Forum Non Conveniens (FNC) Lawyer in Bay Area

Forum Non Conveniens (FNC) is a well-established principle often applied by U.S. courts, and has to be kept clearly in mind in assessing overseas cases and in planning strategy.  Our firm has had a good deal of experience with this issue, and also has unfortunately had to witness what can only be called mishandlings by some other firms who have tried to attract other cases by getting some early clients out of an overseas accident, and then promptly filing a publicized suit on the case, not realizing that they will be immediately met with a forum motion by the well-prepared defense interests.  And unless fully prepared and ready for this motion, there is a good chance it will be granted, thus not only terminating the early and ill-timed filings, but making it very difficult for any cases which follow to be able to stay in the United States.

What is FNC?

First, let us look briefly at exactly what FNC is, how it came about, and how it impacts potential claims sought to be filed in some court other than where the accident occurred or where the victims or families are domiciled.  The “Forum” in FNC refers to the court where the case is filed and where it will be heard on the merits, either by judge or jury.  The plaintiff – the injured and complaining party – opts for a forum by initially filing his or her lawsuit there.  The defense may challenge that forum by filing a motion FNC, claiming that the plaintiff’s choice is “inconvenient” or “inappropriate,” and that the case should be dismissed, to be refiled somewhere else.

FNC gives the court the ability to invoke wide discretion in evaluating and deciding an FNC motion.  The doctrine, simply stated, allows a U.S. court which unquestionably has jurisdiction over a case and the parties, to nevertheless decline to exercise that jurisdiction, and dismiss the case without hearing it, if it decides that, on balance, the case should be more appropriately heard in another forum.  It is a powerful weapon and the first line of defense for a U.S. defendant who has been sued at home over some accident or product failure somewhere else, especially overseas.  It has been said that the last place a U.S. manufacturer wants to be to defend the integrity of its product is in a U.S. courthouse close by where the product was designed and manufactured, and it will go to almost any lengths to get the case kicked out as early as possible.

FNC, unfortunately, has evolved to the above definition, a supposed balancing of factors that would make one jurisdiction more “appropriate” than another.  As a practical matter, this means that the FNC fight has to be won in what is called the Trial Court, that is, where the case is filed and by the first judge to hear it.  It is very rare that an appellate court will disturb an FNC decision made by the judge below.  The doctrine originated in a U.S. Supreme Court case in 1947, where the plaintiff had filed a fire loss claim in New York, even though he and the defendant were residents in Virginia, and the fire and loss had occurred there.  In that case, the court put the emphasis on the harassing effect of such a filing and the complete lack of connection with the case on the part of New York.  It laid out a number of factors dealing with the “private” (the litigants) and the public interests that were to be considered in evaluating the issue, and ended with the general rule that unless the choice of forum by the plaintiff was out of all proportion to the connection of the forum to the case and the parties, the plaintiff’s choice of forum was not to be disturbed.

Harassment to Appropriateness

Unfortunately, over the years, the focus of the courts in FNC matters has shifted significantly from a “harassment” to an “appropriateness” test.  For instance, if an overseas family should sue an American corporation in its home base, sometimes literally just blocks from the courthouse in question, where the product involved – say an aircraft with a fatal defect – was actually designed and manufactured, and from where it was placed into the stream of commerce, sold perhaps directly to an airline in the overseas country where the accident occurred, it could hardly be argued with a straight face that such a venue was “inconvenient.”  All of the evidence about how the product came about and was made, along with the technical people who were involved, and so on, is right there within easy reach of the courthouse.

But “convenience” is not what the exercise is all about.  The defense wants the case out of its home turf and out of the U.S., even if it knows in theory it may have to spend much more defending it overseas.  Why?  Because it knows that most of such cases, if dismissed in the U.S., cannot be successfully prosecuted overseas for a variety of reasons: the courts are not set up to deal with such cases; legal processes there are exceedingly slow; it can be many years before a family losing a breadwinner sees any money, and by then the great need, as in raising and educating children, has passed;  the damage awards, even in death cases, are generally very low by U.S. standards, thus allowing the U.S. defendant a big bargain on what it would have cost had the product killed a U.S. citizen; the expense of undertaking such a case, including hiring competent counsel (contingent fees are not allowed in most other countries) and fronting expenses, including very steep court filing fees, and more, are simply beyond the capability of almost every family, especially when it has been hit with a serious breadwinner loss in the first place.

The defense will point to all the evidence that is only available in the domicile of the victim, or the country of the accident, which is often the same – damage information, witnesses to the accident, the official investigation and investigators, location of the wreckage and components, and more.  To offset the fact that the overseas country would not have access to the design and manufacture specifications and the technical witnesses the defendant has at home, and the reason, of course, the plaintiffs brought the case in the U.S. in the first place, the defense has a further answer.  As part of its FNC motion it will “offer to submit itself to the jurisdiction of the overseas court,” and to make available any documents or witnesses deemed “relevant and necessary” by such court.  This, of course, is really a sham: such an “offer” allows the defense to create an alternative jurisdiction anywhere in the world, where they can now ask the U.S. court to send the case.  And what assurance would there be that some judge in some faraway country that has never handled an aviation or product case, would have any idea of what evidence was “relevant and necessary” to a complex aviation products case?

Nevertheless, many cases have been dismissed on this sort of showing.  It has been said by some that the U.S. courts, especially federal, have a built-in propensity to dismiss any and all overseas claims against U.S. defendants, and not to allow these cases to “clutter” the U.S. courts.  It is probably not that bad, and most judges will weigh these cases fairly, but the critical point the prospective litigant has to consider is the absolute need to be sure the case is prepared to meet an FNC motion BEFORE ever filing a case in any court.  As soon as the first case is filed, the defense will launch the motion it has been preparing ever since the happening of the accident. But, the defense cannot make an FNC motion unless and until a complaint has been filed in some court, so in this way the plaintiff, not the defense, can control the timing.

As you might expect, these considerations have to be very carefully thought-out and executed on the side of the plaintiff to avoid a summary FNC dismissal and the loss of any chance to proceed in the U.S. courts.

Record of Success

We have won some FNC cases, and indeed lost some also, but had a good deal of success with a middle-of-the-road strategy; that is, to approach the prospective defendants and their insurers with the case organized and prepared, including retaining experts, if necessary, before any suit is filed.  We know these people; we can sit down and talk and sort out the pros and cons of the case, including the FNC considerations.  So long as that issue is in play and some judge has not granted an FNC dismissal, there is room for negotiation.  Often we have arrived at very reasonable settlements for our clients in this manner; they do not get everything they might have gotten from a U.S. jury a year or two down the line, but they get a settlement that is (1) early and (2) a good deal more than they would have gotten in a home court.

Nothing is really lost by this process; in the event negotiations do not succeed, the case can always proceed with filing and prosecution, including dealing with the FNC challenge and the consequent possibility of dismissal.  If this occurs, settlement leverage is essentially lost, which is not a good outcome.

In evaluating the choice of counsel in any case when the accident occurred overseas, or the claimants are domiciled there, careful consideration must be given to the experience and qualifications of the attorneys in the area. The Bay Area personal injury attorneys at Sterns & Walker are ready to help you today.