Be careful what you ask for - the forum non conveniens dilemma.

• Author: Dunn, Richard M.

This article originally appeared in the May 2012 Aviation and Space Law Committee Newsletter.

An aircraft landing in Cali, Colombia overruns the runway, crashing into a nearby building and causing an explosion. Ten people are killed (all Colombian citizens), many passengers are injured (all Colombian citizens), and there is also extensive damage to the building. A Miami plaintiffs' firm files multiple wrongful death and personal injury actions and a property damage action against the airline, the airplane manufacturer, and certain component parts manufacturers seeking tens of millions of dollars. As the attorney for one of the defendants, what do you do?

Conventional wisdom suggests that counsel representing the defendant should file a motion to dismiss the cases based on the forum non conveniens doctrine. This doctrine relies on the notion that a court has the power to decline to exercise jurisdiction over a case--even where jurisdiction exists and venue is proper--if it is more convenient for the case to be determined in an adequate alternate forum.

Forum Non Law in a Nutshell

U.S. federal courts have been continuously developing the forum non conveniens doctrine since the U.S. Supreme Court decided Piper Aircraft Co. v. Reyno, (1) one of the seminal cases on the doctrine. The doctrine provides that U.S. federal courts will not dismiss a case under the forum non conveniens analysis unless an adequate alternate forum is available and the balance of the private and public interest factors weigh in favor of dismissal.

An alternate forum is available if a court in that forum can assert jurisdiction over the matter to be transferred, whether because the defendant is subject to or consents to jurisdiction in the alternate forum. (2) The alternate forum does not need to be a perfect forum. (3) Moreover, it is presumed to be adequate unless the party opposing the transfer presents information to the contrary. (4) Generally, an alternate forum is only inadequate if the remedy it offers is clearly unsatisfactory or if it does not permit litigation of the subject matter of the dispute. (5)

When assessing the private and public interest factors, U.S. federal courts must take into account the appropriate level of deference to give to the forum chosen by the plaintiff. (6) More deference is given to the chosen forum if it is the plaintiff's home forum. Conversely, less deference is given the chosen forum if it is not the plaintiff's home forum. (7) The relevant private interest factors usually considered by the U.S. federal courts 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." (8) The public interest factors include the "sovereign's interests in deciding the dispute, the administrative burdens posed by trial, and the need to apply foreign law."...