Limited Availability of the Forum Non Conveniens Defense in Colorado State Courts

• Publication year: 2004
• Pages: 83

33 Colo.Law. 83 Colorado Lawyer 2004.

2004, November, Pg. 83. Limited Availability of the Forum Non Conveniens Defense in Colorado State Courts

---

83

Vol. 33, No. 11, Pg. 83

The Colorado Lawyer
November 2004
Vol. 33, No. 11 [Page 83]

Specialty Law Columns
The Civil Litigator
Limited Availability of the Forum Non Conveniens Defense in Colorado State Courts
by N. Reid Neureiter, L. James Eklund

The Civil Litigator column addresses issues of importance and interest to litigators and trial lawyers practicing in Colorado courts. The Civil Litigator is published six times a year

Column Editor

Richard L. Gabriel of Holme Roberts & Owen llp, Denver - (303) 861-7000, richard.gabriel@hro.com

N. Reid Neureiter L. James Eklund

About The Authors

This month's article was written by N. Reid Neureiter, Denver, a member of Jacobs Chase Frick Kleinkopf and Kelley LLC, Denver - (303) 685-4800, rneureiter@jcfkk.com; and L. James Eklund, Denver, an associate with the same firm - (303) 685-4800, jeklund@ jcfkk.com.

N. Reid Neureiter was co-counsel for the plaintiffs-appellants in a case discussed in this article, UIH-SFCC Holdings, L.P. v. Brigato.

The doctrine of forum non conveniens is an equitable doctrine under which a trial court has discretion to dismiss an action when it concludes that a more appropriate, or more convenient, forum lies elsewhere.1 The doctrine presupposes at least two forums in which a defendant is amenable to service and furnishes criteria for the choice between such forums.

This article provides an overview of the forum non conveniens doctrine in federal and state contexts. It discusses Senate Bill 04-180 ("S.B. 180"), which went into effect August 4, 2004. That legislation makes the application of the doctrine mandatory where a non-resident plaintiff is involved and certain specified factors are present.

Doctrine Background

The forum non conveniens doctrine became entrenched in federal jurisprudence with the 1947 U.S. Supreme Court decision in Gulf Oil Corp. v. Gilbert.2 In that case, the Court reversed the Second Circuit's decision and accepted the New York trial court's use of the doctrine to dismiss an action brought by the owner of a warehouse in Virginia.3 The doctrine is raised regularly as a defense in federal courts in cases having international implications.

In the context of the federal courts, under the doctrine, a defendant may properly move for dismissal where a claim is more appropriately brought in a foreign jurisdiction than in a U.S. federal court. Although widely applied in the federal context in cases involving international litigants, forum non conveniens has been heavily criticized by commentators and courts for being an unpredictable, standardless, and discretionary doctrine that is relatively immune from appellate review.4

Colorado state courts have historically taken a different approach from the federal courts regarding the use of forum non conveniens. Guided by the Colorado Constitution's "open courts" provision,5 Colorado's courts have held that, where the case involves a plaintiff who is a Colorado resident and personal jurisdiction over the defendant is established, it almost never is appropriate to dismiss a case on grounds of forum non conveniens.6 In the past twenty-seven years, no Colorado appellate court has upheld a forum non conveniens dismissal of a case brought by a Colorado-resident plaintiff.7

By contrast, for a non-resident plaintiff in a Colorado state court, the application of forum non conveniens traditionally has been a matter of judicial discretion. However, by enactment of S.B. 180, effective August 4, 2004, the Colorado legislature made the application of the doctrine mandatory where the plaintiff is not a Colorado resident.8 Thus, where a non-resident plaintiff is involved, if all factors set out in the new statute are present, the trial court must grant a motion to dismiss without prejudice on forum non conveniens grounds.9

In the context of litigation involving international parties, this difference in application of the forum non conveniens doctrine between the state and federal courts may be a determinative factor in cases where a resident plaintiff may choose to file his or her claim. Similarly, the doctrine may play a role in the decision of whether to join a resident as a defendant as a way to defeat removal to federal court.

Use of Doctrine in
Federal Courts

The principal logic behind the doctrine of forum non conveniens is that a plaintiff should not,

by choice of an inconvenient forum, "vex," "harass," or "oppress" the defendant by inflicting upon him the expense or trouble not necessary to his own right to pursue his remedy.10

The U.S. Supreme Court has laid out a number of factors that may go into the forum non conveniens calculus. These factors are divided into: (1) private factors - those questions of convenience and cost relating to the individual parties to the lawsuit; and (2) public factors - those matters that relate to cost and convenience to the judicial system being asked to decide the dispute.

Private Factors

There are a number of important considerations that pertain to the private interests of the litigants. These include:

1) the relative ease of access to sources of proof;

2) availability of compulsory process for attendance of unwilling witnesses and costs of obtaining attendance of willing witnesses;

3) possibility of viewing of premises, if such viewing would be appropriate to the action;

4) other practical problems to make trying the case easy, expeditious, and inexpensive; and

5) enforceability of a judgment if one is obtained.11

If the balance of these factors is not "strongly in favor" of the defendant, the plaintiff's choice of forum likely will prevail.12

Public Factors

Factors of public interest that a federal court should consider in deciding whether to dismiss relate to the administrative burden placed on the judicial system unrelated to the origin of the dispute. For example, in the U.S. Supreme Court's view, jury duty is a burden that should not be imposed on people of a community that has no relation to the litigation.13 Localized controversies, in the Court's view, should be decided at home. Included among the public interest factors are:

1) whether the law of a foreign country will apply to the dispute;

2) the avoidance of unnecessary problems in conflict of laws; and

3) the unfairness of burdening citizens in an unrelated forum with jury duty.14

One primary justification for application of the forum non conveniens doctrine in the federal courts is to ensure that U.S. courts are not overwhelmed by foreign plaintiffs seeking to take advantage of more favorable American laws.15 Thus, although the plaintiff's choice of forum is entitled to great deference,16 the plaintiff in federal court cannot have unlimited discretion to impose costs and inconvenience on the defendant when a more appropriate forum exists elsewhere.

As noted by the U.S. Supreme Court in Gulf Oil Corp., a "plaintiff sometimes is under temptation to resort to a strategy of forcing the trial at a most inconvenient place for an adversary, even at some inconvenience to himself."17 In such circumstances, using the doctrine of forum non conveniens, "a court may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute."18

Criticism of Doctrine
Applied in Federal Courts

The forum non conveniens doctrine, as employed by the federal courts, has been criticized heavily by judges and scholars. According to one commentary:

The concept at the heart of forum non conveniens - that courts have discretion to refuse to hear cases that fall squarely within their jurisdiction - clashes with a much more venerable principle, judex tenetur impertiti judicium suum (a court with jurisdiction over a case should decide it).19

The principal bases for criticism are the unlimited malleability of the numerous factors to be considered and the lack of certainty the doctrine promotes. These concerns are coupled with the...