A Primer on Forum Non Conveniens
August 10, 2022
Under the doctrine of forum non conveniens, a judge may dismiss a case on the understanding that the case would be better heard in another sovereign’s court. It is a judge-made discretionary doctrine that can be invoked even if the court otherwise has proper jurisdiction over the case. This primer describes the current federal doctrine of forum non conveniens; the variety of U.S. state court doctrines of forum non conveniens; and the history of the doctrine within the United States, including its traditional limitation to cases involving no local parties.
The U.S. Supreme Court first adopted a federal doctrine of forum non conveniens in 1947 for use in cases at law (Gulf Oil Co. v. Gilbert) and cases in equity (Koster v. (American) Lumbermens Mutual Casualty Co.). In Gulf Oil, a Virginian sued a Pennsylvanian corporation over a warehouse fire in Virginia, but the Virginian filed his suit in the Southern District of New York. The Supreme Court held that the federal district court had inherent power to dismiss suits for forum non conveniens, articulating the test still used by federal courts today.
First, the Court emphasized that “the plaintiff’s choice of forum should rarely be disturbed” unless the balance of interests “is strongly in favor of the defendant.” To determine if that is so, a judge should weigh a nonexhaustive list of private and public interests. On the private interest side, judges consider:
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. There may also be questions as to the enforcibility [sic] of a judgment if one is obtained.
The public interest factors include “administrative difficulties … when litigation is piled up in congested centers instead of being handled at its origin”; the “burden” of jury duty on “the people of a community which has no relation to the litigation”; the desirability of “holding the trial in [the] view and reach” of those affected by a case “than in remote parts of the country where they can learn of it by report only”; the “local interest in having localized controversies decided at home”; and the “appropriateness … in having the trial of a diversity case in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself.” Applying this test to the facts of Gulf Oil, the Supreme Court agreed that it was appropriate for the district court to dismiss it so that it could be heard by a federal court in Virginia.
The need for forum non conveniens to address cases like Gulf Oil was alleviated the following year when Congress adopted 28 U.S.C. § 1404. Section 1404 allows federal district courts to transfer (rather than dismiss) cases that would be more appropriately heard in another federal district.
In 1981, however, the Supreme Court emphasized in Piper Aircraft Co. v. Reyno the continuing relevance of forum non conveniens in transnational cases. In Piper, the British heirs of British victims of an airplane crash in Scotland sued the U.S. manufacturers of the airplane and its propellers in U.S. court. After the case was transferred to the home district of the airplane manufacturer, the district court dismissed the case for forum non conveniens, reasoning that it belonged in a Scottish court. The Supreme Court agreed, adding two glosses to the doctrine’s initial presumption that the plaintiff’s choice of forum should not be lightly disturbed.
First, it held that a foreign plaintiff’s choice of forum should receive less deference than that of a domestic plaintiff based on the presumption that convenience cannot be the foreign plaintiff’s motivation for suing in a U.S. court. As explained in this essay, “foreignness” in this context is based on residency rather than citizenship; a foreign citizen residing in the United States should get the benefit of Gulf Oil’s full presumption, while a U.S. citizen residing in another country should not. Recognizing that important considerations other than convenience can motivate a foreign plaintiff to file suit in a U.S. forum, the Second Circuit sitting en banc in Iragorri v. United Technologies Corp. (1981) converted Piper’s decreased deference into a sliding scale assessment of deference. Other circuits and some state courts have adopted Iragorri’s approach.
Second, the Supreme Court clarified that there must be an adequate and available alternative forum before a case can be dismissed for forum non conveniens. That requirement, however, is easily met. A foreign forum is “available” if the defendant is subject to its personal jurisdiction and the statute of limitations has not run. Defendants regularly promise to waive such objections in order to secure dismissal from the U.S. forum. And a foreign forum is “adequate” if it provides some remedy, even if it is significantly less generous than that available from the U.S. court.
The current federal doctrine, then, requires a three-step analysis. First, is there an adequate and available alternative forum? Second, what degree of deference is due to the plaintiff’s choice of forum? And third, does the balance of private and public interests overcome the deference due the plaintiff’s choice?
Recent decisions by the Supreme Court have continued to expand application of the doctrine. In Sinochem International Co. v. Malaysia International Shipping Corp. (2007), the Supreme Court approved the use of forum non conveniens to dismiss cases before resolving other threshold questions, such as the existence of subject matter or personal jurisdiction. And in Atlantic Marine Construction Co. v. U.S. District Court for the Western District of Texas (2013), the Court suggested that federal district courts should use forum non conveniens to enforce exclusive forum selection clauses that select a U.S. state court or a court located in a foreign country.
Gulf Oil and Piper bind only the federal courts; states have their own doctrines of forum non conveniens. As described in a forthcoming article by myself, Bill Dodge, and Chris Whytock, most U.S. states did not adopt a doctrine of forum non conveniens until after the Supreme Court’s decision in Gulf Oil. Indeed, twelve states explicitly rejected the idea of discretionary dismissals before later reversing course and adopting forum non conveniens. Some states—including Georgia, Rhode Island, and Oregon—did not adopt forum non conveniens until the twenty-first century.
Today, most states use Gulf Oil’s framework to analyze forum non conveniens. A third of the states, however, have developed different approaches. For example, Colorado has a statute (adopted in 2004) that permits dismissal of claims by out-of-state plaintiffs if any one factor is met and apparently requires dismissal if all factors are met. Delaware’s doctrine makes it very difficult to dismiss a case in favor of a later-filed proceeding in a foreign court. And Idaho still has not formally adopted a doctrine of forum non conveniens (although it also has not expressly rejected it).
Other states have prohibited forum non conveniens dismissals of cases brought by in-state plaintiffs (Colorado, Louisiana, South Carolina, Texas, Virginia) or involving in-state causes of action (Alabama, Louisiana, Virginia). Washington and Oregon have expressly rejected Piper’s differential treatment of foreign plaintiffs. A handful of states (including Virginia, Utah, and Wisconsin) have downplayed or dropped Gulf Oil’s public interest factors in favor of a greater emphasis on private interests. A full description of these variations is available here.
Given that the federal courts did not use forum non conveniens in diversity cases until 1947 and that most U.S. states adopted forum non conveniens only after the Supreme Court did, where does the doctrine come from? In the United States, the label of forum non conveniens dates to a 1929 law review article written by New York lawyer Paxton Blair (as described in this Throwback Thursday post). Blair imported the label from the Scottish courts, which had begun referring to discretionary dismissals as “forum non conveniens” in the mid-1800s, and applied it to a thriving New York state court practice of discretionary dismissals, which had (slightly) deeper roots.
Based on our research on state court doctrines of forum non conveniens, New York was the first state to permit discretionary dismissals of cases, and its practice served as a model for other early adopters of the doctrine (including the U.S. Supreme Court in Gulf Oil). New York’s doctrine in turn originated in a pair of international maritime cases: Gardner v. Thomas (1817) and Johnson v. Dalton (1823). Both cases involved foreign sailors on foreign ships suing foreign masters regarding their transatlantic passage. As the state’s high court summarized in Johnson, “Our courts may take cognizance of torts committed on the high seas on board a foreign vessel, where both parties are foreigners; but on principles of comity, as well as to prevent the frequent and serious injuries that would result, they have exercised a sound discretion, in entertaining jurisdiction or not, according to circumstances.” In Dalton, the high court reversed the case’s dismissal, directing the lower court to hear the case even though it involved no U.S. parties or causes of action. By the end of the nineteenth century, New York state courts permitted discretionary dismissals of nonmaritime tort cases involving U.S. citizens, but only so long as no New York parties or New York causes of action were involved.
Federal court experience with discretionary dismissals also started with maritime cases involving foreign parties. In cases like Mason v. The Ship Blaireau (1804) (described in this Throwback Thursday post), The Belgenland (1885), and Canada Malting Co. v. Paterson Steamships, Ltd. (1932), the Supreme Court recognized the discretion of courts sitting in admiralty to decline to hear some disputes between foreign parties. The Court has since described these admiralty decisions as essentially applying forum non conveniens, even though they predated Gulf Oil’s adoption of that term.
Forum Non Conveniens and Local Defendants
Whether the U.S. doctrine of forum non conveniens originated in admiralty or state courts, no U.S. courts permitted dismissals of cases involving local defendants before the 1950s. New York was particularly emphatic on this point, stating for example in De la Bouillerie v. De Vienne (1949):
Our courts are bound to try an action for a foreign tort when either the plaintiff or the defendant is a resident of this State. … It is only when an action is brought by one nonresident against another for a tort committed outside the State that our courts may refuse to take cognizance of the controversy.
This limitation to forum non conveniens began to change with the 1954 New Jersey case of Gore v. U.S. Steel Corp. (as discussed in this TLB post). In Gore, the Alabama widow and children of a Black man, who had died while working at an Alabama mill owned by U.S. Steel, sued the company in its home state of New Jersey in hopes of avoiding racist juries in Alabama that were known to award “colored claimants [less] than white claimants.” The New Jersey Supreme Court dismissed the case for forum non conveniens, characterizing the plaintiffs’ motivations as simply seeking “a substantially higher verdict,” which provided “no proper reason for their having chosen or being permitted to remain in this forum.”
Gore was the first state high court decision to use forum non conveniens to dismiss a case brought against an in-state defendant and was subsequently cited by at least half a dozen other states—including New York—when they first permitted in-state defendants to invoke forum non conveniens. After the U.S. Supreme Court’s decision in Piper, which approved dismissal of a case even though it had been transferred to a defendant’s home jurisdiction, state courts no longer bothered to defend the expansion of their state doctrines to cases involving in-state defendants. Today, at least 26 states and the District of Columbia have either expressly permitted such dismissals or approved such dismissals without comment.
Despite its fancy-sounding Latin name, forum non conveniens is a relatively modern phenomenon in U.S. courts. Nonetheless, it is an important doctrine for transnational litigation in both state and federal courts, with judges invoking it with some frequency to dismiss cases that they feel do not belong in U.S. courts. While many scholars (including myself) have argued that forum non conveniens should be updated, narrowed, or retired, the Gulf Oil/Piper test remains highly influential and does not look to be going anywhere anytime soon.