Toward a more "convenient" standard of review in cases involving forum non conveniens issues.

• Author: Alonso, Alina
• Position: Appellate Practice

The common law doctrine of forum non conveniens (FNC) first emerged from Scottish estate cases and was subsequently adopted and refined by American jurisdictions. (1) This Latin phrase means "inconvenient forum ." (2) As a practical tool, FNC addresses the difficulties that arise when a plaintiff-selected tribunal technically possesses jurisdiction over an action, but the action is more appropriately and conveniently prosecuted in another jurisdiction that similarly possesses the ability to resolve the matter. (3) In state court, an FNC motion to dismiss may indicate that another American state or a foreign nation provides a more convenient forum to resolve a given dispute. (4) In federal court, such a motion only applies to the dismissal of a cause of action in favor of a foreign forum. (5)

The U.S. Supreme Court has described FNC as "nothing more or less than a supervening venue provision, permitting displacement of ordinary rules of venue when, in light of certain conditions, the trial court thinks that jurisdiction ought to be declined." (6) Upon reading this brief description from the high court, one might assume that a trial court's analysis of an FNC motion involves a totally unbridled, fact-intensive level of discretion. This article will explore whether definitive federal and Florida FNC precedent truly provides, or should provide, such an expansive level of discretion to trial courts when ruling upon all aspects of FNC motions.

Appellate Standards of Review Generally

The suitable standard of review in an appeal depends on the nature of the decision reached by the trial court. (7) While the result below is usually clothed with a presumption of correctness, divergent levels of deference apply depending upon the question addressed and the analysis provided by the lower court. (8) There are at least four categories of deference, which correspond to four types of review.

First, appellate courts need not, and do not, defer to trial courts regarding questions of law. Appellate courts, therefore, address legal questions de novo. (9) Second, it is equally true that a high level of deference is often owed to trial courts concerning questions of fact. If the lower court commanded a superior vantage point to determine the facts in question, an appellate court will simply determine whether the trial court's factfinding is supported by competent, substantial evidence contained in the record. (10) Third, some issues involve the careful balancing of competing interests and, hence, necessarily entail the exercise of case-specific discretion. In that event, deference to the trial court is at its highest, and the appellate court will only reverse the trial court if the decision below resulted from an abuse of discretion. (11) Fourth and finally, a given issue may involve a combination of two or more of the above mentioned categories and standards. (12) For example, a multifactor test might involve one or more prongs that address questions of law, whereas the remainder of the prongs might address the discretionary balancing of competing interests. Under these circumstances, to promote consistency and logic in the law, a de novo standard may be appropriate to review the legal prongs, and an abuse-of-discretion standard may be appropriate to review the prongs that involve the case-specific balancing of competing interests. (13) The end product would be a "mixed" standard of review. (14)

Federal FNC Framework

Although there are many federal FNC decisions, the two most significant for these purposes are Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947), and Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981). These decisions outline the general parameters of a federal FNC analysis. Reading them in pari materia provides a four-prong test: 1) At the outset, does an available and adequate alternative forum exist that possesses jurisdiction over the parties and may resolve the dispute? 2) Do the private interests of the litigants favor one forum or another? 3) Do the public interests associated with each forum favor one over the other? And 4) If the alternative forum is more appropriate and convenient, may the plaintiff reinstate the claim there? (15) Our discussion will focus upon prongs one to three. (16)

With regard to prongs two and three, the high court provided that if the trial court's "balancing" or "weighing" of the private and public interest factors is reasonable, then this determination is entitled "substantial deference" and is reviewed on appeal for abuse of discretion. (17) Importantly, however, the U.S. Supreme Court did not indicate that prong one--whether an available and adequate alternative forum exists--is reviewed for abuse of discretion. Instead, the Piper court provided:

At the outset of any [FNC] inquiry, the court must determine whether there exists an alternative forum. Ordinarily, this requirement will be satisfied when the defendant is "amenable to process" in the other jurisdiction. In rare circumstances, however, where the remedy offered by the other forum is clearly unsatisfactory, the other forum may not be an adequate alternative, and the initial requirement may not be satisfied. Thus, for example, dismissal would not be appropriate where the alternative forum does not permit litigation of the subject matter of the dispute. (18)

Consequently, prong one is a legal condition precedent to addressing prongs two and three.

Based on the Supreme Court's language, prong one involves purely legal issues: 1) whether the defendant is amenable to process in the proposed alternative forum ("availability"), and 2) whether the proposed alternative forum provides a nonillusory remedy with regard to the subject matter of the dispute ("adequacy"). (19) These issues present questions of foreign law, and, as learned above, appellate courts typically review questions of law de novo, not for abuse of discretion...