Cross-jurisdictional forum non conveniens preclusion

Harvard Law Review

Volumn 121, Issue 8, 2008, Pages 2178-2199

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EID: 47249094128     PISSN: 0017811X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (146)

1. See Emil Petrossian, Developments in the Law - Transnational Litigation - In Pursuit of the Perfect Forum: Transnational Forum Shopping in the United States and England, 40 LOY. L.A. L. REV. 1257, 1258 (2007);
2. see also E.E. Daschbach, Where There's a Will, There's a Way: The Cause for a Cure and Remedial Prescriptions for Forum Non Conveniens as Applied in Latin American Plaintiffs' Actions Against U.S. Multinationals, 13 LAW & BUS. REV. AM. 11, 41 (2007) (predicting claims brought in U.S. courts by aliens seeking relief for injuries suffered abroad will continue to increase due to the prominence of U.S.-based corporations in the global marketplace).
3. See, e.g., David W. Robertson, The Federal Doctrine of Forum Non Conveniens: "An Object Lesson in Uncontrolled Discretion," 29 TEX. INT'L L.J. 353, 367-71 (1994).
4. See, e.g., Mizokami Bros, of Ariz., Inc. v. Mobay Chem. Corp., 660 F.2d 712, 716 (8th Cir. 1981).
5. Despite the formally limited scope of the forum non conveniens inquiry, courts considering forum non conveniens motions almost always view the issue in these terms.
6. See, e.g., DTEX, LLC v. BBVA Bancomer, S.A., 508 F.3d 785, 804 (5th Cir. 2007) ("Mexico is an adequate and available forum for this case and both the private and public factors strongly support dismissal of this case under forum non conveniens.");
7. Base Metal Trading SA v. Russian Aluminum, 253 F. Supp. 2d 681, 713 (S.D.N.Y. 2003) ("Based on an evaluation of all the private and public Gilbert factors, Russia is clearly the more convenient forum.");
8. AT&T Corp. v. Sigala, 549 S.E.2d 373, 375 (Ga. 2001) ("[T]he state court weighed the relevant [forum non conveniens] factors . . . [and] concluded] that there was an adequate alternative forum and public and private interests supported dismissing the action in favor of the courts of Venezuela.").
9. 18 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE: JURISDICTION AND RELATED MATTERS § 4416, at 392 (2d ed. 2002).
10. See Montana v. United States, 440 U.S. 147, 153-54 (1979) ("To preclude parties from contesting matters that they have had a full and fair opportunity to litigate protects their adversaries from the expense and vexation attending multiple lawsuits, conserves judicial resources, and fosters reliance on judicial action by minimizing the possibility of inconsistent decisions.");
11. S. Pac. R.R. Co. v. United States, 168 U.S. 1, 49 (1897) (explaining that the doctrine of issue preclusion "is demanded by the very object for which civil courts have been established, which is to secure the peace and repose of society by the settlement of matters capable of judicial determination").
12. See, e.g., Johnston v. Multidata Sys. Int'l Corp., No. G-06-CV-313, 2007 WL 1296204, at * 7 (S.D. Tex. Apr. 30, 2007), rev'd on other grounds, No. 07-41232, 2008 WL 921479 (5th Cir. Apr. 7, 2008).
13. This threat to repose was recognized in DuToit v. Strategic Minerals Corp., 136 F.R.D. 82 (D. Del. 1991). There, the court granted the plaintiffs' motion to voluntarily dismiss the case so that the plaintiffs could proceed with a parallel lawsuit in Connecticut state court, and it did so without ruling on the defendants' forum non conveniens motion. The court reasoned that even if it had granted the defendants' motion, its ruling would not have reduced the defendants' future litigation expenses, because "[g]iven the plaintiffs' obsession with litigating their claim in the United States, they [were] unlikely to concede the direct estoppel effect of an adverse forum non conveniens ruling ... so at the very least the parties would have [had] to brief the issue for the Connecticut court."
14. Id. at 87.
15. Pastewka v. Texaco, Inc., 565 F.2d 851, 852 (3d Cir. 1977).
16. Id.
17. Id.
18. Id.
19. The district court conditioned its dismissal of the suit on Texaco's submission to jurisdiction in England. Fitzgerald v. Texaco, Inc., 521 F.2d 448, 452 (2d Cir. 1975).
20. Fitzgerald, 521 F.2d at 454. The Second Circuit explained that all of the relevant witnesses and records were located in England, so that "[t]he plaintiffs should find their best proof right there."
21. Id. at 451.
22. Pastewka v. Texaco, Inc., 420 F. Supp. 641, 642-43 (D. Del. 1976).
23. Id. at 646.
24. 565 F.2d 851.
25. Id. at 853.
26. Id. at 854.
27. See Skewes v. Masterchem Indus., LLC, No. 405CV01047ERW, 2005 WL 3555931, at * 2 (E.D. Mo. Dec. 23, 2005) ("[Preclusion is applicable where a second court is asked to apply the same objective criteria and the same material facts as those considered by the first court in its forum non conveniens analysis.");
28. Chazen v. Deloitte & Touche, LLP, 247 F. Supp. 2d 1259, 1263 (N.D. Ala. 2003) (holding that a prior forum non conveniens determination could have collateral estoppel effect "if the same objective criteria and the same material facts apply in both cases"), vacated in part on other grounds, No. 03-11472, 2003 WL 24892029 (11th Cir. Dec. 12, 2003). In both Skewes and Chazen, the court held that a state court's forum non conveniens dismissal was binding on a federal court in that state. Skewes, 2005 WL 3555931, at *2-3;
29. Chazen, 247 F. Supp. 2d at 1264;
30. cf. Barrantes Cabalceta v. Standard Fruit Co., 667 F. Supp. 833, 838 (S.D. FLa. 1987) (applying the Pastewka formulation to determine the preclusive effect of a prior forum non conveniens determination in the same court when new plaintiffs were added), rev'd in part on other grounds, 883 F.2d 1553 (11th Cir. 1989).
31. See Alcantara v. Boeing Co., 705 P.2d 1222, 1226 (Wash. Ct. App. 1985) ("If the objective legal criteria and the underlying material facts in the prior . . . and subsequent. .. determinations were identical, then the prior court's decision precluded the relitigation of the same forum non conveniens issue." (citing Pastewka, 565 F.2d at 854));
32. see also Ex parte Ford Motor Credit Co., 772 So. 2d 437, 442 (Ala. 2000) (adopting Alcantara's statement of the law).
33. Choo v. Exxon Corp., 486 U.S. 140, 142 (1988).
34. Exxon Corp. v. Choo, 817 F.2d 307, 309 (5th Cir. 1987), rev'd on other grounds, 486 U.S. 140.
35. Id. at 309 & n.1.
36. Id. at 309.
37. Id.
38. Id.
39. 28 U.S.C. § 2283 (2000).
40. Choo, 817 F.2d at 309.
41. 817 F.2d 307.
42. Id. at 311.
43. Id. at 312 (citations omitted) (quoting Mizokami Bros, of Ariz., Inc. v. Mobay Chem. Corp., 660 F.2d 712, 716 (8th Cir. 1981);
44. Pastewka v. Texaco, Inc., 565 F.2d 851, 853 (3d Cir. 1977)).
45. Id. at 314.
46. See, e.g., Villar v. Crowley Maritime Corp., 990 F.2d 1489, 1498 (5th Cir. 1993);
47. Torreblanca de Aguilar v. Boeing Co., 806 F. Supp. 139, 141-42 (E.D. Tex. 1992).
48. See Ibar Ltd. v. Am. Bureau of Shipping, No. 97 Civ. 8592(LMM), 1998 WL 274469, at *3 (S.D.N.Y. May 26, 1998);
49. Alexander Proudfoot, Plc v. Fed. Ins. Co., 860 F. Supp. 541, 544 (N.D. Ill. 1994) (stating that "another court may revisit the [forum non conveniens] issue if material facts underlying the judgment have changed").
50. But see Johnston v. Multidata Sys. Int'l Corp., No. G-06-CV-313, 2007 WL 1296204, at *5, *8 (S.D. Tex. Apr. 30, 2007) (refusing to treat a Missouri state court's forum non conveniens dismissal as binding because the Missouri doctrine of forum non conveniens and the federal doctrine consider different factors), rev'd on other grounds, No. 07-41232, 2008 WL 921479 (5th Cir. Apr. 7, 2008).
51. Mizokami, 660 F.2d at 714.
52. Id. at 714-15;
53. Mizokami Bros, of Ariz., Inc. v. Baychem Corp., 556 F.2d 975, 978 (9th Cir. 1977).
54. Mizokami, 556 F.2d at 978. The Ninth Circuit held that Mizokami's U.S. citizenship did not afford an adequate basis "for suing these defendants in a court of the United States."
55. Id.
56. Mizokami Bros, of Ariz. v. Mobay Chem. Corp., 483 F. Supp. 201, 205, 207 (D. Mo. 1980).
57. Mizokami, 660 F.2d at 719. The court remanded the case so that the order of dismissal could be made subject to several conditions concerning the availability of a Mexican forum.
58. 660 F.2d 712.
59. Id. at 716-17.
60. Id. at 716.
61. Id. The court referred, without elaboration, to differences alleged by the plaintiff in "the contacts of the parties with Missouri, the availability of witnesses in Missouri and other relevant factors."
62. Id. These differences most likely arose from the fact that Mobay's chemical manufacturing plant was located in Kansas City, Missouri.
63. See id. at 714.
64. Johnston v. Multidata Sys. Int'l Corp., No. G-06-CV-313, 2007 WL 1296204, at *7 (S.D. Tex. Apr. 30, 2007), rev'd on other grounds, No. 07-41232, 2008 WL 921479 (5th Cir. Apr. 7, 2008).
65. Id.
66. 18 WRIGHT, MILLER & COOPER, supra note 5, § 4416, at 392;
67. see also, e.g., Shaw v. Hahn, 56 F.3d 1128, 1131 (9th Cir. 1995).
68. See, e.g., Piper Aircraft Co. v. Reyno, 454 U.S. 235, 249 (1981) ("[Dismissal will ordinarily be appropriate where trial in the plaintiff's chosen forum imposes a heavy burden on the defendant or the court, and where the plaintiff is unable to offer any specific reasons of convenience supporting his choice." (emphasis added));
69. see also 18A WRIGHT, MILLER & COOPER, supra note 5, § 4436, at 173 (stating that dismissal on forum non conveniens grounds "ordinarily . . . cannot work issue preclusion as to other courts because the convenience issues are intrinsically different").
70. See, e.g., Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 506-07 (1947) ("In all cases in which the doctrine of forum non conveniens comes into play, it presupposes at least two forums in which the defendant is amenable to process; the doctrine furnishes criteria for choice between them.");
71. see also Piper, 454 U.S. at 254 (indicating that forum non conveniens dismissal may be inappropriate in the absence of an alternative forum where an adequate remedy is available).
72. 18 WRIGHT, MILLER & COOPER, supra note 5, § 4421, at 536;
73. see also Schiro v. Farley, 510 U.S. 222, 233 (1994). A case can be made that this argument does not apply when both jurisdictions - the one that made the original forum non conveniens determination, and the one in which the plaintiff seeks to relitigate the forum non conveniens issue - are federal courts. The federal venue transfer statute, 28 U.S.C. § 1404(a) (2000), has been interpreted to require that a federal court transfer a case rather than dismiss it if there is another federal forum where the case "might have been brought."
74. See, e.g., Nun v. Telectronics Pacing Sys., Inc., No. 93 Civ. 5434 (KMW), 1994 WL 361488, at *2 (S.D.N.Y. July 11, 1994). In light of this statute, the Supreme Court has said, "[t]he common-law doctrine offorum non conveniens 'has continuing application [in federal courts] only in cases where the alternative forum is abroad,' and perhaps in rare instances where a state or territorial court serves litigational convenience best." Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp., 127 S. Ct. 1184, 1190 (2007) (second alteration in original) (citation omitted) (quoting Am. Dredging Co. v. Miller, 510 U.S. 443, 449 n.2 (1994)). Thus, a plaintiff could plausibly contend that a. federal forum non conveniens dismissal must rest on an implicit but necessary holding that no other federal forum would be convenient, because otherwise the first court would have transferred the case to that federal forum rather than dismissing it.
75. See, e.g., Crackau v. Lucent Techs., No. Civ. 03-1376(DRD), 2003 WL 22927231, at *3 n.8 (D.N.J. Nov. 24, 2003). Such an implicit holding could have preclusive effect.
76. See 18 WRIGHT, MILLER & COOPER, supra note 5, § 4420, at 521 (explaining that the requirement that an issue have been "actually decided" can be satisfied via a "process of inference, in which it is taken that an issue was actually decided if its decision was necessary to support the result reached"). The flaw in this argument is that in many cases, the court's implicit decision that no other federal forum is convenient will satisfy the "actually and necessarily decided" requirement for issue preclusion, but not the "actually litigated" requirement.
77. See id. § 4419, at 495 (stating that a judge's finding on a question not consciously litigated by the parties can be denied preclusive effect). In most federal cases in which the defendant seeks forum non conveniens dismissal, the parties will hotly dispute the suitability of the plaintiff's chosen forum relative to that of the alternative (usually foreign) forum proposed by the defendant; neither side, however, is likely to raise the possibility of transfer to a more convenient federal forum.
78. For an example of a court's reasoning in this manner, see Mizokami Bros, of Ariz., Inc. v. Mobay Chem. Corp., 660 F. 2 d 712, 717 n.6 (8th Cir. 1981), in which the court concluded that, due to the absence of any record evidence "that the possibility of a transfer was ever considered by either the parties or the court," it would be inappropriate to "imply broad res judicata . . . effect from a matter never contested."
79. See generally WRIGHT, MILLER & COOPER, supra note 5, ch. 13.
80. The Supreme Court has explained the doctrine's flexibility and its purpose: The principle oí forum non conveniens is simply that a court may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute. These statutes are drawn with a necessary generality and usually give a plaintiff a choice of courts, so that he may be quite sure of some place in which to pursue his remedy. But the open door may admit those who seek not simply justice but perhaps justice blended with some harassment. . . . Wisely, it has not been attempted to catalogue the circumstances which will justify or require either grant or denial of remedy. The doctrine leaves much to the discretion of the court to which plaintiff resorts, and experience has not shown a judicial tendency to renounce one's own jurisdiction so strong as to result in many abuses. Gulf Oil, 330 U.S. at 507-08.
81. Ibar Ltd. v. Am. Bureau of Shipping, No. 97 Civ. 8592(LMM), 1998 WL 274469, at *4 (S.D.N.Y. May 26, 1998);
82. see also Kelly v. Interpublic Group of Cos., Inc., No. 07 Civ. 1317(LMM), 2007 WL 2265570, at *2, *5 (S.D.N.Y. Aug. 2, 2007) (holding that the prior dismissal of the plaintiff's case by a California federal court was not preclusive because the defendant was incorporated in New York, and denying the defendant's motion to dismiss).
83. But cf. Davis Int'l, LLC v. New Start Group Corp., No. Civ.A. 04-1482 GMS, 2006 WL 839364, at *8 (D. Del. Mar. 29, 2006) (declining to find material factual differences sufficient to deny preclusive effect to a prior forum non conveniens dismissal in New York and reasoning that two defendants' incorporation in Delaware was "of no moment, as it established] a connection to Delaware that [was] tenuous, at best"), off d in part and rev'd in part on other grounds, 488 F.3d 597 (3d Cir. 2007).
84. Ibar, 1998 WL 274469, at *3.
85. Johnston v. Multidata Sys. Int'l Corp., No. G-06-CV-313, 2007 WL 1296204, at *i-2, *5 (S.D. Tex. Apr. 30, 2007), rev'd on other grounds, No. 07-41232, 2008 WL 921479 (5th Cir. Apr. 7, 2008).
86. Exxon Corp. v. Choo, 817 F.2d 307, 313 (5th Cir. 1987), rev'd on other grounds, 486 U.S. 140.
87. Ex parte Ford Motor Credit Co., 772 So. 2d 437, 444-45 (Ala. 2000).
88. But see Saudi Am. Bank v. Azhari, 460 N.W.2d 90, 92 (Minn. Ct. App. 1990) (holding that changed circumstances could not justify reopening the forum non conveniens issue "in the same forum which dismissed it").
89. Alexander Proudfoot, Plc v. Fed. Ins. Co., 860 F. Supp. 541, 544 (N.D. 111. 1994).
90. See Torreblanca de Aguilar v. Boeing Co., 806 F. Supp. 139, 142 (E.D. Tex. 1992) (considering whether plaintiffs' new stipulations justified reopening the forum non conveniens question, but finding the new stipulations not substantially different from previous ones).
91. Villar v. Crowley Maritime Corp., 990 F.2d 1489, 1503 (5th Cir. 1993) (Johnson, J., concurring in part, dissenting in part).
92. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 (1981).
93. Id. at 241 & n.6 (quoting and discussing Gulf Oil Co. v. Gilbert, 330 U.S. 501, 508-09 (1947)) (internal quotation marks omitted). The private interest factors identified by the Supreme Court include "ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises ... ; and all other practical problems that make trial of a case easy, expeditious and inexpensive."
94. Id. at 241 n.6 (quoting Gilbert, 330 U.S. at 508) (internal quotation mark omitted). The public interest factors include: the administrative difficulties flowing from court congestion; the "local interest in having localized controversies decided at home"; the interest in having the trial of a diversity case in a forum that is at home with the law that must govern the action; the avoidance of unnecessary problems in conflict of laws, or in the application of foreign law; and the unfairness of burdening citizens in an unrelated forum with jury duty.
95. Id.
96. (quoting Gilbert, 330 U.S. at 509).
97. See, e.g., Esfeld v. Costa Crociere, S.P.A., 289 F.3d 1300, 1306-09 (11th Cir. 2002);
98. see also RONALD A. BRAND & SCOTT R. JABLONSKI, FORUM NON CONVENIENS 66-68 (2007) (explaining that all five circuit courts to address the question have concluded that forum non conveniens is a matter of federal common law, and reasoning that the Supreme Court's "silence on these decisions can be interpreted as a tacit approval").
99. See Elizabeth T. Lear, Congress, the Federal Courts, and Forum Non Conveniens: Friction on the Frontier of the Inherent Power, 91 IOWA L. REV. 1147, 1148-53 (2006) (stating that "it is not at all clear what the [federal] forum non conveniens standard is" because "[c]ircuit splits abound" and "the standards used and the evidence required for forum non conveniens dismissals vary widely among the district courts").
100. See generally Martin Davies, Time To Change the Federal Forum Non Conveniens Analysis, 77 TUL. L. REV. 309 (2002).
101. David W. Robertson & Paula K. Speck, Access to State Courts in Transnational Personal Injury Cases: Forum Non Conveniens and Antisuit Injunctions, 68 TEX. L. REV. 937, 950-51 & nn.74-76 (1990). The portion of the article dealing with state law was the work of Professor Robertson alone.
102. See id. at 937 n.**.
103. Id. at 951 & nn.77-80.
104. Id. at 950 & n.74.
105. See Chazen v. Deloitte & Touche, LLP, No. 03-11472, 2003 WL 24892029, at *2 (11th Cir. Dec. 12, 2003) (finding that Alabama law considered only "the connections between Chazen's suit and the state of Alabama," whereas federal law required "consideration of the connections between Chazen's suit and the United States as a whole").
106. No. G-06-CV-313, 2007 WL 1296204 (S.D. Tex. Apr. 30, 2007), rev'd on other grounds, No. 07-41232, 2008 WL 921479 (5th Cir. Apr. 7, 2008).
107. Id. at *5.
108. The court went on to hold that forum non conveniens dismissal was not permitted because Panama was not at the time an available forum.
109. Id. at *26-28. In 2006, Panama had adopted a law stripping its courts of jurisdiction over cases that were brought in Panama as a result of a forum non conveniens dismissal in a foreign court.
110. Id. at *27. The defendants argued that the statute would not prevent litigation of the case in Panama because they had agreed to submit to the jurisdiction of the Panamanian courts and because, in any event, the jurisdiction-stripping statute was invalid under the Panamanian constitution.
111. Id. The district court found that the defendants had not established either proposition with sufficient certainty to justify treating Panama as an available forum.
112. Id.
113. For a discussion of the effects of such "blocking statutes," see generally M. Ryan Casey & Barrett Ristroph, Boomerang Litigation: How Convenient Is Forum Non Conveniens in Transnational Litigation?, 4 BYU INT'L L. & MGMT. REV. 21 (2007).
114. See also DuToit v. Strategic Minerals Corp., 136 F.R.D. 82, 86-87 (D. Del. 1991) (speculating that a federal forum non conveniens dismissal might not be preclusive in Connecticut state court because Connecticut had "expressed a willingness to assign greater weight to procedural differences between jurisdictions, e.g., more liberal discovery rules, than federal courts generally would in the analysis of whether the proposed alternative forum is adequate" (citing Picketts v. Int'l Playtex, Inc., 576 A.2d 518, 526-27 (Conn. 1990))).
115. See Johnston, 2007 WL 1296204, at *5.
116. Karim v. Finch Shipping Co., 265 F.3d 258, 269 n.14 (5th Cir. 2001) (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947)).
117. Id.
118. (citing Gulf Oil, 330 U.S. at 508-09).
119. Chandler v. Multidata Sys. Int'l Corp., 163 S.W.3d 537, 545 (Mo. Ct. App. 2005).
120. See Karim, 265 F.3d at 268, 269 n.14;
121. Chandler, 163 S.W.3d at 545.
122. Skewes v. Masterchem Indus., LLC, No. 405CV01047ERW, 2005 WL 3555931, at *3 n.3 (E.D. Mo. Dec. 23, 2005) (citing Mizokami Bros, of Ariz., Inc. v. Mobay Chem. Corp., 660 F.2d 712, 719 n.io (8th Cir. 1981)).
123. 486 U.S. 140(1988).
124. Id. at 146-47, 150-51.
125. Id. at 148-49;
126. see Exxon Corp. v. Choo, 817 F.2d 307, 314-16 (5th Cir. 1987) (discussing Texas's open-forum statute);
127. Dow Chem. Co. v. Castro Alfaro, 786 S.W.2d 674, 678-79 (Tex. 1990).
128. Choo, 486 U.S. at 148.
129. A panel of the Fifth Circuit gave Choo a broader reading in Baris v. Sulpicio Lines, Inc., 74 F.3d 567 (5th Cir.), aff'd by an equally divided court, 101 F.3d 367 (5th Cir. 1996) (en banc) (per curiam). In Baris, a federal district court in Texas had granted defendants' motion to dismiss on forum non conveniens grounds after finding "that the Philippines was the proper situs for the litigation," and the plaintiffs had responded by reviving a suit they had previously filed in Louisiana state court.
130. Id. at 569. Defendants returned to the federal court that had previously dismissed the suit and sought an injunction against the Louisiana proceedings, arguing that the plaintiffs should be precluded "from pursuing their claims in any American court."
131. Id. at 569-70. The district court refused to issue such an injunction and the Fifth Circuit affirmed, reasoning that Choo prevented federal forum non conveniens dismissals from having preclusive effect in state court.
132. Id. at 573 & n.8. However, the outcome in Baris was justified even on the narrower reading of Choo suggested here, because Louisiana did not recognize the doctrine of forum non conveniens.
133. Id. at 573 n.7.
134. Am. Dredging Co. v. Miller, 510 U.S. 443, 455 (1994) (citation omitted).
135. See supra pp. 2187-88.
136. 18 WRIGHT, MILLER & COOPER, supra note 5, § 4425, at 656-57 (footnotes omitted).
137. See, e.g., Perry v. Sheahan, 222 F.3d 309, 318 (7th Cir. 2000) ("Only facts arising after [the first lawsuit] can operate to defeat the bar of issue preclusion.");
138. Yamaha Corp. of Am. v. United States, 961 F.2d 245, 254 (D.C. Cir. 1992) ("[O]nce an issue is raised and determined, it is the entire issue that is precluded, not just the particular arguments raised in support of it in the first case.").
139. Comm'rs of the Taxing Dist. of Brownsville v. Loague, 129 U.S. 493, 505 (1889) (citing Jeter v. Hewitt, 63 U.S. (22 How.) 352, 364 (1860)). The Court was translating a venerable maxim describing res judicata: Facit ex curvo rectum, ex albo nigrum. Id.
140. Brown v. Felsen, 442 U.S. 127, 132 (1979).
141. GARY B. BORN, INTERNATIONAL CIVIL LITIGATION IN UNITED STATES COURTS 399 (2007).
142. Doe v. Hyland Therapeutics Div., 807 F. Supp. 1117, 1130 (S.D.N.Y. 1992).
143. But see Dow Chem. Co. v. Castro Alfaro, 786 S.W.2d 674, 689 (Tex. 1990) (Doggett, J., concurring) ("The doctrine of forum non conveniens is obsolete in a world in which markets are global and in which ecologista have documented the delicate balance of all life on this planet. The parochial perspective embodied in the doctrine of forum non conveniens enables corporations to evade legal control merely because they are transnational. This perspective ignores the reality that actions of our corporations affecting those abroad will also affect Texans.").
144. See, e.g., Carlenstolpe v. Merck & Co., 638 F. Supp. 901, 909 (S.D.N.Y. 1986) ("This court finds that where an allegedly defective drug ... is being distributed to and presumably used by American citizens, including citizens of the forum, the forum's interest in [adjudicating] the controversy is at least equal to that of the foreign citizen's home forum.").
145. See, e.g., AT&T Corp. v. Sigala, 549 S.E.2d 373, 377 & n.17 (Ga. 2001) (holding that forum non conveniens is applicable to suits filed in Georgia courts by foreign plaintiffs, but reaffirming its prior rule that the doctrine is inapplicable to suits filed by U.S. residents).
146. This principle explains the Supreme Court's decision in Choo. See supra pp. 2193-94. It also explains why differences in governing law that do not amount to an assertion of a public interest in a particular category of cases - such as different articulations of the factors relevant to the forum non conveniens inquiry - do not justify reopening the issue.