Concept
The Dismissal Test
Forum non conveniens
The Dismissal Test
A federal court decides a forum non conveniens motion by answering four questions in a fixed order, a sequence the Fifth Circuit laid out in Gonzalez v. Chrysler Corp.1 The first two questions concern the alternative forum: is it available, and is it adequate? The last two are the balancing: do the private interests, and then the public interests, point toward trial elsewhere? The order follows from the remedy. Dismissal sends the plaintiff to another court, so comparing two courtrooms accomplishes nothing when one of them cannot hear the dispute or offer real relief. A court that finds no available and adequate forum therefore stops at the threshold and keeps the case, and the Gulf Oil balancing never begins.2
The factors themselves come from Gulf Oil Corp. v. Gilbert. There the Court found New York's rule on a court's discretion to apply the doctrine, and on the standards that guide it, the same as the federal rule, and so saw no profit in asking from which source its own rule must flow.3
The defendant carries the burden of invoking the doctrine and of proving it, so the plaintiff may stand on the chosen forum until the defendant builds each step.6 One common formulation compresses the showing into three elements: an adequate alternative forum is available, the public and private factors favor dismissal, and the plaintiff can reinstate suit in the alternative forum without undue inconvenience or prejudice.7 The first two elements track the steps above. The third looks past dismissal to the refiled case, and it fits the usual practice of making dismissal conditional on the foreign court's taking jurisdiction and deciding the case.8
The trial judge makes the call. Balancing the Gulf Oil factors rests in the trial court's sound discretion, and an appellate court reverses only for a clear abuse of discretion.9 The inquiry does not require extensive investigation, and the court may resolve it on the parties' affidavits.10 Review is narrowed at the procedural level as well. In Van Cauwenberghe v. Biard, the Court held that an order denying the motion is not immediately appealable under 28 U.S.C. § 1291, because the court must scrutinize the proof and the local interest and so becomes entangled in the merits of the underlying dispute.11 A district court may instead certify the question for interlocutory review under § 1292(b).12 Availability, the first question, comes next.
An Available Alternative Forum
Gulf Oil built the doctrine on a premise about courts: it “presupposes at least two forums in which the defendant is amenable to process,” and it supplies criteria for choosing between them.13 Federal courts turned that premise into the first threshold question. A forum is available when “the entire case and all parties can come within the jurisdiction of that forum.”14 The Restatement (Second) of Conflict of Laws states the same condition from the plaintiff's side: a court should not dismiss for inconvenience unless “a more appropriate forum is available to the plaintiff.”15 Availability thus asks whether a foreign court can take the dispute and the people in it. Whether the remedy that court offers is good enough is the separate question of adequacy.
Availability comes first because of what dismissal does. A federal court cannot transfer a case to a court in another country, so its only option is to dismiss and leave the plaintiff to refile abroad.16 That result is fair only if the plaintiff can in fact pursue the case there, and a forum non conveniens dismissal rests on the assumption that the plaintiff can refile.17 If the foreign court would refuse the claim or could not reach a party, dismissal would end the case. The defendant asks for the dismissal, so the defendant must prove that the forum is available.18 The proof must exist before the court rules, because a court that can only dismiss cannot rely on foreign cooperation afterward.19
In the ordinary case, the requirement is met when the defendant is “amenable to process” in the other jurisdiction.20 Amenability serves as the usual proxy because the plaintiff reaches the dispute abroad by suing the defendant there, and a defendant who can be served in the foreign forum can be sued there. A multiparty case adds a demand: jurisdiction over all parties must be securable in the alternative court, and that court must be able to give complete relief.21 A forum that can hear only part of the dispute would send the plaintiff to a second court for the rest, or leave some claim with no court at all.
The hypothetical shows that consent can supply what a foreign court's own jurisdictional rules would not. In Piper Aircraft Co. v. Reyno, the manufacturers agreed to submit to the Scottish courts and to waive any limitations defense, and the district court found that an alternative forum existed in Scotland.22 In Gonzalez, Mexico was undisputedly an amenable forum because the defendants had agreed to submit to the Mexican courts, so the appeal went straight to adequacy.23 The Fifth Circuit has noted a debate over whether the alternative must have been open when the plaintiff sued or only later, and courts routinely require a waiver of limitations defenses as a condition of dismissal.24 A defendant who asks to be sent abroad risks little by promising to appear there, and the promise gives the plaintiff the one thing a dismissal otherwise threatens to take away: a court that will hear the case.
Timing follows from the same logic. In Perusahaan Umum Listrik Negara Pusat v. M/V Tel Aviv, the Fifth Circuit held that the alternative forum must be available at the time of dismissal, because the doctrine is a “choice between forums” and the choice is made when the court rules.25 A consent filed while the motion is pending therefore counts, and what the plaintiff could have done on the day of filing does not control. A forum that was open at filing but has closed by the time of ruling does not qualify. A plaintiff whose claim would be time-barred abroad suffers the same loss, which is why courts may require the defendant, as a condition of dismissal, to waive the limitations defense.26 A later section on conditional dismissals develops the technique.
The failing cases mark the boundary from the other side, because in each the foreign court will not or cannot hear what the plaintiff has. Piper's footnote cites Phoenix Canada Oil Co. v. Texaco, Inc., where it was unclear that an Ecuadorean tribunal would hear the case and no codified Ecuadorean remedy existed for the unjust enrichment and tort claims.27 In National Hockey League Players' Ass'n v. Plymouth Whalers Hockey Club, the court refused to dismiss a claim that could not have been litigated in Canada, which offered only an administrative grievance procedure unlikely to yield any remedy.28 Both forums existed, but neither would adjudicate the claims the plaintiff actually had.
An in rem admiralty case presents a special version of the problem. A vessel can ordinarily be seized in rem only once, because seizure releases the maritime lien, so dismissal can leave the plaintiff with no forum where the vessel can be reached.29 Even where jurisdiction over the owner is obtainable abroad, the loss of the vessel as security for a judgment may make the foreign remedy no remedy at all, which shades into adequacy.30
Failing this step ends the motion. If no adequate alternative forum exists, the court should not dismiss, however the balancing factors fall.31 When the other court exists and will hear the dispute, the court moves on. The Tel Aviv court applied the step in that order. It required the defendant to submit to the London court's jurisdiction and to post equivalent security, so that the foreign forum was both available and adequate before the court reviewed the balance of convenience.32
Foreign legislation can close a door that looked open. Some countries have enacted retaliatory statutes that strip their courts of jurisdiction over a case an American court has dismissed on forum non conveniens grounds, and an American court that sees the foreign forum shut in this way may find it unavailable and decline to dismiss. Other American courts resist that result. A Florida appellate court held in Scotts Co. v. Hacienda Loma Linda that a plaintiff may not render the alternative forum unavailable by relying on foreign laws plainly calculated to preclude dismissal in Florida, and a Delaware decision, Aranda v. Philip Morris, rejected the alternative-forum requirement for these dismissals altogether. States, in other words, build their own versions of the doctrine, a point developed in the later section on state practice.
The two threshold steps are easy to blur. Availability asks only whether the foreign court will take the case and all of the parties. A thin or unfavorable remedy does not make a forum unavailable; it raises the question of adequacy, which has its own low standard and comes next.33
An Adequate Alternative Forum
Availability asks whether a foreign court can take the whole case and every party; adequacy asks what that court would do with the case once it has it. The adequacy requirement comes from a footnote in Piper Aircraft Co. v. Reyno. It says that where the remedy offered by the other forum is clearly unsatisfactory, the forum may not be an adequate alternative, and it gives as an example an alternative forum that does not permit litigation of the subject matter of the dispute.36 Courts applying the footnote have settled on a working test: an alternative forum is adequate if the parties will not be deprived of all remedies or treated unfairly, even though they may not enjoy the same benefits they would receive in an American court.37 The test sets a floor and measures only whether something real is on offer, so a forum can provide far less than an American court and still clear it.
The bar sits low for two reasons, each protecting a different interest. The first is comity. A country that limits tort damages or declines to recognize a theory of liability has weighed the interests of victims, consumers, and manufacturers and settled on a trade-off, and an American court that called the forum inadequate because of that choice would substitute its own policy preference for the foreign legislature's.38 The second reason is administrability. American procedure and tort law tend to look more attractive to plaintiffs than the law of most other countries, so a rule demanding that the foreign forum be at least as generous would almost never permit dismissal, and it would oblige American judges to learn foreign law well enough to rank it against their own.39 A floor remains because dismissal sends the plaintiff to another courtroom, and a courtroom that would give the plaintiff nothing leaves the case nowhere to go. Piper therefore reserved the point for a remedy so inadequate that it is “no remedy at all.”40
Piper itself shows how little the standard demands. The decedents in the Scottish air crash were all Scottish residents, a California administratrix sued the American manufacturers, and Scottish law did not recognize strict liability in tort, did not permit wrongful death actions in the same form, and did not allow contingency fees.41 The Court still found Scotland adequate. The relatives might be unable to rely on a strict liability theory and might recover a smaller award, but they faced no danger of being deprived of any remedy or treated unfairly.42 A weaker claim, a smaller recovery, and a procedural system that works differently from ours are all consistent with adequacy.
Gonzalez applied Piper to facts that tested it harder. A Mexican family sued in Texas after an air bag allegedly killed their three-year-old child in an accident in Mexico. Because the defendants had agreed to submit to the Mexican courts, availability was undisputed and the appeal turned on adequacy.43 The family argued that Mexican law offered no strict liability against a manufacturer and capped damages for a child's death at roughly $2,500, the equivalent of 730 days of the Mexican minimum wage.44 The Fifth Circuit disposed of the first point quickly, because nothing distinguished Mexico's lack of strict products liability from Scotland's, so Piper controlled.45 It resolved the second point by returning to comity: Mexico's lawmakers had chosen to limit damages for a child's death, and a United States court had no warrant to replace that choice with its own view of what is good for Mexican citizens.46
The family's most striking argument was economic. The parties agreed at oral argument that the case would never be filed in Mexico, so dismissal would decide the outcome for the manufacturer. The court still declined to treat the economic viability of the lawsuit as part of adequacy.47 Its first reason was that viability turns on the plaintiff's particular injuries, the claim that is most provable and compensable in the forum, the defenses available there, and the cost of trial, so the same country could be adequate for one plaintiff and inadequate for another because of arbitrary differences in cost or recovery.48 Its second reason was that a viability test would require a court to say at what point a damage cap turns an adequate forum into an inadequate one, whether at $2,500, $50,000, or $100,000, and the doctrine supplies no principle for drawing that line.49
Economic hardship does not vanish from the motion. The Fifth Circuit suggested in a footnote that viability fits better as a private-interest factor, considered after the court has found the forum available and adequate.50 Nowak v. Tak How Investments, Ltd. shows hardship counted at that later stage. Hong Kong was an adequate forum because its courts recognize a similar cause of action, and the plaintiffs' financial obstacles there were weighed among the private interests. Those obstacles included a prohibition on contingent fee agreements and a requirement to deposit an amount equal to the defendant's costs, and the First Circuit affirmed the denial of dismissal.51
A complaint that the foreign judiciary itself is corrupt meets the same reluctance. In re Arbitration between Monegasque de Reassurances S.A.M. v. NAK Naftogaz of Ukraine, the Second Circuit faced an insurer's argument that Ukraine was inadequate because of general corruption in the body politic. The court answered that very little had been offered to show the widespread corruption in the courts that the insurer claimed.52 Federal courts have been reluctant to label foreign courts corrupt or biased, and the court agreed with the district court that meager and conclusory submissions did not permit a judgment about the integrity of Ukraine's judicial system.53 The insurer's other arguments fared no better. The involvement of a state-owned enterprise did not make the forum inadequate, and the claim that judgments could not be executed against government property was speculation that Ukrainian law appeared to contradict.54 The court described the forum that does fail as one marked by a complete absence of due process or an inability to provide substantial justice, and Ukraine did not fit that description.55 The reluctance has a reason. A judge who declares another nation's courts corrupt is making a finding about a foreign sovereign, and bare denunciations give the judge no evidence to test. If sweeping allegations sufficed, they would appear in nearly every motion, and each would call for an inquiry into a foreign legal system on the plaintiff's say-so.
The objections that succeed show that the plaintiff cannot obtain a real adjudication in the foreign forum. In Rasoulzadeh v. Associated Press, the court denied dismissal because it believed that plaintiffs forced to litigate in Iran would probably be murdered, and the Second Circuit in Monde Re cited that decision as an example of a forum with a complete absence of due process.56 Set beside the Ukraine claim, the lesson is that a specific and grave danger to these plaintiffs counts, while a general reputation for corruption does not. The other recurring failure is the forum that exists but will not hear the claim. Piper pointed to Phoenix Canada Oil, where no codified Ecuadorean remedy existed for the unjust enrichment and tort claims.57 The Plymouth Whalers court refused to dismiss for the same reason, because Canada offered only an administrative grievance procedure unlikely to yield any remedy.58 Those decisions also surfaced under availability because the two steps sit close together: a court that exists on paper but will not or cannot adjudicate what the plaintiff has fails both inquiries.
Perusahaan Umum Listrik Negara Pusat v. M/V Tel Aviv draws the line inside a single opinion. The plaintiffs identified an English rule that attributes the carrying vessel's fault to the cargo owners, and the Fifth Circuit refused to count it, because the rule is not nearly so grievous as to amount to “no remedy at all.”59 The same opinion recognized a different problem that can reach that level. In an in rem case, dismissal may leave the plaintiff unable to attach the vessel as security for enforcing a judgment, and that loss may render the alternative forum's remedy no remedy at all.60 A rule that shrinks the plaintiff's recovery changes the size of the remedy, while the loss of the vessel as security can decide whether any judgment is ever collected. The court handled the second problem with conditions, finding that a dismissal requiring the defendant to submit to the foreign court's jurisdiction and to post equivalent security satisfied both availability and adequacy.61
Close cases show how fact-bound the inquiry is. In re Lernout & Hauspie Securities Litigation found the alternative forum inadequate for an action brought mainly by U.S. investors, because the forum lacked both a class action mechanism and a fraud-on-the-market claim. Warlop v. Lernout found an alternative forum adequate in a related action brought mainly by foreign investors, despite the combined absence of the same features.62 Two quite similar cases reached different results, which shows that a missing procedural feature does not decide adequacy by itself.
Adequacy is the extreme end of a broader question: how much weight a court gives to the possibility that the alternative forum's law is less favorable to the plaintiff. Piper's general answer is that the possibility should ordinarily receive neither conclusive nor substantial weight, and the next major section develops that rule.63 The exception for a remedy that is no remedy at all marks the point where unfavorable law can receive substantial weight.64 A California appellate decision, Holmes v. Syntex Laboratories, Inc., once tied the suitability of the foreign forum to how favorable its law would be to the plaintiff, but the California Supreme Court later disapproved that minority view in Stangvik v. Shiley Inc. On an exam, a stem that stresses how much less the plaintiff would recover abroad describes a less favorable remedy, which the adequacy step tolerates. The same stem becomes an adequacy problem only when its facts add that no court will hear the claim, that no remedy exists at all, or that the plaintiff cannot get a fair hearing.
Deference to the Plaintiff's Choice
The balancing in the last two steps begins with a presumption, which Gulf Oil states in one sentence. After listing the litigants' private interests, the Court said that “unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed.”67 Piper later restated the idea as a strong presumption for the plaintiff's choice, one that yields only when the private and public interest factors clearly point toward trial in the alternative forum.68 The presumption works as a weight on one pan of the scale rather than as a separate gate. A defendant who has proved an available and adequate alternative has shown only that dismissal is possible, and the remaining question is whether the private and public factors clearly outweigh the weight already resting on the plaintiff's side.
The presumption starts from what the plaintiff's choice represents. Venue statutes are drawn with necessary generality and give a plaintiff a choice of courts, so that he may be sure of some place in which to pursue his remedy.69 A plaintiff who stays within those limits has chosen among forums the law authorizes, and courts disturb that choice only rarely.70 The doctrine targets the exceptions, for “the open door may admit those who seek not simply justice but perhaps justice blended with some harassment.”71 If a defendant could win dismissal by showing only that some other court was equally convenient or slightly better, every filing would invite a motion, and trial courts would spend their time comparing forums instead of deciding cases. Requiring a strong showing confines the motion to the cases in which the chosen forum is clearly the wrong place.
The presumption takes its sharpest form for the plaintiff who sues at home. Gulf Oil's companion case, Koster v. Lumbermens Mutual Casualty Co., says that a home-forum plaintiff should not be deprived of the presumed advantages of that forum except on a clear showing of facts that either establish oppressiveness and vexation to the defendant “out of all proportion” to the plaintiff's convenience, or make trial in the chosen forum inappropriate because of the court's own administrative or legal problems.72 The first route is comparative, since the defendant's hardship is measured against what the plaintiff gains by suing where the plaintiff did. The second looks to the court's own situation and so tracks the public-interest factors. A home-forum plaintiff who shows real convenience in the chosen forum will normally defeat a defendant's showing of mere inconvenience.73
The presumption weakens when the plaintiff is foreign, and the reason is stated. The central purpose of the inquiry is to ensure that trial is convenient, and when a plaintiff has chosen the home forum it is reasonable to assume the choice is convenient. That assumption is much less reasonable when the plaintiff is foreign, so a foreign plaintiff's choice deserves less deference.74 Citizenship and residence serve as stand-ins for convenience, because a court cannot audit each plaintiff's burdens at the start of the case and so infers them from where the plaintiff lives.75 The distinction also offsets the attraction that American procedure and, in products cases, American tort law hold for foreign litigants.76
Piper shows the weakened presumption at work, and it shows that courts look past the name on the complaint. A California probate court had appointed Gaynell Reyno, a legal secretary to the attorney who filed the suit, administratrix of the estates of five passengers killed in an air crash in Scotland. She did not know the decedents or their survivors, and she admitted that the action was filed in the United States because American law on liability, capacity to sue, and damages favored her position.77 The decedents were all Scottish subjects and residents, and the Court treated the real parties in interest as Scottish.78 It approved the view that the presumption applies with less force when the plaintiff or the real parties in interest are foreign, which made the administratrix's California address beside the point.79
The Supreme Court has since compressed both halves of the rule into a single sentence. A defendant invoking the doctrine ordinarily bears a heavy burden in opposing the plaintiff's chosen forum, and when the choice is not the plaintiff's home forum the presumption “applies with less force,” because the assumption that the forum is appropriate is then “less reasonable.”80 Nowak illustrates the home-forum half. Massachusetts plaintiffs sued a Hong Kong company in Massachusetts, and the First Circuit, recalling that Koster places a heavy burden on defendants when plaintiffs sue at home, affirmed the denial of dismissal.81 The defendant pointed to the expense of transporting witnesses, the difficulty of joining third-party defendants, and the chance that a Hong Kong court would not enforce a Massachusetts judgment. The court found none of this oppressive out of proportion to the plaintiffs' inconvenience, because the plaintiffs would have to transport witnesses to Hong Kong and later enforce a foreign judgment at home.82 The decisions differ because of the plaintiff's position rather than the size of the burdens. In Piper the presumption started weak and the evidence and witnesses in Scotland could carry the balance. In Nowak it started at full strength, and burdens that fell on both sides could not overcome it.83
The defendant's burden extends to particulars, and a bare claim that another place is more natural does not carry it. In ISI International, Inc. v. Borden Ladner Gervais LLP, the Seventh Circuit vacated a dismissal in favor of Ontario because the district court's discussion was cursory and did not apply the analysis that Gulf Oil and Piper require, an analysis that begins from a strong preference for the plaintiff's chosen forum.84 The only reason the district court gave was that the business transactions underlying the suit occurred in Ontario. The Seventh Circuit found that reason neither compelling nor accurate. The business transactions were worldwide: they involved a Dutch physician in Ottawa, a Michigan patent firm, a Texas corporation, and negotiations over worldwide licensing, and one key agreement was signed in Texas under a Texas choice-of-law clause.85 A defendant who says one forum is clearly better must show that the dispute is actually centered there.
The Second Circuit has turned the home-versus-foreign distinction into a sliding scale. In Monde Re, the court described the first level of inquiry as fixing the deference owed to the plaintiff's choice. A domestic petitioner's choice of its home forum receives great deference, and a foreign petitioner's choice of a United States forum receives less. The amount shifts with motive: the more the choice appears driven by forum-shopping reasons, such as the inconvenience and expense it imposes on the respondent, the less deference it commands.86 The scale also runs the other way, since the greater the bona fide connection between the petitioner or the lawsuit and the United States forum, the harder dismissal becomes. In Monde Re, the jurisdiction provided by the Convention was the only link between the parties and the United States, and litigating the complex issues there would have been greatly inconvenient, so little deference was due.87 A sliding scale suits the presumption because the presumption is an inference about why the plaintiff picked the forum. Evidence of tactical motive or a thin connection weakens the inference case by case, and a genuine tie to the forum strengthens it.
An early admiralty decision, Swift & Co. Packers v. Compania Colombiana Del Caribe, S.A., observed that applying the doctrine to a suit by a United States citizen against a foreign respondent brings into force considerations “very different from those in suits between foreigners.”88
Representative plaintiffs also receive less deference than individual ones. In a derivative or other representative suit, the named plaintiff's interest in a chosen forum can be given less weight because, as a practical matter, the suit is brought on behalf of many potential plaintiffs who share an equal interest in a particular forum.89 The home-forum inference rests on one person's convenience, and a named representative's address says little about where the many absent members would find trial convenient.
Private Interest Factors
The first half of the balancing looks at the litigants, and Gulf Oil supplies the list. Justice Jackson called the private interest of the litigant the consideration likely to be most pressed, and he named its components: the relative ease of access to sources of proof; the availability of compulsory process for unwilling witnesses and the cost of obtaining the attendance of willing ones; the possibility of a view of the premises, if a view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious, and inexpensive.92 He added that there may be questions about enforcing a judgment if one is obtained, and that the court weighs the relative advantages and obstacles to a fair trial.93 The passage reduces to a set of practical questions about the trial itself:
- Where are the sources of proof, and how easily can they be brought to the courtroom?
- Can the court compel unwilling witnesses to attend, and what would it cost to bring willing ones?
- Would a view of the premises help, and could this court conduct one?
- Could a judgment from this court be enforced where it must be enforced?
- What other practical problems, such as the inability to implead a third party, would make trial harder, slower, or more expensive?94
The list has one organizing idea, which Gulf Oil framed as a limit on the plaintiff: by choosing an inconvenient forum, a 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.95 Each factor tests a different way a chosen courtroom can impose that excess burden. Documents, physical objects, and records must be assembled at trial, so the farther they lie from the courtroom, the more the trial costs. A court can compel live testimony only from witnesses within its reach, so a trial held far from the witnesses may lose the account of anyone who declines to come. Even a cooperative witness must be transported, housed, and released from work, and someone pays for that, which is why the cost of willing witnesses is its own item. Enforceability asks whether a judgment won in the chosen forum can be put into effect where it will have to be satisfied, since a judgment is worth only what can be done with it.
The factors are easy to name and hard to total, which is why courts weigh them instead of counting them. Gulf Oil admitted that the combination and weight of factors needed to reach a given result are difficult to forecast, even though the considerations themselves are not difficult to name.96 A raw tally fails because one indispensable witness can outweigh several marginal ones, and because which evidence is indispensable depends on the claims and defenses actually tried. The district court must therefore examine the substance of the dispute to see what proof is required and whether the evidence the parties cite is critical, or even relevant, to the claim and to any defense.97
Piper shows the weighing at work, and it shows the factors pointing in two directions at once. After the plane crashed in Scotland, the district court found that the wreckage, the witnesses on maintenance, pilot training, and the crash investigation, and all the witnesses on damages were in Great Britain, and that crucial witnesses and evidence were beyond compulsory process.98 It also noted that trial would be aided by familiarity with Scottish topography and easy access to the wreckage, which is the view-of-premises factor in practice.99 The Supreme Court called the district court's label of “overwhelming” Scottish connections “somewhat exaggerated,” because the records on the design, manufacture, and testing of the propeller and plane were in the United States, and the plaintiff would have had greater access to proof for her strict liability and negligence theories if trial were held here.100 Even so, the district court did not act unreasonably in concluding that fewer evidentiary problems would arise in Scotland, since a large proportion of the relevant evidence was there, and so there was no abuse of discretion.101 The Court added that a district court in a similar case might dismiss on condition that the defendants agree to provide the records relevant to the plaintiff's claims, a technique that answers the American-records half of the problem.102
The court of appeals in Piper had discounted the defendants' proof problems because they did not identify, witness by witness, the evidence they would be unable to obtain if trial were held in the United States. The Supreme Court rejected that requirement. Defendants who move for dismissal precisely because many crucial witnesses lie beyond compulsory process will find those witnesses hard to identify or interview, so demanding extensive investigation would defeat the purpose of the motion.103 Defendants must still give the district court enough information to balance the parties' interests, and in Piper the affidavits describing the evidentiary problems of a trial in the United States met that standard.104 One defendant's affidavit listed categories of witnesses it would call, among them the decedents' relatives, the aircraft's servicers, and those responsible for the pilot's training and licensing.105 The inquiry remains flexible: it does not necessarily require extensive investigation and may be resolved on affidavits.106
The ability to bring every responsible party into one trial often decides the practical-problems factor. In Piper, the defendants' defense depended on showing that the pilot, the plane's owners, or the charter company was at fault, so joining the pilot's estate, the Scottish air taxi operator, and the owner was crucial, and none of them could be impleaded in the United States.107 The defendants could have sued those parties for indemnity or contribution in Scotland after losing here. But the Court said that resolving all claims in one trial would be far more convenient, and that a finding that trial in the plaintiff's forum would be burdensome is enough to support dismissal even if it would not be “unfair.”108 The district court had added a concern about inconsistent verdicts, because different juries might find different facts when the same accident was litigated twice.109 A collision case reached the same place by a different route. In Tel Aviv, the cargo owners sued the vessel in Texas, the vessel had a strong interest in impleading the other ship in the collision, and that ship could not be brought into the Southern District of Texas but had already invoked the English courts by suing there.110 The principal testimony would come from British salvage experts and the crew of a British tug, whose offices and records sat within the compulsory process of an English court, so the court concluded that the defendant had presented convenience factors strongly favoring England.111 Both decisions turn on one fact: a forum in which every interested party can be gathered is easier to try in than a forum where some cannot be reached.
Compulsory process and documents carried the balance in Monde Re. The petitioner sought to hold Ukraine bound as a non-signer of an arbitration agreement, which required extensive discovery and probably a trial on factual issues of non-signer liability, and the court of appeals found that the evidence for those issues was not in the United States.112 The witnesses were beyond the district court's subpoena power, the pertinent documents were in Ukrainian, and enforcing or satisfying the award would not be easier here, so the whole proceeding would be more “easy, expeditious and inexpensive” in Ukraine.113 The court's own caveat is instructive. The private factors might not ordinarily favor dismissal in a summary proceeding to confirm an award, but this case was not suited to summary disposition, so the court looked to the issues likely to be actually tried.114 Gonzalez shows the factors lining up on one side. A Mexican citizen sued over a death in a Mexican accident involving a car bought in Mexico, and neither the car nor its air bag was designed or manufactured in Texas, so the Fifth Circuit found no private or public factor suggesting that Texas was the appropriate forum.115
A defendant's showing fails when it offers conclusions instead of burdens. In ABKCO Industries v. Lennon, a New York trial court applying that state's version of the doctrine declined to dismiss a suit by a domestic corporation that carried on much of its activity in New York, even though a related action was pending in England. The defendants had shown no undue hardship in marshalling proof or requiring the attendance of witnesses.116 In Nowak, the Hong Kong defendant pointed to the expense of transporting witnesses, the difficulty of joining third-party defendants in Massachusetts, and the chance that a Hong Kong court would not enforce a Massachusetts judgment. The First Circuit found none of this oppressive out of proportion to the plaintiffs' inconvenience, because the Nowaks would also have to transport witnesses to Hong Kong and later enforce a foreign judgment at home.117 A burden that falls on both sides cancels out of the comparison, and what remains must still show that trial in the chosen forum is oppressive to the defendant.
The alternative forum's own procedures can also undercut the showing. In ISI International, the plaintiff argued that compulsory process for discovery in Ontario depended on leave of the judge, while compulsory process in the United States is more mechanical, so it might be unable to depose witnesses who lived in the United States. The district court had not considered the concern.118 The argument shows that compulsory process compares two systems, and the plaintiff may point to the defendant's chosen forum as the place where proof is harder to gather. The public interest factors, which concern the burden on the court and the community rather than on the litigants, make up the other half of the balance.
Public Interest Factors
After cataloguing the litigants' private interests, Gulf Oil turned to the interests of the court and the community, observing that factors of public interest also have a place in applying the doctrine.121 Piper later reproduced the same passage in describing what a district court weighs on a forum non conveniens motion, so the list remains the governing statement of the public side of the balance.122 It names five considerations, each of which looks away from the parties' convenience and toward the burden a trial would place on the forum:
- Court congestion, meaning the administrative difficulties that follow when litigation piles up in crowded centers instead of being handled at its origin.
- The burden of jury duty on a community that has no relation to the litigation.
- The reason to try a case that touches many people's affairs in their view and reach, rather than in a distant place where they learn of it only by report.
- The local interest in having localized controversies decided at home.
- The appropriateness of trying a diversity case in a forum that is at home with the state law that must govern, rather than one forced to untangle conflict-of-laws problems and law foreign to itself.123
Each factor answers a question about who pays for a trial and who is entitled to its benefits. A court's time and a juror's service are public resources, kept up by the residents and taxpayers of the place where the court sits, and a case with no real tie to that place draws on them at the expense of local claimants, who have the first claim to use them.124 Congestion follows from that logic, since a judge's calendar is finite and every unconnected case delays one that belongs. The jury-duty factor applies the same idea to the people called away from their work, because a community with no relation to the dispute gains nothing from resolving it and has no reason to carry the cost. The remaining factors ask who does have a stake. The community where the events happened will live with the outcome and can follow the trial in its own view, and a diversity case belongs in a forum at home with the governing state law, so that the court is not forced to untangle conflict-of-laws problems and law foreign to itself.125
Because these concerns belong to the court and the community, they operate independently of the private factors. They also cannot be scored from the complaint alone. Judging local interest and home-law familiarity requires the court to find where the alleged culpable conduct occurred and how it connects to the plaintiff's chosen forum, an inquiry that is often disputed and reaches into the merits.126
Piper shows the factors working together, and it shows the foreign-law factor dropping out without changing the result. The district court reasoned that if the case were tried in the Middle District of Pennsylvania, Pennsylvania law would apply to one manufacturer and Scottish law to the other, that a jury would find two sets of law confusing, and that the court itself was unfamiliar with Scottish law.127 The Supreme Court held that considering those problems was clearly appropriate under Gilbert, which had explicitly treated the need to apply foreign law as pointing toward dismissal.128 The court of appeals found the choice-of-law analysis mistaken and concluded that American law would govern both defendants, which would remove the unfamiliarity problem.129 The Supreme Court answered that, even if that conclusion was correct, all of the other public interest factors favored trial in Scotland.130 The accident occurred in Scottish airspace, every decedent was Scottish, and every potential party other than the two manufacturers was Scottish or English, which gave Scotland a strong local interest in having a localized controversy decided at home.131 The district court had added that the trial would be enormously costly and time-consuming, and that burdening jurors in a district with little connection to the controversy would be unfair.132
The plaintiff's best answer on the public side was the American interest in deterring defective products, since the manufacturers could be sued here on both negligence and strict liability theories.133 The Court found that the incremental deterrence from an American trial was likely to be insignificant. The American interest was not sufficient to justify the enormous commitment of judicial time and resources that the trial would require.134 The reasoning sets the forum's interest on the scale against the cost of the trial it would impose. A generalized interest in policing American manufacturers lost to the specific interest of the community where the accident happened and where the victims lived.
The factors can also find no foothold at all in the chosen forum, and two decisions show what that looks like. In Monde Re, the Second Circuit found that the dispute had no connection with the United States beyond the fact that the United States signed the Convention. The petitioner was from Monaco, the respondents were the State of Ukraine and a Ukrainian citizen, the underlying contract was between Russian and Ukrainian parties, and the award came from an arbitration court in Moscow.135 Questions of Ukrainian and Russian law had already been raised, and the court regarded Ukrainian courts as better suited to decide them, especially whether Ukraine was bound as a non-signer.136 Congestion added nothing for either side, because it was no more a problem in Ukraine than in the United States, so the balance rested on the absence of any local tie and on the foreign-law questions.137 In Gonzalez, the tort victim, the driver, and the plaintiff were all Mexican citizens, the accident and the car purchase occurred in Mexico, and neither the car nor its air bag was designed or manufactured in Texas, so the Fifth Circuit found no public or private factor suggesting that Texas was the appropriate forum.138 Piper turned on a thin American connection weighed against a strong Scottish one, while Monde Re and Gonzalez presented no connection to the chosen forum to weigh.
The Omaha facts supply the counterweight to Piper, because the forum community there is the one that experienced the events. The court would still ask where the allegedly culpable design work occurred and how that conduct connects to Omaha, since that locus feeds both the local-interest and home-law inquiries.139
Students most often over-read the home-law factor, so its limit deserves emphasis. The need to apply foreign law counts, but Piper added in a footnote that the factor alone is not sufficient to warrant dismissal when a balancing of all relevant factors shows that the plaintiff's chosen forum is appropriate.140 Nowak applies the limit. Massachusetts plaintiffs sued a Hong Kong company at home, and Massachusetts choice-of-law rules required the application of Hong Kong law, so the defendant argued that a Hong Kong court would be more at home with it.141 The First Circuit found the concern insufficient to overcome the presumption favoring the plaintiffs' forum, observing that deciding foreign law is “a chore federal courts must often perform,” and it gave the factor little weight because the defendant pointed to no other public interest factor weighing against Massachusetts.142 The reason is practical: a federal court that regularly applies the law of other jurisdictions pays only a small cost when the governing law is foreign, and if that cost alone could justify dismissal, a defendant could win nearly every motion by pointing to where the governing law comes from. The two decisions differ in what accompanied the foreign-law factor. In Piper it came with a foreign accident, foreign decedents, and foreign parties, and in Nowak it stood alone against a plaintiff suing at home.
Choice of law enters the analysis as one public factor rather than as a hurdle to clear first. A court therefore need not complete a choice-of-law analysis before ruling, because choice of law is an integral part of the public-interest balance.143 The home-law factor also surfaces in suits over a corporation's internal affairs. A court may be reluctant to manage the internal affairs of a corporation chartered elsewhere, but that reluctance is a matter of convenience under the doctrine, not a jurisdictional bar. A forum with the needed jurisdiction and a genuine connection to the dispute may keep the case.144 The balance described in this section governs the ordinary motion. Where the parties have agreed in advance on a forum, the agreement itself carries great force, a subject for a later section.145