The forum non conveniens motion and the death of the moth: a defense perspective in the post-Sinochem era.

Author:Greenberg, Michael
 
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  1. INTRODUCTION

    "As a moth is drawn to the light, so is a litigant drawn to the United States. If he can only get his case into their courts, he stands to win a fortune." (1)

    On March 5, 2007, the United States Supreme Court resolved the split among the circuit courts as to whether a federal court must first establish its own jurisdiction before dismissing a suit using the forum non conveniens doctrine. (2) Speaking for a unanimous Supreme Court, Justice Ginsburg reversed the Third Circuit Court of Appeals' judgment, (3) holding that because the "resol[ution of] a forum non conveniens motion does not entail any assumption by the court of substantive 'law-declaring power,"' (4) a federal "district court has discretion to respond at once to a defendant's forum non conveniens plea, and need not take up first any other threshold objection." (5) Having returned an "arrow" to the district courts' "dismissal quivers," (6) Justice Ginsburg noted that "[t]his is a textbook case for immediate forum non conveniens dismissal" because determining "subject-matter jurisdiction presented an issue of first impression in the Third Circuit" and determining personal jurisdiction would have required extensive discovery "burden[ing the defendant] with expense and delay." (7)

    Under the federal doctrine of forum non conveniens, a court may dismiss a case where the inconvenience of the selected forum to the defendant and the court significantly exceeds its convenience to the plaintiff. (8) Given the Supreme Court's opinion in Sinochem International reaffirming the discretionary power a trial court wields in exercising this common law tool, it is incumbent on the parties litigating a dispute to have a full-fledged and working knowledge of how to facilitate a trial court in arming, or disarming, their proverbial bows with a forum non conveniens arrow. This Note will primarily address this topic from a defense counsel perspective; the insights offered, however, can be invaluable to the plaintiffs bar as well. While offering a descriptive view of the current state of the forum non conveniens doctrine, chiefly within the Second Circuit, the author will, on occasion, reference scholarly works by other authors who offer either their critiques or normative judgments of the doctrine; but it should be kept in mind that the aim of this Note is practical, not critical. Because of forum non conveniens' continuing application in federal cases, for the most part, where the alternative forum is abroad, this Note will assume a situation where a foreign plaintiff has brought suit against either an international or domestic defendant within the United States. (9) Also to be taken into account is that the case law adduced throughout this Note will be, for the most part, federal, and thus distinct from any common law or statutory enactments by the individual states of the forum non conveniens doctrine. (10)

    This Note will begin by exploring the history of the doctrine from its inception in state courts, to its formal recognition by the Supreme Court, and all of the way up to its present-day status. Next, this Note will examine the Sinochem International decision and delve into the practicalities and enduring problems that may arise, while proposing ideas that will expedite litigation on forum non conveniens dismissals. Lastly, this Note will focus specifically on cases brought within the Second Circuit. In so doing, the Second Circuit's standard will be reviewed both at the trial court and appellate court levels. In particular, this Note will examine how Second Circuit courts have addressed areas of the doctrine left open for interpretation by the Supreme Court as well as how its courts have finessed the Supreme Court's standard in the aftermath of Sinochem International. This last section will offer suggestions that defense counsel should consider both in advance of making a forum non conveniens dismissal motion and during the motion's consideration by the court; ultimately the goal will be to increase the prospects for dismissal and lessen the possibility of plaintiffs success upon an appeal.

    United States courts are particularly attractive to foreign plaintiffs (moths) for a variety of different reasons. (11) As defense counsel, the burden rests heavily in ensuring one's clients that they will not be disappointed that the resources they will have to expend in a forum non conveniens motion will be worthwhile. (12) To do so, proper knowledge of the relevant law as well as its local application is essential. From the moment either the client himself or herself, or general counsel, gives notice about a suit suspected to be susceptible to such a motion, to the moment of the actual filing of the motion with the court, possession and utilization of such knowledge will make favorable results more likely. (13) It should be defense counsel's objective to figuratively end the plaintiff-moths' lives in U.S. courts by procuring dismissal as soon as possible; the forum non conveniens motion is an excellent tool, or better yet, arrow, for shooting these moths out of the sky. As Virginia Woolf candidly observed, "[the moth] fell, fluttering his wings, on to his back ... the unmistakable tokens of death showed themselves.... The struggle was over. The ... little creature now knew death." (14)

  2. HISTORY AND EVOLUTION OF THE DOCTRINE: A METAMORPHOSIS

    1. Before The Plaintiffs Grew Wings: Pre-Piper Aircraft Co.

      Forum non conveniens refers to the doctrine that permits a court to "divest itself of jurisdiction" even though competent under the law, "if, for the convenience of the litigants and the witnesses, it appears that the action should proceed in another forum in which the action might also have been properly brought in the first place." (15) The doctrine's origin has generally been traced back to nineteenth century Scottish law; (16) it was not until Paxton Blair's 1929 article, however, that the doctrine was explicitly recognized in the United States. (17) In his article, Blair, a young associate at a Wall Street law firm, encouraged more widespread use of the doctrine, praising its value as a solution in dealing with "the flood of litigation by which our courts are being overwhelmed." (18) Blair's article sparked great interest in the doctrine and it was only four years later that the Supreme Court, though not explicitly referencing the doctrine, cited to the article, observing that "the proposition that a court having jurisdiction must exercise it, is not universally true." (19) Referring to the doctrine as "familiar" and "firmly imbedded in our law," Justice Frankfurter, in a dissenting opinion, admonished the Court for not employing forum non conveniens "in the interest of justice." (20) However, it was not until Gulf Oil Corp. v. Gilbert, (21) as every practitioner remembers from first year civil procedure, that the Supreme Court formally recognized the doctrine as a legitimate means for dismissal.

      Gulf Oil involved a diversity action between a Virginia citizen and a Pennsylvania corporation brought in the Southern District of New York. (22) Affirming the trial court's dismissal, a closely divided Supreme Court advised that as a threshold matter, "[i]n all cases in which the doctrine of forum non conveniens comes into play ... at least two forums in which the defendant is amenable to process [must be present]." (23) Next, the Court articulated a list of public and private interest factors that should be weighed before granting dismissal on forum non conveniens, to determine whether adjudication of the cause of action in the original, chosen forum would be inconvenient and unjust. Among the private interests of a litigant that should be considered are

      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. (24) Discussing the public interest factors, the Gulf Oil Court stated:

      Administrative difficulties follow for courts when litigation is piled up in congested centers.... Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation. In cases which touch the affairs of many persons, there is a reason for holding the trial in their view.... There is a local interest in having localized controversies decided at home. (25) The Court warned that "the plaintiffs choice of forum should rarely be disturbed," and should only happen when "the balance [of the factors] is strongly in favor of the defendant." (26)

      One year later, Congress responded to the Gulf Oil decision by enacting 28 U.S.C. [section] 1404(a), (27) allowing for the transfer of cases among the federal district courts. (28) Though applying nearly identical factors, this provision was more than a codification of the pre-existing law on the doctrine of forum non conveniens. Rather, a lesser showing of inconvenience was necessary to obtain a transfer than to invoke forum non conveniens because the statute eliminates the "harshest part of the doctrine"--dismissal of the action. (29) Nonetheless, the doctrine remained applicable to actions that could not be transferred to federal district courts. (30)

    2. Learning to Fly: The Modern Doctrine of Forum Non Conveniens and the International Litigant

      Seemingly dead in the domestic litigation context, the federal doctrine of forum non conveniens received minimal attention by the Supreme Court, and it was not until over 30 years later that the doctrine was reexamined in Piper Aircraft Co. v. Reyno. (31)

      Piper involved a lawsuit by the families of the victims of an airplane crash, which occurred in Scotland, against the manufacturers of the fallen aircraft (a Pennsylvania company) and the aircraft's propeller (an...

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