Forum non conveniens: must defendants prove the unprovable?

• Author: Scheer, Mark P.

Probably not, if the motion is supported by a showing of the categories of witnesses not subject to process and the problems of inconvenience

IN CLASSIC forum non conveniens cases, plaintiffs file actions in forums in which they are not residents, where most--if not all--of the events and circumstances giving rise to the action did not occur, and (it's not surprising) where the bulk of the evidence relevant to the case is not located. The typical motive is the opportunity to win a damages award that would be unavailable in forums where the action logically should have been brought.

Jurisdiction often is based on the defendant's residence in the forum where the case is filed or the fact that at least some of the pertinent events occurred there. While a motion to dismiss under the doctrine of forum non conveniens requires a court to examine and balance a number of different factors, one factor--the availability of compulsory process for the attendance of unwilling witnesses--may require the defendant to do the impossible. That impossibility is obtaining the cooperation of an unwilling witness to prove that the witness is unwilling to participate voluntarily in litigation in a forum where the witness is not subject to compulsory process.

WHAT IS IT?

The doctrine of forum non conveniens vests a trial court with discretionary power to decline jurisdiction of a matter when the convenience of the parties and the ends of justice would be better served if the action were brought and tried in another forum. When the court is asked to decide whether to dismiss an action for forum non conveniens, it engages in a two-step process. First, it must determine that an alternative forum exists. Second, it must weigh and balance the private and public interests.

1. Adequate Alternative Forum

   An alternative forum will be held inadequate only in those "rare circumstances" where it is "so clearly ... unsatisfactory that it is no remedy at all," the U.S. Supreme Court declared in Piper Aircraft Co. v. Reyno.(1) The substantive law of the foreign forum is presumed adequate unless the plaintiff makes some showing to the contrary or it is plainly obvious to the court that the plaintiff is highly unlikely to obtain basic justice in the foreign forum.(2)

2. Private and Public Interests

   Once it is established that an alternative forum exists, the next step is to weigh and balance the private and public interest factors at stake. In Gulf Oil Corp. v. Gilbert,(3) the U.S. Supreme Court enumerated two sets of factors. The first set, called the "private interest factors," relates to the convenience of the litigants and includes the following:

   * The relative ease of access to sources of proof;

   * The availability of compulsory process for attendance of unwilling witnesses;

   * The cost of obtaining attendance of willing witnesses;

   * The possibility of viewing the premises, if such viewing is appropriate to the action; and

   * All other factors which make trial of a case easy, expeditious and inexpensive.

   The second set of factors, called the "public interest factors," includes the following:

   * The administrative difficulty encountered when litigation pends for protracted time periods in congested centers rather than being handled at its origin;

   * The imposition of jury duty on people in a community having no relation to the litigation;

   * The local interest of having localized controversies decided at the location giving rise to the dispute; and

   * The bias in favor of having disputes with local interest decided within the jurisdiction having the greater interest in the eventual outcome of the controversy.

   These factors are not intended to provide bright-line rules. Rather, according to Gulf Oil, they are to serve as aids to the court in making a determination as to whether a discretionary declination of jurisdiction is appropriate. The plaintiff's choice of forum may be disturbed if, after considering the factors, the balance weighs strongly in favor of the defendant.

   UNWILLING WITNESS FACTOR

   As noted, one of the private interest factors used in making the forum non conveniens determination is the availability of compulsory process for the attendance of unwilling witnesses. This factor raises an interesting question: Must a defendant prove that witnesses outside the subject jurisdiction actually would refuse to cooperate without compulsory process? If the answer is "yes," it begs two further question: How can a defendant prove that such witnesses would not voluntarily cooperate in the litigation when the very same uncooperative witnesses likewise are unlikely to cooperate in proving that they are uncooperative? How can a defendant who raises the forum non conveniens issue even determine the extent and importance of a non-jurisdiction witness's testimony if the witness is uncooperative?

1. Logical and Reasonable Approach

   In Piper Aircraft, the U.S. Supreme Court rejected the argument that defendants must specifically prove that witnesses residing outside the subject...