Striking a better public-private balance in forum non conveniens

Cornell Law Review

Volumn 93, Issue 4, 2008, Pages 819-848

  Derr, Emily J ^a  

^a MIT Sloan School of Management

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EID: 45749153380     PISSN: 00108847     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (214)

1. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947). The volume of scholarly writing on forum non conveniens reveals the breadth of the controversy surrounding the topic. See, e.g., Alexander M. Bickel, The Doctrine of Forum Non Conveniens as Applied in the Federal Courts in Matters of Admiralty: An Object Lesson in Uncontrolled Discretion, 35 CORNELL L.Q. 12 (1949);
2. Elizabeth T. Lear, Congress, the Federal Courts, and Forum Non Conveniens: Friction on the Frontier of the Inherent Power, 91 IOWA L. REV. 1147, 1150 n.22 (2006) (criticizing the application of the forum non conveniens doctrine as unconstitutional and collecting sources critical of the doctrine);
3. David W. Robertson, The Federal Doctrine of Forum Non Conveniens: "An Object Lesson in Uncontrolled Discretion," 29 TEX. INT'L L.J. 353 (1994) (criticizing the doctrine);
4. Allan R. Stein, Forum Non Conveniens and the Redundancy of Court-Access Doctrine, 133 U. PA. L. REV. 781, 785 (1985) (calling forum non conveniens a "crazy quilt" of inconsistent decisions);
5. Russell J. Weintraub, International Litigation and Forum Non Conveniens, 29 TEX. INT'L L.J. 321, 352 (1994) (praising the doctrine as promoting fairness and efficiency).
6. 127 S. Ct. 1184 (2007).
7. See Malay. Int'l Shipping Corp. v. Sinochem Int'l Co., 436 F.3d 349, 350 (3d Cir. 2006) (holding that a district court must determine that it has both subject matter and personal jurisdiction before ruling on a forum non conveniens motion), rev'd, 127 S. Ct. 1184 (2007).
8. Id. at 364.
9. See id.
10. Robertson, supra note 1, at 359; see also Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257 (1981) (reaching its decision in part because the Court "conclude[d] that the District Court did not otherwise abuse its discretion").
11. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09 (1947). Many commentators and courts have thoroughly reviewed the basic elements of the forum non conveniens analysis outlined by Justice Jackson in Gulf Oil and its companion case, Koster v. (American) Lumbermens Mutual Casualty Co., 330 U.S. 518 (1947). See, e.g., Martin Davies, Time To Change the Federal Forum Non Conveniens Analysis, 77 TUL. L. REV. 309, 316 (2002);
12. Michael M. Karayanni, The Myth and Reality of a Controversy: "Public Factors" and the Forum Non Conveniens Doctrine, 21 WIS. INT'L L.J. 327, 331-35 (2003). Therefore, this Note offers only a simplified summary.
13. See Stein, supra note 1, at 785.
14. Forum non conveniens dismissals that force a plaintiff to refile in foreign courts are essentially outcome determinative. Plaintiffs rarely refile because issues of causation, compensatory damages, and punitive damages make trial in the foreign forum impractical. See Robertson, supra note 1, at 363-64.
15. See Karayanni, supra note 7, at 330-31.
16. Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947).
17. Koster v. (Am.) Lumbermens Mut. Cas. Co., 330 U.S. 518 (1947).
18. See Gulf Oil, 330 U.S. at 508.
19. See Davies, supra note 7, at 311 ("Every year, federal courts consider hundreds of motions for forum non conveniens dismissal."); Lear, supra note 1, at 1150-51 ("What is clear is that virtually no case involving a transnational event is immune from a forum non conveniens battle.").
20. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255 (1981).
21. See Lear, supra note 1, at 1150 n.22 (stating that "[t]he literature is replete with criticism of the doctrine" and listing examples of academic literature critical of forum non conveniens).
22. Id. at 1160.
23. Davies, supra note 7, at 312; Karayanni, supra note 7, at 330.
24. See Robertson, supra note 1, at 359-360. To be fair some commentators praise the doctrine as efficient and just. See, e.g., Weintraub, supra note 1; Jeffrey J. Kanne, Note, The Doctrine of Forum Non Conveniens: History, Application, and Acceptance in Iowa, 69 IOWA L. REV. 975 (1984).
25. Lear, supra note 1, at 1159. A "more balanced position" may be that forum non conveniens is simply "the best we can do" within our current system. Robertson, supra note 1, at 369.
26. See, e.g., Davies, supra note 7, at 351-64, 384; Karayanni, supra note 7, at 327-31.
27. Karayanni, supra note 7, at 330.
28. Davies, supra note 7, at 384.
29. See Robertson, supra note 1, at 380.
30. See infra Parts II-III.A.
31. See Lubbe v. Cape PLC, (2000) 1 W.L.R. 1545, 1567 (H.L.) (Eng.) (reporting that Lord Hope would "decline to follow those judges in the United States who would decide issues as to where a case ought to be tried on broad grounds of public policy").
32. See Robertson, supra note 1, at 378-79; Stein, supra note 1, at 818-22, 824.
33. For a detailed discussion of the policies implicated by the public interest factors' role in forum non conveniens, see infra Part IV.
34. Commentators have criticized the public interest factors for addressing questions of reasonableness and nexus that jurisdiction and venue rules are already designed to address. See Robertson, supra note 1, at 378; infra Part III.
35. Bickel, supra note 1, at 1 (subtitling his article on forum non conveniens: "An Object Lesson in Uncontrolled Discretion"); see Robertson, supra note 1, at 359, 362; Stein, supra note 1, at 841.
36. See Karayanni, supra note 7, at 330-31.
37. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 (1981); 14D CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3828 (3d ed. 2007).
38. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947) (internal quotation marks omitted).
39. See Karayanni, supra note 7, at 341-43; Stein, supra note 1, at 785 ("[F]orum non conveniens doctrine has come to accommodate the collective shortcomings and excesses of modern rules governing jurisdiction, venue, and choice of law."). The forum non conveniens doctrine originally applied an "abuse-of-process" standard that only disturbed the plaintiff's choice of forum in those rare instances in which a plaintiff's choice harassed a defendant or imposed upon the power of a court. See Jacqueline Duval-Major, Note, One-Way Ticket Home: The Federal Doctrine of Forum Non Conveniens and the International Plaintiff, 77 CORNELL L. REV. 650, 678 (1992). More recendy, a "most convenient forum" perspective, which attempts to locate the dispute in the more convenient of the two alternative forums, has dominated decisions. See id. For a more detailed discussion of the relationship between forum non conveniens and jurisdictional rules, see infra Part III.
40. Am. Dredging Co. v. Miller, 510 U.S. 443, 453 (1994).
41. See MICHAEL KARAYANNI, FORUM NON CONVENIENS IN THE MODERN AGE 74 (2004). Professor Lear criticizes this characterization by arguing that Congress has asserted its full power over venue and that courts can no longer exercise discretionary judgments. See Lear, supra note 1, at 1186-87, 1193. Similarly, as argued in Part III, this rationalization merely masks the jurisdictional nexus work that is supposed to be performed in a more structured, consistent, and reviewable way by personal and subject-matter jurisdiction rules. See Stein, supra note 1.
42. See Karayanni, supra note 7, at 341-42 (viewing forum non conveniens as a "vehicle for the proper allocation of public resources or as a cordon against forum shopping").
43. See 28 U.S.C. § 1404(a) (2000). Congress enacted 28 U.S.C. § 1404(a) in 1948 to allow district courts to transfer cases to another federal district court "[f]or the convenience of parties and witnesses, in the interest of justice." Id. Because a § 1404(a) transfer is a far less draconian remedy than dismissal, a judge has more discretion and requires a lesser showing of inconvenience to grant a § 1404(a) transfer than a forum non conveniens dismissal. See Norwood v. Kirkpatrick, 349 U.S. 29, 31-32 (1955).
44. See Davies, supra note 7, at 313. In rare circumstances, litigants might also invoke the doctrine if the more convenient forum is a state court or a territorial court. See WRIGHT ET AL., supra note 32.
45. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254-55 (1981). See generally Davies, supra note 7, at 317-21 (providing a detailed discussion of the "adequate alternative forum" requirements).
46. See In re Air Crash Disaster Near New Orleans, La., 821 F.2d 1147, 1165 (5th Cir. 1987) (en banc). Judges very often condition forum non conveniens dismissals on defendants' agreeing to waive any jurisdictional defenses they might have in the foreign forum. See, e.g., Piper Aircraft, 454 U.S. at 242; Baris v. Sulpicio Lines, Inc., 932 F.2d 1540, 1551 (5th Cir. 1991); In re Union Carbide Corp. Gas Plant Disaster at Bhopal, India, 634 F. Supp. 842, 867 (S.D.N.Y. 1986). Courts often use conditional dismissals, see Davies, supra note 7, at 316, and defendants willingly agree to them because defendants assume that any dismissal will be the end of the litigation. See Robertson, supra note 1, at 364. For example, a court may grant a defendant's motion to dismiss on the condition that the defendant agrees to waive any procedural bars and statute of limitations defenses or agrees to comply with certain discovery requirements. See KARAYANNI, supra note 36, at 33-34 (listing the common and creative types of stipulations on which courts have conditioned forum non conveniens dismissals).
47. Piper Aircraft, 454 U.S. at 255. Courts ordinarily do not consider the "possibility of an unfavorable change in law" in the forum non conveniens analysis, but they may give it substantial weight "if the remedy provided by the alternative forum is so clearly inadequate or unsatisfactory that it is no remedy at all." Id. at 254.
48. The "adequate alternative forum" requirement is easily satisfied, and courts rarely find a foreign forum inadequate, especially because defendants either willingly stipulate to or courts condition dismissal on defendants' waiver of any objections to statute of limitations or jurisdiction in the foreign forum. See Walter W. Heiser, Forum Non Conveniens and Choice of Law: The Impact of Applying Foreign Law in Transnational Tort Actions, 51 WAYNE L. REV. 1161, 1169 (2005) ("The 'adequate alternative forum' prerequisite rarely prevents a United States court from granting a forum non conveniens motion.").
49. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 506-08 (1947).
50. See id. at 508.
51. See Piper Aircraft, 454 U.S. at 241.
52. See id. at 508.
53. See Gulf Oil, 330 U.S. at 508-09.
54. Piper Aircraft, 454 U.S. at 241 n.6 (quoting Gulf Oil, 330 U.S. at 509).
55. See Irwin v. World Wildlife Fund, Inc., 448 F. Supp. 2d 29, 36 (D.D.C. 2006).
56. Piper Aircraft, 454 U.S. at 260 n.29.
57. See Davies, supra note 7, at 364; Karayanni, supra note 7, at 341.
58. See Gulf Oil, 330 U.S. at 508.
59. See Piper Aircraft, 454 U.S. at 256.
60. See id. at 241.
61. Id. at 257. "A district court may abuse its discretion by relying on an erroneous view of the law, by relying on a clearly erroneous assessment of the evidence, or by striking an unreasonable balance of the relevant factors." Ravelo Monegro v. Rosa, 211 F.3d 509, 511 (9th Cir. 2000) (citations omitted). However, Michael Karayanni observes that in practice appellate courts thoroughly review all the relevant forum non conveniens factors as if conducting a de novo review. See KARAYANNI, supra note 36, at 46-48. He argues that this is the better approach. See id.
62. Malay. Int'l Shipping Corp. v. Sinochem Int'l Co., 436 F.3d 349, 364 (3d Cir. 2006), rev'd, 127 S. Ct. 1184 (2007); see supra text accompanying notes 3-4.
63. See Robertson, supra note 1, at 358.
64. See KARAYANNI, supra note 36, at 18.
65. See Heiser, supra note 43, at 1178 ("From the trial court's perspective, the fact that it will face a choice-of-law determination and that the court may end up applying foreign law, makes granting the defendant's forum non conveniens motion an attractive option."); Robertson, supra note 1, at 357 ("[J]udges are quite likely to proclaim their fearsome workloads as a principal basis for granting forum non conveniens dismissals.").
66. See Davies, supra note 7, at 313. Because 28 U.S.C. § 1404(a) provides for transfer between federal districts, whenever the alternative forum is another district court, transfer, rather than dismissal, is the appropriate remedy. See supra note 38 and accompanying text.
67. See Heiser, supra note 43, at 1178.
68. Robertson, supra note 1, at 358 (noting that forum non conveniens "seems to be the only area of the law in which it is considered legitimate for a court to base a decision on the condition of its docket"). But see GARY B. BORN, INTERNATIONAL CIVIL LITIGATION IN UNITED STATES COURTS 337 (3d ed. 1996) ("In general, the forum's docket has not played a significant role in forum non conveniens analysis.").
69. See Bickel, supra note 1, at 47 (describing the "undesirability of treating the technique of discretionary dismissal as a matter of the court's power to regulate its calendar, which if it exists, holds everywhere"); Hu Zhenjie, Forum Non Conveniens: An Unjustified Doctrine, 48 NETH. INT'L L. REV. 143, 157 (2001). This argument calls to mind an eloquent statement of Chief Justice John Marshall: "We [the judiciary] have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution." Cohens v. Virginia, 19 U.S. (1 Wheat.) 264, 404 (1821).
70. Karayanni, supra note 7, at 341.
71. Id.
72. See Heiser, supra note 43, at 1178-79.
73. Hon. Henry J. Friendly, Indiscretion About Discretion, 31 EMORY L.J. 747, 754 (1982); see also supra notes 60-63 and accompanying text (discussing why judges often favor dismissal on forum non conveniens grounds).
74. See Robertson, supra note 1, at 359-60 (describing the wide discretion trial courts enjoy in granting dismissals for forum non conveniens); Stein, supra note 1, at 784-85, 821-22, 824; supra note 56 and accompanying text.
75. See Davies, supra note 7, at 353, 372-78 (arguing that "consideration of the public interest should either be abandoned altogether, or should be much broader, focusing on the interests of the forum state as a whole, not merely the administrative convenience of its courts"); Karayanni, supra note 7, at 337-52 (arguing that the current public/private distinction is "incoherent"). Some also question the usefulness of the Gulf Oil private factors. For example, evidentiary concerns, such as the "ease of access to sources of proof," Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947), are less important now than they were in 1947 because of technological advances that allow videotaped depositions; DVD recordings to replace the need to "view the premises," and the like. See, e.g., Lear, supra note 1, at 1193-94.
76. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257 (1981).
77. See Davies, supra note 7, at 358.
78. See id.
79. See Lear, supra note 1, at 1192-93. Increased globalization has concomitantly increased the frequency with which courts face questions involving the application of foreign law. As a result, the burden on local juries of applying foreign law as well as the burden on the parties and the court of discovering and applying foreign law are less onerous now than they were in 1947 when Gulf Oil was decided. See id.
80. See Davies, supra note 7, at 324.
81. See id. at 354.
82. See FED. R. CIV. P. 44.1.
83. See Davies, supra note 7, at 358 ("[I]t is fair to say that the need to consider foreign law should no longer be as significant a factor in the forum non conveniens analysis as it was when Gilbert was decided. Nevertheless, district courts continue to regard the applicability of foreign law as a factor strongly indicating forum non conveniens dismissal, occasionally still referring to the difficulties posed by the need (now long past) to rely on expert witnesses.").
84. See id.
85. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 260 n.29 (1981).
86. See Davies, supra note 7, at 357-58.
87. Interestingly, in the Ninth, Tenth, and Eleventh Circuits, a forum non conveniens dismissal is prohibited if the choice-of-law analysis indicates that a U.S. law should govern the dispute. See id. at 358.
88. See Lear, supra note 1, at 1193.
89. See Karayanni, supra note 7, at 344.
90. See generally Phoebe A. Wilkinson, Should Foreign Plaintiffs' Personal Injury Suits Be Litigated in U.S. Courts'?, LAW.COM, July 12, 2006, http://www.law.com/jsp/llf/PubArticleLLF.jsp?id=1152608727402 ("Motions to dismiss based on the doctrine of forum non conveniens will often involve detailed, complex, competing submissions from foreign law experts, advising the U.S. court of the principles and nuances of the plaintiffs home country's legal systems. Such motions may be filed after discovery relevant to the forum non conveniens issue has been taken. As a result, U.S. courts engage in time-consuming, fact-intensive, complex inquiries in order to determine whether to exercise jurisdiction over a case involving a plaintiff from a foreign country.").
91. Lear, supra note 1, at 1193; see 28 U.S.C. § 1391(a), (b) (2000). Admittedly, the discussion here oversimplifies the personal jurisdiction, subject-matter jurisdiction, and venue issues involved. For a complete discussion of these issues and their relationship to forum non conveniens, see Stein, supra note 1.
92. In practice, defendants almost always want a forum non conveniens dismissal for, at worst, the benefits of delay and, at best, the outcome-determinative effect of ending the litigation. Thus, defendants are motivated to produce evidence of both public and private inconveniences of adjudication in the U.S. forum and in favor of adjudication in the foreign forum. See Heiser, supra note 43, at 1184-85.
93. See Roster v. (Am.) Lumbermens Mut. Cas. Co., 330 U.S. 518, 524 (1947); Jackson v. Am. Univ. in Cairo, 52 F. App'x 518, 519 (D.C. Cir. 2002) (unpublished opinion) (focusing on the use of the disjunctive "or" in Koster).
94. See Robertson, supra note 1, at 364 ("Quite typically plaintiffs who suffer forum non conveniens dismissal are unable to go forward in the foreign forum.").
95. See Bickel, supra note 1, at 1 (subtiding his forum non conveniens article: "An Object Lesson in Uncontrolled Discretion"); Robertson, supra note 1, at 371 (borrowing Professor Bickel's phrase to criticize the doctrine as applied after Gulf Oil).
96. See WRIGHT ET AL., supra note 32.
97. See Lear, supra note 1, at 1191 ("[T]he federal courts immunize American corporate defendants from regulation at home and liability for acts abroad."); Duval-Major, supra note 34, at 651.
98. See Robertson, supra note 1, at 380 ("Forum non conveniens in its present form is simply too unprincipled to be justified by whatever effectiveness it might have as a way of rationing scarce judicial resources.").
99. See Stein, supra note 1, at 814-15.
100. See Davies, supra note 7, at 351.
101. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257 (1981); infra cases collected in note 101.
102. Piper Aircraft, 454 U.S. at 241 (alteration in original) (quoting Roster v. (Am.) Lumbermens Mut. Cas. Co., 330 U.S. 518, 524 (1947)).
103. See Jackson v. Am. Univ. in Cairo, 52 F. App'x 518, 519 (D.C. Cir. 2002) (unpublished opinion).
104. See id.; BPA Int'l, Inc. v. Sweden, 281 F. Supp. 2d 73, 85 (D.D.C. 2003) ("The weight of either the private interest factors or the public interest factors alone may be cause for dismissal.").
105. See Van Schijndel v. Boeing Co., 434 F. Supp. 2d 766, 781 (C.D. Cal. 2006) (stating that "the public interest alone may require dismissal"), aff'd, No. 06-55930, 2008 U.S. App. LEXIS 380 (9th Cir. Jan. 7, 2008) (unpublished opinion).
106. See, e.g., Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257 (1981); Kamel v. Hill-Rom Co., 108 F.3d 799, 803 (7th Cir. 1997) (calling for balancing of public and private factors together); Mercier v. Sheraton Int'l, Inc., 981 F.2d 1345, 1354-58 (1st Cir. 1992) (considering public and private factors together); Lion de Mer S.A. v. M/V Loretta D, No. JFM-98-921, 2000 WL 198335, at *3, *5 (D. Md. Feb. 17, 2000) (holding that private factors indicating dismissal are "not . . . determinative" and that it is necessary to consider public factors as well). Piper Aircraft's apparent "inconsistency" has not been addressed in the academic literature.
107. Davies, supra note 7, at 351.
108. Baris v. Sulpicio Lines, Inc., 932 F.2d 1540, 1550-51 (5th Cir. 1991).
109. See, e.g., id.; In re Air Crash Disaster Near New Orleans, La., 821 F.2d 1147, 1165 (5th Cir. 1987) (en banc); S&D Trading Acad., LLC v. AAFIS, Inc., 494 F. Supp. 2d 558, 571 (S.D. Tex. 2007); Perforaciones Maritimas Mexicanas S.A. de C.V. v. Seacor Holdings, Inc., 443 F. Supp. 2d 825, 834 (S.D. Tex. 2006). See generally Davies, supra note 7, at 352 (describing the Fifth Circuit's approach).
110. See Davies, supra note 7, at 351.
111. In re Air Crash Disaster, 821 F.2d at 1165.
112. See Davies, supra note 7, at 352 n.204 (collecting cases).
113. Leon v. Millon Air, Inc., 251 F.3d 1305, 1311 (11th Cir. 2001) (quoting 17 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE § 111.74(3)(b) (3d ed. 2000)).
114. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257 (1981).
115. See Stein, supra note 1, at 824 ("After finding the conveniences in relatively equal balance, the Court could reverse the court of appeals only by relying on the public-interest factors . . . ." (footnote omitted)). But cf. D'Alterio v. N.J. Transit Rail Operations, Inc., 845 A.2d 850, 855 (Pa. Super. Ct. 2004) (reversing for abuse of discretion a forum non conveniens dismissal based only on the public factors). D'Alterio indicates that Pennsylvania requires both private and public factors to favor a forum non conveniens dismissal. See id.
116. Leon, 251 F.3d at 1311.
117. See Stein, supra note 1, at 815, 831-32.
118. See generally Hannah L. Buxbaum, Forum Selection in International Contract Litigation: The Role of Judicial Discretion, 12 WILLAMETTE J. INT'L L. & DISP. RESOL. 185 (2004) (exploring the interplay between forum non conveniens and the enforcement of forum selection clauses).
119. Sua sponte dismissals appear to have been authorized early in the doctrine's American existence, see Paxton Blair, The Doctrine of Forum Non Conveniens in Anglo-American Law, 29 COLUM. L. REV. 1, 2 (1929), as part of a court's inherent power to prevent abuse of their procedures. See, e.g., Corporacion Mexicana de Servicios Maritimos v M/T Respect, 89 F.3d 650, 656 n.1 (9th Cir. 1996). However, this reasoning is murky. See infra Part III.B.2. Moreover, when courts exercise their "power" to dismiss cases sua sponte based on forum non conveniens, they often provide weak support to justify their action. For example, the dissent in Ferens v. John Deere Co. refers only to the long-recognized power to dismiss sua sponte on forum non conveniens grounds and speaks of the power in the context of the interdistrict transfer statute, 28 U.S.C. § 1404(a). See 494 U.S. 516, 537 (1990) (Scalia, J., dissenting).
120. See Bremen v. Zapata Off-Shore Co, 407 U.S. 1, 10 (1972).
121. Buxbaum, supra note 113, at 189.
122. Id. at 193.
123. See id. at 196-98 (describing the various approaches and citing cases).
124. See, e.g., AAR Int'l, Inc. v. Nimelias Enters., S.A., 250 F.3d 510, 526 (7th Cir. 2001); Evolution Online Sys., Inc. v. Koninklijke PTT Nederland N.V., 145 F.3d 505, 509-10 (2d Cir. 1998).
125. See Bremen, 407 U.S. at 15.
126. See id. at 15-16.
127. See id. at 16-18.
128. See Buxbaum, supra note 113, at 197.
129. See infra text accompanying note 128.
130. Buxbaum, supra note 113, at 198.
131. Bremen, 407 U.S. at 16.
132. See WRIGHT ET AL., supra note 32; Buxbaum, supra note 113, at 195.
133. IFC Credit Corp. v. Aliano Bros. Gen. Contractors, 437 F.3d 606, 613 (7th Cir. 2006) (Posner, J.) (first omission in original) (quoting Nw. Nat'l Ins. Co. v. Donovan, 916 F.2d 372, 377 (7th Cir. 1990)).
134. Royal Bed & Spring Co. v. Famossul Industria E Comercio de Moveis Ltda., 906 F.2d 45, 51 (1st Cir. 1990).
135. Stewart Org., Inc. v. Ricoh Corp., 437 U.S. 22, 29 (1988).
136. Id. at 29-31 ("The forum-selection clause, which represents the parties' agreement as to the most proper forum, should receive neither dispositive consideration . . . nor no consideration . . . , but rather the consideration for which Congress provided in § 1404(a).").
137. Cf. Vogt-Nem, Inc. v. M/V Tramper, 263 F. Supp. 2d 1226, 1234 (N.D. Cal. 2002) (giving effect to a forum selection clause by dismissing sua sponte for forum non conveniens even though the parties agreed to waive the clause and wanted to stay in the U.S. forum and without any discussion of the public interest factors).
138. See Koster v. (Am.) Lumbermens Mut. Cas. Co., 330 U.S. 518, 524 (1947) (holding that dismissal for forum non conveniens can be had "upon a clear showing of facts which . . . make trial in the chosen forum inappropriate because of considerations affecting the court's own administrative and legal problems").
139. See infra note 204 and accompanying text for a full discussion of this potential solution.
140. See IFC Credit Corp. v. Aliano Bros. Gen. Contractors, 437 F.3d 606, 613 (7th Cir. 2006) (Posner, J.).
141. See, e.g., Corporacion Mexicana de Servicios Maritimos v. M/T Respect, 89 F.3d 650, 656 n.1 (9th Cir. 1996). But see Oil Basins Ltd. v. Broken Hill Proprietary Co., 613 F. Supp. 483, 488 (S.D.N.Y. 1985) ("declin[ing] to 'order such a drastic remedy sua sponte.'").
142. See Karayanni, supra note 7, at 337 ("[G]rounding the doctrine of forum non conveniens in the public interest led some states to authorize courts to raise the forum non conveniens issue sua sponte.").
143. See Kelly v. Kelly, 911 F. Supp. 70, 71 (N.D.N.Y. 1996).
144. See Lear, supra note 1, at 1150-51.
145. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947).
146. See supra notes 89-100 and accompanying text.
147. See KARAYANNI, supra note 36, at 18. Inherent powers include: the power of a federal court to control admission to its bar, punish parties for contempt, vacate its own judgment upon proof that a fraud has been perpetrated upon the court, bar a disruptive criminal defendant from the court room, dismiss an action on grounds of forum non conveniens, act SUA SPONTE to dismiss a suit for failure to prosecute, and assess attorney's fees against counsel. Glatter v. Mroz (In re Mroz), 65 F.3d 1567, 1575 n.9 (11th Cir. 1995) (citing Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) ("[Under a federal court's inherent power,] [i]t may dismiss an action on grounds of forum non conveniens . . . ; and it may act sua sponte to dismiss a suit for failure to prosecute." (citations omitted))). It is interesting to note that, in this well-known language, "sua sponte" is absent from the clause describing the federal courts' inherent power with respect to forum non conveniens.
148. See KARAYANNI, supra note 36, at 19 n.7.
149. See Lear, supra note 1, at 1186-87 ("The congressional venue scheme . . . is vast, encompassing the general venue provisions, a myriad of special provisions, as well as the transfer options in § 1404 and § 1406. Given the comprehensiveness of the congressional venue regime, it seems unlikely that the judiciary retains the inherent power to create a 'supervening venue provision' [forum non conveniens] for the routine transnational case." (footnotes omitted)).
150. See 28 U.S.C. § 1404(a) (2000).
151. See Norwood v. Kirkpatrick, 349 U.S. 29, 32 (1955).
152. Cf. WRIGHT ET AL., supra note 32 (warning against confusing the forum non conveniens dismissal and transfer remedies).
153. See Vogt-Nem, Inc. v. M/V Tramper, 263 F. Supp. 2d 1226, 1233-34 (N.D. Cal. 2002).
154. See id.; see also Corporation Mexicana de Servicios Maritimos v. M/T Respect, 89 F.3d 650, 656 n.1 (9th Cir. 1996) (citing Heller Financial, Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1293 (7th Cir. 1989) and Plum Tree, Inc. v. Stockment, 488 F.2d 754, 757 (3d Cir. 1973)) (explaining that even though the intervenor waived the doctrine of forum non conveniens, the district court could still raise the issue sua sponte). Importantly, both Heller Financial and Plum Tree involved § 1404(a) transfers.
155. Seagal v. Vorderwuhlbecke, 162 F. App'x 746, 748 (9th Cir. 2006).
156. See id.
157. See Lear, supra note 1, at 1151.
158. Am. Dredging Co. v. Miller, 510 U.S. 443, 453 (1994).
159. See 20 AM. JUR. 2D Courts § 116 (2005) (explicitly recognizing a split on this issue among state courts).
160. Elder v. Perry County Hosp., Nos. 2005-CA-000591-MR & 2005-CA-001843-MR, 2006 Ky. App. LEXIS 227, at *17 (Ky. Ct. App. July 21, 2006), vacated and remanded, No. 2006-SC-0775-D, 2007 Ky. LEXIS 86 (Ky. Apr. 11, 2007). In September 2007, the Court of Appeals of Kentucky reached the same conclusion in a published opinion after hearing this case on remand from the Supreme Court of Kentucky. See Elder v. Perry County Hosp., Nos. 2005-CA-000591-MR & 2005-CA-001843-MR, 2007 Ky. App. LEXIS 342 (Ky. Ct. App. Sept. 14, 2007).
161. See Elder, 2006 Ky. App. LEXIS 227 at *17. Professor Stein supports this view in his description of venue as simply a right of the parties, rather than a power of the court. See Stein, supra note 1, at 788.
162. See Elder, 2006 Ky. App. LEXIS 227 at *17-18.
163. In contrast, Arizona and Arkansas explicitly acknowledge a trial court's right to raise forum non conveniens sua sponte. See Avila v. Chamberlain, 580 P.2d 1223, 1226 (Ariz. Ct. App. 1978); Country Pride Foods, Ltd. v. Medina & Medina, 648 S.W.2d 485, 486 (Ark. 1983).
164. See CAL. CIV. PROC. CODE § 410.30(a) (West 2004).
165. See VSL Corp. v. Dunes Hotels & Casinos, Inc., 70 N.E.2d 617, 617 (N.Y. 1988) ("[A] court does not have the authority to invoke the doctrine on its own motion.").
166. See id. But see Verysell-Holding LLC v. Tsukanov, 866 So. 2d 114, 116 (Fla. Dist. Ct. App. 2004) (holding that the state forum non conveniens rule that imposes a time limit on such motions did not effect a court's ability to raise the motion on its own even though the statute does not explicitly grant a sua sponte power).
167. See D'Alterio v. N.J. Transit Rail Operations, Inc., 845 A.2d 850, 855 n.2 (Pa. Super. Ct. 2004).
168. See id.
169. See Buxbaum, supra note 113, at 198 & n.64.
170. See Karayanni, supra note 7, at 337.
171. Malay. Int'l Shipping Corp. v. Sinochem Int'l Co., 436 F.3d 349, 364 (3d Cir. 2006).
172. Although Piper Aircraft instructs that a foreign plaintiff's choice of forum is entitled to less deference, see Piper Aircraft Co. v. Reyno, 454 U.S. 235, 256 (1981), courts should remember that "less deference is not the same thing as no deference." Ravelo Monegro v. Rosa, 211 F.3d 509, 514 (9th Cir. 2000).
173. See In re Air Crash Disaster Near New Orleans, La., 821 F.2d 1147, 1156 (5th Cir. 1987) (en banc); Robertson, supra note 1, at 363-64.
174. Davies, supra note 7, at 373.
175. See Stein, supra note 1, at 843-44.
176. See Davies, supra note 7, at 373; Lear, supra note 1, at 1189.
177. See Davies, supra note 7, at 312-13.
178. See id. at 374.
179. See Robertson, supra note 1, at 363-64. Statutes of limitation, costs, and other barriers to litigation in the alternative forum often prevent the plaintiff from bringing suit there. Id. at 364 n.87; see Thomas O. Main, Judicial Discretion to Condition, 79 TEMP. L. REV. 1075, 1085 (2006).
180. See Lear, supra note 1, at 1191.
181. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 256 (1981).
182. See Lear, supra note 1, at 1190-92.
183. See Davies, supra note 7, at 370 ("The only reason for turning away foreign plaintiffs more readily than American ones is concern about burdening the administration of justice in the U.S. courts.").
184. See id.
185. See id. at 375-77.
186. Heiser, supra note 43, at 1189.
187. See id. at 1188-89.
188. For a general discussion of the United States as a magnet forum and how to limit foreign plaintiffs' access, see Russell J. Weintraub, The United States as a Magnet Forum and What, if Anything, to Do About It, in INTERNATIONAL DISPUTE RESOLUTION: THE REGULATION OF FORUM SELECTION (Jack L. Goldsmidi ed., 1997).
189. See Lear, supra note 1, at 1190-92.
190. Karayanni, supra note 7, at 332-33.
191. See Robertson, supra note 1, at 378.
192. See Lear, supra note 1, at 1158; Stein, supra note 1, at 795.
193. See Lear, supra note 1, at 1164 ("Each time a court dismisses a case on forum non conveniens grounds, it displaces the congressional value judgment that the dispute may conveniently be heard by the federal courts.").
194. See Stein, supra note 1, at 784 ("Although frequently associated with 'convenience,' the doctrine has not been limited in application to insuring a convenient trial. Rather, courts invoking the doctrine have taken into consideration the very question purportedly addressed by jurisdiction, venue, and choice of law: which government has the appropriate relationship of the parties and the controversy to justify resolving the dispute in its courts or under its law." (footnote omitted)).
195. See Robertson, supra note 1, at 378.
196. See id.
197. See Davies, supra note 7, at 376.
198. See Robertson, supra note 1, at 379.
199. See id. at 378.
200. See id. at 378-79; Stein, supra note 1, at 793-94 ("The significance of this overlap is that most of the policies addressed in decisions about jurisdiction and venue are also addressed in the context of forum non conveniens, a doctrine practically devoid of hard rules, vested in the discretion of the trial court, and beyond effective appellate review.").
201. Cf. Davies, supra note 7, at 376 (stating that when certain conditions are met, "the U.S. court would have a legitimate public interest in hearing the dispute, however inconvenient it might be for it to do so").
202. See Stein, supra note 1, at 784.
203. See id. at 845-46 n.268.
204. See Malay. Int'l Shipping Corp. v. Sinochem Int'l Co., 436 F.3d 349 (3d Cir. 2006).
205. See supra text accompanying notes 60-68. In a rather harsh description of courts' inconsistent and unprincipled application of the doctrine, Professor Robertson stated that "forum non conveniens . . . is not properly speaking a legal doctrine at all, but rather a loose collection of habitual practices and attitudes." Robertson, supra note 1, at 360.
206. See Davies, supra note 7, at 384-85 (explaining that when the predictability of outcomes increases, the ease and number of settlement negotiations will also increase and result in a reduction in the number of cases brought to court).
207. See supra Part II.
208. See piper Aircraft Co. v. Reyno, 454 U.S. 235, 257 (1981).
209. Professor Bickel provided an example of how to narrow the forum non conveniens test: [A] specially narrow area of discretion can be circumscribed to protect foreign defendants in cases of great hardship. The[re] should be dismissal only when flagrant injustice would be done by allowing the suit to proceed. This would mean cases in which all factors of convenience point to the defendant's forum and the [plaintiff's] only possible purpose in bring[ing] suit here was to harass defendant into an unfavorable settlement. Bickel, supra note 1, at 45.
210. See Davies, supra note 7, at 378, 384.
211. See id. at 376.
212. See id. at 377.
213. See id. at 383.
214. See 17 JAMES WM. MOORE, MOORE'S FEDERAL PRACTICE § 111.74(3) (b) (3d ed. 2007).