CIVIL PROCEDURE. Forum non conveniens is a common law doctrine which allows a court having jurisdiction over the subject matter and the parties to decline to exercise its jurisdiction where litigation in the forum would be seriously inconvenient for one of the parties and a more convenient forum is available elsewhere. At bottom, the doctrine of forum non conveniens is nothing more or less than a supervening venue provision, permitting displacement of the ordinary rules of venue when, in light of certain conditions, the trial court thinks that jurisdiction ought to be declined.
The factors considered on a forum non conveniens motion require the courts to: determine that an adequate alternative forum is available; make a choice of law determination; and balance “private” and “public” interest factors. The “private interest factors” include: residence of the parties and the witnesses; availability of compulsory processes for attendance of witnesses; costs of bringing willing witnesses and parties to the place of trial; access to physical evidence and other sources of proof; enforceability of judgments; and “all other practical problems that make trial of a case easy, expeditious or inexpensive.” The materiality and importance of each witness’ testimony are considered rather than simply the number of witnesses at each locale.
The “public interest” factors include the burden on local courts and juries; local interest in the lawsuit; and familiarity with governing law and avoidance of unnecessary problems and conflicts of laws or application of forum law.
Adequate Alternative Forum
The first requirement for a forum non conveniens dismissal is that an adequate alternative forum is available to the plaintiff. The United States Supreme Court has held that an alternative forum ordinarily exists when the defendant is amenable to service of process in the foreign forum.
The foreign forum must provide the plaintiff with some remedy for his wrong in order for the alternative forum to be adequate. As with the other requirements of a forum non conveniens dismissal, the burden of showing the existence of an adequate alternative forum is the defendant’s. However, it is only in rare circumstances where the remedy provided by the alternative forum is so clearly inadequate or unsatisfactory, that it is no remedy at all, that this requirement is not met. In Piper Aircraft Company v. Reyno, for instance, the Supreme Court held that a foreign country was not an inadequate forum merely because its laws offered the plaintiff a lesser remedy than he could expect to receive in the United States court system.
Balance of Private and Public Factors
Ordinarily, a plaintiff’s choice of forum will not be disturbed unless the “private interest” and the “public interest” factors strongly favor trial in a foreign forum.
Courts consider the following private interest factors:
- The residence of the parties and the witnesses;
- The forum’s convenience to the litigants;
- Access to physical evidence and other sources of proof;
- Whether unwilling witnesses can be compelled to testify;
- The cost of bringing witnesses to trial; (6) the enforce ability of the judgment; and
- All other practical problems that make trial of a case easy, expeditious and inexpensive.
Courts consider the following public interest factors:
- Local interest of lawsuit;
- The court’s familiarity with governing law;
- Burden on local courts and juries;
- Congestion in the court; and
- The costs of resolving a dispute unrelated to this forum.