Hugh Wood: FORUM NON CONVENIENS: An Uncommon Remedy Becomes a Common Remedy

I remember reviewing the first forum non conveniens motion I ever received as a young lawyer as if an alien from a UFO had stepped out of the envelope on to my desk and said: “Hello, I am a motion to dismiss your case in New Jersey.”

I stared at the motion to dismiss in disbelief and had no idea what it was – initially. We found out rather quickly.

My firm’s foray into forum non conveniens grew out of the then rather humorous tug of war with the middle Georgia Kaolin Companies. While some of this discussion seems from litigation of a prior era, any time a landowner would bring an action against a Georgia based kaolin company, the kaolin company would remove the Georgia filed action from state court to federal court asserting that they were a large out of state multinational corporation and could not be sued in a superior court in the rural backwaters of Georgia. After suffering a number of removal petitions (some of which them threw the companies into the hands of federal judges in Atlanta that they did not like) I decided to “give them what they asked for.” One particular company at that time, Georgia Kaolin, always asserted that its operations, headquarters and employees were in New Jersey. After being removed on five or six cases the federal court, we decided that “to New Jersey they have appealed, and to New Jersey they will go.” So we prepared a complaint for the plenary court based in Union County, New Jersey and filed a lawsuit against Georgia Kaolin in their “home” state of New Jersey.

Anticipating that we would receive the standard defensive answers and objections to discovery, but would then have what we considered to be a fairly level playing field to argue for the disclosure of subsurface mining documents, we were instead greeted with the rude introduction to the peculiar doctrine of: forum non conveniens.

While I do not recall whether Georgia Kaolin filed a protective Answer or some other document it did file a Motion for Forum Non Conveniens to have the case booted from New Jersey and returned to its “home state of Georgia. Strangely, we used the evidence developed in the previous cases (that 97% of the employees and 97% of all the activities were based in Georgia) to show that it really had more activities based in Georgia than in New Jersey with regard to a forum non conveniens motion. While it is somewhat of historical interest only that we defeated the forum non conveniens motion at hearing in New Jersey, I came away from the experience shocked at not being completely familiar with this rather ancient equitable doctrine of forum non conveniens.

While forum non conveniens is not necessarily a new doctrine (quite ancient really) it was fairly extensively discussed by the United States Supreme Court in Piper Aircraft Co. v. Reyno, 454 U.S. 235, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981). [1]

That case held in pertinent part,

[The Families], as representative of the estates of several citizens and residents of Scotland who were killed in an airplane crash in Scotland during a charter flight, instituted wrongful death litigation in a California state court against petitioners, which are the company that manufactured the plane in Pennsylvania and the company that manufactured the plane's propellers in Ohio. At the time of the crash, the plane was registered in Great Britain and was owned and operated by companies organized in the United Kingdom. The pilot and all of the decedents' heirs and next of kin were Scottish subjects and citizens, and the investigation of the accident was conducted by British authorities. Respondent sought to recover from petitioners on the basis of negligence or strict liability (not recognized by Scottish law), and admitted that the action was filed in the United States because its laws regarding liability, capacity to sue, and damages are more favorable to respondent's position than those of Scotland. On petitioners' motion, the action was removed to a Federal District Court in California and was then transferred to the United States District Court for the Middle District of Pennsylvania, pursuant to 28 U.S.C. § 1404(a). The District Court granted petitioners' motion to dismiss the action on the ground offorum non conveniens. Relying on the test set forth in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, and analyzing the "private interest factors" affecting the litigants' convenience and the "public interest factors" affecting the forum's convenience, as set forth in Gilbert, the District Court concluded that Scotland was the appropriate forum. However, the Court of Appeals reversed, holding that the District Court had abused its discretion in conducting the Gilbert analysis and that, in any event, dismissal is automatically barred where [Page 236] the law of the alternative forum is less favorable to the plaintiff than the law of the forum chosen by the plaintiff. Piper Aircraft, supra at 235.

& & &

The District Court correctly concluded that the problems posed by the inability to implead potential third-party defendants clearly supported holding the trial in Scotland. Joinder of the pilot's estate, Air Navigation, and McDonald is crucial to the presentation of petitioners' defense. If Piper and Hartzell can show that the accident was caused not by a design defect, but rather by the negligence of the pilot, the plane's owners, or the charter company, they will be relieved of all liability. It is true, of course, that, if Hartzell [102 S.Ct. 268] and Piper were found liable after a trial in the United States, they could institute an action for indemnity or contribution against these parties in Scotland. It would be far more convenient, however, to resolve all claims in one trial. The Court of Appeals rejected this argument. Forcing petitioners to rely on actions for indemnity or contributions would be "burdensome," but not "unfair." 630 F.2d at 162. Finding that trial in the plaintiff's chosen forum would be burdensome, however, is sufficient to support dismissal on grounds of forum non conveniens.[28] (2) The District Court's review of the factors relating to the public interest was also reasonable. On the basis of its [Page 260] choice of law analysis, it concluded that, if the case were tried in the Middle District of Pennsylvania, Pennsylvania law would apply to Piper and Scottish law to Hartzell. It stated that a trial involving two sets of laws would be confusing to the jury. It also noted its own lack of familiarity with Scottish law. Consideration of these problems was clearly appropriate under Gilbert; in that case, we explicitly held that the need to apply foreign law pointed towards dismissal.[29] The Court of Appeals found that the District Court's choice of law analysis was incorrect, and that American law would apply to both Hartzell and Piper. Thus, lack of familiarity with foreign law would not be a problem. Even if the Court of Appeals' conclusion is correct, however, all other public interest factors favored trial in Scotland.

Scotland has a very strong interest in this litigation. The accident occurred in its airspace. All of the decedents were Scottish. Apart from Piper and Hartzell, all potential plaintiffs and defendants are either Scottish or English. As we stated in Gilbert, there is "a local interest in having localized controversies decided at home." 330 U.S. at 509. Respondent argues that American citizens have an interest in ensuring that American manufacturers are deterred from producing defective products, and that additional deterrence might be obtained if Piper and Hartzell were tried in the United States, where they could be sued on the basis of both negligence and strict liability. However, the incremental deterrence that would be gained if this trial were held in an [Page 261]American court is likely to be insignificant. The American interest in this accident is simply not sufficient to justify the enormous commitment of judicial time and resources that would inevitably be required if the case were to be tried here.

& & &

The Court of Appeals erred in holding that the possibility of an unfavorable change in law bars dismissal on the ground of forum non conveniens. It also erred in rejecting the District Court's Gilbert analysis. The District Court properly decided that the presumption in favor of the respondent's forum choice applied with less than maximum force because the real parties in interest are foreign. It did not act unreasonably in deciding that the private interests pointed towards trial in Scotland. Nor did it act unreasonably in deciding that the public interests favored trial in Scotland. [102 S.Ct. 269] Thus, the judgment of the Court of Appeals is Reversed. Piper Aircraft, supra at 260-261.

Back to our Georgia Kaolin case. Perhaps, we should have been aware of the ability of one state to dismiss an entire filed claim – not on the merits – but on the fact that some other state’s forum would be the more appropriate forum to litigate the issue. It would have been apparent to us in the filing against Georgia Kaolin that had we filed in a federal court in New Jersey that some type of federal transfer could have returned the case to Atlanta, Georgia or to Macon, Georgia. However, we were taken aback by the review of an equitable petition in New Jersey to simply dismiss the entire case in New Jersey and have it (if we so chose to refile because there is no method to transfer an action intra state) to be refiled in Georgia. Thus, if plaintiff did not refile the grant of a motion for forum non-conveniens is to some extent the end of the action.

Since that initial shock and visitation of the alien forum non conveniens motion to my desk, I have noticed this doctrine to proliferate throughout “tort reform” legislation in the United States.

Because we practice in multiple states, I was (a year or two ago) confronted with a forum non conveniens motion (by statute) in West Virginia. While I thought we had very good reasons to maintain the case in West Virginia, [2] the Circuit Court trial judge found otherwise; and (if my recollection is correct) tolled the statute of limitations and dismissed the case with an offer (dismissal by forum non conveniens cannot be instructions) to send the case to Maryland.

In the round of briefing that accompanied the third wave of tort reform in Georgia, 2005, and in the briefing we did a few years ago on the West Virginia forum non conveniens motion, it became apparent that this equitable doctrine has been codified by many, many States as part of the package of “tort reform.”

I think, perhaps, I was surprised by the New Jersey motion because it was an equitable motion filed against our equitable petition in New Jersey and was not a part of the New Jersey Code at that time. [Note: New Jersey still may be an equitable state in this regard. However, I would defer to NJ Counsel for the exact answer.] [3]

Georgia, in its third wave of tort reform enacted in 2005, the equitable doctrine of forum non conveniens in OCGA § 9-10-31.1. [4] The Georgia Supreme Court had formally adopted the doctrine in 2001 in AT&T Corporation et al. v. Sigala, et al., 274 Ga. 137, 549 S.E.2d 373 (2001) and the Georgia Court of Appeals described the seven (7) part test for the doctrine in Hewett et al. v. Raytheon Aircraft Company et al., 273 Ga.App. 242, 614 S.E.2d 875 (2005). [5] The Court in Hewett, referred to the then newly enacted OCGA § 9-10-31.1.

One need not look to Sigala, supra, in Georgia for the rule of decision, since Georgia now has a codifed seven (7) part test, which is part and parcel of OCGA § 9-10-31.1. That statute reads as follows:

OCGA § 9-10-31.1. Forum Non Conveniens

(a) If a court of this state, on written motion of a party, finds that in the interest of justice and for the convenience of the parties and witnesses a claim or action would be more properly heard in a forum outside this state or in a different county of proper venue within this state, the court shall decline to adjudicate the matter under the doctrine of forum non conveniens. As to a claim or action that would be more properly heard in a forum outside this state, the court shall dismiss the claim or action. As to a claim or action that would be more properly heard in a different county of proper venue within this state, the venue shall be transferred to the appropriate county. In determining whether to grant a motion to dismiss an action or to transfer venue under the doctrine of forum non conveniens, the court shall give consideration to the following factors:

(1) Relative ease of access to sources of proof;

(2) Availability and cost of compulsory process for attendance of unwilling witnesses;

(3) Possibility of viewing of the premises, if viewing would be appropriate to the action;

(4) Unnecessary expense or trouble to the defendant not necessary to the plaintiff´s own right to pursue his or her remedy;

(5) Administrative difficulties for the forum courts;

(6) Existence of local interests in deciding the case locally; and

(7) The traditional deference given to a plaintiff´s choice of forum.

(b) A court may not dismiss a claim under this Code section until the defendant files with the court or with the clerk of the court a written stipulation that, with respect to a new action on the claim commenced by the plaintiff, all the defendants waive the right to assert a statute of limitations defense in all other states of the United States in which the claim was not barred by limitations at the time the claim was filed in this state as necessary to effect a tolling of the limitations periods in those states beginning on the date the claim was filed in this state and ending on the date the claim is dismissed.

Thus, while most Georgia practitioners will employ the doctrine of forum non conveniens to seek an intra-state transfer among counties (for example, Fulton County to Chatham County; or, Fulton County to Athens-Clarke County; or Fulton County to Gwinnett County, etc.], the doctrine may also be used to dismiss the pending action to be refiled in a more appropriate sister state. [Or dismissed to a foreign jurisdiction such as a sovereign nation – Canada, the United Kingdom, Mexico, etc.]

Thus, the old days of plaintiff simply picking a forum and settling down in an action against the defendant are over. My guess is that the various state legislature’s desire to tap down plaintiff’s choice of forum (or restrict claims that may burden a state’s court system) have generated the proliferation of these forum non conveniens statutes. Georgia is no exception.

Where is all this headed? In a commercial setting expect the continuing acceleration of law, forum and venue clauses to proliferate in contracts and the coming wave of mandatory arbitration clauses. Ultimately, this proliferation of this type of tort reform statute will turn the doctrine “plaintiff´s choice of forum,” on its head or cause it to become the doctrine of “the most appropriate forum for the defendant.” Or, so it seems.

Hugh Wood

Atlanta, Georgia

Wood & Meredith, LLP

3756 Lavista Road

Suite 250

Atlanta (Tucker), GA 30084

Phone: 404.633.4100

Fax: 404.633.0068

Email: hwood@woodandmeredith.com

[Endnotes]

[1]

Piper Aircraft Co. v. Reyno, 454 U. S. 235 (1981)

No. 8048

Argued October 14, 1981

Decided December 8, 1981*

454 U.S. 235

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

Syllabus

Respondent, as representative of the estates of several citizens and residents of Scotland who were killed in an airplane crash in Scotland during a charter flight, instituted wrongful death litigation in a California state court against petitioners, which are the company that manufactured the plane in Pennsylvania and the company that manufactured the plane's propellers in Ohio. At the time of the crash, the plane was registered in Great Britain and was owned and operated by companies organized in the United Kingdom. The pilot and all of the decedents' heirs and next of kin were Scottish subjects and citizens, and the investigation of the accident was conducted by British authorities. Respondent sought to recover from petitioners on the basis of negligence or strict liability (not recognized by Scottish law), and admitted that the action was filed in the United States because its laws regarding liability, capacity to sue, and damages are more favorable to respondent's position than those of Scotland. On petitioners' motion, the action was removed to a Federal District Court in California and was then transferred to the United States District Court for the Middle District of Pennsylvania, pursuant to 28 U.S.C. § 1404(a). The District Court granted petitioners' motion to dismiss the action on the ground offorum non conveniens. Relying on the test set forth in Gulf Oil Corp. v. Gilbert, 330 U. S. 501, and analyzing the "private interest factors" affecting the litigants' conveniens and the "public interest factors" affecting the forum's conveniens, as set forth in Gilbert, the District Court concluded that Scotland was the appropriate forum. However, the Court of Appeals reversed, holding that the District Court had abused its discretion in conducting the Gilbert analysis and that, in any event, dismissal is automatically barred where

Page 454 U. S. 236

the law of the alternative forum is less favorable to the plaintiff than the law of the forum chosen by the plaintiff.

Held:

1. Plaintiffs may not defeat a motion to dismiss on the ground of forum non conveniens merely by showing that the substantive law that would be applied in the alternative forum is less favorable to the plaintiffs than that of the chosen forum. The possibility of a change in substantive law should ordinarily not be given conclusive or even substantial weight in the forum non conveniens inquiry. Canada Malting Co. v. Paterson Steamships, Ltd., 285 U. S. 413. Pp. 454 U. S. 247-255.

(a) Under Gilbert, supra, 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 conveniens supporting his choice. If substantial weight were given to the possibility of an unfavorable change in law, however, dismissal might be barred even where trial in the chosen forum was plainly inconvenient, and the forum non conveniens doctrine would become virtually useless. Such an approach not only would be inconsistent with the purpose of the forum non conveniens doctrine, but also would pose substantial practical problems, requiring that trial courts determine complex problems in conflict of laws and comparative law, and increasing the flow into American courts of litigation by foreign plaintiffs against American manufacturers. Pp. 454 U. S. 248-252.

(b) Nor may an analogy be drawn between forum non conveniens dismissals and transfers between federal courts pursuant to 28 U.S.C. § 1404(a), which was construed in Van Dusen v. Barrack, 376 U. S. 612, as precluding a transfer if it resulted in a change in the applicable law. The statute was enacted to permit change of venue between federal courts, and although it was drafted in accordance with the doctrine of forum non conveniens, it was intended to be a revision, rather than a codification of the common law. District courts were given more discretion to transfer under § 1404(a) than they had to dismiss on grounds of forum non conveniens.Van Dusen v. Barrack, supra, distinguished. Pp. 454 U. S. 253-254.

2. The District Court properly decided that the presumption in favor of the plaintiff's forum choice applied with less than maximum force when the plaintiff or (as here) the real parties in interest are foreign. When the plaintiff has chosen the home forum, it is reasonable to assume that the choice is convenient; but when the plaintiff or real parties in interest are foreign, this assumption is much less reasonable, and the plaintiff's choice deserves less deference. Pp. 454 U. S. 255-256.

Page 454 U. S. 237

3. The forum non conveniens determination is committed to the trial court's sound discretion, and may be reversed only when there has been a clear abuse of discretion. Here, the District Court did not abuse its discretion in weighing the private and public interests under the Gilbert analysis, and thereby determining that the trial should be held in Scotland. Pp. 454 U. S. 257-261.

(a) In analyzing the private interest factors, the District Court did not act unreasonably in concluding that fewer evidentiary problems would be posed if the trial were held in Scotland, a large proportion of the relevant evidence being located there. The District Court also correctly concluded that the problems posed by the petitioners' inability to implead potential Scottish third-party defendants -- the pilot's estate, the plane's owners, and the charter company -- supported holding the trial in Scotland. Pp. 454 U. S. 257-259.

(b) The District Court's review of the factors relating to the public interest was also reasonable. Even aside from the question whether Scottish law might be applicable in part, all other public interest factors favor trial in Scotland, which has a very strong interest in this litigation. The accident occurred there, all of the decedents were Scottish, and apart from petitioners, all potential parties are either Scottish or English. As to respondent's argument that American citizens have an interest in ensuring that American manufacturers are deterred from producing defective products and that additional deterrence might be obtained by trial in the United States where they could be sued on the basis of both negligence and strict liability, any incremental deterrence from trial in an American court is likely to be insignificant and is not sufficient to justify the enormous commitment of judicial time and resources that would be required. Pp. 454 U. S. 259-261.

630 F.2d 149, reversed.

MARSHALL, J., delivered the opinion of the Court, in which BURGER, C.J., and BLACKMUN and REHNQUIST, JJ., joined, and in Parts I and II of which WHITE, J., joined. WHITE J., filed an opinion concurring in part and dissenting in part, post, p. 454 U. S. 261. STEVENS, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 454 U. S. 261. POWELL, J., took no part in the decision of the cases. O'CONNOR, J., took no part in the consideration or decision of the cases.

Page 454 U. S. 238

JUSTICE MARSHALL delivered the opinion of the Court.

These cases arise out of an air crash that took place in Scotland. Respondent, acting as representative of the estates of several Scottish citizens killed in the accident, brought wrongful death actions against petitioners that were ultimately transferred to the United States District Court for the Middle District of Pennsylvania. Petitioners moved to dismiss on the ground of forum non conveniens. After noting that an alternative forum existed in Scotland, the District Court granted their motions. 479 F.Supp. 727 (1979). The United States Court of Appeals for the Third Circuit reversed. 630 F.2d 149 (1980). The Court of Appeals based its decision, at least in part, on the ground that dismissal is automatically barred where the law of the alternative forum is less favorable to the plaintiff than the law of the forum chosen by the plaintiff. Because we conclude that the possibility of an unfavorable change in law should not, by itself, bar dismissal, and because we conclude that the District Court did not otherwise abuse its discretion, we reverse.

In July, 1976, a small commercial aircraft crashed in the Scottish highlands during the course of a charter flight from

Page 454 U. S. 239

Blackpool to Perth. The pilot and five passengers were killed instantly. The decedents were all Scottish subjects and residents, as are their heirs and next of kin. There were no eyewitnesses to the accident. At the time of the crash, the plane was subject to Scottish air traffic control.

The aircraft, a twin-engine Piper Aztec, was manufactured in Pennsylvania by petitioner Piper Aircraft Co. (Piper). The propellers were manufactured in Ohio by petitioner Hartzell Propeller, Inc. (Hartzell). At the time of the crash, the aircraft was registered in Great Britain and was owned and maintained by Air Navigation and Trading Co., Ltd. (Air Navigation). It was operated by McDonald Aviation, Ltd. (McDonald), a Scottish air taxi service. Both Air Navigation and McDonald were organized in the United Kingdom. The wreckage of the plane is now in a hangar in Farnsborough, England.

The British Department of Trade investigated the accident shortly after it occurred. A preliminary report found that the plane crashed after developing a spin, and suggested that mechanical failure in the plane or the propeller was responsible. At Hartzell's request, this report was reviewed by a three-member Review Board, which held a 9-day adversary hearing attended by all interested parties. The Review Board found no evidence of defective equipment and indicated that pilot error may have contributed to the accident. The pilot, who had obtained his commercial pilot's license only three months earlier, was flying over high ground at an altitude considerably lower than the minimum height required by his company's operations manual.

In July, 1977, a California probate court appointed respondent Gaynell Reyno administratrix of the estates of the five passengers. Reyno is not related to and does not know any of the decedents or their survivors; she was a legal secretary to the attorney who filed this lawsuit. Several days after her appointment, Reyno commenced separate wrongful

Page 454 U. S. 240

death actions against Piper and Hartzell in the Superior Court of California, claiming negligence and strict liability. [Footnote 1] Air Navigation, McDonald, and the estate of the pilot are not parties to this litigation. The survivors of the five passengers whose estates are represented by Reyno filed a separate action in the United Kingdom against Air Navigation, McDonald, and the pilot's estate. [Footnote 2] Reyno candidly admits that the action against Piper and Hartzell was filed in the United States because its laws regarding liability, capacity to sue, and damages are more favorable to her position than are those of Scotland. Scottish law does not recognize strict liability in tort. Moreover, it permits wrongful death actions only when brought by a decedent's relatives. The relatives may sue only for "loss of support and society." [Footnote 3]

On petitioners' motion, the suit was removed to the United States District Court for the Central District of California. Piper then moved for transfer to the United States District Court for the Middle District of Pennsylvania, pursuant to 28 U.S.C. § 1404(a). [Footnote 4] Hartzell moved to dismiss for lack of personal jurisdiction, or in the alternative, to transfer. [Footnote 5] In December, 1977, the District Court quashed service on

Page 454 U. S. 241

Hartzell and transferred the case to the Middle District of Pennsylvania. Respondent then properly served process on Hartzell.

In May, 1978, after the suit had been transferred, both Hartzell and Piper moved to dismiss the action on the ground of forum non conveniens. The District Court granted these motions in October, 1979. It relied on the balancing test set forth by this Court in Gulf Oil Corp. v. Gilbert, 330 U. S. 501 (1947), and its companion case, Koster v. Lumbermens Mut. Cas. Co., 330 U. S. 518 (1947). In those decisions, the Court stated that a plaintiff's choice of forum should rarely be disturbed. However, when an alternative forum has jurisdiction to hear the case, and when trial in the chosen forum would "establish . . . oppressiveness and vexation to a defendant . . . out of all proportion to plaintiff's conveniens," or when the "chosen forum [is] inappropriate because of considerations affecting the court's own administrative and legal problems," the court may, in the exercise of its sound discretion, dismiss the case. Koster, supra, at 330 U. S. 524. To guide trial court discretion, the Court provided a list of "private interest factors" affecting the conveniens of the litigants, and a list of "public interest factors" affecting the conveniens of the forum. Gilbert, supra, at 330 U. S. 508-509. [Footnote 6]

Page 454 U. S. 242

After describing our decisions in Gilbert. and Koster, the District Court analyzed the facts of these cases. It began by observing that an alternative forum existed in Scotland; Piper and Hartzell had agreed to submit to the jurisdiction of the Scottish courts and to waive any statute of limitations defense that might be available. It then stated that plaintiffs choice of forum was entitled to little weight. The court recognized that a plaintiff's choice ordinarily deserves substantial deference. It noted, however, that Reyno

"is a representative of foreign citizens and residents seeking a forum in the United States because of the more liberal rules concerning products liability law,"

and that

"the courts have been less solicitous when the plaintiff is not an American citizen or resident, and particularly when the foreign citizens seek to benefit from the more liberal tort rules provided for the protection of citizens and residents of the United States."

479 F.Supp. at 731.

The District Court next examined several factors relating to the private interests of the litigants, and determined that these factors strongly pointed towards Scotland as the appropriate forum. Although evidence concerning the design, manufacture, and testing of the plane and propeller is located in the United States, the connections with Scotland are otherwise "overwhelming." Id. at 732. The real parties in interest are citizens of Scotland, as were all the decedents. Witnesses who could testify regarding the maintenance of the aircraft, the training of the pilot, and the investigation of the accident -- all essential to the defense -- are in Great Britain. Moreover, all witnesses to damages are located in Scotland. Trial would be aided by familiarity with Scottish topography, and by easy access to the wreckage.

The District Court reasoned that, because crucial witnesses and evidence were beyond the reach of compulsory process, and because the defendants would not be able to implead potential Scottish third-party defendants, it would be "unfair to make Piper and Hartzell proceed to trial in this forum." Id.

Page 454 U. S. 243

at 733. The survivors had brought separate actions in Scotland against the pilot, McDonald, and Air Navigation. "[I]t would be fairer to all parties and less costly if the entire case was presented to one jury with available testimony from all relevant witnesses." Ibid. Although the court recognized that, if trial were held in the United States, Piper and Hartzell could file indemnity or contribution actions against the Scottish defendants, it believed that there was a significant risk of inconsistent verdicts. [Footnote 7]

The District Court concluded that the relevant public interests also pointed strongly towards dismissal. The court determined that Pennsylvania law would apply to Piper and Scottish law to Hartzell if the case were tried in the Middle District of Pennsylvania. [Footnote 8] As a result, "trial in this forum would be hopelessly complex and confusing for a jury." Id. at 734. In addition, the court noted that it was unfamiliar with Scottish law and thus would have to rely upon experts from that country. The court also found that the trial would be enormously costly and time-consuming; that it would be unfair to burden citizens with jury duty when the Middle District

Page 454 U. S. 244

of Pennsylvania has little connection with the controversy; and that Scotland has a substantial interest in the outcome of the litigation.

In opposing the motions to dismiss, respondent contended that dismissal would be unfair because Scottish law was less favorable. The District Court explicitly rejected this claim. It reasoned that the possibility that dismissal might lead to an unfavorable change in the law did not deserve significant weight; any deficiency in the foreign law was a "matter to be dealt with in the foreign forum." Id. at 738.

On appeal, the United States Court of Appeals for the Third Circuit reversed and remanded for trial. The decision to reverse appears to be based on two alternative grounds. First, the Court held that the District Court abused its discretion in conducting the Gilbert analysis. Second, the Court held that dismissal is never appropriate where the law of the alternative forum is less favorable to the plaintiff.

The Court of Appeals began its review of the District Court's Gilbert analysis by noting that the plaintiff's choice of forum deserved substantial weight, even though the real parties in interest are nonresidents. It then rejected the District Court's balancing of the private interests. It found that Piper and Hartzell had failed adequately to support their claim that key witnesses would be unavailable if trial were held in the United States: they had never specified the witnesses they would call and the testimony these witnesses would provide. The Court of Appeals gave little weight to the fact that Piper and Hartzell would not be able to implead potential Scottish third-party defendants, reasoning that this difficulty would be "burdensome" but not "unfair," 630 F.2d at 162. [Footnote 9] Finally, the court stated that resolution of the suit

Page 454 U. S. 245

would not be significantly aided by familiarity with Scottish topography, or by viewing the wreckage.

The Court of Appeals also rejected the District Court's analysis of the public interest factors. It found that the District Court gave undue emphasis to the application of Scottish law:

"'the mere fact that the court is called upon to determine and apply foreign law does not present a legal problem of the sort which would justify the dismissal of a case otherwise properly before the court.'"

Id. at 163 (quoting Hoffman v. Goberman, 420 F.2d 423, 427 (CA3 1970)). In any event, it believed that Scottish law need not be applied. After conducting its own choice of law analysis, the Court of Appeals determined that American law would govern the actions against both Piper and Hartzell. [Footnote 10] The same choice of law analysis apparently led it to conclude that Pennsylvania and Ohio, rather than Scotland, are the jurisdictions with the greatest policy interests in the dispute, and that all other public interest factors favored trial in the United States. [Footnote 11]

Page 454 U. S. 246

In any event, it appears that the Court of Appeals would have reversed even if the District Court had properly balanced the public and private interests. The court stated:

"[I]t is apparent that the dismissal would work a change in the applicable law so that the plaintiff's strict liability claim would be eliminated from the case. But . . . a dismissal for forum non conveniens, like a statutory transfer, 'should not, despite its conveniens, result in a change in the applicable law.' Only when American law is not applicable, or when the foreign jurisdiction would, as a matter of its own choice of law, give the plaintiff the benefit of the claim to which she is entitled here, would dismissal be justified."

630 F.2d at 163-164 (footnote omitted) (quoting DeMateos v. Texaco, Inc., 562 F.2d 895, 899 (CA3 1977), cert. denied, 435 U.S. 904 (1978)). In other words, the court decided that dismissal is automatically barred if it would lead to a change in the applicable law unfavorable to the plaintiff.

We granted certiorari in these cases to consider the questions they raise concerning the proper application of the doctrine of forum non conveniens. 450 U.S. 909 (1981). [Footnote 12]

Page 454 U. S. 247

The Court of Appeals erred in holding that plaintiffs may defeat a motion to dismiss on the ground of forum non conveniens merely by showing that the substantive law that would be applied in the alternative forum is less favorable to the plaintiffs than that of the present forum. The possibility of a change in substantive law should ordinarily not be given conclusive or even substantial weight in the forum non conveniens inquiry.

We expressly rejected the position adopted by the Court of Appeals in our decision in Canada Malting Co. v. Paterson Steamships, Ltd., 285 U. S. 413 (1932). That case arose out of a collision between two vessels in American waters. The Canadian owners of cargo lost in the accident sued the Canadian owners of one of the vessels in Federal District Court. The cargo owners chose an American court in large part because the relevant American liability rules were more favorable than the Canadian rules. The District Court dismissed on grounds of forum non conveniens. The plaintiffs argued that dismissal was inappropriate because Canadian laws were less favorable to them. This Court nonetheless affirmed:

"We have no occasion to enquire by what law the rights of the parties are governed, as we are of the opinion

Page 454 U. S. 248

that, under any view of that question, it lay within the discretion of the District Court to decline to assume jurisdiction over the controversy. . . . '[T]he court will not take cognizance of the case if justice would be as well done by remitting the parties to their home forum.'"

Id. at 285 U. S. 419-420 (quoting Charter Shipping Co. v. Bowring, Jones & Tidy, Ltd., 281 U. S. 515, 281 U. S. 517 (1930)). The Court further stated that "[t]here as no basis for the contention that the District Court abused its discretion." 285 U.S. at 285 U. S. 423.

It is true that Canada Malting was decided before Gilbert, and that the doctrine of forum non conveniens was not fully crystallized until our decision in that case. [Footnote 13] However, Gilbert in no way affects the validity of Canada Malting. Indeed,

Page 454 U. S. 249

by holding that the central focus of the forum non conveniens inquiry is conveniens, Gilbert implicitly recognized that dismissal may not be barred solely because of the possibility of an unfavorable change in law. [Footnote 14] Under Gilbert, 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 conveniens supporting his choice. [Footnote 15] If substantial weight were given to the possibility of an unfavorable change in law, however, dismissal might be barred even where trial in the chosen forum was plainly inconvenient.

The Court of Appeals' decision is inconsistent with this Court's earlier forum non conveniens decisions in another respect. Those decisions have repeatedly emphasized the need to retain flexibility. In Gilbert, the Court refused to identify specific circumstances "which will justify or require either grant or denial of remedy." 330 U.S. at 330 U. S. 508. Similarly, in Koster, the Court rejected the contention that, where a trial would involve inquiry into the internal affairs of a foreign corporation, dismissal was always appropriate. "That is one, but only one, factor which may show conveniens." 330 U.S. at 330 U. S. 527. And in Williams v. Green Bay & Western R. Co., 326 U. S. 549, 326 U. S. 557 (1946), we stated that we would not lay down a rigid rule to govern discretion, and that "[e]ach case turns on its facts." If central emphasis were

Page 454 U. S. 250

placed on any one factor, the forum non conveniens doctrine would lose much of the very flexibility that makes it so valuable.

In fact, if conclusive or substantial weight were given to the possibility of a change in law, the forum non conveniens doctrine would become virtually useless. Jurisdiction and venue requirements are often easily satisfied. As a result, many plaintiffs are able to choose from among several forums. Ordinarily, these plaintiffs will select that forum whose choice of law rules are most advantageous. Thus, if the possibility of an unfavorable change in substantive law is given substantial weight in the forum non conveniens inquiry, dismissal would rarely be proper.

Except for the court below, every Federal Court of Appeals that has considered this question after Gilbert has held that dismissal on grounds of forum non conveniens may be granted even though the law applicable in the alternative forum is less favorable to the plaintiff's chance of recovery. See, e.g., Pain v. United Technologies Corp., 205 U.S.App.D.C. 229, 248-249, 637 F.2d 775, 794-795 (1980); Fitzgerald v. Texaco, Inc., 521 F.2d 448, 453 (CA2 1975), cert. denied, 423 U.S. 1052 (1976); Anastasiadis v. S.S. Little John, 346 F.2d 281, 283 (CA5 1965), cert. denied, 384 U.S. 920 (1966). [Footnote 16] Several courts have relied expressly on Canada Malting to hold that the possibility of an unfavorable change of law should not, by itself, bar dismissal. See Fitzgerald

Page 454 U. S. 251

v. Texaco, Inc., supra; Anglo-American Grain Co. v. The SIT Mina D'Amico, 169 F.Supp. 908 (ED Va.1959).

The Court of Appeals' approach is not only inconsistent with the purpose of the forum non conveniens doctrine, but also poses substantial practical problems. If the possibility of a change in law were given substantial weight, deciding motions to dismiss on the ground of forum non conveniens would become quite difficult. Choice of law analysis would become extremely important, and the courts would frequently be required to interpret the law of foreign jurisdictions. First, the trial court would have to determine what law would apply if the case were tried in the chosen forum, and what law would apply if the case were tried in the alternative forum. It would then have to compare the rights, remedies, and procedures available under the law that would be applied in each forum. Dismissal would be appropriate only if the court concluded that the Law applied by the alternative forum is as favorable to the plaintiff as that of the chosen forum. The doctrine offorum non conveniens, however, is designed in part to help courts avoid conducting complex exercises in comparative law. As we stated in Gilbert, the public interest factors point towards dismissal where the court would be required to "untangle problems in conflict of laws, and in law foreign to itself." 330 U.S. at 330 U. S. 509.

Upholding the decision of the Court of Appeals would result in other practical problems. At least where the foreign plaintiff named an American manufacturer as defendant, [Footnote 17] a court could not dismiss the case on grounds of forum non

Page 454 U. S. 252

conveniens where dismissal might lead to an unfavorable change in law. The American courts, which are already extremely attractive to foreign plaintiffs, [Footnote 18] would become even more attractive. The flow of litigation into the United States would increase and further congest already crowded courts. [Footnote 19]

Page 454 U. S. 253

The Court of Appeals based its decision, at least in part, on an analogy between dismissals on grounds of forum non conveniens and transfers between federal courts pursuant to § 1404(a). In Van Dusen v. Barrack, 376 U. S. 612 (1964), this Court ruled that a § 1404(a) transfer should not result in a change in the applicable law. Relying on dictum in an earlier Third Circuit opinion interpreting Van Dusen, the court below held that that principle is also applicable to a dismissal on forum non conveniens grounds. 630 F.2d at 164, and n. 51 (citing DeMateos v. Texaco, Inc., 562 F.2d at 899). However, § 1404(a) transfers are different than dismissals on the ground of forum non conveniens.

Congress enacted § 1404(a) to permit change of venue between federal courts. Although the statute was drafted in accordance with the doctrine offorum non conveniens, see Revisor's Note, H.R.Rep. No. 308, 80th Cong., 1st Sess., A132 (1947); H.R.Rep. No. 2646, 79th Cong., 2d Sess., A127 (1946), it was intended to be a revision, rather than a codification of the common law. Norwood v. Kirkpatrick, 349 U. S. 29 (1955). District courts were given more discretion to transfer under § 1404(a) than they had to dismiss on grounds of forum non conveniens.Id. at 349 U. S. 31-32.

The reasoning employed in Van Dusen v. Barrack is simply inapplicable to dismissals on grounds of forum non conveniens. That case did not discuss the common law doctrine. Rather, it focused on "the construction and application" of § 1404(a). 376 U.S. at 376 U. S. 613. [Footnote 20] Emphasizing the remedial

Page 454 U. S. 254

purpose of the statute, Barrack concluded that Congress could not have intended a transfer to be accompanied by a change in law. Id. at 376 U. S. 622. The statute was designed as a "federal housekeeping measure," allowing easy change of venue within a unified federal system. Id. at 376 U. S. 613. The Court feared that, if a change in venue were accompanied by a change in law, forum-shopping parties would take unfair advantage of the relaxed standards for transfer. The rule was necessary to ensure the just and efficient operation of the statute. [Footnote 21]

We do not hold that the possibility of an unfavorable change in law should never be a relevant consideration in a forum non conveniens inquiry. Of course, if the remedy provided by the alternative forum is so clearly inadequate or unsatisfactory that it is no remedy at all, the unfavorable change in law may be given substantial weight; the district court may conclude that dismissal would not be in the interests of justice. [Footnote 22] In these cases, however, the remedies that

Page 454 U. S. 255

would be provided by the Scottish courts do not fall within this category. Although the relatives of the decedents may not be able to rely on a strict liability theory, and although their potential damages award may be smaller, there is no danger that they will be deprived of any remedy or treated unfairly.

III

The Court of Appeals also erred in rejecting the District Court's Gilbert analysis. The Court of Appeals stated that more weight should have been given to the plaintiff's choice of forum, and criticized the District Court's analysis of the private and public interests. However, the District Court's decision regarding the deference due plaintiff's choice of forum was appropriate. Furthermore, we do not believe that the District Court abused its discretion in weighing the private and public interests.

The District Court acknowledged that there is ordinarily a strong presumption in favor of the plaintiff's choice of forum, which may be overcome only when the private and public interest factors clearly point towards trial in the alternative forum. It held, however, that the presumption applies with less force when the plaintiff or real parties in interest are foreign.

The District Court's distinction between resident or citizen plaintiffs and foreign plaintiffs is fully justified. In Koster, the Court indicated that a plaintiff's choice of forum is entitled to greater deference when the plaintiff has chosen the home forum. 330 U.S. at 330 U. S. 524. [Footnote 23] When the home forum has

Page 454 U. S. 256

been chosen, it is reasonable to assume that this choice is convenient. When the plaintiff is foreign, however, this assumption is much less reasonable. Because the central purpose of any forum non conveniens inquiry is to ensure that the trial is convenient, a foreign plaintiff's choice deserves less deference. [Footnote 24]

Page 454 U. S. 257

The forum non conveniens determination is committed to the sound discretion of the trial court. It may be reversed only when there has been a clear abuse of discretion; where the court has considered all relevant public and private interest factors, and where its balancing of these factors is reasonable, its decision deserves substantial deference. Gilbert, 330 U.S. at 330 U. S. 511-512; Koster, 330 U.S. at 330 U. S. 531. Here, the Court of Appeals expressly acknowledged that the standard of review was one of abuse of discretion. In examining the District Court's analysis of the public and private interests, however, the Court of Appeals seems to have lost sight of this rule, and substituted its own judgment for that of the District Court.

(1)

In analyzing the private interest factors, the District Court stated that the connections with Scotland are "overwhelming." 479 F.Supp. at 732. This characterization may be somewhat exaggerated. Particularly with respect to the question of relative ease of access to sources of proof, the private interests point in both directions. As respondent emphasizes, records concerning the design, manufacture, and testing of the propeller and plane are located in the United States. She would have greater access to sources of proof relevant to her strict liability and negligence theories if trial were held here. [Footnote 25] However, the District Court did not act

Page 454 U. S. 258

unreasonably in concluding that fewer evidentiary problems would be posed if the trial were held in Scotland. A large proportion of the relevant evidence is located in Great Britain.

The Court of Appeals found that the problems of proof could not be given any weight because Piper and Hartzell failed to describe with specificity the evidence they would not be able to obtain if trial were held in the United States. It suggested that defendants seeking forum non conveniens dismissal must submit affidavits identifying the witnesses they would call and the testimony these witnesses would provide if the trial were held in the alternative forum. Such detail is not necessary. [Footnote 26] Piper and Hartzell have moved for dismissal precisely because many crucial witnesses are located beyond the reach of compulsory process, and thus are difficult to identify or interview. Requiring extensive investigation would defeat the purpose of their motion. Of course, defendants must provide enough information to enable the District Court to balance the parties' interests. Our examination of the record convinces us that sufficient information

Page 454 U. S. 259

was provided here. Both Piper and Hartzell submitted affidavits describing the evidentiary problems they would face if the trial were held in the United States. [Footnote 27]

(2)

The District Court's review of the factors relating to the public interest was also reasonable. On the basis of its

Page 454 U. S. 260

choice of law analysis, it concluded that, if the case were tried in the Middle District of Pennsylvania, Pennsylvania law would apply to Piper and Scottish law to Hartzell. It stated that a trial involving two sets of laws would be confusing to the jury. It also noted its own lack of familiarity with Scottish law. Consideration of these problems was clearly appropriate under Gilbert; in that case, we explicitly held that the need to apply foreign law pointed towards dismissal. [Footnote 29]

The Court of Appeals found that the District Court's choice of law analysis was incorrect, and that American law would apply to both Hartzell and Piper. Thus, lack of familiarity with foreign law would not be a problem. Even if the Court of Appeals' conclusion is correct, however, all other public interest factors favored trial in Scotland.

Scotland has a very strong interest in this litigation. The accident occurred in its airspace. All of the decedents were Scottish. Apart from Piper and Hartzell, all potential plaintiffs and defendants are either Scottish or English. As we stated in Gilbert, there is "a local interest in having localized controversies decided at home." 330 U.S. at 330 U. S. 509. Respondent argues that American citizens have an interest in ensuring that American manufacturers are deterred from producing defective products, and that additional deterrence might be obtained if Piper and Hartzell were tried in the United States, where they could be sued on the basis of both negligence and strict liability. However, the incremental deterrence that would be gained if this trial were held in an

Page 454 U. S. 261

American court is likely to be insignificant. The American interest in this accident is simply not sufficient to justify the enormous commitment of judicial time and resources that would inevitably be required if the case were to be tried here.

Reversed.

JUSTICE POWELL took no part in the decision of these cases.

JUSTICE O'CONNOR took no part in the consideration or decision of these cases.

* Together with No. 80-883, Hartzell Propeller, Inc. v. Reyno, Personal Representative of the Estates of Fehilly et al., also on certiorari to the same court.

[Footnote 1]

Avco-Lycoming, Inc., the manufacturer of the plane's engines, was also named as a defendant. It was subsequently dismissed from the suit by stipulation.

[Footnote 2]

The pilot's estate has also filed suit in the United Kingdom against Air Navigation, McDonald, Piper, and Hartzell.

[Footnote 3]

See Affidavit of Donald Ian Kerr MacLeod, App. A19 (affidavit submitted to District Court by petitioners describing Scottish law). Suits for damages are governed by The Damages (Scotland) Act 1976.

[Footnote 4]

Section 1404(a) provides:

"For the conveniens of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought."

[Footnote 5]

The District Court concluded that it could not assert personal jurisdiction over Hartzell consistent with due process. However, it decided not to dismiss Hartzell because the corporation would be amenable to process in Pennsylvania.

[Footnote 6]

The factors pertaining to the private interests of the litigants included the

"relative 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, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive."

Gilbert, 330 U.S. at 330 U. S. 508. The public factors bearing on the question included 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. Id. at 330 U. S. 509.

[Footnote 7]

The District Court explained that inconsistent verdicts might result if petitioners were held liable on the basis of strict liability here, and then required to prove negligence in an indemnity action in Scotland. Moreover, even if the same standard of liability applied, there was a danger that different juries would find different facts and produce inconsistent results.

[Footnote 8]

Under Klaxon v. Stentor Electric Mfg. Co., 313 U. S. 487 (1941), a court ordinarily must apply the choice of law rules of the State in which it sits. However, where a case is transferred pursuant to 28 U.S.C. § 1404(a), it must apply the choice of law rules of the State from which the case was transferred. Van Dusen v. Barrack, 376 U. S. 612 (1946). Relying on these two cases, the District Court concluded that California choice of law rules would apply to Piper, and Pennsylvania choice of law rules would apply to Hartzell. It further concluded that California applied a "governmental interests" analysis in resolving choice of law problems, and that Pennsylvania employed a "significant contacts" analysis. The court used the "governmental interests" analysis to determine that Pennsylvania liability rules would apply to Piper, and the "significant contacts" analysis to determine that Scottish liability rules would apply to Hartzell.

[Footnote 9]

The court claimed that the risk of inconsistent verdicts was slight because Pennsylvania and Scotland both adhere to principles of res judicata.

[Footnote 10]

The Court of Appeals agreed with the District Court that California choice of law rules applied to Piper, and that Pennsylvania choice of law rules applied to Hartzell, seen 8, supra. It did not agree, however, that California used a "governmental interests" analysis and that Pennsylvania used a "significant contacts" analysis. Rather, it believed that both jurisdictions employed the "false conflicts" test. Applying this test, it concluded that Ohio and Pennsylvania had a greater policy interest in the dispute than Scotland, and that American law would apply to both Piper and Hartzell.

[Footnote 11]

The court's reasoning on this point is somewhat unclear. It states:

"We have held that, under the applicable choice of law rules, Pennsylvania and Ohio are the jurisdictions with the greatest policy interest in this dispute. It follows that the other public interest factors that should be considered under the Supreme Court cases of Gilbert and Koster favor trial in this country, rather than Scotland."

630 F.2d at 171. The Court of Appeals concluded as part of its choice of law analysis that the United States had the greatest policy interest in the dispute. Seen 10, supra. It apparently believed that this conclusion necessarily implied that theforum non conveniens public interest factors pointed toward trial in the United States.

[Footnote 12]

We granted certiorari in No. 80 848 to consider the question

"[w]hether, in an action in federal district court brought by foreign plaintiffs against American defendants, the plaintiffs may defeat a motion to dismiss on the ground of forum non conveniens merely by showing that the substantive law that would be applied if the case were litigated in the district court is more favorable to them than the law that would be applied by the courts of their own nation."

We granted certiorari in No. 80-883 to consider the question whether

"a motion to dismiss on grounds offorum non conveniens [should] be denied whenever the law of the alternate forum is less favorable to recovery than that which would be applied by the district court."

In this opinion, we begin by considering whether the Court of Appeals properly held that the possibility of an unfavorable change in law automatically bars dismissal. 454 U. S. infra. Since we conclude that the Court of Appeals erred, we then consider its review of the District Court's Gilbert analysis to determine whether dismissal was otherwise appropriate. 454 U. S. infra. We believe that it is necessary to discuss the Gilbert analysis in order to properly dispose of the cases.

The questions on which certiorari was granted are sufficiently broad to justify our discussion of the District Court's Gilbert analysis. However, even if the issues we discuss in 454 U. S. our consideration of these issues is not inappropriate. An order limiting the grant of certiorari does not operate as a jurisdictional bar. We may consider questions outside the scope of the limited order when resolution of those questions is necessary for the proper disposition of the case. See Olmstead v. United States, 277 U. S. 438 (1928); McCandless v. Furlaud, 293 U. S. 67 (1934); Redrup v. New York, 386 U. S. 767 (1967).

[Footnote 13]

The doctrine of forum non conveniens has a long history. It originated in Scotland, see Braucher, The Inconvenient Federal Forum, 60 Harv.L.Rev. 908, 909-911 (1947), and became part of the common law of many States, see id. at 911-912; Blair, The Doctrine of Forum Non Conveniens in Anglo-American Law, 29 Colum.L.Rev. 1 (1929). The doctrine was also frequently applied in federal admiralty actions. See, e.g., Canada Malting Co. v. Paterson Steamships, Ltd.; see also Bickel, The Doctrine of Forum Non Conveniens As Applied in the Federal Courts in Matters of Admiralty, 35 Cornell L.Q. 12 (1949). In Williams v. Green Bay & Western R. Co., 326 U. S. 549 (1946), the Court first indicated that motions to dismiss on grounds of forum non conveniens could be made in federal diversity actions. The doctrine became firmly established when Gilbert and Koster were decided one year later.

In previous forum non conveniens decisions, the Court has left unresolved the question whether, under Erie R. Co. v. Tompkins, 304 U. S. 64 (1938), state or federal law of forum non conveniens applies in a diversity case. Gilbert, 330 U.S. at 330 U. S. 509; Koster, 330 U.S. at 330 U. S. 529; Williams v. Green Bay & Western R. Co., supra, at 326 U. S. 551, 326 U. S. 558-559. The Court did not decide this issue, because the same result would have been reached in each case under federal or state law. The lower courts in these cases reached the same conclusion: Pennsylvania and California law on forum non conveniens dismissals are virtually identical to federal law. See 630 F.2d at 158. Thus, here also, we need not resolve the Erie question.

[Footnote 14]

See also Williams v. Green Bay & Western R. Co. at 326 U. S. 555, n. 4 (citing with approval a Scottish case that dismissed an action on the ground of forum non conveniens despite the possibility of an unfavorable change in law).

[Footnote 15]

In other words, Gilbert held that dismissal may be warranted where a plaintiff choose a particular forum not because it is convenient, but solely in order to harass the defendant or take advantage of favorable law. This is precisely the situation in which the Court of Appeals' rule would bar dismissal.

[Footnote 16]

Cf. Dahl v. United Technologies Corp., 632 F.2d 1027, 1032 (CA3 1980) (dismissal affirmed where "Norwegian substantive law will predominate the trial of this case and the mere presence of a count pleaded under Connecticut law, but which may have little chance of success, does not warrant a different conclusion"). But see DeMateos v. Texaco, Inc., 562 F.2d 895, 899 (CA3 1977) (dictum) (principle that § 1404(a) transfer should not result in change in law is no less applicable to dismissal on grounds of forum non conveniens), cert. denied, 435 U.S. 904 (1978). The court below relied on the dictum in DeMateos in reaching its decision. See infra at 454 U. S. 253-254.

[Footnote 17]

In fact, the defendant might not even have to be American. A foreign plaintiff seeking damages for an accident that occurred abroad might be able to obtain service of process on a foreign defendant who does business in the United States. Under the Court of Appeals' holding, dismissal would be barred if the law in the alternative forum were less favorable to the plaintiff -- even though none of the parties are American, and even though there is absolutely no nexus between the subject matter of the litigation and the United States.

[Footnote 18]

First, all but 6 of the 50 American States -- Delaware, Massachusetts, Michigan, North Carolina, Virginia, and Wyoming -- offer strict liability. 1 CCH Prod.Liability Rep. § 4016 (1981). Rules roughly equivalent to American strict liability are effective in France, Belgium, and Luxembourg. West Germany and Japan have a strict liability statute for pharmaceuticals. However, strict liability remains primarily an American innovation. Second, the tort plaintiff may choose, at least potentially, from among 50 jurisdictions if he decides to file suit in the United States. Each of these jurisdictions applies its own set of malleable choice of law rules. Third, jury trials are almost always available in the United States, while they are never provided in civil law jurisdictions. G. Gloss, Comparative Law 12 (1979); J. Merryman, The Civil Law Tradition 121 (1969). Even in the United Kingdom, most civil actions are not tried before a jury. 1 G. Keeton, The United Kingdom: The Development of its Laws and Constitutions 309 (1955). Fourth, unlike most foreign jurisdictions, American courts allow contingent attorney's fees, and do not tax losing parties with their opponents' attorney's fees. R. Schlesinger, Comparative Law: Cases, Text, Materials 275-277 (3d ed.1970); Orban, Product Liability: A Comparative Legal Restatement -- Foreign National Law and the EEC Directive, 8 Ga.J.Int'l & Comp.L. 342, 393 (1978). Fifth, discovery is more extensive in American than in foreign courts. R. Schlesinger, supra, at 307, 310, and n. 33.

[Footnote 19]

In holding that the possibility of a change in law unfavorable to the plaintiff should not be given substantial weight, we also necessarily hold that the possibility of a change in law favorable to defendant should not be considered. Respondent suggests that Piper and Hartzell filed the motion to dismiss not simply because trial in the United States would be inconvenient, but also because they believe the laws of Scotland are more favorable. She argues that this should be taken into account in the analysis of the private interests. We recognize, of course, that Piper and Hartzell may be engaged in reverse forum-shopping. However, this possibility ordinarily should not enter into a trial court's analysis of the private interests. If the defendant is able to overcome the presumption in favor of plaintiff by showing that trial in the chosen forum would be unnecessarily burdensome, dismissal is appropriate -- regardless of the fact that defendant may also be motivated by a desire to obtain a more favorable forum. Cf. Kloeckner Reederei und Kohlenhandel v. A/S Hakedal, 210 F.2d 754, 757 (CA2) (defendant not entitled to dismissal on grounds of forum non conveniens solely because the law of the original forum is less favorable to him than the law of the alternative forum), cert. dism'd by stipulation, 348 U.S. 801 (1954).

[Footnote 20]

Barrack at least implicitly recognized that the rule it announced for transfer under § 1404(a) was not the common law rule. It cited several decisions under § 1404(a) in which lower courts had been "strongly inclined to protect plaintiffs against the risk that transfer might be accompanied by a prejudicial change in applicable state laws." 376 U.S. at 376 U. S. 630, n. 26. These decisions frequently rested on the assumption that a change in law would have been unavoidable under common law forum non conveniens, but could be avoided under § 1404(a). See, e.g., Greve v. Gibraltar Enterprises, Inc., 85 F.Supp. 410, 414 (NM 1949).

[Footnote 21]

The United States Court of Appeals for the Second Circuit has expressly rejected the contention that rules governing transfers pursuant to § 1404(a) also govern forum non conveniens dismissals. Schertenleib v. Traum, 589 F.2d 1156 (1978).

[Footnote 22]

At the outset of any forum non conveniens inquiry, the court must determine whether there exists an alternative forum. Ordinarily, this requirement will be satisfied when the defendant is "amenable to process" in the other jurisdiction. Gilbert, 330 U.S. at 330 U. S. 506-507. In rare circumstances, however, where the remedy offered by the other forum is clearly unsatisfactory, the other forum may not be an adequate alternative, and the initial requirement may not be satisfied. Thus, for example, dismissal would not be appropriate where the alternative forum does not permit litigation of the subject matter of the dispute. Cf. Phoenix Canada Oil Co., Ltd. v. Texaco, Inc., 78 F.R.D. 445 (Del.1978) (court refuses to dismiss, where alternative forum is Ecuador, it is unclear whether Ecuadorean tribunal will hear the case, and there is no generally codified Ecuadorean legal remedy for the unjust enrichment and tort claims asserted).

[Footnote 23]

In Koster, we stated that,

"[i]n any balancing of convenienss, a real showing of conveniens by a plaintiff who has sued in his home forum will normally outweigh the inconveniens the defendant may have shown."

330 U.S. at 330 U. S. 524. See also Swift & Co. Packers v. Compania Colombiana del Caribe, 339 U. S. 684, 339 U. S. 697 (1950) ("suit by a United States citizen against a foreign respondent brings into force considerations very different from those in suits between foreigners"); Canada Malting Co. v. Paterson Steamships, Ltd., 285 U.S. at 285 U. S. 421 ("[t]he rule recognizing an unqualified discretion to decline jurisdiction in suits in admiralty between foreigners appears to be supported by an unbroken line of decisions in the lower federal courts").

As the District Court correctly noted in its opinion, 479 F.Supp. at 731; see alson 10, supra, the lower federal courts have routinely given less weight to a foreign plaintiff's choice of forum. See, e.g., Founding Church of Scientology v. Verlag, 175 U.S.App.D.C. 402, 408, 536 F.2d 429, 435 (1976); Paper Operations Consultants Int'l, Ltd. v. SS Hong Kong Amber, 513 F.2d 667, 672 (CA9 1975); Fitzgerald v. Texaco, Inc., 521 F.2d 448, 451 (CA2 1975), cert. denied, 423 U.S. 1052 (1976); Mobil Tankers Co. v. Mene Grande Oil Co., 363 F.2d 611, 614 (CA3), cert. denied, 385 U.S. 945 (1966); Ionescu v. E. F. Hutton & Co. (France), 465 F.Supp. 139 (SDNY 1979); Michell v. General Motors Corp., 439 F.Supp. 24, 27 (ND Ohio 1977).

A citizen's forum choice should not be given dispositive weight, however. See Pain v. United Technologies Corp., 205 U.S.App.D.C. 229, 252-253, 637 F.2d 775, 796-797 (1980); Mizokami Bros. of Arizona, Inc. v. Baychem Corp., 556 F.2d 975 (CA9 1977), cert. denied, 434 U.S. 1035 (1978). Citizens or residents deserve somewhat more deference than foreign plaintiffs, but dismissal should not be automatically barred when a plaintiff has filed suit in his home forum. As always, if the balance of convenienss suggests that trial in the chosen forum would be unnecessarily burdensome for the defendant or the court, dismissal is proper.

[Footnote 24]

See Pain v. United Technologies Corp., supra, at 253, 637 F.2d at 797 (citizenship and residence are proxies for conveniens); see also Note, Forum Non Conveniens and American Plaintiffs in the Federal Courts, 47 U. Chi.L.Rev. 373, 382 383 (1980).

Respondent argues that since plaintiffs will ordinarily file suit in the jurisdiction that offers the most favorable law, establishing a strong presumption in favor of both home and foreign plaintiffs will ensure that defendants will always be held to the highest possible standard of accountability for their purported wrongdoing. However, the deference accorded a plaintiff's choice of forum has never been intended to guarantee that the plaintiff will be able to select the law that will govern the case. See supra at 454 U. S. 247-250.

[Footnote 25]

In the future, where similar problems are presented, district courts might dismiss subject to the condition that defendant corporations agree to provide the records relevant to the plaintiff's claims.

[Footnote 26]

The United States Court of Appeals for the Second Circuit has expressly rejected such a requirement. Fitzgerald v. Texaco, Inc., supra, at 451, n. 3. In other cases, dismissals have been affirmed despite the failure to provide detailed affidavits. See Farmanfarmaian v. Gulf Oil Corp., 437 F.Supp. 910, 924 (SDNY 1977), aff'd., 588 F.2d 880 (CA2 1978). And in a decision handed down two weeks after the decision in this case, another Third Circuit panel affirmed a dismissal without mentioning such a requirement. See Dahl v. United Technologies Corp., 632 F.2d 1027 (1980).

The Court of Appeals apparently relied on an analogy to motions to transfer under 28 U.S.C. § 1404(a). 630 F.2d at 160-161. It cited Marbury-Pattillo Construction Co. v. Bayside Warehouse Co., 490 F.2d 155, 158 (CA5 1974), and Texas Gulf Sulphur Co. v. Ritter, 371 F.2d 145, 148 (CA10 1967), which suggest an affidavit requirement in the § 1404(a) context. As we have explained, however, dismissals on grounds of forum non conveniens and § 1404(a) transfers are not directly comparable. See supra at 454 U. S. 253-254.

[Footnote 27]

See Affidavit of Ronald C. Scott, App. to Pet. for Cert. of Hartzell Propeller, Inc., A75; Affidavit of Charles J. McKelvey, App. to Pet. for Cert. of Piper Aircraft Co. 1f. The affidavit provided to the District Court by Piper states that it would call the following witnesses: the relatives of the decedents; the owners and employees of McDonald; the persons responsible for the training and licensing of the pilot; the persons responsible for servicing and maintaining the aircraft; and two or three of its own employees involved in the design and manufacture of the aircraft.

[Footnote 28]

See Pain v. United Technologies Corp., 205 U.S.App.D.C. at 244, 637 F.2d at 790 (relying on similar argument in approving dismissal of action arising out of helicopter crash that took place in Norway).

[Footnote 29]

Many forum non conveniens decisions have held that the need to apply foreign law favors dismissal. See, e.g., Calavo Growers of California v. Belgium, 632 F.2d 963, 967 (CA2 1980), cert. denied, 449 U.S. 1084 (1981); Schertenleib v. Traum, 589 F.2d at 1165. Of course, this factor alone is not sufficient to warrant dismissal when a balancing of all relevant factors shows that the plaintiff's chosen forum is appropriate. See, e.g., Founding Church of Scientology v. Verlag, 175 U.S.App.D.C. at 409, 536 F.2d at 436; Burt v. Isthmus Development Co., 218 F.2d 353, 357 (CA5), cert. denied, 349 U.S. 922 (1955).

JUSTICE WHITE, concurring in part and dissenting in part.

I join Parts I and II of the Court's opinion. However, like JUSTICE BRENNAN and JUSTICE STEVENS, I would not proceed to deal with the issues addressed in 454 U. S. To that extent, I am in dissent.

JUSTICE STEVENS, with whom JUSTICE BRENNAN joins, dissenting.

In No. 80 848, only one question is presented for review to this Court:

"Whether, in an action in federal district court brought by foreign plaintiffs against American defendants, the plaintiffs may defeat a motion to dismiss on the ground of

Page 454 U. S. 262

forum non conveniens merely by showing that the substantive law that would be applied if the case were litigated in the district court is more favorable to them than the law that would be applied by the courts of their own nation."

Pet. for Cert. in No. 80-848, p. i. In No. 8083, the Court limited its grant of certiorari, see 450 U.S. 909, to the same question:

"Must a motion to dismiss on grounds of forum non conveniens be denied whenever the law of the alternate forum is less favorable to recovery than that which would be applied by the district court?"

&&&&&&&&&&&

[2]

West Virginia Statutes

Chapter 56. PLEADING AND PRACTICE

Article 1. VENUE

Current through 2007 Legislative Session

§ 56-1-1a. Forum non conveniens.

(a) In any civil action if a court of this state, upon a timely written motion of a party, finds that in the interest of justice and for the conveniens of the parties a claim or action would be more properly heard in a forum outside this state, the court shall decline to exercise jurisdiction under the doctrine of forum non conveniens and shall stay or dismiss the claim or action, or dismiss any plaintiff: Provided, That the plaintiff's choice of a forum is entitled to great deference, but this preference may be diminished when the plaintiff is a nonresident and the cause of action did not arise in this state. In determining whether to grant a motion to stay or dismiss an action, or dismiss any plaintiff under the doctrine of forum non conveniens, the court shall consider:

(1) Whether an alternate forum exists in which the claim or action may be tried;

(2) Whether maintenance of the claim or action in the courts of this state would work a substantial injustice to the moving party;

(3) Whether the alternate forum, as a result of the submission of the parties or otherwise, can exercise jurisdiction over all the defendants properly joined to the plaintiff's claim;

(4) The state in which the plaintiff(s) reside;

(5) The state in which the cause of action accrued;

(6) Whether the balance of the private interests of the parties and the public interest of the state predominate in favor of the claim or action being brought in an alternate forum, which shall include consideration of the extent to which an injury or death resulted from acts or omissions that occurred in this state. Factors relevant to the private interests of the parties include, but are not limited to, the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling witnesses; the cost of obtaining attendance of willing witnesses; possibility of a view of the premises, if a view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. Factors relevant to the public interest of the state include, but are not limited to, the administrative difficulties flowing from court congestion; the interest in having localized controversies decided within the state; 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;

(7) Whether not granting the stay or dismissal would result in unreasonable duplication or proliferation of litigation; and

(8) Whether the alternate forum provides a remedy.

(b) A motion pursuant to subsection (a) of this section is timely if it is filed either concurrently or prior to the filing of either a motion pursuant to Rule twelve of the West Virginia Rules of Civil Procedure or a responsive pleading to the first complaint that gives rise to the grounds for such a motion: Provided, That a court may, for good cause shown, extend the period for the filing of such a motion.

(c) If the statute of limitations in the alternative forum expires while the claim is pending in a court of this state, the court shall grant a dismissal under this section only if each defendant waives the right to assert a statute of limitation defense in the alternative forum. The court may further condition a dismissal under this section to allow for the reinstatement of the same cause of action in the same forum in the event a suit on the same cause of action or on any cause of action arising out of the same transaction or occurrence is commenced in an appropriate alternative forum within sixty days after the dismissal under this section and such alternative forum declines jurisdiction.

(d) Except as provided in subsection (b), section one of this article, if an action involves both legal resident and non-resident plaintiffs, the court may not stay or dismiss the action under subsection (a) if the plaintiffs who are legal residents of this state are properly joined in the action and the action arose out of a single occurrence. The court shall dismiss a claim under subsection (a) if the court finds by a preponderance of the evidence that a party was joined solely for the purpose of obtaining or maintaining jurisdiction in this state and the party's claim would be more properly heard in a forum outside this state.

(e) In actions filed pursuant to Rule twenty-three of the West Virginia Rules of Civil Procedure the provisions of this section shall apply only to the class representative(s).

(f) A court that grants a motion to stay or dismiss an action pursuant to this section shall set forth specific findings of fact and conclusions of law.

(g) For the purposes of this section "legal resident" means an individual who is a resident of West Virginia at the time the cause of action arose or at the time the action is filed, without regard to the individual's country of citizenship or national origin. The term does not include an individual who adopts a residence in this State in bad faith for purposes of avoiding the application of this section.

&&&&&&&&&&&&&&

[3]

While our case occurred in the 1990s, some of the New Jersey Case law on Forum Non Conveniens appears (now) to be:

16 A.3d 1040 (N.J. 2011)

205 N.J. 543

Amin YOUSEF and Khwala Yousef, Plaintiffs-Respondents,

GENERAL DYNAMICS CORPORATION and Hertz Inc., Defendants,

and

General Dynamics-Ordinance and Tactical Systems, Inc., and David Edmonds, Defendants-Appellants.

Crane D. Robinson and Jeannie Robinson, Plaintiffs,

General Dynamics Corporation, Hertz Car Rentals, Hertz International, and Geico Insurance Company, Defendants,

and

General Dynamics-Ordinance and Tactical Systems, Inc., and David Edmonds, Defendants.

Supreme Court of New Jersey.

April 11, 2011

Argued Oct. 26, 2010.

Page 1041

[Copyrighted Material Omitted]

Page 1042

[Copyrighted Material Omitted]

Page 1043

Kenneth M. Labbate, a member of the New York bar, argued the cause for appellants (Mound Cotton Wollan & Greengrass, attorneys; Mr. Labbate, Jeffrey S. Weinstein and Steven A. Torrini, on the briefs).

Donald P. Jacobs, Short Hills, argued the cause for respondents (Budd Larner and Jaloudi & Forsa, attorneys; Mr. Jacobs and Nicholas V. Forsa, of counsel and on the briefs).

Richard H. Steen, President, submitted a brief on behalf of amicus curiae New Jersey State Bar Association (Mr. Steen, attorney; Mr. Steen and Amirali Y. Haidri, Union, on the brief).

OPINION

ALBIN, Justice

[205 N.J. 548] The issue before us is whether a New Jersey court is the proper forum for a personal-injury lawsuit involving an automobile accident that occurred in the Republic of South Africa. At all relevant times in this lawsuit, plaintiffs resided and worked in New Jersey, and the corporate defendant was doing business in New Jersey with plaintiffs' employer. On a business trip to South Africa, the corporate defendant's employee— also a defendant and a resident of Florida— was driving a van carrying the two plaintiffs. He allegedly ran a stop sign, causing a collision in which plaintiffs suffered serious bodily injuries. All the known eyewitnesses to the accident reside in the United States.

Defendants sought to dismiss the negligence action brought by plaintiffs in this State on grounds of forum non conveniens. Under the doctrine of forum non conveniens, a court using its equitable power can decline to exercise jurisdiction over a defendant if that defendant can demonstrate that the plaintiff's choice of forum is " demonstrably inappropriate." Kurzke v. Nissan Motor Corp. in U.S.A., 164 N.J. 159, 171-72, 752 A.2d 708 (2000). The trial court in this case found that defendants did not satisfy their burden of showing that New Jersey was an inappropriate forum in which to litigate this negligence action. The Appellate Division affirmed.

We conclude that the trial court properly weighed the public-interest and private-interest factors in finding that New Jersey is not a " demonstrably inappropriate" forum and therefore did not abuse its discretion in denying the forum non conveniens motion. See id. at 165-66, 752 A.2d 708. Because forum non conveniens is an equitable doctrine, to lessen the disadvantages

Page 1044

of not allowing this case to go forward in South Africa, the trial court has [205 N.J. 549] equitable powers at its disposal to ensure that defendants receive a fair trial in New Jersey.

Background Facts

In 2006, plaintiffs Amin Yousef and Crane Robinson lived in New Jersey and were civilian employees of the United States Army in its Armament Research, Development and Engineering Center (Armament Research Center) at the Picatinny Arsenal. One of their colleagues at the Armament Research Center was Lawrence Raniere. In September 2006, all three were working on a project with General Dynamics-Ordnance and Tactical Systems, Inc. (General Dynamics-Ordnance), a United States government contractor doing business in New Jersey.

That same month, Yousef, Robinson, Raniere, and representatives of General Dynamics-Ordnance met in South Africa. The purpose of their trip was to test and procure certain munitions of the Denel Corporation located in Potchefstroom, a town about seventy-five miles from Johannesburg. One member of the General Dynamics-Ordnance team was defendant David Edmonds.

During the trip, Edmonds rented a Volkswagen van from Alisa Car Rentals Ltd., a South African corporation. On September 16, at approximately 6:00 p.m., Edmonds was driving Raniere, Yousef, and Robinson back to their hotel in the van. Raniere occupied the front-passenger seat, Yousef and Robinson the rear seats. While traveling on a road with a posted speed limit of sixty miles per hour, Edmonds apparently did not see a stop sign and other signs leading into an intersection. As the van crossed the intersection without slowing down, it was broadsided by a Corolla traveling at a high speed on a perpendicular road that was not controlled by a stop or yield sign. The impact caused the van to flip over and skid on its side for approximately one hundred feet until it came to a rest. Yousef was thrown from the van on impact and suffered devastating head injuries. Robinson, who remained in the van, [205 N.J. 550] was injured to a lesser extent. Both Edmonds and Raniere were wearing seatbelts and walked from the crash without any serious injuries.

The police did not come to the accident scene that day. Although the driver of the Corolla stopped after the collision, it appears that no one recorded his name or address, and therefore his identity remains a mystery. An ambulance arrived and took Yousef and Robinson to a local hospital. Yousef received medical care in South Africa through the latter part of October 2006. He was then transported to New Jersey where he received treatment for a serious brain injury that required him to use a wheelchair. Robinson underwent surgery at the South African hospital to remove glass embedded in his left arm and returned to the United States for treatment of a spinal injury to his neck and nerve damage to his left leg.

The Complaint

In September 2007, plaintiffs Yousef and Robinson filed separate personal-injury complaints in the Superior Court, Law Division, Bergen County, alleging that defendant Edmonds, an agent of defendant General Dynamics-Ordnance, operated the van negligently by failing to heed the stop sign, thereby causing the intersection collision. As a result of the accident, both claim they have suffered serious bodily injuries and seek compensatory damages. In addition, plaintiffs' wives filed loss-of-consortium claims.[1]

Page 1045

Both plaintiffs are residents of New Jersey, Yousef living in Budd Lake and Robinson living in Oxford. Their place of work was the Armament Research Center at the Picatinny Arsenal in New Jersey; their employer was the United States Army. Edmonds is domiciled in Florida. He was working with General [205 N.J. 551] Dynamics-Ordnance, which was doing business in this State with the Army on a project that brought both plaintiffs and defendants to South Africa. General Dynamics-Ordnance is incorporated in Virginia with its principal place of business in Florida.

Pretrial Discovery

In February 2009, defendants moved to dismiss the action on grounds of forum non conveniens, essentially arguing that a South African court was the more appropriate forum for deciding the issues to be resolved in this case. [2] The parties sharply dispute the " facts" that were adduced in discovery. To provide context to the forum non conveniens motion, a review of the discovery is necessary.

Raniere, the front-seat passenger in the van, prepared an accident report for the South African authorities twelve days after the collision. In that report, he noted that " our road had a stop sign in the direction we were traveling which was missed by our driver [Edmonds]." A day after the accident, persons from the Denel Corporation, who presumably were familiar with the intersection, told Raniere the following: Edmonds and the van's occupants had missed a warning that there was a stop sign " 500m up ahead" ; " [t]here was also painted on the road the words ‘ Stop Sign Ahead’ in big white letters" ; and " there were some bumps in the road to warn [them] of the impending intersection." On the other hand, Raniere noted that the stop sign " was not very large, and it appeared to be bent over slightly, making it hard to see," that " there were a variety of other signs partially obscuring [it]," and that there were no street lights illuminating the intersection as they approached.

Defendants presented two affidavits from Anton Niemann, a local South African tow-truck operator familiar with the intersection where the crash occurred. On the day of the accident, [205 N.J. 552] Niemann recalled driving on the same road traveled by the van and observing " that the stop sign at the intersection was bent or tilted in such a manner that a driver unfamiliar with the road conditions and traffic signage in the immediate vicinity would not have noticed [it]." He also averred that, from 1998 to 2008, three to four motor-vehicle accidents occurred every month at that intersection.

By the time of discovery, the intersection had been converted into a four-way stop. Photographs pre-dating the changes made to that part of the roadway were produced in discovery. Those photographs show a sign warning of a stop at the approaching intersection.

The parties dispute whether the vehicle was equipped with rear-passenger seatbelts and, if so, whether Yousef and Robinson were in fact wearing their seatbelts.

Page 1046

Defendants introduced an owner's manual to the van that references the presence of rear seatbelts and point to Raniere's accident-report statement that " [s]ubsequent conversations revealed that neither [Yousef] nor [Robinson] had had their seatbelts fastened." [3] In contrast, Robinson in his interrogatory answers stated that he was " sure that the [rear] seat he was sitting in did not contain a seat belt." The van was sold to a South African resident in November 2006, and the vehicle has not been inspected since that date. Indeed, there is no report either from the local South African police authorities or from the South African insurance-claims bureau that inspected the vehicle about the presence or absence of rear seatbelts.

South African Law

The parties also presented affidavits from South African attorneys who outlined the principles of South African law that would apply if the case were tried in South Africa.[4] Under South [205 N.J. 553] African law, a judge, not a jury, would decide whether defendants were negligent and, if so, the quantum of damages. In an accident, such as the one here, where a plaintiff/passenger of a vehicle is injured as a result of the alleged negligence of that vehicle's driver, the plaintiff can proceed against South Africa's Road Accident Fund [5] for the first $3000 of damages and pursue a common-law action against the defendant/driver for the remaining damages. If the plaintiff chooses not to proceed against the Fund and only pursues a common-law action, the first $3000 of damages cannot be collected against the defendant.

In theory there is no artificial limit on the quantum of an award that can be returned in favor of a personal-injury plaintiff, but in reality compensatory-damage awards in South Africa are far less generous than those in New Jersey. Additionally, under South African law, consortium and punitive-damage claims are not allowed in a personal-injury negligence case. Typically, liability and damage claims are tried separately, but South African courts will entertain requests for a joint trial of those issues. The parties dispute when the case would be tried if South Africa were the forum, with dates ranging from two to six years depending on whether the liability and damage claims are tried together. Moreover, unlike N.J.R.E. 407, under South African law, subsequent remedial measures by a party may be admissible to show that a party was negligent on a prior occasion.[6]

South Africa has opted out of Article 23 of the Hague Convention that would have required it to honor " Letters of Request issued for the purpose of obtaining pre-trial discovery of documents [205 N.J. 554] as known in Common Law countries." [7] Nevertheless,

Page 1047

under its own law, South Africa may honor letters of request for the production of evidence by any foreign jurisdiction.[8]

Trial Court

The trial court denied the motion of defendants Edmonds and General Dynamics-Ordnance to dismiss the negligence action on the basis of forum non conveniens. [9] The court found that South Africa provided an " adequate alternative forum" despite the different damage remedies available in New Jersey, but also recognized that a plaintiff's choice of forum is entitled to a great degree of deference. In deciding that New Jersey was an appropriate forum, the court weighed the private- and public-interest factors outlined by the United States Supreme Court in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09, 67 S.Ct. 839, 843, 91 L.Ed. 1055, 1062-63 (1947)— an analysis adopted by this Court in Gore v. U.S. Steel Corp., 15 N.J. 301, 306-07, 311, 104 A.2d 670 (1954).

The court noted that the balancing of private-interest factors was " extremely close." In New Jersey, defendants would not be able to pursue a contribution or indemnification claim against the South African municipality or other driver involved in the accident and would have difficulty obtaining evidence in that country. In South Africa, plaintiffs would face not only the added expense of litigation in a foreign country, but also a " significant delay" in bringing the case to closure. In the court's mind, the deference favoring plaintiffs' choice of forum made the difference.

[205 N.J. 555] In balancing the public-interest factors, New Jersey's interest in providing a forum in this State to its residents outweighed South Africa's interest in regulating its roadways. Last, the court determined that New Jersey's law of damages would govern the case " considering the underlying conduct, residence and domicile of the parties and the fact that the parties' relationship is centered in New Jersey not South Africa."

Defendants moved for leave to appeal.

II.

Appellate Division

The Appellate Division denied that motion. We granted defendants' interlocutory appeal and summarily remanded to the Appellate Division for consideration of the merits. Yousef v. Gen. Dynamics Corp., 200 N.J. 363, 981 A.2d 1276 (2009). In an unpublished opinion, the appellate panel affirmed the trial court's order denying defendants' motion to dismiss on forum non conveniens grounds.

The panel observed that a motion to dismiss on the basis of forum non conveniens should not be granted unless the plaintiffs' " choice of forum is ‘ demonstrably inappropriate.’ " (quoting D'Agostino v. Johnson & Johnson, Inc., 225 N.J.Super. 250, 262, 542 A.2d 44 (App.Div.1988), aff'd, 115 N.J. 491, 559 A.2d 420 (1989)). Like the trial court, the panel applied the Gulf Oil paradigm of weighing the private- and public-interest factors.

The panel agreed with the trial court that a balancing of the private-interest factors was " extremely close." Offsetting defendants' inability to implead the South African municipality in a New Jersey

Page 1048

court, the panel believed, was defendants' ability to present evidence about the intersection before and after the accident buttressed by photographs and videotape of the scene. Moreover, the panel noted that because the intersection where the accident occurred has been reconfigured, the factfinder would gain no advantage by viewing the present scene. The panel found that [205 N.J. 556] the difficulties that the South African and American treating physicians would have traveling abroad would be equally burdensome.

In considering the public-interest factors, the panel rejected the argument that this personal-injury lawsuit is " purely a matter of South African interest." The panel observed that New Jersey has an interest in providing a forum for its residents who are injured by the negligence of a Florida resident employed by an American corporation doing business in this State, particularly when all of the parties are domiciled in the United States. Moreover, in light of the redesign of the intersection at issue, the panel was not persuaded that a lawsuit in South Africa was likely to further that country's interests.

In short, the panel determined that the burdens faced by defendants litigating this negligence action in New Jersey are no more onerous than those plaintiffs would face if they were compelled to pursue their claims in South Africa. Defendants' motion for relief was therefore denied.

We granted defendants' motion for leave to appeal. Yousef v. Gen. Dynamics Corp., 202 N.J. 41, 994 A.2d 525 (2010). We also granted the New Jersey State Bar Association's motion to participate as amicus curiae.

III.

Defendants maintain that South Africa is the more appropriate forum— that a South African automobile accident case, even one involving United States residents, should not be tried in the Bergen County, Superior Court, Law Division. Defendants' motion to dismiss plaintiffs' personal-injury action is based on the doctrine of forum non conveniens. Before probing the details of defendants' arguments, our analysis begins with a review of our jurisprudence governing that doctrine.

[205 N.J. 557] Forum Non Conveniens

The equitable doctrine of forum non conveniens empowers a court to decline to exercise jurisdiction when a trial in another available jurisdiction " will best serve the conveniens of the parties and the ends of justice." Gore, supra, 15 N.J. at 305, 104 A.2d 670. Ordinarily, a plaintiff's choice of forum will be honored by a court that has jurisdiction over a case. Kurzke, supra, 164 N.J. at 170, 752 A.2d 708. Indeed, " there is a strong presumption in favor of retaining jurisdiction where the plaintiff is a resident who has chosen his [or her] home forum." Id. at 171, 752 A.2d 708 (quoting D'Agostino, supra, 225 N.J.Super. at 262, 542 A.2d 44); see ibid. (" New Jersey courts should be especially accommodating to their own citizens seeking justice at home." ). However, a plaintiff's choice of forum is not dispositive, Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255, 102 S.Ct. 252, 265-66, 70 L.Ed.2d 419, 435 (1981), because ultimately it is for the court to decide whether the ends of justice will be furthered by trying a case in one forum or another, see Kurzke, supra, 164 N.J. at 164-65, 752 A.2d 708. Nevertheless, a court should not dismiss a case on the ground of forum non conveniens unless the choice of forum is " demonstrably inappropriate." Id. at 171-72, 752 A.2d 708.

The application of this equitable doctrine is left to the sound discretion of the trial court, id. at 165, 752 A.2d 708,

Page 1049

and therefore considerable deference must be paid to the court's decision, Piper Aircraft, supra, 454 U.S. at 257, 102 S.Ct. at 266, 70 L.Ed.2d at 436. But there are clearly defined guidelines that channel the discretion of our courts.

First, as already noted, the plaintiff's choice of forum is entitled to preferential consideration by the court. Id. at 255 n. 23, 102 S.Ct. at 266 n. 23, 70 L.Ed.2d at 435 n. 23. Second, any alternative forum must be adequate, and the defendant must be " amenable to process" in that forum. Wangler v. Harvey, 41 N.J. 277, 286, 196 A.2d 513 (1963). An alternative forum will be deemed inadequate if " the remedy offered by the other forum is clearly unsatisfactory." [205 N.J. 558] Piper Aircraft, supra, 454 U.S. at 254 n. 22, 102 S.Ct. at 265 n. 22, 70 L.Ed.2d at 435 n. 22. Third, we have adopted the analytical framework set forth in Gulf Oil, supra, 330 U.S. at 508-09, 67 S.Ct. at 843, 91 L.Ed. at 1062-63, in determining whether the plaintiff's choice of forum is " demonstrably inappropriate" and whether an adequate alternative forum is available. See, e.g., Kurzke, supra, 164 N.J. at 164, 171-72, 752 A.2d 708. Gulf Oil enunciated certain private-interest and public-interest factors to be considered in deciding a forum non conveniens motion. Gulf Oil, supra, 330 U.S. at 508-09, 67 S.Ct. at 843, 91 L.Ed. at 1062-63.

The private-interest factors include " the relative ease of access to sources of proof" ; the " availability of compulsory process" ; the cost of obtaining the attendance of witnesses; the ability to view an accident scene, if that would be beneficial to the factfinder; the enforceability of a judgment; and " all other practical problems that make trial of a case easy, expeditious and inexpensive." See id. at 508, 67 S.Ct. at 843, 91 L.Ed. at 1062. The public-interest factors include consideration of trial delays that may occur because of backlogs in a jurisdiction; whether jurors should be compelled to hear a case that has no or little relationship to their community; the benefit to a community of " having localized controversies decided at home" ; and whether the law governing the case will be the law of the forum where the case is tried. See id. at 508-09, 67 S.Ct. at 843, 91 L.Ed. at 1062-63.

The value ascribed to any particular factor may vary depending on the circumstances of each case. The objective is to " weigh relative advantages and obstacles to [a] fair trial." Id. at 508, 67 S.Ct. at 843, 91 L.Ed. at 1062. A plaintiff's choice of forum " may not be defeated upon a mere balance of convenienss." Kurzke, supra, 164 N.J. at 170, 752 A.2d 708 (quotation omitted). " [U]nless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed." Gulf Oil, supra, 330 U.S. at 508, 67 S.Ct. at 843, 91 L.Ed. at 1062; see also Gantes v. Kason Corp., 145 N.J. 478, 499, 679 A.2d 106 (1996) ( " [D]ismissal pursuant to the doctrine of forum non conveniens [205 N.J. 559] cannot occur if the transfer will result in significant hardship to the plaintiffs." (citation omitted)). The defendant bears the burden of establishing that the plaintiff's choice of forum is " demonstrably inappropriate." Varo v. Owens-Illinois, Inc., 400 N.J.Super. 508, 519-20, 948 A.2d 673 (App.Div.2008) (citing Camden Iron & Metal, Inc. v. Klehr, Harrison, Harvey, Branzberg & Ellers, L.L.P., 384 N.J.Super. 172, 180, 894 A.2d 94 (App.Div.), certif. denied, 187 N.J. 83, 899 A.2d 305 (2006)).

We now apply these legal principles to the facts before us.

IV.

Adequacy of Alternative Forum

For purposes of our discussion, we will assume that South Africa presents

Page 1050

an adequate alternative forum. South Africa is not disqualified as an alternative forum merely because it does not allow for jury trials in automobile-negligence cases or for punitive-damage or consortium claims. See Piper Aircraft, supra, 454 U.S. at 247, 102 S.Ct. at 261, 70 L.Ed.2d at 430; see also D'Agostino, supra, 115 N.J. at 496, 559 A.2d 420 (" [I]t would be inappropriate for the forum non conveniens issue ... to be resolved on the basis that New Jersey substantive law is supportive of plaintiff's claims for relief." ). Nor is South Africa an inadequate forum because New Jersey damage awards may be more generous for the type of injuries suffered by plaintiffs. Cf. Piper Aircraft, supra, 454 U.S. at 247, 102 S.Ct. at 261, 70 L.Ed.2d at 430. Indeed, both the trial court and Appellate Division— despite denying defendants' forum non conveniens motion— concluded that South Africa is an adequate alternative forum.

In the end, we need not determine whether South Africa is an adequate alternative forum to resolve the forum non conveniens issue. The resolution of that issue ultimately turns on our analysis of the Gulf Oil private- and public-interest factors.

[205 N.J. 560] Private-Interest Factors

Looking at the private-interest factors, particularly " the relative ease of access to sources of proof," Gulf Oil, supra, 330 U.S. at 508, 67 S.Ct. at 843, 91 L.Ed. at 1062, defendants argue that much of the relevant evidence is located in South Africa: the accident scene, the van involved in the accident and its current owner, those with knowledge of the intersection in question, medical professionals who treated both plaintiffs Yousef and Robinson, and documents on file with the local police. Those facts tend to favor South Africa as the appropriate forum.

However, the intersection where the accident occurred has been reconfigured since 2006; therefore an inspection of the scene would likely yield little benefit to the factfinder. No one has suggested that, if the case were tried in New Jersey, there would be a barrier to the admission of photographs and diagrams of the intersection during the relevant time period. The occupants of the van, all of whom live in the United States, should have some knowledge of the intersection as it appeared on the day in question. Moreover, defendants have not established that South Africans with knowledge of the intersection— such as members of the Denel Corporation whom the parties were jointly visiting— would not be willing to give de bene esse depositions [10] about their knowledge of the intersection. Indeed, in his report prepared for the local police, Raniere, who was a member of the Army/General Dynamics-Ordnance team in South Africa and an occupant of the van, stated that he was told by Denel Corporation personnel about [205 N.J. 561] stop signs and speed bumps leading to the intersection where the crash occurred.

Despite South Africa's opting out of Article 23 of the Hague Convention, South

Page 1051

Africa, through its own laws, may honor requests for the production of evidence from other jurisdictions. See Chrysler Int'l Corp. v. Chemaly, 280 F.3d 1358, 1360 (11th Cir.2002) (noting that deposition had been secured by court's letter of request to South African authorities). Certainly, without the need for compulsory process, defendants were able to obtain police reports, affidavits from a tow truck operator, and photographs of the damaged van, indicating an ability to acquire evidence through diligent efforts.

Defendants intend to proffer a seatbelt-contributory-negligence defense. Concerning whether there were seatbelts in the rear of the van, defendants have the statements or testimony of the parties and the van's owner's manual. We know that the van was sold to a named South African resident, but defendants— who retained local counsel— apparently have never located the vehicle. The current condition of that vehicle— if it still exists— will be no different whether this case is tried in New Jersey or South Africa. And whether the van was sold for scrap or whether its interior was altered is also unknown nearly six years after the accident.

The treatment plaintiffs received by medical professionals in South Africa is but a small fraction of the treatment they received in the New Jersey metropolitan area. Plaintiff Yousef has filed certifications from six separate physicians, who have treated him for traumatic brain injury and its sequelae. As a result of his injuries, Yousef has undergone years of treatment in the United States. His deficits are severe and profound, including decreased vision, speech and cognitive impairment, and lack of mobility. Yousef's physicians have averred that their patient is not capable of a trip— much less an extended one— to South Africa, and all of the physicians have indicated that they would be unavailable to attend a trial in South Africa. No one has suggested that Yousef's medical records from his approximately one-month stay in South [205 N.J. 562] African medical facilities would not be available, and clearly any expert physician retained by defendants to examine Yousef would have to do so in the United States.

It is clear that much relevant evidence is present in the United States. For example, all the parties and Raniere (the only known eyewitnesses to the accident) reside in this country, and most of the medical evidence is here. Moreover, it seems likely that evidence in South Africa can be secured for presentation in a New Jersey courtroom. Thus, the access-to-evidence factor does not clearly weigh in defendants' favor.

Because much of the relevant evidence is in the United States, and because there are means for procuring evidence located in South Africa, the lack of compulsory process to compel the attendance of witnesses and production of evidence from South Africa does not necessarily weigh in defendants' favor. Additionally, the record does not suggest that the cost of trying this case in New Jersey would be any greater than in South Africa.

Nevertheless, we acknowledge— as did the Appellate Division and the trial court— that the weighing of the private— interest factors presents a close case. A formidable obstacle for the defense is its inability to implead the South African municipality in a New Jersey civil action. However, as we later discuss, there are equitable remedies available— the resort to comparative-negligence principles— to ensure that defendants will not be liable for damages that the municipality would otherwise be responsible to pay.

We find that the private-interest factors are at best in equipoise between the parties.

Page 1052

We now move on to the public-interest factors.

Public-Interest Factors

Defendants contend that South Africa has the greater interest in this case primarily for two reasons: (1) South Africa has a vital stake in ensuring that individuals who drive on its roadways observe the appropriate standard of due care; and (2) South [205 N.J. 563] Africa has an interest in ensuring that its local municipalities protect motorists by adequately designing and maintaining roadways. Concerning the first point, the parties to this case— all of whom live in the United States— were transient visitors to South Africa. Assuming that Edmonds in fact was negligent in obeying the rules of the road in South Africa, it would seem to make little difference if he were found liable in New Jersey as opposed to South Africa. No one suggests that the standard of due care is different in either jurisdiction. The obligation to drive safely in South Africa can be vindicated in New Jersey.

With regard to the second point, the present litigation— even if the local municipality were impleaded— would seem to have little effect on the future design of the intersection where the accident occurred. That intersection was reconfigured some time after the accident and now is a four-way stop. Based on the record before us, we do not know to what degree, if any, the municipality would be responsible for the payment of compensatory damages even if the intersection had been negligently designed.

The parties have different views about supposed administrative delays due to court-calendar congestion in South Africa. However, we do not find that a trial in South Africa would be any less expeditious than in New Jersey. We assume that timely justice can be achieved in either jurisdiction.

A public-interest factor favoring plaintiffs is New Jersey's strong public policy of providing a forum for the redress of wrongs committed against its residents. Although the accident occurred in South Africa, the parties have ties to New Jersey. General Dynamics-Ordnance was doing business in New Jersey with the Army's Armament Research Center at the Picatinny Arsenal. A team from the Army, including Yousef and Robinson, as well as Raniere, and a team from General Dynamics-Ordnance, including Edmonds, met in South Africa for a munitions project with the Denel Corporation. This case concerns injuries caused to New Jersey residents by a corporate entity doing business in this State— even if the alleged negligent act occurred outside this [205 N.J. 564] country. New Jersey's interests are direct and concrete, not remote. Moreover, a New Jersey jury is not ill-suited to hear a case between residents of this State and a company doing business here.

Thomson and Kurzke

The present case is significantly distinguishable from Estate of Thomson v. Toyota Motor Corp. Worldwide, 545 F.3d 357 (6th Cir.2008), on which defendants heavily rely. In that case, while visiting South Africa, a mother and daughter, two Ohio residents, were passengers in a Toyota Condor rented from Thrifty Rent-A-Car Systems, Inc. in South Africa. Id. at 360. The Toyota was involved in a motor-vehicle accident when the vehicle's brakes allegedly malfunctioned. Ibid. As a result of the accident caused by the allegedly defective brakes, the mother died and the daughter was seriously injured. Ibid. The mother's estate and the daughter brought a product-liability action against Toyota and Thrifty in the District Court for the Northern District of Ohio. Ibid. The district

Page 1053

court dismissed the case against Toyota for lack of personal jurisdiction and the case against Thrifty on grounds of forum non conveniens. Ibid. The United States Court of Appeals for the Sixth Circuit affirmed. Ibid.

In Thomson, the case was mostly about the product— a car " designed in Japan and manufactured, marketed, sold, and rented in South Africa. " Id. at 366 (emphasis added). " [T]he car was manufactured to the requirements of vehicles operated in South Africa...." Ibid. With the exception of the occupants of the vehicle, most of the evidence— particularly the car, which was the object of the litigation— was located in South Africa.[11] Ibid. Indeed, the district court found that if the case were tried in the United States, " South African citizens would be deprived of hearing a case regarding the safety of a vehicle marketed, sold, and used in their country." Ibid. The Sixth Circuit held— paying [205 N.J. 565] deference to the district court's decision— that the Gulf Oil private- and public-interest factors " clearly point[ed] in favor of adjudication of [the] case in South Africa," and that South Africa had the " greater overall interest in the outcome of [the] litigation." Ibid.

Unlike Thomson, this personal-injury negligence action involves parties all of whom are domiciled in the United States. The present case hinges to a large degree on their recollections as well as Raniere, another resident of this country. In addition, there is an enormous amount of medical testimony and evidence in New Jersey and its environs that must be presented at trial. Also important is that evidence already has been procured from South Africa. Unlike Thomson, here a trial in South Africa appears to be at least as burdensome— if not more burdensome— than one in the United States. Last, defendants here— unlike the defendant in Thomson — are attempting to upend the sound discretion invested in the trial court.

Defendants' reliance on our decision in Kurzke is also unavailing. In Kurzke, we declined to dismiss on grounds of forum non conveniens a product-liability and breach-of-warranty action against the defendant automobile manufacturer and dealership. 164 N.J. at 162, 752 A.2d 708.

In that case, Hartmut Kurzke, a New Jersey resident, purchased a Nissan Quest from a dealership in North Plainfield. Id. at 162-63, 752 A.2d 708. Later, Kurzke accepted his employer's offer to transfer to Germany, and the Quest was shipped to that country. Id. at 163, 752 A.2d 708. Three years after the sale, Kurzke was driving the Quest on the Autobahn in Germany, with his wife and four-year-old son, when it was hit by another vehicle. Ibid. Kurzke was crushed to death when the Quest's steering column, which was allegedly defectively designed, failed to collapse. Ibid. His wife and child escaped serious injury. Ibid.

The Appellate Division affirmed the trial court's dismissal of the product-liability and breach-of-warranty action on grounds of forum non conveniens. Id. at 164, 752 A. 2d 708. We reversed. [205 N.J. 566] Id. at 172, 752 A.2d 708. We emphasized that the Quest was purchased in New Jersey from a New Jersey corporation; that both the vehicle and its " steering column were designed and manufactured in the United States" ; that Kurzke received assurances from the New Jersey salesperson— confirmed in a Nissan advertisement— that the Quest had an " ‘ [e]nergy-absorbing steering column

Page 1054

[which] collapses upon impact to help reduce the risk of injury’ " ; and that Kurzke maintained his residence in New Jersey despite his temporary posting in Germany. Id. at 162-63, 752 A.2d 708. We not only found that " most of the acts that form[ed] the basis of [the] plaintiffs' claims occurred in this country," but also that New Jersey had a " vital interest in assuring the safety of automobiles bought and sold here." Id. at 169, 752 A.2d 708.

Nevertheless, we remanded for further consideration because there was not sufficient " pre-discovery" at the point the trial court granted the motion. Id. at 172, 752 A.2d 708. We cautioned, however, that " [w]hen an alternative forum would present as many obstacles as does the forum chosen by the plaintiffs, which appears to be true in this case, a dismissal should not be granted." Id. at 171, 752 A.2d 708 (citation omitted). We ended by reminding the trial court that " in the final analysis, to dismiss on the basis of forum non conveniens, the choice of forum must be ‘ demonstrably inappropriate.’ " Id. at 171-72, 752 A.2d 708 (citation omitted).

Defendants have fastened onto language in Kurzke in which we left " open the possibility that, in a limited number of cases, the burden to a defendant will be so grossly unfair and obvious on the face of the pleadings that discovery will not be necessary to validate a motion for forum non conveniens. " Id. at 168, 752 A.2d 708. Yet, we did not find Kurzke to fall in that " limited number," ibid., and, in any event, the forum non conveniens motion in the present case was denied after the taking of discovery. Defendants have not argued that they had insufficient time to engage in discovery before the motion was heard.

[205 N.J. 567] Contrary to defendants' arguments, we believe that the trial court in denying the forum non conveniens motion in this case, and the Appellate Division in affirming, faithfully applied the principles set forth in Kurzke. New Jersey— the place where plaintiffs are domiciled, where the majority of their medical treatment has been rendered, and where business contacts between plaintiffs and General Dynamics-Ordnance have occurred— has vital interests at stake. A motion to dismiss on forum non conveniens grounds is not to be granted on a mere balance of convenienss or when a trial in the alternative forum will present as many difficulties as the plaintiff's choice of forum. At least presumptively, a plaintiff is entitled to his choice of forum.

We cannot conclude that the trial court, in weighing the Gulf Oil private- and public-interest factors, abused its discretion in finding that defendants failed to carry their burden of demonstrating that New Jersey is a " demonstrably inappropriate" forum.

Equitable Principles to Apply on Remand

To be sure, there is no perfect forum in this case. There will be practical problems litigating this matter in New Jersey, just as there would be if it were litigated in South Africa. But the trial court has a panoply of equitable remedies to level the playing field and to guarantee the parties a fair trial. Whatever problems arise can be surmounted. We will enumerate some equitable options available. We do not foreclose the use of others. We cannot forecast how this case will develop through discovery and afterwards. We therefore must leave to the trial court the discretion to guide the process to the end that defendants will receive as fair a trial as humanly possible in this jurisdiction.

Page 1055

Forum non conveniens is an equitable doctrine. Its aim, in part, is to ensure that the parties receive a fair trial, and that no party is so prejudiced that it cannot pursue a legitimate claim or present a viable defense. See, e.g., [205 N.J. 568] Civic S. Factors Corp. v. Bonat, 65 N.J. 329, 333, 322 A.2d 436 (1974) (stating that primary purpose of forum non conveniens is to prevent injustice to defendant). With equitable principles in mind, our courts have the power to craft special remedies to guarantee that justice— a fair hearing— is not denied to any party. See, e.g., Ayers v. Twp. of Jackson, 106 N.J. 557, 609, 525 A.2d 287 (1987) (stating that " a court of equity ‘ has a broad discretion in framing its decrees in order to adapt the relief to the circumstances of particular cases' " (quoting 30A C.J.S. Equity § 599 (1965))); Salorio v. Glaser, 93 N.J. 447, 469, 461 A.2d 1100 (1983) (stating that " [e]quity courts have often recognized matters of public policy, conveniens of administration, and practicality as matters to be weighed" in shaping equitable decrees (quoting D. Dobbs, Remedies 56 (1973))). In the exercise of its equitable powers under the doctrine of forum non conveniens, the trial court has authority to make certain that relevant evidence that bears a strong indicia of reliability is not kept from the jury merely because this case will be tried in New Jersey. See Heuer v. Heuer, 152 N.J. 226, 242, 704 A.2d 913 (1998) (" The equity jurisdiction of our courts should be exercised to do justice, not to create injustice." ); cf. Olivieri v. Y.M.F. Carpet, Inc., 186 N.J. 511, 521-22, 897 A.2d 1003 (2006) (" ‘ [E]ven where [the requirements of collateral estoppel] are met, the doctrine, which has its roots in equity, will not be applied when it is unfair to do so.’ " (quoting Pace v. Kuchinsky, 347 N.J.Super. 202, 215, 789 A.2d 162 (App.Div.2002))).

Plaintiffs will receive the benefit of their choice of forum based on a balancing of the equities.[12] Accordingly, we decline to simply [205 N.J. 569] affirm the denial of defendants' motion without specifically authorizing the trial court on remand to consider certain measures that will guarantee a fair trial to all parties.

Needless to say, we expect the parties to cooperate with one another for the purpose of removing unnecessary hurdles to the presentation of evidence here. Everyone understands that if the trial were conducted in South Africa, evidence located in that country would be easier to present in that jurisdiction. Although the parties should consider stipulating to documentary evidence obtained from South African authorities or other reliable witnesses, in the absence of agreement by the parties, or feasible alternatives, the court may consider relaxing the Rules of Evidence for the purpose of admitting relevant evidence that bears a strong indicia of reliability.

One possible option available to the parties is conducting de bene esse depositions of relevant, cooperative witnesses in South Africa. We do not know with certainty that this is a viable option. We acknowledge the difficulties of deposing witnesses in South Africa, which has opted out of Article 23 of the Hague Convention. But

Page 1056

case law reveals that obtaining de bene esse depositions from witnesses in South Africa for use in the United States may not be an impossible task. See, e.g., Chrysler Int'l Corp., supra, 280 F.3d at 1362 & n. 9 (noting that de bene esse deposition was taken in South Africa for use in case venued in federal district court, although use of deposition disallowed because it was received outside of discovery deadline).

Thus, if one party can arrange to conduct de bene esse depositions of relevant, cooperative witnesses in South Africa, the other party cannot complain about costs, and must participate or else waives the right to object by not doing so. If a party chooses not to participate in a de bene esse deposition, that party will be able to challenge only the admissibility of the deposition testimony based on our Rules of Evidence. Failure to participate will not be a ground for challenging the admissibility of deposition testimony. We note that plaintiffs and defendants already have secured South [205 N.J. 570] African counsel. Indeed, defendants have presented two affidavits from a tow truck operator in South Africa. Ordinarily, each party should bear its own costs, but the trial court in its sound discretion is vested with power to apportion costs, if necessary, to see that justice is done.[13]

We are sensitive to defendants' argument that there is no statutory authority to implead the South African municipality as a third-party defendant in New Jersey. Because the South African municipality cannot be impleaded as a party, New Jersey's Comparative Negligence Act, which only applies to " parties," does not permit allocation of fault between defendants and the non-party municipality. See N.J.S.A. 2A:15-5.2(a)(2) (" The percentage of negligence or fault of each party shall be based on 100% and the total of all percentages of negligence or fault of all the parties to a suit shall be 100%." (emphasis added)). Assuming that defendants have taken steps necessary to preserve their rights against the municipality under South African law,[14] and assuming that there is adequate evidence to support a claim of municipal liability going to the jury, the trial court may consider— as a matter of equity— allowing the jury to consider apportioning fault between defendants and the municipality. [15] In this way, the disadvantage to defendants in trying this case in New Jersey will be greatly [205 N.J. 571] diminished if, in the event of a determination of liability, they can apportion damages in a way consistent with the Comparative Negligence Act.[16]

Page 1057

Last, as stated earlier, we do not foreclose the admission of relevant evidence that bears a strong indicia of reliability, but that otherwise might be excluded on hearsay grounds under our Rules of Evidence. We do not attempt to define the entire realm of equitable steps that may be taken to guarantee a fair trial. We leave those important details to the sound discretion of the trial court.

VI.

Conclusion

The Appellate Division upheld the trial court's denial of defendants' motion to dismiss on grounds of forum non conveniens. We affirm the judgment of the Appellate Division and remand to the trial court for proceedings consistent with this opinion.

For affirmance and remandment — Chief Justice RABNER and Justices LONG, LaVECCHIA, ALBIN, RIVERA-SOTO, HOENS and STERN (temporarily assigned)— 7.

Opposed — None.

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Notes:

[1] Plaintiffs also named as defendants: General Dynamics, the parent corporation of General Dynamics-Ordnance, and Hertz Corp. (Yousef's complaint); and Hertz Car Rentals, Hertz International, and Geico Insurance Co. (Robinson's complaint). At various stages, each of those defendants was dismissed from the case; none are part of this appeal.

[2] In December 2007, defendants had removed the two cases to the United States District Court for the District of New Jersey. In November 2008, the district court remanded the cases to the Superior Court. The reasons for the removal and remand are not germane to this appeal.

[3] Although Raniere was deposed, his testimony is not part of the record. No one challenges that Raniere authenticated his report at his deposition.

[4] Our discussion of South African law is based solely on the representations made by the parties' South African lawyers.

[5] The Road Accident Fund was established by South Africa's Road Accident Fund Act 56 of 1996. Amendments to the Act that went into effect in 2008 apparently would not apply to this case.

[6] N.J.R.E. 407 in relevant part provides: " Evidence of remedial measures taken after an event is not admissible to prove that the event was caused by negligence or culpable conduct." Thus, in New Jersey, evidence that the municipality has since erected stops signs in all directions is not admissible to show the municipality was negligent or culpable on the day of the accident.

[7] Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters art. 23, Mar. 18, 1970, T.I.A.S. No. 7444, 8 I.L.M. 37 (1969).

[8] Section 33 of South Africa's Supreme Court Act of 1959 outlines the procedures available to foreign litigants seeking discovery from South Africa. Access to compelled discovery is subject to the discretion of the Minister of Justice and Constitutional Development.

[9] Hertz Corp., which joined in this unsuccessful motion, later was granted summary judgment and dismissed from the case.

[10] A de bene esse deposition is " one that is taken provisionally for use if the witness is unavailable at the time of trial." Graham v. Gielchinsky, 126 N.J. 361, 371, 599 A.2d 149 (1991) (citation omitted). Needless to say, witnesses who reside in a foreign jurisdiction where they are not subject to the process of this State are " unavailable." See N.J.R.E. 804(a)(4) (defining " unavailable" witness as one who " is absent from the hearing ... and the proponent of the statement is unable by process ... to procure the declarant's attendance" ). New Jersey's court rules permit the use of videotaped depositions, R. 4:14-9, and specifically permit the use of videotaped depositions of " treating physician[s] or expert[s]," regardless of the medical expert's availability, R. 4:14-9(e).

[11] There were four occupants in the car, all related to one another. Id. at 360.

[12] Defendants have not challenged the Appellate Division's holding that if New Jersey is the appropriate forum, this State's law will apply to this particular case. Consequently, plaintiffs will be able to present consortium claims in New Jersey that they otherwise would not have been able to pursue in South Africa. Furthermore, if the jury is charged on the potential comparative negligence of the municipality, solely for purposes of allocation of damages, plaintiffs will benefit from N.J.R.E. 407, which would bar evidence of remedial changes in the intersection to demonstrate that the municipality was negligent or otherwise culpable on the day of the accident.

[13] Given advancements in technology, and assuming the willingness of the parties and potential witnesses, the trial court might consider whether it is feasible to conduct a video conference with a witness in South Africa by attorneys in the United States.

[14] Because defendants have been fighting to try this case in South Africa, it is hardly unfair to insist that they show that good-faith efforts— if any have been necessary up to this point— were made to preserve their rights against the municipality.

[15] As noted earlier, defendants have not challenged the Appellate Division's ruling that New Jersey law applies if this State is deemed the appropriate forum. Therefore, it would seem that any determination of municipal liability— solely for purposes of allocation of damages— may be guided by the substantive liability and immunity provisions of New Jersey's Tort Claims Act, N.J.S.A. 59:1-1 to 12-3.

[16] Under our Comparative Negligence Act, assuming a finding of negligence among more than two defendants, the jury must determine how much of plaintiffs' damages each defendant will pay. See Brodsky v. Grinnell Haulers, Inc., 181 N.J. 102, 128, 853 A.2d 940 (2004). Plaintiffs may recover " [t]he full amount of the damages from any party determined by the trier of fact to be 60% or more responsible ... [and] [o]nly that percentage of the damages directly attributable to that party's negligence or fault from any party determined by the trier of fact to be less than 60%." Id. at 110, 853 A.2d 940 (quoting N.J.S.A. 2A:15-5.3(a)(c). Although no judgment can be rendered against the municipality, a damages award against defendants could be reduced in accordance with how the statute would work if the municipality were a party.

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559 A.2d 420 (N.J. 1989)

115 N.J. 491

Richard J. D'AGOSTINO, Plaintiff-Respondent,

JOHNSON & JOHNSON, INC., Robert N. Wilson, and Ronald G.

Gelbman, Defendants-Appellants.

Supreme Court of New Jersey.

June 28, 1989

Argued Feb. 28, 1989.

Page 421

[115 N.J. 493] Douglas S. Eakeley, for defendants-appellants (Riker, Danzig, Scherer, Hyland & Perretti, attorneys; Nicholas DeB. Katzenbach and Laura J. Berkowitz, Morristown, on the briefs).

Douglas V. Rigler, Washington, D.C., a member of the District of Columbia bar, for plaintiff-respondent (Lasser, Hochman, Marcus, Guryan and Kuskin, attorneys; Barry Eisenberg, Roseland, on the briefs).

PER CURIAM.

We affirm the judgment of the Appellate Division substantially for the reasons set forth in Judge Baime's thoughtful and comprehensive opinion below. 225 N.J.Super. 250, 542 A.2d 44 (1988). [115 N.J. 494]

We concur with the Appellate Division's summary of the general principles that guide application of the doctrine of forum non conveniens:

As we have pointed out, the present tendency is to avoid a rigid formula and to weigh sundry factors, both private and public, which bear upon the justness of a plaintiff's choice. Nevertheless, "emphasis continues upon the element of harassment and vexation notwithstanding reference also to the element of trial conveniens." [Starr v. Berry, 25 N.J. 573, 584, 138 A.2d 44 (1959) ]. There, thus, has emerged over the years the principle that plaintiff's choice may not be defeated upon a mere balance of convenienss. [Id.] Consequently, "a plaintiff's choice

Page 422

of forum ordinarily will not be disturbed except upon a clear showing of real hardship or for some other compelling reason." [Civic Southern Factors v. Bonat, 65 N.J. 329, 333, 322 A.2d 436 (1974) ]. Dismissal of a complaint is unwarranted unless the plaintiff's choice is shown to be "demonstrably inappropriate." [Id.] [225 N.J.Super. at 262, 542 A.2d 44.]

We are also fully in accord with the Appellate Division's conclusion that a weighing of the private-interest factors described in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055, 1062 (1947), did not warrant dismissal of plaintiff's action. As the Appellate Division observed, "several of the factors favor prosecution of the litigation in New Jersey and * * * others are neutral." 225 N.J.SUPER. AT 264, 542 A.2D 44. [1]

We comment briefly on the Appellate Division's discussion, id. at 265-66, 542 A.2d 44, of the public-interest factors identified in Gulf Oil Corp. v. Gilbert, supra, 330 U.S. at 508-09, 67 S.Ct. at 843, 91 L.Ed. at 1062-63, in order to underscore the limited relevance of New Jersey's substantive law as a factor controlling [115 N.J. 495] the disposition of the forum non conveniens question. We note that both the Appellate Division, 225 N.J.Super. at 265-66, 542 A.2d 44, and the Law Division referred to our underlying substantive law in support of their conflicting conclusions on the forum non conveniens motion.

In Gulf Oil, supra, the Supreme Court identified some of the factors that are pertinent to the resolution of forum non conveniens questions, classifying them generally as private-interest and public-interest factors. The Court offered examples of the so-called public-interest factors: the undue concentration of litigation in congested venues; the burden of jury duty on a community with no relation to the litigation; the desirability of trying cases in courts readily accessible to citizens who might be interested in the proceedings; and the desirability of litigating a case in the jurisdiction whose law will govern the outcome. 330 U.S. at 508-09, 67 S.Ct. at 843, 91 L.Ed. at 1062-63. We note that the focus of these public-interest factors is on the existence of a factual nexus between the issues in the litigation and the forum selected by the plaintiff. Ordinarily, the type of factual nexus that would induce a court to retain jurisdiction would be manifested by a significant relationship between the issues in the case and the jurisdiction whose court was designated as the place for trial. There is no suggestion that the nexus must be such that the substantive law of the forum state supports the relief sought by the plaintiff.

Thus, Piper Aircraft Co. v. Reyno, 454 U.S. 235, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981), involved the propriety of the district court's dismissal, on forum non conveniens grounds, of a wrongful death action brought by the administratrix of the estates of several Scottish citizens, killed in an air crash in Scotland, against the American manufacturers of the plane and its propellers. The Court of Appeals reversed the dismissal, concluding in part that dismissal of an action on forum non conveniens grounds is never appropriate where the law of the alternative forum--in that case Scotland--was less favorable to plaintiff. 630 F.2d 149, 163-64 (3d Cir.1980). The Supreme [115 N.J. 496] Court reversed, emphasizing that differences in substantive law should be accorded little significance in the resolution of forum non conveniens questions:

The Court of Appeals erred in holding that plaintiffs may defeat a motion to dismiss on the ground of forum non conveniens

Page 423

merely by showing that the substantive law that would be applied in the alternative forum is less favorable to the plaintiffs than that of the present forum. The possibility of a change in substantive law should ordinarily not be given conclusive or even substantial weight in the forum non conveniens inquiry.

* * *

In fact, if conclusive or substantial weight were given to the possibility of a change in law, the forum non conveniens doctrine would become virtually useless. Jurisdiction and venue requirements are often easily satisfied. As a result, many plaintiffs are able to choose from among several forums. Ordinarily, these plaintiffs will select that forum whose choice-of-law rules are most advantageous. Thus, if the possibility of an unfavorable change in substantive law is given substantial weight in the forum non conveniens inquiry, dismissal would rarely be proper.

* * *

The Court of Appeals' approach is not only inconsistent with the purpose of the forum non conveniens doctrine, but also poses substantial practical problems. If the possibility of a change in law were given substantial weight, deciding motions to dismiss on the ground of forum non conveniens would become quite difficult. Choice-of-law analysis would become extremely important, and the courts would frequently be required to interpret the law of foreign jurisdictions. First, the trial court would have to determine what law would apply if the case were tried in the chosen forum, and what law would apply if the case were tried in the alternative forum. It would then have to compare the rights, remedies, and procedures available under the law that would be applied in each forum. Dismissal would be appropriate only if the court concluded that the law applied by the alternative forum is as favorable to the plaintiff as that of the chosen forum. The doctrine of forum non conveniens, however, is designed in part to help courts avoid conducting complex exercises in comparative law. As we stated in Gilbert, the public interest factors point towards dismissal where the court would be required to "untangle problems in conflict of laws, and in law foreign to itself." [454 U.S. at 247-251, 102 S.Ct. at 261-63, 70 L.Ed.2d at 430-33.]

Accordingly, it would be inappropriate for the forum non conveniens issue in this case to be resolved on the basis that New Jersey substantive law is supportive of plaintiff's claims for relief. Moreover, it is quite clear from this abbreviated record that the lower courts could not have undertaken a [115 N.J. 497] significant choice-of-law analysis to guide their disposition of the forum non conveniens issue. In tort cases we apply a governmental-interest analysis in determining choice-of-law questions, see, e.g., Veazey v. Doremus, 103 N.J. 244, 247, 510 A.2d 1187 (1986), which selects as the determinative law that jurisdiction with the greatest interest in the resolution of the underlying controversy. In the absence of any discovery, there were insufficient facts available for any court to determine the extent to which Swiss law or New Jersey law would apply to aspects of this case.

Plaintiff alleges that Johnson & Johnson, Inc. committed tortious conduct at its international headquarters in New Jersey that wrongfully interfered with plaintiff's employment rights. In our view these allegations provide a sufficient factual nexus with this State to warrant consideration in weighing the public-interest factors relevant to a resolution of the forum non conveniens question. We read the Appellate Division's reference to the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to 34:19-8, and Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 417 A.2d 505 (1980), to be illustrative of the scope of the potential connection between plaintiff's allegations and this jurisdiction. We do not view those references as an attempt to resolve the underlying choice-of-law issues or as a determination that hospitable substantive-law principles in the forum state constitute a persuasive ground

Page 424

for refusing dismissal on forum non conveniens grounds.

Affirmed.

For affirmance--Chief Justice WILENTZ and Justices CLIFFORD, HANDLER, O'HERN, and STEIN and Judges COLEMAN and DEIGHAN--7.

For reversal--none.

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Notes:

[1] In reaching this conclusion concerning the private-interest factors, the Appellate Division observed that the record before the trial court was "sparse," 225 N.J.Super. at 263, 542 A.2d 44, having previously noted that "discovery proceedings had not yet commenced when the order dismissing the complaint was entered." Id. at 253, 542 A.2d 44. It is apparent that a trial court's disposition of a forum non conveniens motion would be enhanced in such cases if decision were reserved until discovery has proceeded sufficiently to enable the court to make a better-informed assessment of the private- and public-interest factors. We are not invited on this appeal to consider whether a forum non conveniens motion brought at a later stage in this case, based on a more complete record, could be entertained by the court.

547 A.2d 1167 (N.J.Super.L. 1988)

227 N.J.Super. 504

WESTINGHOUSE ELECTRIC CORP., Plaintiff,

AETNA CASUALTY & SURETY COMPANY, et al., Defendants.

WESTINGHOUSE ELECTRIC CORP., Plaintiff,

LIBERTY MUTUAL INSURANCE COMPANY, et al., Defendants.

Superior Court of New Jersey, Law Division, Union County.

March 22, 1988

[227 N.J.Super. 505] Peter Kalis, Pittsburgh, Pa., for plaintiff (Kirkpatrick & Lockhart, Attorneys).

Robert Chesler, Roseland, for plaintiff (Lowenstein, Sandler, Kohl, Fisher & Boylan, Attorneys).

John Sullivan, Philadelphia, Pa., for defendant Liberty Mut. Ins. Co. (Manta & Welge, Attorneys).

Timothy C. Russell, Washington, D.C., for defendant, Lumbermens Mut. Cas. Co. (Drinker, Biddle & Reath, Attorneys).

James A. Hourihan, Washington, D.C., for defendant, Hartford Acc. and Indem. Company (Hogan & Hartson, Attorneys).

G.M. Moriarty, Boston, Mass., for defendant, London Property Insurers (Ropes & Gray, Attorneys).

Page 1168

Mitchell L. Lathrop, San Diego, Cal., for defendant, Puritan Ins. Co. (Adams, Duque & Hazeltine, Attorneys).

LAWRENCE WEISS, J.S.C.

These declaratory judgment actions have been consolidated for the purpose of deciding the motion for dismissal on the basis of forum non conveniens.

[227 N.J.Super. 506] FACTS

Westinghouse v. Liberty Mutual Insurance Company, et al, Docket No. L-069352-87.

This suit is against 140 plus insurance carriers who are alleged to have provided primary and excess coverage for property damage to Westinghouse from 1948 to the present. There are presently 33 attorneys representing the various carriers.

Westinghouse is seeking a declaration of coverage for 81 environmental sites, located in 23 states from California to Massachusetts. Presently there are nine suits pending against Westinghouse involving alleged contamination of waste sites. None of these suits are in New Jersey. Fifty-six of the sites are "non-owned" and Westinghouse is alleged to be one of the generators of toxic waste material on these sites rather than the owner. Nine of the 81 sites are located in New Jersey.

Westinghouse v. Aetna Casualty & Surety Co., et al., Docket No. L-069351-87.

This suit is a declaratory judgment action to determine the rights and obligations of Westinghouse and more than 100 liability carriers who provide Westinghouse with primary and excess coverage under Comprehensive General Liability policies from 1948 to the present. Westinghouse seeks a determination of its insurers' obligations with respect to past and future liabilities of Westinghouse arising out of various toxic exposure claims. The suit focuses principally on welding rod, PCB and asbestos-related claims. New Jersey's connection to Westinghouse asbestos matters is extremely limited. According to the information supplied by Westinghouse, it has been involved in 2,675 asbestos-related matters. Only 128 claims, less than five percent of the total, were filed in New Jersey.

An analysis of the PCB-related matters again reveals no connection with New Jersey. There are approximately 201 PCB-related matters which are at issue in this litigation and not one of these cases was filed in New Jersey. [227 N.J.Super. 507]

The information supplied by Westinghouse reveals that it has been involved in 138 welding rod-related matters. Not one of these matters was filed in New Jersey.

Finally, Westinghouse seeks a declaration of its carriers' obligations with respect to a miscellaneous group of other toxic exposure matters. Westinghouse has identified 18 matters which fall within this classification and only one of these matters involves litigation filed in New Jersey.

JURISDICTION

Westinghouse is incorporated and has its principal place of business in Pennsylvania. Thermo King is a Delaware corporation with its principal place of business in Minnesota. However, Westinghouse's presence in New Jersey is significant. It employs over 1,000 people in this State and paid more than $1.5 million in taxes to state and local governments in 1986. Westinghouse owns over 250 acres of property in this State, including its elevator division in Morristown and its apparatus service center in Hillside.

The defendant insurance companies are either incorporated in this state, authorized to conduct business in this state, or have expressly submitted to any forum chosen by Westinghouse to litigate insurance contract disputes.

Clearly there can be no dispute that New Jersey possesses jurisdiction over each of the defendants. The real question is whether New Jersey is the proper forum to decide these particular complaints.

In recent years there has been an enormous increase of toxic site pollution problems as well as personal injury claims arising out of exposure to asbestos and other toxic materials. It has been estimated that

Page 1169

"more than 30,000 asbestos-related personal injury claims were filed nationwide by 1986, and an additional 180,000 claims are projected to be on court dockets by the year 2010." In re School Asbestos Litigation, 789 F.2d 996, 1000 (3rd Cir.1986). [227 N.J.Super. 508]

The Environmental Protection Agency projects that superfund cleanup could eventually involve as many as 22,000 waste sites throughout the nation. Business and the Law; Suits Mounting on Toxic Waste, N.Y. Times, February 15, 1988, at D2, col. 1.

Because of New Jersey's favorable economic structure, many chemical companies and manufacturers of toxic materials are located here or have used this State's land as toxic waste disposal sites. Our courts have already been faced with determining coverage questions on sites located in this State. See Broadwell Realty v. Fidelity Casualty, 218 N.J.Super. 516, 526 A.2d 76 (App.Div.1987); Jackson Township, etc. v. Hartford Acc. Indemn. Co., 186 N.J.Super. 156, 451 A.2d 900 (Law Div.1982). The courts can anticipate many declaratory judgment actions in the future.

The doctrine of forum non conveniens is a procedural device used by defendants to avoid the sometimes harsh consequences of being compelled to litigate in an inconvenient forum. The New Jersey Supreme Court has defined the doctrine in Civic Southern Factors v. Bonat, 65 N.J. 329, 332-333, 322 A.2d 436 (1974) where it states: "The doctrine of forum non conveniens, an equitable principle, is firmly imbedded in the common law of this State. Starr v. Berry, 25 N.J. 573, 138 A.2d 44 (1958); Vargas v. A.H. Bull Steamship Co., 25 N.J. 293, 135 A.2d 857 (1957) cert. den., 355 U.S. 958, 78 S.Ct. 545, 2 L.Ed.2d 534 (1958); Gore v. United States Steel Corp., 15 N.J. 301, 104 A.2d 670 (1954), cert. den. 348 U.S. 861, 75 S.Ct. 84, 99 L.Ed. 678 (1954). In essence, the doctrine means that a court may decline jurisdiction whenever the ends of justice indicate that trial in the forum selected by the plaintiff would be inappropriate."

A plaintiff's choice of forum is presumed to be valid. A defendant is required to overcome this presumption in order to successfully invoke the doctrine. Defendant must show "hardship ... or any other compelling reason for depriving plaintiffs of their choice of forum." Radigan v. Innisbrook Resort and Golf Club, 150 N.J.Super. 427, 431, 375 A.2d 1229 (App.Div.1977). [227 N.J.Super. 509] The United States Supreme Court has stated "unless the balance is strongly in favor of the defendants, the plaintiff's choice of forum should rarely be disturbed." Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507, 67 S.Ct. 839, 842, 91 L.Ed. 1055 (1947). Any analysis of the doctrine must, therefore, begin with the premise that the forum chosen by a plaintiff is a proper one. The application of the doctrine presupposes the existence of an alternative forum in which a defendant can properly be served with process. Id.

The policies underlying both these actions were negotiated primarily in Westinghouse's Pittsburgh and Boston offices.

It is abundantly clear that any state wherein Westinghouse is a potential party to a suit for damages arising out of a claim for property damage or personal injury from toxic materials is an alternative forum. Also, Pennsylvania where the contracts for insurance were negotiated is an alternative forum.

Application of the forum non conveniens doctrine requires the weighing of a number of factors. In Gore v. United States Steel Corp., 15 N.J. 301, 104 A.2d 670, cert. den. 348 U.S. 861, 75 S.Ct. 84, 99 L.Ed. 678 (1954), the Supreme Court of New Jersey, quoting extensively from the seminal decision of the United States Supreme Court in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947), set out the major considerations underlying the application of the doctrine, as follows:

Important considerations are the relative ease of access to sources of proof; the availability of compulsory process for the attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that

Page 1170

make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforcibility [sic] of a judgment if one is obtained. The court will weigh relative advantages and obstacles to fair trial. It is often said that the plaintiff may not, by choice of an inconvenient forum, "vex", "harass", or "oppress" the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy. But unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed. [227 N.J.Super. 510]

Factors of public interest also have a place in applying the doctrine. Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. Jury duty is a burden that ought not be imposed upon people of a community which has no relation to the litigation. In many cases which touch the affairs of many persons, there is reason for holding the trial in their view and reach rather than in remote parts of the country where they can learn of it by reports only. There is a local interest in having localized controversies decided at home. There is an appropriateness, too, in having the trial of a diversity case in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself.

The New Jersey Supreme Court has ruled that the trial court should evaluate these "private" and public interests in its analysis of forum non conveniens. In Semanishin v. Metropolitan Life Ins. Co., 46 N.J. 531, 533, 218 A.2d 401 (1966) the court stated:

Under the doctrine of forum non conveniens a court may decline jurisdiction whenever the ends of justice indicate that a trial in a forum selected by the plaintiff would be inappropriate. (Cites omitted.) Although the doctrine is frequently invoked to protect the private interests of litigants (taking into consideration such factors as availability of witnesses, the ease of access to other sources of proof, etc.), see e.g., Gore v. United States Steel Corp., supra, the doctrine should also be applied to protect the citizens of a state from the unjustifiable burden imposed upon them when controversies having no connection with the state are allowed to proceed to trial. Paxton Blair in his classic exposition of the doctrine of forum non conveniens has said: 'Calendars become congested, and local taxpayers suffer unjustly from the burden contributing to the expense of trying imported controversies.' Blair, "The Doctrine of Forum Non Conveniens," 29 Colum.L.Rev. 1, 34 (1929).

The following is the court's analysis of these factors in order to make its ultimate decision.

PRIVATE INTEREST

The first consideration discussed by the Gore court for determining the appropriateness of a particular court as the forum for a resolution of a controversy is the "relative ease of access to sources of proof." In this matter, one of the principal sources of discovery and trial evidence will be evidence concerning the waste sites and toxic chemical claims against Westinghouse. With the exception of evidence concerning the small proportion of New Jersey sites and claimants, this evidence will [227 N.J.Super. 511] be located almost entirely outside this State. New Jersey has only an extremely limited nexus with the events which form the basis of this lawsuit, inasmuch as the vast majority of sites and claimants are outside the State.

This court is required to conduct a site-by-site analysis of the evidence on most coverage questions. In CPS Chem. Co. v. Continental Ins. Co., 203 N.J.Super. 15, 495 A.2d 886 (App.Div.1985), CPS sought a declaration that its liability carriers were obligated to defend and indemnify it in a clean-up suit brought by the City of Philadelphia. The city alleged that CPS and three other defendants generated toxic wastes that were illegally deposited in one city-owned garbage dump, and caused damage to the environment. The trial court

Page 1171

granted partial summary judgment in favor of the insured, declaring that the carriers had a duty as a matter of law to defend the claim under the liability policies.

On appeal, the trial court decision was reversed. In focusing on the existence of unresolved issues concerning the nature of the City's claims and their impact on the allegations of coverage, the court stated: "Not only is there a serious question about the nature of the claim, i.e., whether the plaintiff's conduct was intentional or inadvertent, but there is also a serious question of when the damage occurred during the respective policy periods." Id., at 20, 495 A.2d 886. Accordingly, the Appellate Division remanded the case for further proceedings.

The requirement of a site-by-site analysis has been re-emphasized in subsequent decisions of the Appellate Division. In Solvents Recovery Serv. of New England, Inc. vs. Midland Ins. Co., No. A 555-84T5 (N.J.Super., App.Div. February 15, 1985), the Appellate Division reversed the trial court's granting of a summary judgment concerning the applicability of the pollution exclusion. In vacating Judge Lechner's order and remanding the case for a plenary hearing, the court stated as follows:

The case presented is one where, for the purposes of the New Hampshire action, the question of plaintiff's intent or whether it knew or should have [227 N.J.Super. 512] known its conduct would cause pollution are probably immaterial but this is not so as to the question of applicability of exclusion (f). The latter question is one which, in the present circumstances, does not readily lend itself to summary judgment and the motion should have been denied. Slip op. at 2.

In Broadwell Realty Services, Inc. v. Fidelity & Casualty Co., 218 N.J.Super. 516, 528 A.2d 76 (App.Div.1987) the court considered the application of two policy provisions relevant here: the pollution exclusion and the "owned property" exclusion. Both issues had been resolved by the trial court on a summary judgment motion. The Appellate Division reversed the granting of a summary judgment and remanded the case for plenary hearing on both issues.

As a result it is clear that testimony will have to be taken from environmental regulatory and enforcement officials from all of the 23 states involved. Moreover, volumes of documents from such out-of-state sources will eventually have to be examined with respect to the same issues.

Similar difficulties will be experienced if this court decides to retain jurisdiction over the entire Westinghouse v. Aetna case. Courts applying New Jersey law have recognized the need to examine the particular mechanism of injury by a toxic substance in order to determine when bodily injury occurs for insureds' purposes. See, e.g., Hartford Accident and Indemn. Co. v. Aetna Life & Casualty Ins. Co., 98 N.J. 18, 28, 483 A.2d 402 (1984) (refusing to apply asbestos coverage approach automatically because of the absence of medical evidence concerning the impact of the insured's drug on the body.). Sandoz, Inc. v. Employer's Liab. Assurance Corp., 554 F.Supp. 257, 265 (D.N.J.1983) (rejecting asbestos coverage approach where no medical basis was established for equating effect of asbestos exposure with effect of injestion of insured's drugs.)

Courts in other jurisdictions have also insisted on such a fact-specific approach in the toxic chemical bodily injury context. See, e.g., Insurance Co. of North America v. Forty-Eight Insulations, Inc., 633 F.2d 1212 (6th Cir.1980), modified, 657 F.2d 814, cert. denied, 454 U.S. 1109, 102 S.Ct. 686, 70 [227 N.J.Super. 513] L.Ed.2d 650 (1981); American Home Prod. Corp. v. Liberty Mutual Insurance Co., 748 F.2d 760 (2d Cir.1984). As a result, if this court retains jurisdiction over the cases as filed, it would be required to analyze medical evidence concerning the impact on the body of asbestos, PCB and welding rod fumes, even though no claims relating to the exposure of the latter two substances are pending in New Jersey and less than five percent of the 2,675 claims relating to asbestos are in this state. If New Jersey were to retain jurisdiction, most of the witnesses will be out of state and clearly not subject to compulsory process.

Page 1172

In Civic Southern Factors, supra, 65 N.J. at 334-335, 322 A.2d 436, the Supreme Court stated "difficulty of access to proof and availability of compulsory process for attendance of unwilling witnesses are important considerations."

The court is aware of the increased use of deposition testimony; "... to fix a place of trial at a point where litigants cannot compel personal attendance and may be forced to try their cases on depositions, is to create a condition not satisfactory to court, jury or most litigants." Vargus v. A.H. Bull Steamship Co., 44 N.J.Super. 536, 552, 131 A.2d 39 (App.Div.1957).

Assuming that all necessary out-of-state witnesses would voluntarily submit to this court's jurisdiction (i.e., employees of out-of-state regulatory agencies, as well as current and former "non-New Jersey" entities involved with the 72 waste sites and the 22 other states) it can be anticipated that many witnesses will be required to testify. Each witness will have to be reimbursed for lodging, meals and travel expenses. The expenses associated with bringing in almost all of the witnesses from out-of-state would be enormous. At this juncture of the litigation, it is impossible to determine the exact number of witnesses whose testimony will be necessary to fully adjudicate these issues. However, as previously set forth, this court will be required to examine the evidence on a site-by-site basis. See CPS Chemical Co. v. Continental Ins. Co., supra. [227 N.J.Super. 514] PUBLIC INTEREST

In determining the appropriateness of a particular jurisdiction, this court must look not only to the private interest factors discussed above, but also to the public interest considerations.

Administrative Difficulties.

In addition to the private interest considerations, courts, in determining forum non conveniens motions also look to the administrative costs and other burdens which would be imposed on the court if the plaintiff's choice of forum were to prevail.

In Semanishin v. Metropolitan Life Ins. Co., 46 N.J. 531, 533, 218 A.2d 401 (1966) the Supreme Court of New Jersey recognized that the doctrine of forum non conveniens is properly applied "to protect the citizens of a state from the unjustifiable burden imposed upon them when controversies having no connection with the state are allowed to proceed to trial." The court stated, "Calendars become congested, and local taxpayers suffer unjustly from the burden of contributing to the expense of trying imported controversies." Id. at 534-35, 218 A.2d 401. (quoting Blair, "The Doctrine of Forum Non Conveniens", 29 Colum.L.Rev. 1, 34 (1929)).

The expense in time and money to litigate the cases sub judice are incapable of calculation at this time, but some measure of the magnitude of the cost can be seen from a comparison of other "mega trials." See Boston Sunday Globe, California Mega Trial Heralds a Legal Trend, Boston Sunday Globe, November 9, 1987. The article discussed the Shell Oil Co. v. Accident and Casualty Insurance Co., et al, litigation.

Shell contended that the defendant should pay clean-up costs for toxic spills at sites in two states, Colorado and California. The various defendants were represented by 40 law firms. To accommodate the litigants, a former high school building was renovated and turned into a huge court facility which included a courtroom, law library, jury deliberation room, offices for the judge, clerk and court reporters. Although the case is still in [227 N.J.Super. 515] its early stages of trial, more than four thousand exhibits and seven thousand pleadings have been filed and a computerized system has been established to handle this volume.

Present estimates for construction and staffing costs total approximately $550,000. The true estimate of this first jury trial of "mega-type" litigation is impossible to calculate.

The article also discussed In re California Asbestos Ins. Coverage Cases, No. 1072, Judicial Counsel Coordination-Proceeding. In that case five asbestos manufacturers were suing 70 of their insurance companies for coverage. The huge expenditure

Page 1173

of monies and time are set forth in both defendant Liberty Mutual Insurance Company's brief at Pages 18-19, and defendant Lumbermens Mutual Insurance Company's brief at Pages 23 and 24, which facts have not been disputed by the plaintiff. Defendants, in their briefs, state that the case has been pending for eight years and there has already been a total of 183 trial days from September 18, 1985 to February 20, 1987 for a determination of the trigger and scope of coverage for asbestos-related bodily injury claims. Estimated costs for this non-jury trial are approximately $500,000 to $750,000 plus the necessity of hiring one additional full-time judge and one discovery referee, plus renovating another building to house the trial.

It is clear that the two matters before the court are equal, if not greater, in terms of complexity than the California case. Westinghouse seeks not only a determination of the trigger of coverage for asbestos bodily injury claims but also for welding rod matters, PCB matters and other toxic exposure matters as well as coverage issues relating to hazardous waste sites located at 23 different states.

With respect to the hazardous waste claims only, this court will be faced with complex issues which have resulted in extensive litigation on the following questions: the applicability of the pollution exclusion, the question of whether the insured's conduct constituted an occurrence, the question of whether clean-up costs constituted property damage, the applicability of [227 N.J.Super. 516] the property damage, the applicability of the property owned exclusion, the question of non-disclosure of material risk in applying for the coverage, and the date on which bodily injury and property damage, if any, will be deemed to have taken place.

Any court forced to administer and resolve cases of this size, involving numerous waste sites of which 71 are not in New Jersey, thousands of toxic injury claims, of which 95 percent do not arise in New Jersey, large number of witnesses and sources of documentary proof spread around the country and a multiplicity of potential applicable laws, will be faced with a formidable administrative puzzle and the expenditure of great sums of taxpayers' dollars.

In fact, the adjudication of the coverage issues relating to the nine New Jersey hazardous waste sites at issue in Westinghouse v. Liberty Mutual and the 128 personal injury claims in Westinghouse v. Aetna will fully occupy this court's resources for quite some time. The burden placed on this court will be overwhelming if it were also required to be responsible for issues relating to matters outside this state. Retention of jurisdiction will also impede the ability of the citizens of Union County to have their own claims litigated in their home forum in an expeditious manner. These administrative considerations and financial burdens must be considered in the overall weighing of the public factors in deciding this motion.

The plaintiffs have demanded a jury trial in each of these actions. The courts have long recognized a policy of not imposing jury duty "upon the people of a community which has no relation to the litigation" in order to avoid "squandering jury service on imported controversies." Gulf Oil Co., supra, at 508-509, 67 S.Ct. at 843.

Moreover, the overwhelming majority of the jury's time will be spent hearing evidence on issues of no conceivable interest to New Jersey. In Westinghouse v. Liberty Mutual, a jury made up of citizens of Union County will be required to hear evidence concerning insurance coverage for various personal [227 N.J.Super. 517] injury claims against Westinghouse even though less than five percent of the claims deal with New Jersey claimants. There seems little justification for asking a Union County citizen to expend the enormous amount of time and energy to decide controversies arising outside the borders of this state.

Gore, supra, 15 N.J. at 307, 104 A.2d 670, requires consideration of the public interest factor of whether the forum state will apply its law or that of a sister state. The United States Supreme Court emphasized the importance of this factor in Piper Aircraft Co. v. Reyno, 454 U.S. 235, 251, 102 S.Ct. 252, 263, 70 L.Ed.2d 419 (1981), stating that the doctrine of forum non

Page 1174

conveniens "is designed in part to help courts avoid conducting complex exercises in comparative law."

In State Farm Mut. Auto. Ins. Co. v. Estate of Simmons, 84 N.J. 28, 417 A.2d 488 (1980), the Supreme Court announced the New Jersey rule governing choice-of-law in insurance contract disputes, stating that:

The law of the place of the contract will govern the determination of the rights and liabilities of the parties under the insurance policy. This rule is to be applied unless the dominant and significant relationship of another state to the parties and the underlying issues dictates that this basic rule should yield. Id. at 37[417 A.2d 488].

See also, Buzzone v. Hartford Accident Indemnity Co., 23 N.J. 447, 129 A.2d 561 (1957); Lewandowski v. National Grange Mutual Ins. Co., 149 N.J.Super. 591, 374 A.2d 489 (Law Div.1977).

Although the court need not decide the choice-of-law issue at this time, it must recognize in some instances New Jersey has applied its own law to out-of-state issues because of this state's dominant and significant relationship to the party or issue. Bernick v. Frost, 210 N.J.Super. 397, 510 A.2d 56 (App.Div.1986), (attorney-client fee arrangement construed under New Jersey law) Huffmaster v. Robinson, 221 N.J.Super. 315, 534 A.2d 435 (Law Div.1986), (New Jersey Consumer Fraud Act applied to repair contract made in Pennsylvania), Witco Corp. v. Travelers Indemnity Co., No. 80-2997 (U.S.D.C.N.J. May 1, 1987) (New Jersey law applied to toxic waste site because of this State's dominant interest in protecting its citizens). [227 N.J.Super. 518]

There is significant reason to believe that each state where a toxic exposure case arose has a dominant interest in applying its own law to all coverage questions.

CONCLUSION

Recognizing that the courts must presume that the plaintiff's choice of forum is a valid one, after reviewing the factors previously set forth, the court must come to the inescapable result that New Jersey should not retain jurisdiction over any of the claims not within the confines of the State of New Jersey. The availability of another more appropriate forum will better serve the ends of justice and the conveniens of the parties and the court.

This court in Westinghouse v. Liberty Mutual Insurance Co. grants a dismissal as to all questions involving 71 environmental sites not located in this state. The court retains jurisdiction of the nine sites located in the State of New Jersey.

In the Westinghouse v. Aetna Casualty Insurance Co., case, this court retains jurisdiction over the 128 claims which were filed in New Jersey and as to the remaining matters, this court grants a dismissal on the grounds of forum non conveniens.

&&&&&&&&&&&&&&&&&&&&&&&

[4]

OCGA § 9-10-31.1. Forum Non Conveniens

(1) Relative ease of access to sources of proof;

(2) Availability and cost of compulsory process for attendance of unwilling witnesses;

(3) Possibility of viewing of the premises, if viewing would be appropriate to the action;

(4) Unnecessary expense or trouble to the defendant not necessary to the plaintiff´s own right to pursue his or her remedy;

(5) Administrative difficulties for the forum courts;

(6) Existence of local interests in deciding the case locally; and

(7) The traditional deference given to a plaintiff´s choice of forum.

&&&&&&&&&&&&&&&&

[5]

Hewett et al. v. Raytheon Aircraft Company et al., 273 Ga.App. 242, 614 S.E.2d 875 (2005).

No. A05A0029.

Court of Appeals of Georgia

May 11, 2005

Page 876

E. Alan Armstrong, Law Offices of Alan Armstrong, Atlanta, Floyd Wisner, Nolan Law Group, Chicago, IL, for appellants.

Hugh B. McNatt, McNatt & Greene, Daniel S. Reinhardt, Troutman Sanders, Atlanta, for appellees.

BERNES, Judge.

The plaintiffs in the case below--John Edward Harry Hewett, Joan Hewett, and Andrea Nicole Lyons, as administrator of the estate of Brett Hewett (collectively, the "Hewetts")--appeal from the Order entered on May 26, 2004, by the Superior Court of Fulton County dismissing their products liability action on the ground of forum non conveniens. Following entry of that Order, the Georgia General Assembly enacted OCGA § 9-10-31.1 (2005), which sets forth under what circumstances Georgia courts may "decline to adjudicate [cases] under the doctrine of forum non conveniens." OCGA § 9-1--31.1(a). Because we conclude that OCGA § 9-10-31.1 applies in this case, we vacate the May 26, 2004 Order. We remand for the superior court to comply with the terms of the newly enacted statute and to make specific findings of fact and conclusions of law showing the basis for its decision.

[273 Ga.App. 243] This action for wrongful death and survival damages arose from an airplane accident in Queensland, Australia, that occurred on September 4, 2000. The charter flight commenced in Perth, Australia, and crashed into the ground five hours later after flying several hours on autopilot, resulting in the death of all eight occupants, including Brett Hewett. Investigators believed that the cause of the accident was cabin depressurization, but the cause of the depressurization is hotly disputed by the parties.

Prior to and at the time of the accident, the aircraft was owned and operated by an Australian charter operator, which also employed the pilot of the charter flight. All of the passengers were mine workers employed by an Australian company who were planning to fly to Leonora, Australia, for work-related reasons. Hewett, one of the mine workers, was a citizen of New Zealand. Similarly, his

Page 877

administrator and survivors who commenced this action are citizens of New Zealand.

On August 30, 2002, the Hewetts brought this products liability suit against Raytheon Aircraft Company and Professional Aviation Associates, Inc. in the Superior Court of Fulton County. Raytheon is the successor in interest to Beech Aircraft Corporation, which manufactured the plane in the United States. Raytheon is a Kansas corporation that has its principal place of business in Wichita, Kansas, but also conducts business in Georgia. Professional Aviation is a Georgia corporation involved in the sale of new and overhauled airplane parts.

Arguing that Australia would serve as a more appropriate forum for the dispute, Raytheon filed a motion for summary judgment on the ground of forum non conveniens, which Professional Aviation joined. [1] After full briefing on the issue, the superior court held a hearing on the motion. After hearing oral argument from the parties, the superior court took the matter under advisement and did not make any oral factual findings on the record. The superior court subsequently issued its Order on May 26, 2004, which stated in its entirety:

This matter comes before the Court on a motion to dismiss for forum non conveniens. Based upon the record in the case, the applicable case law and the argument of counsel, the Court HEREBY GRANTS Defendants' Motion to Dismiss for Forum Non Conveniens.

The Supreme Court of Georgia adopted the doctrine of forum non conveniens in AT & T Corporation et al. v. Sigala et al. v. Perez, et al., 274 Ga. 137, (549 S.E.2d 373) (2001). For this reason and pursuant to all the evidence presented, the applicable case law and the argument of counsel, Defendants' Motion to Dismiss for Forum Non Conveniens is HEREBY GRANTED.

The Hewetts timely appealed from the Order.

On February 16, 2005, during the pendency of the Hewetts' appeal, the Governor of the State of Georgia signed into law Georgia Laws Act 1 (Senate Bill 3), which, among other things, revised provisions of the Official Code of Georgia pertaining to liability in medical malpractice tort actions and enacted new provisions regarding civil practice (the "Act"). See 2005 Georgia Laws Act 1 (S.B.3). Significantly, Section 2 of the Act added a new provision to Title 9 of the Official Code of Georgia pertaining to the doctrine of forum non conveniens, OCGA § 9-10-31.1, which provides:

(1) Relative ease of access to sources of proof;

(2) Availability and cost of compulsory process for attendance of unwilling witnesses;

(3) Possibility of viewing of the premises, if viewing would be appropriate to the action;

Page 878

(4) Unnecessary expense or trouble to the defendant not necessary to the plaintiff's own right to pursue his or her remedy;

[273 Ga.App. 245] (5) Administrative difficulties for the forum courts;

(6) Existence of local interests in deciding the case locally; and

(7) The traditional deference given to a plaintiff's choice of forum.

(Emphasis supplied.)

In turn, Section 15 of the Act sets forth the effective dates for the various provisions of the Act:

(a) This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

(b) Code Sections 51-12-31 and 51-12-33, as amended by this Act, and Code Sections 51-1-29.5, 51-2-5.1, and 51-13-1, as enacted by this Act, shall apply only with respect to causes of action arising on or after the effective date of this Act, and any prior causes of action shall continue to be governed by prior law. It is the intention of the General Assembly that all other provisions of this Act shall apply to causes of action pending on its effective date, unless such application would be unconstitutional.

(Emphasis supplied.) Finally, Section 16 provides that "[a]ll laws and parts of laws in conflict with this Act are repealed."

In light of the enactment of OCGA § 9-10-31.1 after the initial briefing in this appeal had been completed, we ordered supplemental briefing by the parties to address the impact of that provision on the superior court's Order. The Hewetts contend in their supplemental brief that OCGA § 9-10-31.1 applies in this case and mandates reversal. They contend that reversal is required because the trial court did not consider the specific factors set forth in OCGA § 9-10-31.1(a) in rendering its decision, and because the defendants did not file a written stipulation stating that they would waive the statute of [273 Ga.App. 246] limitation defense in all other states of the United States, as required by OCGA § 9-10-31.1(b).

In contrast, the defendants argue that OCGA § 9-10-31.1(a) has no impact on this case because the record reveals that the trial court already considered the factors set forth in OCGA § 9-10-31.1. They further assert that OCGA§ 9-10-31.1(b) is not applicable in this case because the subsection does not apply to actions brought by nonresident aliens injured in a foreign country where, as here, the defendants contend that the foreign country, rather than a sister state, is the more appropriate forum.

1. Applicability of OCGA § 9-10-31.1 to this case. We first address whether OCGA § 9-10-31.1 applies in this case. We conclude that it does. This action was pending as of the effective date specified in Section 15(a) of the Act--February 16, 2005--and remains pending today in this Court. Furthermore, OCGA § 9-10-31.1 is not one of the specific provisions listed in Section 15(b) of the Act as applying "only with respect to causes of action arising on or after the effective date of this Act." Thus, under Section 15(b) of the Act, OCGA § 9-10-31.1 "shall apply to causes of action pending on [the] effective date, unless such application would be unconstitutional." None of the parties have challenged the constitutionality of applying OCGA § 9-10-31.1 in this case. Accordingly, we conclude that OCGA § 9-10-31.1 governs this appeal.

2. OCGA § 9-10-31.1(a). Having concluded that OCGA § 9-10-31.1 applies in this case, we next address the impact of OCGA § 9-10-31.1(a) on the superior court's Order. As set forth above, OCGA § 9-10- 31.1(a)

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lists seven specific factors that a trial court "shall give consideration" in determining whether an action should be dismissed on the ground of forum non conveniens. As such, subsection (a) mandates that a trial court consider and weigh the factors listed therein as part of its decision-making process, and, consequently, it is an abuse of discretion for the trial court not to address each of the seven factors.

Based on our review of the hearing transcript and Order entered in this case, we are unable to determine whether the superior court considered each of the seven statutory factors in rendering its decision dismissing the case. The superior court did not make any oral findings at the hearing held on the motion, and the two-paragraph Order does not reveal the factors weighed and considered by the court. Accordingly, we must vacate the superior court's Order and remand for the court to specifically consider and weigh the seven factors enunciated in OCGA § 9-10-31.1(a).

The defendants argue that the factors listed in subsection (a) are identical to the private and public interest factors set forth by the [273 Ga.App. 247] Supreme Court of Georgia in Sigala, 274 Ga. at 138, 549 S.E.2d 373 (2001). [2] They contend that, as a result, we should presume that the superior court considered the seven factors listed in OCGA § 9-10-31.1(a) even though the court's specific thought processes are not revealed in its Order, since the superior court cited to Sigala as a basis for its decision to dismiss. We disagree.

First, the public and private interest factors discussed in Sigala, 274 Ga. at 138, 549 S.E.2d 373, are not identical to the ones listed in OCGA § 9-10-31.1(a). Specifically, OCGA § 9-10-31.1(a) includes one factor not listed as a private or public interest factor in Sigala--"The traditional deference given to a plaintiff's choice of forum." OCGA § 9-10-31.1(a)(7). The superior court's citation to Sigala as a basis for its decision in no way suggests that the court took into account and weighed that factor as part of its analysis, as mandated by OCGA § 9-10-31.1(a).

Second, even if the factors discussed in Sigala were identical to those now found in OCGA § 9-10-31.1(a), the Supreme Court of Georgia did not expressly require trial courts to consider each and every one of those factors in every case involving forum non conveniens, a situation that has now changed with the enactment of OCGA § 9-10-31.1(a). In Sigala, the Court provided an overview of the law of forum non conveniens as it has been applied under federal common law, and in doing so noted the public and private interest factors that federal courts generally have considered when they have applied the doctrine. 274 Ga. at 138, 549 S.E.2d 373. Significantly, however, the Supreme Court never specifically discussed the scope of discretion that would be afforded to Georgia trial courts in how they applied the forum non conveniens doctrine. Nor did the Supreme Court discuss whether trial courts in this state were required in every case raising a forum non conveniens defense to consider and weigh each and every public and private interest factor identified in the Court's general overview of federal law or face reversal. While the Supreme Court certainly suggested that Georgia trial courts should apply a standard similar to that of the federal courts, that is not the same as the explicit requirement now codified in OCGA § 9-10-31.1(a) that trial courts "shall" consider each and every one of the seven factors listed therein in every case raising a forum non conveniens defense. Thus, it does [273 Ga.App. 248] not follow from the superior court's citation to Sigala that the court considered each and every factor identified in OCGA § 9-10-31.1(a).

Third and finally, we refuse to presume that the superior court considered all of the statutory factors based on our conclusion that in forum non conveniens cases, trial

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courts must make oral or written findings that demonstrate that the required factors were weighed and considered by the court as part of its forum non conveniens analysis. Although the Supreme Court of Georgia has not addressed the issue, several courts in other jurisdictions have held that a trial court abuses its discretion when the record fails to show that the court specifically addressed and balanced the factors that are part of the forum non conveniens analysis. La Seguridad v. Transytur Line, 707 F.2d 1304, 1308 (11th Cir.1983); Founding Church of Scientology etc. v. Verlag, 536 F.2d 429, 436 (D.C.Cir.1976), rev'd in part on other grounds, Moncrief v. Lexington Herald-Leader Co., 807 F.2d 217 (D.C.Cir.1986).

In accordance with this principle, several courts have held that a trial court errs when it summarily dismisses a suit on the ground of forum non conveniens without written or oral substantive explanation; instead, the trial court must "supply specific reasons and develop adequate facts to support its decision." (Citations omitted.) Lacey v. Cessna Aircraft Co., 862 F.2d 38, 43(II) (3rd Cir.1988); see also In re Air Crash Disaster Near New Orleans etc., 821 F.2d 1147, 1166 (5th Cir.1987) (en banc), vacated on other grounds sub nom., Pan American World Airways, v. Lopez, 490 U.S. 1032, 109 S.Ct. 1928, 104 L.Ed.2d 400 (1989), reinstated except as to damages by In re Air Crash Disaster Near New Orleans etc., 883 F.2d 17 (5th Cir.1989) (en banc) (" In re Air Crash Disaster "); DeShane v. Deere & Co., 726 F.2d 443, 446 (8th Cir.1984); La Seguridad, 707 F.2d at 1308-1309. These "findings and conclusions should be set out in writing or clearly stated on the record." In re Air Crash Disaster, 821 F.2d at 1166(III)(B); see also DeShane, 726 F.2d at 446.

We find these decisions persuasive. The doctrine of forum non conveniens is unique in the law because it allows a trial court to dismiss a suit that otherwise meets all of the jurisdiction and venue requirements for access to our courts on the grounds of administrative efficiency and convenience. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507, 67 S.Ct. 839, 91 L.Ed. 1055 (1947); Sigala, 274 Ga. at 138, 549 S.E.2d 373. We believe that in this unique context, it is particularly important that the decision of the trial court "be an exercise in structured discretion founded on a procedural framework guiding the ... court's decision making process." (Punctuation omitted.) Lacey, 862 F.2d at 43(II), quoting In re Air Crash Disaster, 821 F.2d at 1165. In order to ensure as much, we therefore hold that before dismissing a case on the ground of forum non conveniens, a trial court must make specific [273 Ga.App. 249] findings either in writing or orally on the record demonstrating that the court has considered all seven of the factors set forth in OCGA § 9-10-31.1(a). A summary order is not sufficient. [3] It is true that "[i]n other circumstances, a summary order entered by a trial court generally is sufficient to enable the appellate court to determine whether the broad discretion vested in the trial court has been abused." Bryant v. State, 265 Ga.App. 234, 236, 593 S.E.2d 705 (2004). Even so, neither the Supreme Court of Georgia nor this Court has ever hesitated to require trial courts to make specific findings on the record under circumstances (as here) where important public policy concerns support such a rule. See, e.g., Williams v. State, 261 Ga. 640, 642(2)(b), n. 3, 409 S.E.2d 649 (1991) (trial court must explicitly determine on the record whether the State has met its burden as to each specific prong of the test for determining whether similar transaction evidence may be introduced at trial); Bryant, 265 Ga.App. at 235-236, 593 S.E.2d 705 (trial court must enter findings of fact and conclusions of law when balancing the factors involved in assessing a defendant's constitutional speedy trial claim); Friedrich v. Fidelity Nat. Bank, 247 Ga.App. 704, 707, 545 S.E.2d 107 (2001) (trial court must articulate specific reasons for its decision over the amount of attorney fees to assess in common fund cases).

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The defendants argue that the silence of OCGA § 9-10-31.1(a) as to whether trial courts must make specific findings on the record indicating that all seven statutory factors have been considered shows that the General Assembly did not intend for such findings to be required. However, when important public policy reasons exist for requiring trial courts to make specific findings on the record, mere silence of the Georgia legislature in the applicable statute has not been deemed a bar to the imposition of such a requirement.

For example, we recently reiterated that trial courts must make specific findings of fact and conclusions of law when imposing attorney fees and costs under OCGA § 9-15-14, see Mize v. Regions Bank, 265 Ga.App. 635, 636(2), 595 S.E.2d 324 (2004), even though that statute is silent as to whether specific findings are required. Such findings are particularly warranted in that context because OCGA § 9-15-14 works an exception to the baseline principle referred to as the "American Rule," under which each party is to bear his or her own attorney fees and expenses of litigation. See Friedrich, 247 Ga.App. at 705, 545 S.E.2d 107 (discussing "American Rule"). Thus, public policy reasons justified imposing a requirement that trial courts make specific findings on the record when awarding attorney fees and costs, despite [273 Ga.App. 250] legislative silence on the issue. Similarly, public policy supports the imposition of such a requirement in the forum non conveniens context because of the broad discretion afforded to trial courts to dismiss a case even though jurisdiction and venue are otherwise proper. Legislative silence in such a context serves as no bar. [4] the foregoing reasons, we vacate the superior court's Order and remand for the court to consider and weigh each of the seven factors listed in OCGA § 9-10-31.1(a) as part of its forum non conveniens analysis. We further hold that on remand the trial court should make specific findings orally or in writing showing that the court has considered and weighed each of the seven statutory factors, and making transparent the reasoning supporting the court's decision over whether to dismiss the case.

3. OCGA § 9-10-31.1(b). Because the issue will recur on remand, we also address whether, pursuant to OCGA § 9-10-31.1(b), the defendants must file a written stipulation stating that "with respect to a new action on the claim commenced by the plaintiff," they will waive the statute of limitations defense "in all other states of the United States," before the trial court may dismiss the case on the ground of forum non conveniens. In light of the plain language of OCGA § 9-10-31.1(b), we conclude that such a written stipulation "fil[ed] with the court or with the clerk of court" is a mandatory condition precedent to the dismissal of a case under the doctrine of forum non conveniens.

The defendants contend that the written stipulation requirement imposed by OCGA § 9-10-31.1(b) should not apply in this case, because the General Assembly did not intend for it to "apply to actions brought by foreign citizens for accidents which occur on foreign soil" where the allegation by the defendants is that a foreign country, rather than a sister state, would serve as the appropriate forum. In the defendants' view, the procedural requirements for such actions are instead governed solely by the Supreme Court's of Georgia decision in Sigala and the codification of that decision inOCGA § 50-2-21 , [5] neither of

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which impose a written stipulation requirement as a condition precedent to dismissal. They assert that "OCGA § 9-10-31.1 cannot be interpreted to supplant, supplement, or otherwise modify either the provisions of OCGA § 50-2-21 or the supreme court's decision in Sigala absent a clear indication of legislative intention to do so."

However, we conclude that the General Assembly provided such a clear indication when it enacted OCGA § 9-10-31.1. [6] When interpreting statutes, we give words their plain and ordinary meaning. Slakman v. Continental Cas. Co., 277 Ga. 189, 191, 587 S.E.2d 24 (2003). By its plain terms, OCGA § 9-10-31.1 applies whenever a trial court is "determining whether to grant a motion to dismiss an action ... under the doctrine of forum non conveniens" and authorizes a court to dismiss an action that "would be more properly heard in a forum outside this state." OCGA § 9-10-31.1(a). Similarly, in the preamble to the Act, the General Assembly specifically noted that the Act was intended "to provide that the courts of this state may under certain circumstances decline to decide cases under the doctrine of forum non conveniens." 2005 Georgia Laws Act 1 (S.B.3), preamble. Thus, as the absence of any limiting language indicates, the General Assembly clearly intended for OCGA § 9-10-31.1 to define the substantive and procedural requirements applicable whenever a trial [273 Ga.App. 252] court addresses the doctrine of forum non conveniens. And, included within those requirements is the newly enacted OCGA § 9-10-31.1(b), mandating that a written stipulation pertaining to statutes of limitation be filed by the defendants before "[a] court may ... dismiss a claim under this Code section." Thus, we reject the defendants' argument that the General Assembly did not intend for OCGA § 9-10-31.1(b) to apply to all actions where dismissal is predicated on the doctrine of forum non conveniens. [7] On remand, the defendants must file a written stipulation consistent with the requirements of OCGA § 9-10-31.1(b).

Judgment vacated and case remanded.

SMITH, P.J. and MILLER, J., concur.

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Notes:

[1] Although Raytheon styled its motion as one for summary judgment, the trial court treated it as a motion to dismiss. A motion brought on forum non conveniens grounds is a matter in abatement that does not resolve the merits of the dispute and does not lead to dismissal with prejudice. "Matters in abatement are ... not proper subjects for a motion for summary judgment." (Citations omitted.) Hight v. Blankenship, 199 Ga.App. 744, 745, 406 S.E.2d 241 (1991). As such, the trial court appropriately treated Raytheon's motion as a motion to dismiss. See id. (noting that trial court should "consider[ ] the substance rather than the nomenclature of the defendant's motion") (citation omitted).

[2] In Sigala, the Supreme Court of Georgia exercised its inherent authority to maintain the orderly and efficient administration of justice and adopted the common law doctrine of forum non conveniens for application in Georgia courts. 274 Ga. at 139-141, 549 S.E.2d 373. The Court held that trial courts have discretion to dismiss suits brought by nonresident aliens injured in a foreign country when there is an adequate alternative forum available and private and public interest factors weigh in favor of dismissal. Id. at 138-39, 549 S.E.2d 373. See also Gonzalez v. Dept. of Transp., 279 Ga. 230, 610 S.E.2d 527 (2005).

[3] As noted, the trial court's findings can be made orally at the end of a hearing held on the forum non conveniens issue.

[4] The defendants cite to Cooper v. State, 235 Ga.App. 66, 508 S.E.2d 447 (1998), and Lee v. White Truck Lines, 143 Ga.App. 94, 238 S.E.2d 120 (1977), for the proposition that Georgia courts have not imposed a requirement that trial courts make specific findings or articulate the basis for their decisions when the statute at issue does not by its terms expressly require as much. Even assuming that the defendants' broad interpretation of these cases is correct--compare Wood v. Notte, 238 Ga.App. 748, 519 S.E.2d 923 (1999), and Ga. Dept. of Human Resources v. Patillo, 194 Ga.App. 279, 390 S.E.2d 431 (1990)-- Cooper and Lee are distinguishable from the situation here. Neither case addressed whether this Court may impose a requirement that the trial court make specific findings when important public policy concerns counsel in favor of such a requirement, as in the attorney fees context or in the present case, and when the General Assembly has not spoken on the issue.

[5] OCGA § 50-2-21, provides:

(a) The jurisdiction of this state and its laws extend to all persons while within its limits, whether as citizens, denizens, or temporary sojourners.

(b) A court of this state may decline to exercise jurisdiction of any civil cause of action of a nonresident accruing outside this state if there is another forum with jurisdiction of the parties in which the trial can be more appropriately held. In determining the appropriateness of this state or of another forum, the court shall take into account the following factors:

(1) The place of accrual of the cause of action;

(2) The location of witnesses;

(3) The residence or residences of the parties;

(4) Whether a litigant is attempting to circumvent the applicable statute of limitations of another state; and

(5) The public factor of the convenience to and burden upon the court.

(c) Upon a motion filed not later than 90 days after the last day allowed for the filing of the moving party's answer and upon the party's showing that the existing forum constitutes an inconvenient forum based on the factors listed in subsection (b) of this Code section and where there is another forum which can assume jurisdiction, the court may dismiss the action without prejudice to its being filed in any appropriate jurisdiction on any condition or conditions that may be just.

[6] Significantly, the relevant subsections of OCGA § 50-2-21 only apply to actions filed on or after July 1, 2003. Ga. L.2003, p. 820,§ 9. The present case was filed on August 30, 2002. Thus, OCGA § 50-2-21(b) and (c) are not applicable in this case. Consequently, we do not have to resolve whether OCGA § 9-10-31.1 impliedly repeals OCGA § 50-2-21 because the two provisions can only be read as in conflict, or whether OCGA § 50-2-21 can be interpreted as setting forth a series of requirements that must be satisfied in addition to those set forth in OCGA § 9-10-31.1.

[7] We also note that the Hewetts proposed the state of Kansas as an alternative forum for litigating this suit in lieu of Australia. Thus, the written stipulation requirement imposed by OCGA § 9-10-31.1(b) is clearly relevant to this case, even though the defendants argued that Australia was the more appropriate forum, rather than a sister state.

END

Hugh Wood

Tuesday, July 26, 2011

FORUM NON CONVENIENS: An Uncommon Remedy Becomes a Common Remedy

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