Forum non conveniens games (Part 2 in a kind of a series.)

I talked a little about this back in April of this year.

As regular readers know, I have a live case going from my days in Japan. The latest on the docket was my first amended complaint, due either August 5 or August 15, depending on whether you go with what the judge said or the recorder. I submitted it July 29 because I spent the last half of the month improving the original complaint in the two areas the judge indicated that there was not enough pleading.

The two areas in need of improvement were the personal jurisdiction argument for IBM Japan to be under federal court in New York, and more detail about the Title VII claim. I added a lot of material, and that is even without discovery.

A third consideration that sort of hung in the air in White Plains was this idea of forum non conveniens — fancy law Latin for inconvenient forum. The Latin root is “not coming together”.

As a rule, forum non conveniens (let’s abbreviate it FNC) is an extraordinary ruling, and, there, even, generally meant to apply to foreign plaintiffs, i.e. non-U.S. citizen plaintiffs. I have been searching for cases where there has been FNC and a U.S. citizen plaintiff, one without a home in another country. I haven’t found any. It just sounds like a lot of silly talk.

But I guess that wouldn’t stop the other side.

When an American plaintiff, bringing an action in federal court, decides on the forum, it’s presumed that the forum is convenient. The burden is on the defendant to show that FNC applies, and they are supposed to meet a very high hurdle. Again, FNC is supposed to be rare. I’ve been reading a lot of these, and you see that notion pop up in the better appellate courts.

Now, to show you the kind of abuse that a pro se plaintiff (even pro se attorney) can end up taking: imagine you bring an action on Title VII, for national origin discrimination. Also include age discrimination as a claim. You rely on the 1991 amendments to the Civil Rights Act, which state clearly that the Civil Rights Act applies to U.S. citizens abroad who work for companies “controlled” by an American company. (It doesn’t even have to be a parent company, just one that “controls” as defined by statute and case law.)

Here is a screenshot of the actual amendment (click to enlarge):

I underlined in red the things I am talking about.

So Congress clearly meant that Americans working overseas (or Canada or Mexico, which are not overseas, right?) do benefit from the protections in the Civil Rights Act, when they work for the American-controlled company. They put this modification in because the U.S. Supreme Court had ruled that the 1964 Civil Rights Act, as it had been, did not protect Americans outside of America—that it did not apply extraterritorially.

Because Congress did this in 1991, and the first President Bush signed it into law, it clearly means that anyone using Title VII outside the country would be bringing an action for events that, just of their nature, happen outside the country! If you are working outside the country, and you lose your job because of something Title VII prohibits, your case can only arise from something that happened someplace else! Not here!

FNC arguments are ones that say that some other forum–and here, we mean another country’s court–are the more appropriate forum. But Congress clearly said that the U.S. federal court system is the appropriate forum for a Title VII claim! There is no ambiguity to that. And they didn’t say, seek out the other country’s discrimination remedy instead of Title VII’s.

So how could an extraterritorial Title VII claim ever be a matter for forum non conveniens?

You see, if the table was turned and it was the pro se defendant making this kind of argument, the judge wouldn’t give it fifteen seconds. The judge would say, “obviously, it can’t be FNC.” But when the defendant is a big multinational firm, that goes in as plaintiff and takes up four days of one federal judge’s time on a meritless non-compete claim, any wacky defense suddenly has the air of merit. “Oh, how about that? Title VII applies extraterritorially, but maybe that’s all an issue for a court system in another country?!”

The irony is that several cases are surviving in federal court when they’re brought by non-citizens here for torts and other harms that happened in other countries, where, somehow, the foreigners have been able to arrange things in such a way that they can bring their matters here. The cases I’ve read usually show that they’ve made a fair argument to come into “our” system. We even have the Alien Tort Statute, where Congress specifically said that aliens can use the federal system for certain harms done abroad.

But then, the American goes to use the federal court system, and gets handed baloney arguments that since a British citizen was not allowed in on a claim, it follows that any plaintiff coming in should be treated like the British guy.

Many Americans feel that the contemporary big corporations just have too much power. I really think that kind of lawyering supports peoples’ feelings about that.