A Short & Happy Guide to Civil Procedure by Richard D. Freer

Author:Richard D. Freer
Language: eng
Format: epub
ISBN: 9781684672288
Publisher: West Academic
Published: 2019-03-16T16:00:00+00:00

Like transfer under § 1404(a), forum non conveniens is relevant when another court is substantially more appropriate for litigation than the present court. Here, however, instead of transferring the case to that “center of gravity” court, the court dismisses the case. Instead of dismissing, the court may “stay” the case, which means the case will be held in abeyance, with no litigation taking place. The court will dismiss or stay the case to impel P to bring suit in the more appropriate forum.

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Why would a court take such a seemingly harsh step? Forum non conveniens is relevant only when the more convenient court is in a different judicial system. In such a case, transfer is impossible; remember: transfer can only be ordered within the same judicial system.

Example #5: P sues D in state court in Oklahoma. That court determines that the litigation would be far more appropriate in state court in Arkansas. Can the court order transfer?

No. The Oklahoma state courts and the Arkansas state courts are different judicial systems. Transfer is impossible. But the Oklahoma court might dismiss or stay the case under forum non conveniens. Then P, if she wants to pursue her claim, will file suit in state court in Arkansas.

More typically, forum non conveniens motions argue that litigation should proceed, if at all, in a foreign country. No American court can order transfer to a court in another country, so the sole remedy is forum non conveniens.

The leading case is Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981). The case involved a plane crash in Scotland, in which all passengers and crew were killed. The victims and their next-of-kin were Scottish. The airline and pilot were Scottish. The maintenance crew was Scottish. The plane was manufactured, however, in Pennsylvania, using propellers made in Ohio. The Supreme Court held that suit against the American manufacturers in federal court in Pennsylvania should be dismissed under forum non conveniens. The center of gravity of the dispute was Scotland.

The determination of whether the other forum is the center of gravity is based upon the same public interest and private interest factors that are relevant for transfer under § 1404(a), discussed in the previous section. With forum non conveniens, however, the 104

moving party has an especially strong burden of proof, because here the result of granting the motion is not transfer, but dismissal (or a stay of litigation).

There is another important step in forum non conveniens analysis. The moving party must convince the court that the other forum is “available and adequate.” It would be unfair to dismiss a case if there were no adequate judicial forum in the more convenient location. Ps often argue that courts in foreign countries are inadequate because they have not adopted cutting-edge tort theories and often do not permit recovery of punitive damages. Many do not permit recovery for things like pain and suffering and emotional distress. And few countries provide trial by jury.

The Court has not been very sympathetic to such arguments. In

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