Concept
State Courts and Special Settings
Forum non conveniens
State Courts and Special Settings
The forum non conveniens doctrine built in the earlier sections is the federal version, and nothing in it binds a state court that faces the same motion. Each state is on its own in devising its rules. A state may have statutes on the subject, a body of decisional law, or both, and it may reject the doctrine altogether and hear every case that fits within its jurisdiction.1 Every forum non conveniens problem therefore begins with a question the federal cases never ask: which court system is deciding the motion?
Three settings follow from that question. A state judge who prefers another forum has fewer remedies than a federal judge and answers to the state’s own standard. A maritime plaintiff who sues in state court raises the question whether federal maritime law forces the state to apply the doctrine, and a maritime plaintiff in federal court may lose, through dismissal, the vessel that anchors the case. And a federal court sitting in diversity must decide whether federal or state forum non conveniens law supplies the standard.
State Court Practice
A state judge who believes another forum would serve the parties better has fewer tools than a federal judge, because the power to transfer stops at the edge of the judge’s own court system. A New York state court has no authority to send a case to a Pennsylvania court; the two are different, autonomous systems, and each decides for itself which cases it will hear.2 Federal courts are branches of a single system, and § 1404(a) requires each branch to entertain cases transferred from the others. That is why a federal judge needs true forum non conveniens only when the better forum is a foreign country.3 A state judge can transfer a case only within the state, so when a properly venued case belongs in another state or country, the only step available is a forum non conveniens dismissal.4
Suppose an Illinois citizen sues a Minnesota citizen in a state court in Minneapolis over a dispute tied to both states. Minneapolis is a proper venue. If the judge believes the case should be heard in Chicago, the judge cannot send it there, because a Chicago court belongs to a different system. The judge can grant a forum non conveniens dismissal, and that dismissal is the only way to reach the result.5
Dismissal is a blunt remedy, so state courts temper it with conditions. The court may dismiss outright and leave the plaintiff to sue elsewhere, condition the dismissal on the defendant’s waiver of any objection to suit in the better forum (personal jurisdiction, venue, limitations), or stay the action until the plaintiff shows she can sue the defendant there.6 It may also require the defendant to stipulate to accept process in a designated place, to waive a limitations defense that would otherwise bar the action there, or to agree that depositions and other disclosure already taken in the first forum may be used there.7 These conditions reproduce much of what a transfer would have accomplished, and they answer the objection that dismissal strands the plaintiff. The earlier discussion of conditional dismissals explains the device, and state judges use it for the same reason federal judges do.
The source of the power to dismiss differs from state to state. Some states have codified the doctrine, as California did in Code of Civil Procedure § 410.30(a) and Illinois did in Supreme Court Rule 187(c)(2), while many others rely on the common law.8 The content differs too, and the difference goes well beyond statute versus common law. Idaho has no forum non conveniens doctrine at all.9 Where a state does recognize it, dismissals may be controlled or limited by statute.10 In most states, though, the court balances the convenience of all the parties, and no single factor precludes dismissal as long as another forum is available.11 The federal framework is therefore a sound starting point, and the skill lies in spotting the departures. Three matter most.
The sharpest departure is a categorical bar tied to residency. In several states a forum non conveniens dismissal is not allowed whenever the plaintiff or one of the parties is a resident of the forum state.12 The rationale is that one function of a state’s courts is to give its residents a tribunal in which to obtain adjudication of their grievances, and a defendant who could argue a resident out of that tribunal would defeat the function.13 Other states go the other way. They may allow a dismissal even when a party is local, as long as another forum is obviously the more appropriate one, and for that last element the Restatement (Second) of Conflict of Laws § 84 supplies the baseline: no dismissal unless “a more appropriate forum is available to the plaintiff.”14
The bar replaces the weighing of factors with a yes-or-no question about residency. The federal rule is gentler on the defendant: it gives the plaintiff’s chosen forum a strong presumption, but the presumption gives way when the balance is strongly in the defendant’s favor.15 A state’s own statutes and decisions, not the federal framework, fix the content of its doctrine, so state and federal doctrine are not coextensive in every circumstance.16
Delaware departs from the federal approach by raising the defendant’s burden. In re Citigroup Inc. Shareholder Derivative Litigation, the defendants asked the Court of Chancery to stay a shareholder derivative action in favor of a New York action filed within days of it. Because the two suits were contemporaneous, neither counted as first-filed, and the court analyzed the request under the traditional forum non conveniens framework.17 That framework asks whether Delaware law applies, how easily the proof can be reached, whether compulsory process is available for witnesses, whether similar actions are pending elsewhere, whether the premises may need to be viewed, and what other practical considerations would make trial easy, expeditious, and inexpensive.18 The doctrine is not a vehicle for deciding which forum is most convenient. The court is hesitant to grant stays on these grounds, and the defendant bears the burden of showing hardship sufficient to warrant one.19 Delaware decisions describe that burden as “overwhelming hardship” and say that such motions are granted only in the rare case.20
The Citigroup defendants fell short. The New York court’s authority to grant complete relief, including on federal securities claims that only a federal court could adjudicate, is relevant to the pending-action factor but not outcome determinative, and here it did not approach the hardship that would warrant a stay.21
The court applied the same demanding standard to a stay as to a dismissal because a stay usually has the same practical effect. A stay in favor of another action puts the Delaware case on hold until the other action ends, at which point res judicata would likely apply. Given that effect, the court must defer to the Delaware Supreme Court’s doctrine and the policies behind it and be extremely chary about disposing of cases on forum non conveniens grounds, whether by dismissal or by stay.22
The burden is heavy but not impossible to carry. Delaware has invoked the doctrine where evidence and witnesses were in Canada, compelling their production would have been difficult, and the claims were typical fiduciary-duty claims that another court could resolve. It has also held that a stay or dismissal cannot rest solely on the fact that the legal issue has not yet been resolved in the state of incorporation.23
New Jersey adds a limit that looks to the plaintiff’s position after dismissal. In Gantes v. Kason Corp., the defendant argued that the proof, the witnesses, and the scene of the accident were in Georgia and that New Jersey could not compel the witnesses to attend trial. The New Jersey Supreme Court did not decide the point, because neither lower court had addressed it and no petition for certification had been filed, but it added that a forum non conveniens dismissal cannot occur if it will cause significant hardship to the plaintiff.24 Dismissal there would have caused severe hardship, since the plaintiff would have had no forum in which to proceed and would have been denied recovery altogether, and a court may not dismiss when the plaintiff would be so adversely affected.25 The limit follows from the doctrine’s purpose, which is to choose among forums; a dismissal that leaves no forum defeats that purpose because nothing remains to choose. Federal courts reach a similar concern through the availability requirement and through conditions such as limitations waivers, while New Jersey states it as a restriction on the power to dismiss.
State rules also meet one federal limit. If a state’s forum non conveniens rules are reasonable, rejecting only cases that lack legitimate contacts with the forum, they may be applied to dismiss even a federal claim brought in state court.26 A state court cannot, however, refuse a claim merely because it arises under federal law. Federal law is the supreme law of the land, and unless Congress has made federal jurisdiction exclusive, state courts share jurisdiction over the claim, so a refusal on that ground would be unconstitutional discrimination (McKnett).27 The next subsection takes up a maritime setting in which federal law and a state’s own rule on the doctrine meet.
On an exam, then, identify the court system first. A state judge who finds the better forum in another state or country can only dismiss or stay, and the remaining question is which state’s standard governs the motion. Absent facts that point to a local departure, the federal framework supplies the default analysis. A resident party, a Delaware corporation’s internal affairs, or a plaintiff who would be left with no forum signals that the state’s own rule may change the result.
Maritime Claims
American Dredging Co. v. Miller answers the question the previous subsection left open: whether federal maritime law pre-empts a state’s own rule on forum non conveniens. A seaman injured on the job sued in Louisiana state court under the Jones Act and general maritime law, and the Supreme Court framed the issue as whether, in admiralty cases filed in state court under the Jones Act and the saving to suitors clause, federal law displaces state law on the doctrine.30 The trial court dismissed on forum non conveniens grounds because it believed federal maritime law required it to apply the doctrine. The Louisiana Supreme Court reversed, holding that Article 123(C) of the Code of Civil Procedure, which makes the doctrine unavailable in Jones Act and maritime cases, is not pre-empted.31 The Supreme Court agreed, because Louisiana’s refusal to apply the doctrine does not work material prejudice to any characteristic feature of the general maritime law.32
The question exists because admiralty jurisdiction is shared between the two court systems. Federal district courts hold original jurisdiction over admiralty cases, exclusive of the state courts, but 28 U.S.C. § 1333(1) saves to suitors all other remedies to which they are otherwise entitled, a clause that traces to the Judiciary Act of 1789.33 A state court may not give an in rem remedy against a vessel, because that proceeding is distinctively an admiralty one reserved to the federal courts. When it exercises in personam jurisdiction, however, it may adopt remedies and attach incidents as it sees fit, so long as it does not change the substantive maritime law. A state remedy crosses that line when it “works material prejudice to the characteristic features of the general maritime law or interferes with the proper harmony and uniformity of that law in its international and interstate relations.”34 The inquiry therefore reduces to whether forum non conveniens is either a characteristic feature of admiralty or a doctrine whose uniform application the harmony of maritime law requires. The Court found it neither.35
The Court gave three reasons. First, the doctrine belongs to no single branch of the law. Most authorities trace it to Scottish estate cases, and although federal courts expressed it early and often in admiralty, Gilbert applied it to all federal diversity cases and recited a long history of state-court use at law and in equity. Piper likewise treated the admiralty decision in Canada Malting as binding precedent in a nonadmiralty setting.36 A doctrine of such general application cannot be a characteristic feature of admiralty, so a state that declines to use it removes nothing that maritime law distinctively requires.37
Second, the doctrine is procedural. At bottom it is a supervening venue provision, a rule that lets a court displace the ordinary venue rules and decline jurisdiction when certain conditions are met.38 Venue goes to process, meaning which of several competent courts will decide the case, and admiralty does not aim at uniform process, since maritime law is supposed to apply in all the courts of the world.39 Uniformity matters for rules that shape conduct. That is why state courts must apply the maritime rule that contributory negligence is no bar to recovery and the maritime rule that places on the defendant the burden of proving a release valid, because each affects the plaintiff’s substantive right to recover.40 Forum non conveniens touches no such right, and shipowners and seamen do not rely on it when deciding how to run a business or what precautions to take.41
The discretion built into the doctrine reinforces the point. The determination is committed to the trial court’s sound discretion and turns on many factors, so uniformity and predictability of outcome are almost impossible.42 Parties cannot plan around a rule whose outcomes no one can predict, which removes the main reason for insisting that every court apply it the same way. Pre-empting state variation would buy little uniformity at the cost of displacing state procedure.
Third, federal legislation points the same way. Admiralty common law is developed to harmonize with Acts of Congress, and the Jones Act is the foremost enactment on maritime torts. The Act incorporates the Federal Employers’ Liability Act, and in Missouri ex rel. Southern R. Co. v. Mayfield the Court held that a state court hearing a FELA action is free to decide the availability of the doctrine under its own local law, calling the matter one of local policy.43 The local character of the public-interest factors fits that description, since they concern jury burden, local interest, and familiarity with governing law in the community where the court sits.44 A seaman’s practice supports the analogy as well. A seaman will almost always combine a Jones Act claim with claims for unseaworthiness and maintenance and cure, and a rule that allowed dismissal of the general maritime counts but not the Jones Act count would produce dissonance rather than harmony.45 Venue under the Jones Act points the same way, because Bainbridge held that venue in state-court Jones Act cases follows the state’s own law.46
Justice Kennedy’s dissent drew the opposite conclusion. He saw the doctrine as an essential and salutary feature of admiralty that spares shipowners and ship operators vexatious litigation on a distant and unfamiliar shore. In his view, denying the defense in all maritime cases upsets international and interstate comity and obstructs maritime trade, and a rule explicable only by a wish to disfavor maritime defendants condones the forum shopping and disuniformity that the admiralty jurisdiction is supposed to prevent.47 The majority treated the doctrine’s general and procedural character as decisive, and its view is the law.
The holding is limited to what states must do. The Court’s closing sentence on the point marks the border: what it has prescribed for the federal courts on forum non conveniens does not apply to the States.48 A state may therefore reject the doctrine in maritime cases, as Louisiana did, while a federal court sitting in admiralty keeps applying the federal doctrine, including in cases of maritime arrest and attachment.49 The practical consequence is that a plaintiff may gain by choosing a state forum that refuses the doctrine in maritime cases, the forum shopping the dissent criticized.50
The second maritime point arises in federal court, where the doctrine applies and the question is whether in rem admiralty actions are exempt from it. In Perusahaan Umum Listrik Negara Pusat v. M/V Tel Aviv, two foreign ships collided in international waters, and cargo owners, none of them United States citizens, found one of the ships in Houston and filed an in rem action there. The only contact between the dispute and the forum was the ship’s presence in port.52 The district court dismissed on condition that the defendant appear and submit to the jurisdiction of the court in London and provide security equivalent to that on file. That condition effectively transferred the dispute to the Admiralty Court in London, where the plaintiffs also had an in rem action pending, and the Fifth Circuit affirmed.53
The cargo owners argued that in rem actions are virtually immune from the doctrine. The Fifth Circuit found that the argument stands the history on its head, since admiralty courts used forum non conveniens, often in in rem cases, for decades before Gilbert extended it to landside actions.54 The argument still had support in circuit precedent. Motor Distributors v. Olaf Pedersen’s Rederi A/S had announced that in in rem admiralty actions “jurisdiction should be taken unless to do so would work an injustice,” and later cases sometimes applied that standard in place of the Gilbert balancing.55 The Fifth Circuit held that in rem admiralty actions are no exception to the Gilbert analysis, because Gilbert is the fountainhead decision applicable in all forum non conveniens cases.56
The Motor Distributors line had a point, though. In an in rem proceeding the only fixed contact between forum and dispute is control over the vessel, and that contact repeatedly sufficed. The court treated control of the vessel as weight added to the ordinary presumption favoring the plaintiff’s chosen forum, so that a defendant must show inconvenience “tantamount to injustice” before the balance tips strongly in its favor.57 The injustice standard thus describes how the balancing comes out when in rem control sits on the plaintiff’s side of the scale. The weight is substantial for a practical reason. An old English admiralty passage adopted in The Belgenland explains that a party injured in a collision may proceed in rem against the ship wherever found, because an in personam remedy is often impractical and the remedy might be lost altogether if the plaintiff had to wait for a vessel that might never return.58 Dismissal costs the plaintiff both jurisdiction over the defendant and control of a valuable asset, and the public has its own interest in giving plaintiffs jurisdiction over vessels where they can be found.59
The in rem setting also tightens the threshold inquiry that precedes the balancing. A vessel ordinarily may be seized in rem only once, because seizure releases the vessel from the maritime lien, so dismissing an in rem action may leave the plaintiff with no forum in which jurisdiction can be obtained.60 Even where the plaintiff can reach the owner in personam abroad, the lost ability to attach the vessel as security may make the foreign remedy “no remedy at all” and therefore inadequate, so on the availability and adequacy inquiry alone a court may have to deny dismissal in many in rem cases before it reaches the balancing.61 Conditions are how a defendant clears that obstacle, and the conditions in Tel Aviv answered both problems by giving the plaintiffs a court able to reach the owner and replacing the security the arrest had supplied. The same approach runs through collision litigation, where the doctrine is fully applicable and the in rem concern is met by a conditional dismissal requiring the defendant to submit to the alternative forum and post equivalent security.62 The Supreme Court voiced the same concern in Swift & Co. Packers v. Compania Colombiana del Caribe, S.A., noting that the doctrine is of long standing in admiralty and holding it improper to remit a United States citizen to a foreign court without assurance that the respondents would appear there and that security equal to the attachment would be given.63
The two decisions answer different questions, and an exam answer should keep them apart. American Dredging asks whether federal maritime law forces a state court to apply the doctrine, and the answer is no, so a Louisiana court hearing a Jones Act claim may keep the case however inconvenient the forum.64 Tel Aviv asks how a federal court applies the doctrine to an in rem action, and the answer is the ordinary Gilbert balancing, weighted toward the plaintiff by control of the vessel and conditioned on an available and adequate alternative forum.65 A seaman who sues in a state court barred from using the doctrine never faces the balancing at all, while a cargo owner who arrests a vessel in federal court faces it with extra protection but no exemption.
Federal Law in Diversity Cases
No federal statute or Rule codifies a dismissal in favor of a foreign forum, so a federal court sitting in diversity faces an Erie question: does federal or state forum non conveniens law supply the standard?67 The Supreme Court has left the question open. In Gilbert, which gave the doctrine its modern form, the Court observed that New York law on the court’s discretion and on the standards guiding it was, so far as the case involved, the same as the federal rule, and it concluded that exploring the source from which its own rule must flow would not be profitable.68 The result was the same under either rule, so the Court had no need to choose.
A reservation of this kind reflects the facts and signals no preference. An Erie question needs a conflict, meaning a case in which the state rule and the federal rule would lead to different results, and where both weigh the same factors to the same end there is nothing to choose between. Gilbert selects neither federal nor state law. Citing it for the proposition that federal law governs overstates it, and citing it for the proposition that state law controls misreads it just as badly.
In practice, federal courts apply federal law, and the venue characterization supports them. The Court has called the doctrine a sort of supervening venue rule,69 a rule that goes to process, meaning which competent court hears the case, rather than to the substantive right to recover.70
The argument that a state’s practice must control was tested in Hall v. E.I. Du Pont de Nemours & Co. The defendants urged that New York practice should govern: a New York state court would have the remedy of dismissal, perhaps on condition that the defendant submit to another jurisdiction, so a federal court sitting in New York should not transfer the North Dakota and Ohio actions.71 The court found no support for that position in prior cases or in the policy of federal practice. Putting aside whether New York practice would apply to those actions, state law and remedies are not controlling, because federal courts, unlike state courts, have both the power and the responsibility to coordinate and switch cases on a national scale in aid of more efficient administration of justice.72 Transfer under § 1404(a) was particularly appropriate there because it secured the advantages of the forums where the accidents occurred while preserving the discovery already obtained.73
The transfer statute supplies the nearest Supreme Court analogy, and its limits matter. In Stewart Organization, Inc. v. Ricoh Corp., the Court held that § 1404(a) governs whether a federal court gives effect to a forum-selection clause in a diversity case, even though Alabama law would have given such a clause no consideration, because a state policy focused on a single concern would defeat the multifactor analysis Congress directed for transfers within the federal system.74 That reasoning rests on a federal statute, and § 1404(a) governs only transfers among the branches of the federal system.75 No statute or Rule codifies a dismissal in favor of a foreign forum, so Stewart does not decide the forum non conveniens question, and the analysis falls back on the Erie, York, and Byrd line of cases.76
On an exam, the issue arises only if the facts show a state rule that differs from the federal one. Where the forum state’s doctrine matches the federal doctrine, as New York’s did in Gilbert, no Erie discussion is needed: apply the federal factors and, at most, add a sentence noting that the question is open but immaterial. A fact pattern that supplies a conflicting state rule requires the full analysis.
Michaels’s answer is the Erie argument. The separate point that English law allows no punitive damages raises the unfavorable-change-in-law question settled earlier in this chapter, and the answer there is that a less plaintiff-friendly law does not by itself defeat adequacy.78
Once the governing standard is settled, the motion proceeds as the earlier sections described. England supplies an adequate alternative forum, and its lack of punitive damages makes the remedy less favorable without making it inadequate. Michaels is entitled to the presumption favoring his chosen forum, though he is an American and not a Californian. Most of the evidence and witnesses are in England, so the private interest factors favor dismissal, and on the public interest side the choice-of-law and jury-service factors cut against California.82