Tuesday, December 9, 2008

Forum Non Conveniens and the "American" Presumption

Judge Posner, writing for a panel of the Seventh Circuit Court of Appeals recently affirmed a district court's dismissal on forum non conveniens of a diversity suit brought under 28 U.S.C. § 1332(d)(2)(C).  The plaintiff was a wholly owned subsidiary of a Japanese company incorporated in Delaware that invested in a limited partnership which bought a building in Chicago.  The limited partnership was also incorporated in Delaware with a principal place of business in Japan, and all the partners had Japanese addresses.  The bulk of the opinion is dedicated to the plaintiff's argument that there is a strong presumption in favor of the plaintiff's choice of forum, "especially if the plaintiff is an American and the forum is an American court."  The court quickly dismissed that argument and seemed to scold the plaintiff's counsel declaring that "the plaintiff's lawyers refuse to acknowledge that their client is 'American' in only the most artificial sense."  Judge Posner then went on to explain that "Courts need to look behind an assertion that the plaintiff is 'American,' moreover, to determine whether the party has the sort of ties with the United States that make the American judicial forum convenient."  So there would be no confusion as to the relevance of the presumption following this opinion, the court declared "the presumption is fine, but it is not to be treated, as the plaintiff would have us do, as a nigh-insurmountable obstacle to dismissal."

Read the full opinion here.



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