The Eighth Circuit Court of Appeals recently reversed a District Court’s dismissal on forum non conveniens grounds, finding that the motion to dismiss was untimely. The Court of Appeals held that the Defendants undermined their own inconvenience arguments by litigating in the forum for 18 months before filing their motion.
The doctrine of forum non conveniens arose out of due process concerns that defendants from across the country (or indeed the world) can be hauled into federal court in far-flung jurisdictions having no significant connection to the case. Courts are also concerned that attractive districts will face the undue financial burden of supporting litigation of claims of no significant interest to the district. Practitioners in the Eastern District of Missouri are no doubt well-versed on these concerns.
Defendants can obtain dismissal of a lawsuit filed in an inconvenient forum. But forum non conveniens is mentioned neither in Rule 12 nor anywhere else in the Federal Rules of Civil Procedure, and courts have often held that such motions can be filed at any time, even on the day of trial. If there is no set deadline for when the motion to dismiss must be filed, how can such a motion ever be untimely?
The Court of Appeals attempted to answer that question in Hersh v. CKE Restaurants, Holdings, Inc., No. 19-2794 (Apr. 28, 2021). It held that those seeking to dismiss on forum non conveniens grounds must show that it is actually inconvenient to litigate in the current forum and such a showing should be made at a reasonably early time, lest defendants inadvertently undermine the purported “inconvenience” of litigating in the forum.
The Court of Appeals found that the District Court abused its discretion in granting a motion to dismiss on forum non conveniens grounds. To dismiss on forum non conveniens grounds, the movant must establish that an adequate alternative forum exists. This is essentially any forum in which the defendant can be served. Then the court weights private-interest factors (e.g., location of the parties, attorneys, evidence, and witnesses) and public-interest factors (e.g., choice of law issues, court resources, and strains on the jury pool) to determine whether dismissal is appropriate. The overriding goal is to ensure that the forum is convenient.
The Hersh case involved a little boy who was playing in a restaurant playground in Amman, Jordan, and was tragically electrocuted by an exposed wire. The case was filed in the Eastern District of Missouri, the restaurant holding company’s home. Yet, the Plaintiffs, several of the Defendants, and most of the witnesses were located in Jordan. Plaintiffs’ attorneys were located in Michigan. Other potential defendants to implead were located in Jordan and not subject to personal jurisdiction in Missouri. Jordanian law would govern the wrongful death claims and the standard of care. Documents and testimony would have to be translated from Arabic. On these grounds, and others, the District Court granted defendants’ motion to dismiss for forum non conveniens. At first blush, the District Court’s ruling appeared completely reasonable. However, the Court of Appeals held that the District Court abused its discretion and reinstated the case in St. Louis.
According to the Court of Appeals, 18 months was just too long to wait to file a motion to dismiss based on forum non conveniens, because all of the factors supporting dismissal were available to the defendants much earlier on in the case. In fact, virtually all of the factors identified by the District Court were apparent or ascertainable from the face of the Complaint. The Court of Appeals did not decide whether timeliness is a public- or private-interest factor, or a separate independent consideration, and did not elaborate further on what constitutes a reasonable amount of time.
The Court of Appeals cited In re Air Crash Disaster near New Orleans, 821 F.2d 1147, 1165 (5th Cir. 1987), but did not explicitly adopt its straightforward and well-articulated rule: “a defendant must assert a motion to dismiss for forum non conveniens within a reasonable time after the facts or circumstances which serve as the basis for the motion have developed and become known or reasonably known to the defendant.” Had the Court adopted this guideline, it might better serve practitioners in evaluating the timeliness of their motions.
Although most cases will not have the forum non conveniens issues set out as dramatically as in Hersh, practitioners can take a few lessons from the Court of Appeals opinion.
First, if you have considered a motion to dismiss for lack of personal jurisdiction, or if the court has personal jurisdiction only because of a long-arm statute, then you should consider forum non conveniens.
Second, evaluate how discovery is progressing early on. If you find that every interview, deposition, accident site visit, or expert consultation involves an associate flying across the country, the current forum may be inconvenient. Go ahead and file your motion now.
Third, nothing in the Court of Appeals’ opinion precludes a motion to dismiss where new information turns up in discovery. However, act quickly once new information arises.
Finally, evaluate the alternative forum. In most cases, as in Hersh, the movant is precluded from challenging jurisdiction in the new forum.
Here, the District Court’s opinion seemed quite persuasive. If not for the passage of 18 months, the Court of Appeals likely would have upheld the dismissal. However, for the Court of Appeals, by litigating in the forum for 18 months, defendants apparently proved that the forum was not inconvenient, after all.