Towards global convenience, fairness, and judicial economy: an argument in support of conditional forum non conveniens dismissals before determining jurisdiction in United States federal district courts.

• Author: Hill, J. Stanton

ABSTRACT

The Supreme Court held in Sinochem Int'l Co. Ltd. v. Malaysia Int'l Shipping Corp., that federal district courts can dismiss cases under forum non conveniens before determining jurisdiction. The facts of Sinochem did not allow the Court to determine whether a court may conditionally dismiss under forum non conveniens before determining jurisdiction, but this Note argues that district courts should be able to do so. The issue of conditional dismissal before jurisdiction arises only where subject matter or personal jurisdiction is difficult to determine, forum non conveniens factors weigh heavily in favor of dismissal, and the district court intends to condition the dismissal. Still, the issue is significant given the increasing frequency and complexity of international litigation in federal courts. Extending Sinochem to conditional dismissals would (i) provide even more convenience, fairness, and judicial economy than the current federal forum non conveniens jurisprudence; and (ii) more equitably divide the world's litigation burden across developing countries by encouraging developing countries and the proactive United States Plaintiffs' Bar to seek alternative, more efficient means of relief for their citizens and clients than the federal forum.

TABLE OF CONTENTS I. INTRODUCTION II. AN OVERVIEW OF FORUM NON CONVENIENS A. Origins of Forum Non Conveniens B. Conditional Dismissals Under Forum Non Conveniens C. Effect of Sinochem on Forum Non Conveniens Jurisprudence III. CONDITIONAL FORUM NON CONVENIENS DISMISSALS AFTER SINOCHEM A. Convenience, Fairness, and Judicial Economy: Overarching Principles of Forum Non Conveniens Jurisprudence that Support an Extension of Sinochem to Conditional Dismissals B. Extending Sinochem to Conditional Dismissals is Consistent within the Existing Forum Non Conveniens Framework III. GLOBAL BENEFITS TO ALLOWING CONDITIONAL FORUM NON CONVENIENS DISMISSALS BEFORE DETERMINING JURISDICTION A. Conditioned Dismissals Before Determining Jurisdiction Promote Self-Help by Developing Nations to Ensure That Their Citizens Have an Adequate Domestic Forum to Bring Legal Claims B. Conditional Dismissals Without Jurisdiction Reduce the Cost of Forum Non Conveniens Dismissals to the Plaintiffs' Bar V. CONCLUSION I. INTRODUCTION

"As a moth is drawn to the light, so is a litigant drawn to the United States." (1) This legal phenomenon is increasingly visible due to the explosion of transnational commerce and the well-documented procedural and substantive advantages of United States federal courts (2) over their foreign counterparts. (3) As more and more international lawsuits are filed, the federal court dockets become increasingly strained. (4) Aside from building more courthouses and appointing more judges, federal courts have responded to the increased worldwide demand for their resources by raising the procedural hurdles to maintaining a suit. (5) Of course, some cases consume more judicial resources than others. On the margin, judicial resources do not seem to be significantly taxed in resolving a contract dispute between a U.S. cabinet sales agent and a Canadian cabinet maker for delivering late and substandard products. (6) On the other hand, the combined Article III judicial resources might not be completely sufficient to resolve a dispute where several thousand workers across twenty-three countries sued Shell Oil, a Texas Corporation, for damages allegedly arising from long-term, work-related exposure to a particular chemical. (7) In both of these cases, the plaintiffs sued in a federal court with personal and subject-matter jurisdiction but had their cases dismissed under the doctrine of forum non conveniens. (8)

Forum non conveniens enables a court to exercise its discretion and dismiss a case when a foreign court is a more "appropriate and convenient forum for adjudicating the controversy." (9) Some scholars have condemned forum non conveniens for decreasing, and in some cases eliminating, the possibility that the plaintiff will obtain relief in any forum. (10) In response to these concerns, courts may place conditions on the forum non conveniens dismissal, such as requiring the defendant to submit to jurisdiction in the foreign forum and requiring the defendant to waive the applicable statute of limitations. (11) Conditional dismissals are increasingly used because they allow courts to remove cases from their dockets while preserving the plaintiffs claim in an alternative forum, although the efficacy of conditional dismissals preserving the foreign forum is widely disputed. (12) Additionally, commentators have criticized conditional dismissals for both their discretionary implementation by district courts and the limited appellate review that follows. (13)

The frequent use of conditional dismissals in federal courts and the sometimes fatal consequences to foreign plaintiffs make critical the procedural rules that define the scope of forum non conveniens in federal courts. (14) Recently, the Supreme Court pronounced a procedural rule relating to unconditioned forum non conveniens dismissals without addressing treatment of conditional dismissals. In Sinochem International Co. Ltd. v. Malaysia International Shipping Corporation, the Supreme Court resolved a circuit split on whether a court has discretion to consider forum non conveniens, personal jurisdiction, and subject matter jurisdiction in any order. (15) The Court held that a court may dismiss a case under the doctrine of forum non conveniens without determining that it has jurisdiction "when considerations of convenience, fairness, and judicial economy so warrant." (16) But the facts in Sinochem prohibited the Court from determining whether a conditional dismissal under forum non conveniens may also be issued without jurisdiction. (17)

Nevertheless, courts should be allowed to conditionally dismiss under forum non conveniens before establishing jurisdiction for two reasons. First, the trend in federal forum non conveniens jurisprudence over the past sixty years to strive for the ultimate balance of convenience, fairness, and judicial economy inevitably leads to that result. Second, the ease with which a case is conditionally dismissed encourages developing countries to undertake some of the litigation burden that the global economy has placed predominantly on the United States.

Part II of this Note summarizes the current state of forum non conveniens jurisprudence through the Sinochem decision. Part III discusses how Sinochem itself supports an expansion of the federal courts' discretion to fashion dismissals under forum non conveniens before determining jurisdiction. Finally, Part IV argues that premature dismissals under forum non conveniens before a determination of jurisdiction actually benefits foreign plaintiffs by encouraging foreign governments to provide some reasonably available forum for its citizens desiring to sue, thereby mitigating any unjust effects of the forum non conveniens dismissal.

2. AN OVERVIEW OF FORUM NON CONVENIENS

   A. Origins of Forum Non Conveniens

   The source of the doctrine of forum non conveniens is uncertain, but it is generally is attributed to early Scottish decisions. (18) The need to resolve disputes in the location in which the dispute arose diminished significantly as the role of the jury shifted from fact-reporter to fact-finder. (19) With this fundamental shift in the role of the jury, presumably, any group of jurors became equally able to answer questions of fact. Moreover, this shift also rendered the question of where to file suit an important tool in the plaintiffs arsenal. (20) Plaintiffs were no longer restricted to the venue that was nearest to the setting of the dispute; rather, they were free to bring suit as a "transitory" action in any court within the country. (21) Naturally, some plaintiffs chose the most distant and inconvenient venue simply to vex the opposing party. (22)

   Forum non conveniens was developed in the nineteenth century by Scottish and English courts to counteract abuse of venue selection when the alternative forum was in another country. (23) Scottish courts held, independent of the issue of whether the court had jurisdiction, that the convenience and expediency of the forum should be satisfied to the discretion of the court before passing judgment. (24) To that end, Scottish courts considered the location of the relevant evidence and the witnesses and whether the facts implicated a difficult question of law of a foreign jurisdiction. (25) If the analysis of these factors did not satisfy the court, then it would dismiss the case under forum non conveniens, notwithstanding proper jurisdiction. (26) Moreover, Scottish courts made their forum non conveniens decisions independent of whether the dismissal practically foreclosed the plaintiff from achieving any relief in the foreign court (27) or whether the plaintiff was a Scottish citizen or a foreigner. (28)

   The Scottish notion of forum non conveniens initially traversed the Atlantic, appropriately enough, in admiralty cases. (29) Before the recent globalization of the world economy, the high seas were the greatest source of international litigation and, therefore, the greatest source of issues that eventually came to be styled "forum non conveniens." (30) Early federal courts frequently dismissed admiralty disputes with jurisdiction arising merely by "the mere happenstance of a ship stopping at an American port." (31) However, these early cases did not explicitly dismiss cases on the doctrine of forum non conveniens, and the term "forum non conveniens" was rarely used in the nineteenth and early twentieth centuries in the United States. (32)

   It was not until 1947, in Gulf Oil Corp. v. Gilbert, that the Supreme Court first directly addressed the applicability of the common law of forum non conveniens in federal courts. (33) In Gilbert, a Virginia citizen sued in the Southern District of New York...