Venue – Forum Non Conveniens

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As discussed above, the doctrine of forum non conveniens can be employed when the venue, albeit proper, is inappropriate, inconvenient, or unacceptable for various reasons. It is for a court to determine, on a case by case basis, whether it is the proper venue in which to hear the action. This is true even though it has jurisdiction over the parties, jurisdiction over the subject matter of the case, and is a proper venue in which the action can be brought.

To exercise the doctrine, there must be an adequate alternative forum in which the case can be heard. The burden to prove the existence of such an alternate forum is on the party who moves to transfer the case for forum non conveniens, usually the defendant. Without an alternate forum, the case must remain in the original forum, no matter how inconvenient it may be.

To determine whether another forum is an adequate alternative, the court must determine whether the alternate forum will hear the case, and whether the defendants may be served with process in the alternate forum. Usually, the latter depends on the jurisdiction of the alternate forum over the defendants. Because it is usually the defendants who move to transfer the case to the alternative forum, the defendants will often consent to such jurisdiction. If the defendants refused to consent, the case would remain in the original forum, which is exactly what the defendants were attempting to avoid.

In situations where the defendant seeks to employ the doctrine of forum non conveniens and names a court in a foreign country as an alternative forum, the original court will take many factors into consideration, such as: whether the foreign court will apply American substantive law; whether the plaintiff will be prejudiced by transfer to a foreign court; and whether the foreign court will be fair.

It should be noted, however, that the plaintiff’s initial choice of forum is given deference. Even if there are more reasons to grant the motion for forum non conveniens than to deny it, the deference may still control and the court may hold on to the case. The reasons to grant the motion to move the case must be extremely persuasive.

There are two types of factors the court will take into account when considering a forum non conveniens motion: public interest and private interest.

Public interest factors include: “(1) having local disputes settled locally; (2) avoiding problems of applying foreign law; and (3) avoiding burdening jurors with cases that have no impact on their community.” See Alfadda v. Fenn, 159 F.3d 41, 46 (2d Cir. 1998). Another factor to consider is whether another group of citizens has a greater interest in deciding the case than those of the original forum. Finally, another consideration is whether a judgment by one court will have to be enforced in another jurisdiction, which can create more legal hurdles; it may make more sense to have the other jurisdiction decide the case in the first place. For example:

Andy slips and falls on the sidewalk outside Paul’s boutique in Manhattan in New York City. Both Andy and Paul are residents of Manhattan. Andy files an action against Paul in State Supreme Court in Westchester County, New York. Paul moves to invoke the doctrine of forum non conveniens. A court is likely to grant the motion because the parties are from Manhattan and the events giving rise to the action occurred in Manhattan. In addition, because the court would like to to avoid burdening jurors with cases that have no impact on their community, if possible, the doctrine may be applied and the action may be moved to Manhattan.

Factors concerning private interests include: “(1) ease of access to evidence; (2) the cost for witnesses to attend trial; (3) the availability of compulsory process; and (4) other factors that might shorten trial or make it less expensive.” See Alfadda v. Fenn, 159 F.3d at 46.

As explained in a previous chapter, the court may not raise lack of personal jurisdiction over a party on its own, that is, sua sponte. However, the court may invoke the doctrine of forum non conveniens sua sponte, that is, without the issue being raised by a party.

When a forum non conveniens motion is granted, the case is not dismissed; instead, pursuant to 28 U.S.C. § 1404(a), the case is transferred to the adequate alternative forum.

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