The Doctrine Defined

Forum Non Conveniens

The Doctrine Defined

A court can hold jurisdiction and proper venue and still be entitled to decline the case. Gulf Oil Corp. v. Gilbert supplies the leading federal statement of that power, and its facts show the problem the power solves.¹ A plaintiff who lived in Virginia sued in the Southern District of New York. The defendant answered that the appropriate place for trial was Virginia, where the plaintiff lived and the defendant did business, where all the events in the litigation took place, where most of the witnesses lived, and where both state and federal courts could obtain jurisdiction over the defendant.² Everyone conceded that the venue statutes let the plaintiff file in New York and empowered that court to hear the case. The Supreme Court replied that the concession did not settle whether the court must hear it.³

The doctrine exists because venue statutes are written broadly. They are drawn with a necessary generality and usually give a plaintiff a choice of courts, so that the plaintiff can be quite sure of some place to pursue a remedy.⁴ That generality is deliberate, and it leaves a gap. A court may resist imposition upon its jurisdiction even when the letter of a general venue statute authorizes it.⁵ The target is undue forum shopping. By choosing an inconvenient forum, the plaintiff may not "vex," "harass," or "oppress" the defendant with expense or trouble that the plaintiff's own right to a remedy does not require.⁶

The Court declined to catalogue the circumstances that justify or require dismissal. It left the matter to the discretion of the court where the plaintiff filed, and it observed that experience had shown no judicial tendency to renounce jurisdiction strong enough to produce many abuses.⁷ A strong preference for the plaintiff's choice checks that discretion: unless the balance is strongly in the defendant's favor, the plaintiff's choice of forum should rarely be disturbed.⁸

The working definition follows. A court with jurisdiction over the case may dismiss it when an alternative forum also has jurisdiction and either of two conditions holds. Trial in the chosen forum would impose oppressiveness and vexation on the defendant out of all proportion to the plaintiff's convenience, or the chosen forum is inappropriate because of the court's own administrative and legal problems.⁹ The Latin name means "inconvenient forum." The doctrine survives because federal courts, and most state courts, kept their common-law authority to dismiss a properly filed case even though no statute grants it.¹⁰

The usual remedy is dismissal, and the reason is structural. A judge cannot transfer a case outside the court system the judge sits in, and § 1404 authorizes transfer but not dismissal. The doctrine fills that statutory gap.¹¹ Dismissal would be unfair to the plaintiff unless the plaintiff can pursue the case in the alternative forum, which is why the sections that follow insist on an alternative that really exists.¹² Transfer between federal courts and the conditions attached to dismissals come later.

The doctrine presupposes that the plaintiff's chosen forum is legally proper. Gulf Oil said that the doctrine can never apply where jurisdiction is absent or venue is mistaken, and that it presupposes at least two forums in which the defendant is amenable to process.¹³ A plaintiff who files in a legally wrong place hands the defendant a statutory remedy, dismissal or transfer under § 1406, so the defendant has no need to ask a court's indulgence.¹⁴ How a federal court may sequence these questions is taken up in a later section.

The contractor invokes a statutory entitlement. The defendant in Gulf Oil could invoke only the court's common-law power to decline a properly filed case. That is why forum non conveniens applies only when the plaintiff's choice is legally correct, and why it has no work to do otherwise.¹⁵

The motion is addressed to the court's discretion and is granted only infrequently, typically when the plaintiff's forum is clearly inconvenient and an alternative exists that is a vast improvement.¹⁶ The court weighs the relative advantages and obstacles to a fair trial, and it may also ask whether a judgment obtained in one forum could be enforced.¹⁷ The public side of the ledger counts too. Litigation piled up in congested centers burdens courts, and jury duty should not fall on a community with no relation to the dispute. Localized controversies are better decided at home, and a diversity case belongs in a forum that knows the state law governing it.¹⁸ Gulf Oil fits that profile. The plaintiff was not a New York resident, no event in the case happened there, and no witness lived there except possibly experts. Only the plaintiff's own counsel was tied to the New York side.¹⁹

Forum non conveniens is also a different question from whether due process permits jurisdiction. In Burger King Corp. v. Rudzewicz the Court said that once a defendant has purposefully established minimum contacts, most considerations of inconvenience can be accommodated by means short of finding jurisdiction unconstitutional, and that a defendant claiming substantial inconvenience may seek a change of venue.²⁰ A dissent in World-Wide Volkswagen Corp. v. Woodson made the same point from the other direction, observing that defendants can influence the choice of forum through venue and forum non conveniens. The Revisor's Note to § 1404(a) says that provision was drafted in accordance with the doctrine, permitting transfer to a more convenient forum even though venue is proper.²¹ The doctrine thus picks up where the constitutional inquiry leaves off. It compares the relative convenience of two or more forums, each of which may be constitutionally authorized to hear the case, and the court need not first decide that the plaintiff's chosen forum actually has jurisdiction.²² An argument that the chosen forum is merely inconvenient therefore does not generally succeed as a due process objection once contacts exist. It remains available as a plea to the court's discretion.

Federal courts and most state courts recognize the doctrine.²³ Each state is on its own in devising its version, whether by statute, by decisions, or by both, and a state may reject the doctrine altogether.²⁴ Several states forbid a forum non conveniens dismissal whenever the plaintiff or another party is a resident of the forum state, and Idaho has no such doctrine at all.²⁵

The sections that follow build the inquiry in two stages. The first asks whether a real alternative forum exists, because the doctrine presupposes at least two forums in which the defendant is amenable to process and supplies criteria for choosing between them, and because dismissal is unfair unless the plaintiff can pursue the case elsewhere.²⁶ The second balances the burden on the parties against public concerns such as court congestion, jury burden, local interest, and familiarity with the governing law, all measured against the preference for the plaintiff's choice.²⁷ In Gulf Oil, Virginia supplied the alternative at the first stage, and the location of the events and witnesses there tilted the second stage toward Virginia.²⁸