947 decision, Gulf Oil v. Gilbert, 330 U.S. 501 (1947), the Supreme Court emphasized that the doctrine should be employed only in “exceptional circumstances” and that “unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed.” Id. at 508. The court justified the need for the doctrine because plaintiffs may choose a jurisdiction not to simply pursue justice, but to seek “perhaps justice blended with some harassment.” Id. at 507. The court was concerned that plaintiffs may “resort to a strategy of forcing the trial at a most inconvenient place for an adversary, even at some inconvenience to [themselves.]” On the countervailing side, the court believed that defendants would not misuse the doctrine as “experience has not shown a judicial tendency to renounce one’s own jurisdiction so strong as to result in many abuses.” Id. at 508.
In this article we will address the forum non conveniens doctrine and argue that courts should provide more deference to a foreign plaintiff who selects a forum for legitimate reasons, including that the selected forum court may be the only one with personal jurisdiction over the defendant. We also argue that courts should consider developments in the law and technology that makes transnational litigation much easier today than it was in 1947 when the Supreme Court established the factors that courts consider when addressing a forum non conveniens motion.
History of Forum Non Conveniens Doctrine
In the Supreme Court’s Gilbert decision, a Virginia business owner brought suit in New York against a Pennsylvania corporation (registered to do business in Virginia and New York) alleging that negligence caused an explosion and fire that destroyed property in Virginia. The defendant moved to dismiss the case arguing that Virginia was a more appropriate forum for the trial than New York because the evidence and witnesses were located there, and that its courts, unlike New York’s, were able to obtain jurisdiction over a potential third-party defendant. Id. at 502-03. The Supreme Court affirmed the dismissal of the case, laying out the process and analysis for future forum non conveniens challenges.
The Gilbert ruling spawned a new federal venue procedure, which provides that “[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented.” 28 U.S.C. §1404(a). The judge-made forum non conveniens doctrine, however, continued to be used to dismiss actions in favor of proceeding before a foreign court.
A court considering a forum non conveniens challenge must first determine that an available alternative forum exists for the litigation because the doctrine “presupposes at least two forums in which the defendant is amenable to process.” 330 U.S. at 507. Then, the court must weigh public and private interest factors to assess whether the alternate forum is more convenient for litigation. The private factors include: “the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action, and all other practical problems that make trial of a case easy, expeditious, and inexpensive.” The public factors include: administrative difficulties for courts where the cases are filed, rather than the cases proceeding where the cases arose; the need for the court to apply foreign law; and the undue burden of jury duty in a community “which has no relation to the litigation” which contrasts with the “local interest in having localized controversies decided at home.” Id. at 508-09.
Although the Supreme Court affirmed the forum non conveniens dismissal at issue in Gilbert, the decision was clear that the doctrine was only to be applied in exceptional circumstances. The court discussed forum non conveniens in the context of a plaintiff who attempts to “by choice of an inconvenient forum, ‘vex,’ ‘harass,’ or ‘oppress’ the defendant” or in “litigation between a nonresident and a foreign corporation or between two foreign corporations.” Id. at 504. The court noted, however, that the doctrine leaves “much discretion to the Court to which the plaintiff resorts.” And with abuse of discretion as the standard of review on appeal, the trial court’s decision is very rarely disturbed.
The Supreme Court revisited the forum non conveniens doctrine in 1982 when it handed down Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981). Reyno involved the crash of a small commercial airplane in Scotland resulting in the deaths of its pilot and passengers, all Scottish residents. The airplane, registered in Great Britain and operated by a Scottish air taxi service, was manufactured in Pennsylvania and its propellers in Ohio. Id. at 238-39.
After the crash, the administrator for the deceased passengers’ estates filed suit in California state court, but the defendants removed the case to federal court, succeeded in having it transferred to the Middle District of Pennsylvania and then filed a forum non conveniens motion to dismiss the case in favor of Scotland. Id. at 239-40.
Reyno addressed the question of whether a court may dismiss an action based on the forum non conveniens doctrine even where the substantive law in the alternative forum is less favorable to the plaintiffs than that of the U.S. forum. The court held that a change in the substantive law should not ordinarily be given substantial weight in a forum non conveniens analysis. The court left open the possibility that an unfavorable change in law may require the denial of a forum non conveniens challenge, but only where the remedy provided by the alternative forum “is so clearly inadequate or unsatisfactory” that it is really no remedy at all. Id. at 255.
Reyno also for the first time held that a foreign plaintiff is entitled to less deference than a plaintiff who has chosen his or her home forum to file suit. Id. at 256. The court found that because the “central purpose of any forum non conveniens inquiry is to ensure that the trial is convenient, a foreign plaintiff’s choice deserves less deference.” Reyno, 454 U.S. at 255.
In Reyno, the Scottish plaintiffs filed their lawsuits in California, which had no connection to the matters at dispute in the litigation involving Pennsylvania and Ohio products and an airplane crash and deaths in Scotland. The Supreme Court, however, did not address that the plaintiffs had chosen a forum with no connection to the litigation when it found that the district court’s “distinction between resident and citizen plaintiffs [was] fully justified.” 454 U.S. at 255. Reyno also did not address whether the Scottish court would have had personal jurisdiction over the defendants in the first instance and noted that the defendants had agreed to jurisdiction in Scotland and to waive the statute of limitations to support their motion to dismiss. Id. at 242. That is, the Supreme Court’s development of the forum non conveniens doctrine has been untethered to any analysis of the factors relevant to personal jurisdiction. The judge-made forum non conveniens rule stands in sharp contrast to the federal venue statute, where Congress clearly required that a case could only be transferred to another “district or division where it might have been brought.” 28 U.S.C. §1404(a).
Jurisdiction can be obtained under two theories—specific and general. Specific jurisdiction often requires that the case arise out of injuries sustained in the forum. General jurisdiction, on the other hand, reaches to conduct and injuries sustained outside of the court’s geographic limits. To obtain personal jurisdiction over a defendant in most aviation cases arising from foreign accidents, where specific jurisdiction is not an option, the defendant must be subject to general jurisdiction in the forum state.
During this past decade, the Supreme Court has severely restricted the scope of general jurisdiction in a series of game-changing decisions: BNSF Railway Co. v. Tyrrell, 137 S.Ct. 1549 (2017); Good Year Dunlop Tires Operations, S.A., 564 U.S. 915 (2011); and Daimler AG v. Bauman, 571 U.S. 117 (2014). In those cases, the court held that a corporation is only subject to general jurisdiction in a state when it has such continuous and systematic connection with that forum such that the defendant is truly “at home” in the jurisdiction. Id. at 122. The court found that a corporation’s “paradigm” homes were its place of corporation and its principal place of business, while noting that “in an exceptional case” a corporation’s operations elsewhere may be so substantial and of such a nature as to render the corporation at home in that state. Id. at 137-39. As a result, prudent plaintiffs—especially foreign plaintiffs who do not have their own home jurisdiction within the United States—will file suit in the defendant’s home, which in products liability cases is most likely the location where the defendant designed and manufactured the allegedly defective product.
In a case involving a foreign defendant, the Supreme Court in Daimler stressed that “risks to international comity” may arise where the United States has liberal jurisdictional rules that are alien to other nations that follow restrictive approaches to personal jurisdiction. Daimler noted that other nations do not share the “uninhibited approach to personal jurisdiction” that the lower court in that case had applied. Id. at 141. The court then concluded that “considerations of international rapport reinforce” the rejection of a liberal approach to general jurisdictions. Id.at 142.
Recently, in a case that bears a striking resemblance to a forum non conveniens case study, the Supreme Court applied its restrictive general jurisdiction rubric to reverse a state court decision. In BNSF Railway, the Montana Supreme Court held that a railway defendant that employed over 2,000 workers in Montana and had over 2,000 miles of railroad track in Montana could be sued there for injuries arising elsewhere. 137 S.Ct. at 1554. Disagreeing with the Montana court, the Supreme Court concluded that despite the defendant’s many business contacts within Montana, since the cause of action was not related to Montana and because the defendant was neither incorporated there nor had its principal place of business there, it was not subject to personal jurisdiction in Montana.
In her Daimler concurrence, Justice Sotomayor, anticipated just this scenario, and argued that the restrictive approach to personal jurisdiction was not necessary in part because a defendant could seek dismissal under the forum non conveniens doctrine. 571 U.S. at 154. Had Justice Sotomayor’s opinion carried the day, the defendant in BNSF Railway may well have still obtained dismissal, but on a forum non conveniens instead of a personal jurisdictional basis, by arguing that the public and private factors weighed against a lawsuit in a state that had no meaningful connection to the tort.
Now, however, plaintiffs face the double-barreled challenge of highly restrictive jurisdictional rules and highly unfavorable forum non conveniens outcomes. Given the new jurisdictional landscape, it is time for courts to afford greater deference to a foreign plaintiff’s forum selection choices. Plaintiffs frequently can no longer file a case in the forum non conveniens alternative “convenient” jurisdiction argued for by the defendants, as that location is not the defendant’s home. So when they do sue a defendant in its home jurisdiction, even if the injuries arose elsewhere, it cannot reasonably be argued that plaintiffs chose the defendant’s home forum to ‘vex’ or ‘harass’ the defendant or for any other improper reason.
Judicial deference to a plaintiff’s forum selection, when personal jurisdiction can be exercised over the defendant in the selected forum, is consistent with the goals underlying the forum non conveniens doctrine. Plaintiffs have limited options of where suit can be brought; indeed, sometimes there is only one jurisdiction where suit can be filed, even though defendants will later agree to subject themselves to jurisdiction in additional locations. Plaintiffs will also incur substantial expense to engage lawyers, conduct an investigation and bring suit. Courts have not adequately considered the risks and costs to plaintiffs and the resulting delays resulting from a forum non conveniens dismissal.
There has been recent criticism of how frequently courts employ the forum non conveniens doctrine to dismiss otherwise properly brought cases. One critic has even called for the doctrine’s retirement entirely. Maggie Gardner, “Retiring Forum Non Conveniens,” 92 N.Y.U.L. Rev. 390 (May 2017). In significant ways, the doctrine has outlined its usefulness. Aside from the restrictions on plaintiffs’ choice of forum ushered in by recent Supreme Court decisions, legal developments and technological advantages have eased the difficulties of transnational litigation. Litigants can now invoke the 1972 Hague Evidence Convention to compel documents and testimony from third party witnesses in signatory countries. Martin Davies, “Time to Change the Federal Forum Non Conveniens Analysis,” 77 Tul. L. Rev. 309, 326 (2002). Clearly, the private interest factors established by Gilbert no longer pose the same level of inconvenience as they did in 1947; documents can be stored and transferred electronically, eliminating the cost and inconvenience of transferring them, and the ability to take video depositions eradicates the need to transport foreign witnesses to the court’s location. See Erin Foley Smith, “Right to Remedies and the Inconvenience of Forum Non Conveniens: Opening U.S. Courts to Victims of Corporate Human Rights Abuses,” 44 Colum. J.L. & Soc. Probs. 145, 177 (2010) (Nearly 30 years ago, judges began to recognize that technological changes, such as capabilities for electronic discovery, have changed the dynamic in assessing the relative convenience of forums.” And web access to competing sources of law and experts on that law makes the application of non-U.S. law much easier for federal courts. Simply put, modern judges and lawyers work in an entirely different universe than those who practiced in post-World War II America. Yet, the dated Gilbert interest factors remain the foundation of the doctrine and courts rarely address the advances in law and technology in evaluating forum non conveniens challenges.
The recent line of Supreme Court decisions which impose stricter personal jurisdiction rules make the forum non conveniens doctrine irrelevant in most cases. Plaintiffs no longer have the choices to pursue litigation in a forum that is genuinely inconvenient to the defendant. Indeed, defendants now use the forum non conveniens doctrine to forum shop and ship cases off to foreign venues where plaintiffs could never have filed suit. Given the new legal framework, courts should give more deference to a plaintiff’s choice of forum and also consider the developments in law and technology that have fundamentally changed the way we practice law in international cases.
Steven R. Pounian is counsel and Justin T. Green is a partner at Kreindler & Kreindler in New York.