Forum Non Conveniens Is About Fairness to Everyone (Not Just You)

If you get sued in an inconvenient, far-away forum and want the court to consider moving the case to a court closer to home–and you want to flex your Latin proficiency–file a motion for “forum non conveniens.” This common law doctrine allows a court to dismiss or transfer a case, even one filed properly in a permissible venue, if an alternative forum is available and would be more convenient to the parties and witnesses. The doctrine is codified at 28 U.S.C. § 1404 (applicable in federal court) and Va. Code § 8.01-265 (applicable in state court). When bringing such a motion, however, keep in mind that the court is going to want to look at the totality of the circumstances and not just what’s most convenient to the moving party.

A party seeking to dismiss a case for forum non conveniens must show that an alternative forum is (1) available; (2) adequate; and (3) more convenient in light of the public and private interests involved. (See Jiali Tang v. Synutra Int’l, Inc., 656 F.3d 242, 248 (4th Cir. 2011)). The party seeking dismissal or transfer has the burden of persuading the trial court that considerations of convenience, fairness, and judicial economy warrant invoking forum non conveniens. (See Galustian v. Peter, 591 F.3d 724, 731 (4th Cir. 2010); Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 432 (2007)). In examining the convenience of parties and the interests of justice, courts will typically consider one or more of the following factors:

  1. the plaintiff’s choice of forum;
  2. the state that is most familiar with the governing law;
  3. the location where agreements were negotiated and executed;
  4. the parties’ contacts with the forum;
  5. the contacts relating to plaintiff’s cause of action in the chosen forum;
  6. the cost of litigation in the competing forums;
  7. the location of witnesses;
  8. the availability of compulsory process to compel attendance of unwilling non-party witnesses;
  9. the ease of access to sources of proof; and
  10. the existence of a valid forum-selection clause in a contract between the parties.

The plaintiff’s choice of venue carries great weight:

Under 28 U.S.C. § 1404 it is generally recognized that ‘plaintiff’s choice of forum should rarely be disturbed unless the balance is strongly in favor of defendant.’ Bertnick v. Home Fed. Sav. & Loan Ass’n, 337 F.Supp. 968, 970 (W.D. Va. 1972). ‘The plaintiff has primary right to choose his forum and that selection is not to be easily overthrown.’

Eldridge v. Bouchard, 620 F. Supp. 678, 684 (W.D. Va. 1985) (quoting Akers v. N & W Ry. Co., 378 F.2d 78, 80 (4th Cir. 1967)). A mandatory forum-selection clause can also be dispositive. (See Atl. Marine Const. Co. v. U.S. Dist. Ct. for W. Dist. of Texas, 571 U.S. 49, 62 (2013) (“When the parties have agreed to a valid forum-selection clause, a district court should ordinarily transfer the case to the forum specified in that clause. Only under extraordinary circumstances unrelated to the convenience of the parties should a § 1404(a) motion be denied.”)

As made clear by a recent opinion from the Western District of Virginia, courts will not be sympathetic to a forum non conveniens argument that asks the court to simply shift the inconvenience from the defendant to the plaintiff. In Sourcetech, LLC v. DeatschWerks, LLC, Sourcetech, a Virginia company based in Frederick County, sued DeatschWerks, an Oklahoma company based in Oklahoma City, for allegedly violating a non-competition and non-solicitation agreement and for misappropriating certain designs and other proprietary work. US-map-300x200The sued was filed in Frederick County Circuit Court. DeatschWerks removed the case to federal court and moved to transfer the case to the Western District of Oklahoma.

The court was not impressed with DeatschWerks’ proffered reasons for transfer. DeatschWerks argued that its witnesses reside in Oklahoma City and would be inconvenienced by the case being litigated and tried in Virginia, and that it would suffer hardship by not being able to compel the attendance of non-party witnesses in Virginia. It didn’t identify any specific witnesses, elaborate on the extent of the inconvenience, or explain why their testimony was so important. Sourcetech, on the other hand, identified an engineering consultant in Hagarstown, Maryland, as well as its accountant and controller in Berryville, Virginia, who would be inconvenienced by a trial in Oklahoma. Sourcetech produced affidavits previewing their anticipated testimony.

“Ultimately,” held the court, “DeatschWerks failed to meet its heavy burden of demonstrating that transfer would do anything more than shift the inconvenience of litigating in a different state from DeatschWerks to Sourcetech and subvert Sourcetech’s choice of forum. Therefore, the motion to transfer will be denied.”


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