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Forum Non Conveniens - When Home Isn't Always Convenient

July 5, 2016

In civil litigation, the practice of “forum shopping” refers to the deliberate examination of multiple courts or jurisdictions in order to file or transfer the case to one that is most likely to treat that party’s claims most favorably.  Often, this forum shopping is blatant – where plaintiffs deliberately attempt to establish their claims in a forum they view as favorable, without any real connection or nexus to the chosen forum.  Alternatively, plaintiffs in personal injury or torts actions often have a choice of multiple courts in which to file, that all may potentially have concurrent jurisdiction.  Yet, as the U.S. District Court for the Northern District of California recently enunciated in Kleiner v. Spinal Kinetics, Inc., No 5:15-cv-02179, 2016 WL 1565544 (N.D. Cal. Apr. 19, 2016), just because a plaintiff can obtain jurisdiction over a defendant in a particular forum does not mean it is the best suited forum to hear the case.  This notion is particularly evident when a foreign plaintiff files suit against a U.S. company in the company’s home forum.

In Kleiner, a purported class action, plaintiffs Sebastian Kleiner and Silvana Kraftschik, both German citizens, alleged to have suffered injuries they attributed to spinal implants designed and manufactured by defendant in Sunnyvale, California.  The devices implanted into plaintiffs were sold by defendant’s wholly-owned German subsidiary, and the plaintiffs underwent their respective implantation operations, suffered their alleged injuries, and were treated for these alleged injuries all in Germany by German doctors.  Although the majority of witnesses, including plaintiffs, their family members, co-workers, the implanting surgeons, and the treating physicians, are all located in Germany, plaintiffs filed suit in defendant’s home forum, California.  Why? Presumably because their counsel determined the potential recovery of punitive damages under California law (which are unavailable under German law) made California a more favorable forum for plaintiffs’ claims.  The defendant moved to dismiss the case on the basis of forum non conveniens, arguing there was an alternate adequate forum that was more appropriate for adjudication of the plaintiffs’ claims.  While at first blush it might strike as strange that the defendant would assert that its home forum is an inconvenient forum, but the forum non conveniens determination is dependent upon the individual facts of each case, and strong precedent supports such a motion. See Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981).

The common-law doctrine of forum non conveniens is a discretionary power that permits a federal district court to decline to accept jurisdiction over an action over which it has jurisdiction and venue, and to dismiss the case where another court, or forum, is better suited to hear the case. See, e.g., Sinochem Int’l. Co. Ltd. v. Malaysia Int’l. Shipping Corp., 549 U.S. 422, 429 (2007); Ford v. Brown, 319 F.3d 1302, 1306-07 (11th Cir. 2003).  Thus, even a plaintiff who establishes proper venue in a U.S. District Court nonetheless may have his case dismissed on grounds of forum non conveniens. See American Dredging Co. v. Miller, 510 U.S. 443, 448 (1994); Piper Aircraft Co. v. ReynoForum non conveniens not only is an important tool for a defendant being sued by a foreign plaintiff (or by a domestic plaintiff for conduct abroad), it also is a critical doctrine aimed at preserving judicial efficiency.  In order to have a plaintiff’s case dismissed based on forum non conveniens, a defendant first must prove that an adequate alternative forum exists, and that the balance of private and public interest factors favors dismissal. Piper Aircraft Co. v. Reyno; Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947).  Underlying its analysis of the private interest factors, a federal court must take into account the degree of deference that must be given to a Plaintiff’s choice of forum. See Piper, 454 U.S. at 241.  While plaintiff’s chosen forum is generally accorded deference in any forum non conveniens analysis, this deference carries less weight when the plaintiff is foreign. See Kleiner v. Spinal Kinetics, Inc. (citing Lueck v. Sundstrand Corp., 236 F.3d 1137, 1449 (9th Cir. 2001)).  This is particularly true where it appears that the plaintiff’s choice of forum was made based on forum shopping reasons, as opposed to some other rational basis. See Iragorri v. United Techs. Corp., 274 F.3d 65, 71 (2d Cir. 2001) (“[T]he more it appears that the plaintiff’s choice of a U.S. forum was motivated by forum-shopping, . . . the less deference the plaintiff’s choice commands.”).

The district court in Kleiner first determined that Germany was an adequate alternative forum because defendant was subject to German jurisdiction and the alternative forum provided at least some remedy for the harm allegedly suffered by the plaintiffs.  Defendant’s product, the M6-C, was marketed and sold to customers in Germany, defendant expressly consented to submit itself to German jurisdiction for the purposes of litigating this case, and defendant’s subsidiary, Spinal Kinetics GmbH, was incorporated in and subject to the jurisdiction of the German courts.  Further, the court determined that under German law, plaintiffs could bring their product liability suit and possible recover damages for their injuries.  While plaintiffs argued that German law did not provide a satisfactory remedy for plaintiffs’ injuries, defendant only needed to establish that the forum’s laws did not “completely deprive” plaintiffs of a remedy. Tuazon v. R.J. Reynolds Tobacco Co., 433 F.3d 1163, 1178 (9th Cir. 2006).

Next, the district court weighed a number of private interest factors in conducting its forum non conveniens analysis.  In Gulf Oil Corp. v. Gilbert, the U.S. Supreme Court first provided federal courts with a non-exclusive list of private factors to consider in determining whether the forum non conveniens doctrine should be applied. 330 U.S. 501, 508 (1947). The Gilbert Court explained that relevant considerations are:

1.    The relative ease of access to sources of proof;

2.    Availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses;

3.    Possibility of view of premises; and

4.    All other practical problems that make trial of a case easy, expeditious and inexpensive.

These factors have been rephrased and applied countless times by federal courts.

The Gilbert factors are non-exclusive and are to be applied flexibly; in fact, the United States Supreme Court repeatedly has “refused to identify specific circumstances which will justify or require either a grant or denial of [the forum non conveniens] remedy.” Piper Aircraft Co. v. Reyno at 249-50 (each case must turn on its specific facts, and “[i]f central emphasis were placed on any one factor, the forum non conveniens doctrine would lose much of the very flexibility that makes it so valuable.”).  Nevertheless, even if courts apply the Gilbert factors flexibly, with no one factor being dispositive, one factor that often provides substantial support to a defendant is access to evidence. “Perhaps the most important private interest is access to evidence.” Ford v. Brown, 319 F.3d at 1308.

The Kleiner court focused on the location of relevant witnesses and other evidence in Germany, and “the materiality and importance of the anticipated witnesses’ testimony.” (citing Gates Learjet Corp. v. Jensen, 743 F.2d 1325, 1335-36 (9th Cir. 1984).  The court noted, “the key inquiry … requires assessing the materiality and importance of these witnesses’ testimony and determining whether some of these witnesses are “critical” and beyond the jurisdiction of domestic courts.  The surgeons, by virtue of their role in implanting and subsequently removing Defendant’s products from Plaintiffs, possess substantial material information regarding the cause and extent of the Plaintiffs’ injuries.  Likewise the treating physicians possess material information regarding the extent of Plaintiffs’ injuries and the effect of their treatment.”

The Kleiner court noted the private interest factors at issue weighed in favor of a German forum, and further determined the public interest factors did as well.  As with the private interest factors, the pivotal case setting forth the public interest factors is Gulf Oil Corp. v. Gilbert. The Gilbert court reasoned that, among other things, “[j]ury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation.” Id. at 508-09. Further, “in cases which touch the affairs of many persons [in an alternate forum], there is reason for holding the trial in their view and reach rather than in remote parts of the country where they can learn of it by report only.” Id. at 509.

Germany was determined to have a significant local interest in the suit, as plaintiffs “are residents of Germany, underwent their respective implantation operations in Germany, and suffered similar injuries there[,]” which outweighed California’s interest because the product was designed in and entered the stream of commerce from California.  Further, the Kleiner court found that Germany’s interest in applying its laws far outweighed the interest of California because both of the plaintiffs, German citizens, were allegedly injured by defendant’s product, which was sold to its customers in Germany by defendant’s wholly owned German subsidiary.

As noted above, the district court focused significantly on the case specific evidence – i.e., the location of plaintiffs’ respective surgeries, injuries, and subsequent treatment, and importantly, the location of material witnesses, which are beyond the jurisdiction and subpoena powers of domestic courts.  While plaintiffs feverishly argued the existence of evidence in California relating to the design and manufacture of the subject product, and certainly defendant was subject to jurisdiction in California, the private and public interest analysis ultimately weighed in favor of a German forum.

Various federal district courts apply the Gilbert private and public factors flexibly in conducting the forum non conveniens analysis, yet nonetheless, it is clear that great emphasis is afforded to the residence of parties, witnesses, and other evidence, including the materiality and importance of key witnesses located outside the domestic courts’ jurisdiction, the local interest of the respective available forums in the lawsuit, and the domestic court’s familiarity with the governing law.  We urge our clients to consider these factors if faced with similar disputes.

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