I have been doing some light reading during this tax weekend. (Filing deadline is June 15 if you are one of my Japan-side readers. That’s how it is every year, by the way. It’s always later.)
Today’s topic is “forum non conveniens”, which is fancy Latin for “inconvenient forum”. It is an affirmative defense that a defendant would bring to court, to say that a U.S. federal court should not hear a case.
It is traditionally a very rare pleading, and is used in extreme circumstances where it just isn’t clear that a U.S. federal court should be involved. Typically, the cases that get written up for this are those brought by non-Americans who are trying to litigate an action that totally involves events in another country, where the defending parties have no, or little, connection to the U.S.
Well, wouldn’t modern “conservative” litigation offer up the everyday Americans a kick in the pants: some defendants now try to blow up any aspect of foreign involvement to mean that a U.S. District Court should not involve itself in a matter? Depending on how radically “conservative” the district court or judge is, the more likely that this avenue leads to some success.
What seems common in the cases I read, is that Coca-Cola is the defendant, and the plaintiff is not a U.S. citizen, or someone so close to being one, (like a U.S. permanent resident, of which there are millions), that the pull seems to go away from the American court (the one we all pay for to support with our taxes), and to some far-off place that’s out of reach to the American resident, U.S. citizen or no.
[Update: So far, I have not found one published case where an American-born citizen, living in America, as an authentic plaintiff (not one added by others just to get jurisdiction), has been knocked out on forum non conveniens grounds. But I don’t know. The way the Republican Party has been doing things over the last 30 years, you never know when a judge is going to twist a piece of dicta here, and another one there, and suddenly, the American can’t get access to courts–in America!]
[Update #2: Cadwalader firm blog has a post about a recent Ninth Circuit U.S. Court of Appeals decision that overturned a lower court that had rejected, on forum non conveniens grounds, a case brought by Peruvian activists.
From the blog:
Describing its prior use of forum non conveniens dismissals as “an exceptional tool to be employed sparingly”, the Court of Appeals stated that the “mere fact that a case involves conduct or plaintiffs from overseas is not enough for dismissal, quoting earlier caselaw that “Juries routinely address subjects that are totally foreign to them, ranging from the foreign language of patent disputes to cases involving foreign companies, foreign cultures and foreign languages”.
Cadwalader also links and talks about a case out of the Southern District of New York by Judge Sullivan, which is being closely watched by many in the Second Circuit. In that one, Guatemalan citizens who are permanent residents of the U.S. were suing Coca-Cola (see? Again!) because of the latter’s anti-union activities in that country. What Judge Sullivan did was to condition the forum non conveniens dismissal on the Guatemalans’ being able to obtain certain [other] conditions from the Guatemalan court system.
Because the Southern District of New York contains Manhattan, a lot of national and international law firms pay close attention to what goes on there. So that one should be interesting.]