Thursday, November 15, 2007
What kinds of conditions can a trial judge place on a forum non conveniens (FNC) dismissal? Essentially, the FNC inquiry asks whether the forum proposed by the defendant is more convenient than the one the plaintiff chose. Judges often condition dismissals on defendants agreeing to waive certain rights and defenses in the allegedly more convenient forum, such as personal jurisdiction or statute of limitations. Such conditions ensure that the plaintiff can sue in the alternate forum after dismissal.
In Texas and Washington, pending asbestos cases raise an interesting proper-condition issue as the lawyers strategize to avoid (and reach) the federal asbestos MDL. Both cases were filed in states with little connection to the lawsuit (but with enough connection to establish personal jurisdiction). The forums were chosen, not for convenience, but because of an important jurisdictional consideration: proper defendants were citizens of the plaintiffs’ chosen forums, thus preventing removal and transfer to the federal MDL. In both cases, the defendants moved to dismiss for FNC, arguing, quite sensibly, that where the plaintiff lived and was exposed to asbestos was a more convenient forum. No defendant was a citizen of the forums proposed to be more convenient. Thus, if the case were dismissed without condition, upon plaintiffs’ refiling in the more convenient forum, the defendants could remove and the case could end up in the federal MDL.
The same type of condition was considered in both cases. The Washington Court of Appeals remanded its case because the trial judge did not condition his FNC dismissal. There, the defendant pointed to Arkansas state court as a better forum. No one disagreed that Arkansas was better; but, if the plaintiff sued in Arkansas , the defendant could remove and ultimately reach the federal MDL court. The likelihood of removal troubled the trial judge due to the plaintiff’s terminal illness and the federal MDL’s reputation for delay. Nevertheless, he dismissed the case because he felt he could not speculate about the potential removal. The Court of Appeals reversed because the judge should have conditioned dismissal on the defendant’s consent to trial in Arkansas state court.
In a similar case pending before the Texas Supreme Court, the defendants proposed Maine as a better forum. Again, there was little dispute that Maine was better because the Plaintiff lived there and all exposure occurred there. But once again, if the case reached Maine, it would be removable and ultimately might reach the federal MDL court. When the trial judge asked the defendants to waive their removal rights, the defendants objected, arguing that the Supremacy Clause prohibited the judge from putting that choice to defendants. The judge then denied the motion to dismiss. Earlier in the case, the judge had described the federal MDL as a “black hole” where nothing ever happened.
Were these proper conditions to place on a FNC dismissal? The answer may depend on framing the question. It wouldn’t raise many eyebrows for a court to hold: When defendants propose an alternative forum as more convenient, a trial judge may condition an FNC dismissal upon the defendants’ agreement to try the case in the forum they propose as more convenient. Consider an alternative framing: A state judge may not require a defendant to waive his removal rights due to the state judge’s view that the federal court is an inadequate forum. The former seems sensible; the latter reflects Supremacy Clause concerns. Yet they are the same. --RR
- Watch yesterday’s argument before the Texas Supreme Court in In Re General Electric Co.
- The Washington Supreme Court has agreed to hear argument in the case mentioned above, Sales v. Weyerhaeuser, on November 29.