Forum Non Conveniens and the "flat" Globe
| Publication year | 2019 |
Forum Non Conveniens and the "Flat" Globe
Andrew Filipour
The doctrine of forum non conveniens was developed as a pragmatic response to an evolving judicial economy. This sense of pragmatism has continued to define application of the doctrine in the United States. Yet, in the international context, the Supreme Court last outlined the contours of forum non conveniens analysis in 1981 but, in the decades since, technological advancement has significantly altered the litigation playing field. For example, discovery is less burdensome now that documents are digitally transferable. And, even if relevant evidence isn't digitizable, shipping costs have decreased significantly. Echoing these facts, critics argue forum non conveniens has lost the pragmatism that once defined the doctrine.
While claims in opposition of forum non conveniens are plenty, and tend to make logical sense, they often lack sufficient empirical support. This is particularly troubling because the forum non conveniens analysis, as outlined by the Supreme Court, was intentionally left open ended. In fact, the Court acknowledged that lower courts would necessarily exercise continued discretion and directed them to consider other, unenumerated factors, that may be relevant on a case-by-case basis. Therefore, it's necessary to analyze how district courts apply forum non conveniens on a case-by-case basis to assess if the doctrine has continued utility.
This Comment examines how United States district courts make forum non conveniens decisions in cases involving foreign plaintiffs and domestic defendants. Specifically, by examining published forum non conveniens opinions, this comment hopes to shed light on the importance of globalization when courts make a forum non conveniens ruling.
If you ask a fifth grader, "is the world flat?" you're likely to get a chuckle and an, "of course not!" Pose the same question to New York Times best-selling author Thomas Friedman, or NBA star Kyrie Irving, and you'll get a conflicting response.1
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In Friedman's defense, and as exemplified by his book The World Is Flat, he doesn't really think the world is flat.2 His views can be boiled down to the proposition that the globe, and specifically global markets, are in the process of integrating at a rapid rate.3 Technological advancements, Friedman argues, have had the effect of flattening the earth, promoting competition, minimizing the importance of borders,4 and thus, sovereigns.5 Irving, on the other hand, believes the world is literally flat.6
While prophecies of a flat, integrated globe may seem strange in the current political climate, the sentiment has been popular of late.7 This excitement has not been lost on legal scholars,8 as illustrated by the 900 plus review and journal articles with "globalization" in the title.9 The explosion of such literature has led
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some to argue the global focus of academia has been excessive and romanticized.10
This Comment seeks to add to the literature by examining the impact of a "flat" earth, and our increasingly globalized society, in the context of judicial economy. To do so, the author has compiled and analyzed a twenty-case data set of forum non conveniens decisions.11 More specifically, cases litigated by foreign plaintiffs within the United States that overcame a motion for dismissal for forum non conveniens, in the period from January 1, 2007 to December 31, 2017.
It's important to emphasize that this Comment is only concerned with forum non conveniens as applied in the federal judiciary.12 While most states have
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developed versions of forum non conveniens, unsurprisingly,13 they vary in substance and application.14
The context in which state and federal courts apply forum non conveniens is very different.15 For example, state courts have general subject matter jurisdiction whereas federal courts are of limited subject matter jurisdiction.16 State courts, when making a forum non conveniens decision, often decide between retaining the case, or dismissal in favor of the parties litigating in a sister state.17 Under 28 U.S.C. § 1404(a), federal courts may transfer cases amongst each other, even if the transferee is located in another state or U.S. territory.18 Or, if more appropriate, these courts may remand the case back to the state court from which it was removed.19 In contrast, federal courts only dismiss claims under the doctrine of forum non conveniens in favor of wholly foreign judiciaries.20 Neither state nor federal courts have the authority to transfer cases outside of the United States judicial system.21
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To understand how globalization and forum non conveniens intersect it is helpful to consider how the doctrine developed and came to be recognized in United States federal courts. Accordingly, Part I offers a basic definition of forum non conveniens, followed by a discussion of the doctrine's development, and its relevance to measuring globalization. Part II discusses the disagreements, findings, and methodology of prior forum non conveniens research. Part III outlines a novel methodological approach that was implemented to create the twenty-case data set, explains how this methodology adds to the literature. Part IV outlines the findings and examines the common traits of cases that survive a motion to dismiss for forum non conveniens.
In the international context, forum non conveniens provides United States district courts discretion to dismiss (or stay) a case if it determines a venue outside the United States is the "appropriate and convenient forum for adjudicating the controversy."22 A dismissal is permissible even if all jurisdictional predicates have been met in the plaintiffs choice of venue,23 and even though the district court has no power to transfer the case to the foreign judiciary.24 To understand how courts came to adopt this mechanism, it is first necessary to understand its origins.
A. The Common-Law Origins of Forum Non Conveniens
Forum non conveniens conception seems to have been a pragmatic response to forum shopping.25 Its origins point to the United Kingdom, where John Bies notes, "plaintiffs obtained the power to determine venue, [and] that power was inevitably abused."26 As plaintiffs gained the ability to choose among various domestic courts to pursue their claims they perceived incentives to litigate in
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forums that did not necessarily have the closest relationship with the underlying claims.27 Unsurprisingly, plaintiffs tried to gain competitive advantage by vexing or oppressing adversaries through their venue choice.28
In response, the British Parliament passed several pieces of legislation in an attempt to dissuade its subjects from employing oppressive forum shopping tactics.29 By the seventeenth century a plea allowing defendants to challenge the plaintiffs choice of venue appeared in British courts.30 At first, that plea was only available when the underlying cause of action arose in one county and the plaintiff filed his writ in another.31 Soon after the common-law evolved and courts began assessing venue convenience sua sponte, even when the aforementioned plea was technically unavailable.32
By the mid-nineteenth century, as the world became increasingly globalized,33 Scottish courts encountered foreign nationals seeking recovery within its jurisdiction.34 Courts began applying a doctrine explicitly referred to as forum non conveniens which required courts to analyze venue convenience wholly independent of other jurisdictional issues.35 The Scottish Courts frequently exercised their discretion to dismiss these cases, under that doctrine, in favor of courts outside of Scotland.36 The prevailing view attributes these
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decisions as the origin of the forum non conveniens as applied in United States federal judiciary today.37
B. Early Forum Non Conveniens Application in the Federal Judiciary
Early United States district court admiralty decisions hint that federal courts have conceptually applied forum non conveniens, but did not overtly labeling their analysis as such.38 For example, Justice Marshall's 1804 opinion in Mason v. Blaireau39 describes that plaintiffs counsel had argued "upon principles of general policy[,]"40 that the Court ought not exercise jurisdiction over the matter, in part, because "it is entirely between foreigners."41 Prior to considering the merits of the underlying dispute, the Court claimed to have weighed the public inconvenience of hearing the matter, without mention of how it did so, and concluded the case was properly brought within the forum.42 Even though the Court did not elect to dismiss the case, Marshall's opinion implies that the Court could have dismissed the dispute if the Court had determined the burden of litigation outweighed the public interest.43
Prior to Paxton Blair's 1929 article, The Doctrine of Forum Non Conveniens in Anglo-American law, explicit use of the Latin term was not prevalent among American jurists.44 Blair's piece, on the other hand, explicitly called for the expanded use of a doctrine termed forum non conveniens.45 The call to arms was in response to what Blair perceived as severe court congestion,46 an issue he thought of familiar concern to Bar associations encompassing "larger centers of
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population in the United States."47 In lawyerly fashion, Blair urged his audience that adopting such a policy would be merely formalizing a practice that New York and English courts had already recognized as legitimate.48
By 1932 the Supreme Court's approach to questions of jurisdiction, in the admiralty context, had evolved into a framework resembling the modern forum non conveniens analysis.49 In Canada Malting Co. v. Paterson Steamships,50 two foreign flagged vessels had collided in the U.S. territorial waters of Lake Superior, giving rise to the litigation...
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