If there is a topic in the whirlwind course that is now Civil Procedure that law professors give relatively short shrift to, it is the doctrine of forum non conveniens. Sandwiched among personal jurisdiction, venue, and subject matter jurisdiction, forum non conveniens is the fly-over country of procedure land. Procedure teachers typically have enough time to hit the highlights: Gulf Oil Co. v. Gilbert and Piper Aircraft v. Reyno. This cursory exploration of forum non conveniens usually ends with the passing observation that states, too, have their own doctrines of forum non conveniens.
Dodge, Gardner, and Whytock have undertaken the definitive study of state doctrines of forum non conveniens, which I view with no small degree of admiration. The authors are to be commended for delving into the largely ignored landscape of state procedural law, which is always a challenging task. Their study answers practically everything you might ever want to know about federal and state forum non conveniens and provides law professors with substantial data to voice something more than passing reference to state doctrines. More importantly, the authors locate their findings in a conversation about procedural federalism—how courts and rule makers spread procedural innovations throughout the state and federal systems through a process of diffusion.
The Many State Doctrines of Forum Non Conveniens accomplishes four goals. The article debunks commonplace myths about the origins of forum non conveniens in federal and state courts. It sets forth an exhaustive survey of forum non conveniens in fifty-one jurisdictions. The study comprehensively analyzes differences among state doctrines and the reasons for and consequences of those differences. Finally, the paper contextualizes its findings in a social science framework of procedural federalism, defined as the set of relationships between federal and state actors affecting the development of procedural rules. This section challenges federal courts scholars to consider the ways in which state and federal procedural doctrines arise and interact to affect dispute resolution in a dual court system with overlapping jurisdiction.
The authors provide much surprising history. They debunk the myth that federal and state courts routinely recite, that forum non conveniens is an ancient doctrine with deep roots in the common law, rather than a twentieth-century creation. When the Court decided Gulf Oil in 1947, nine states acknowledged judicial discretion to dismiss cases. Georgia, Montana, Oregon, Rhode Island, and South Dakota did not adopt forum non conveniens until the twenty-first century, while Idaho has no such doctrine. States originally limited forum non conveniens dismissals to international or domestic foreign-cubed litigation (where the plantiffs, defendants, and events are outside the forum state). And there is no one doctrine of forum non conveniens among states, but much variation.
Their empirical findings offer a tour-de-force survey of forum non conveniens doctrines in the fifty states and the District of Columbia. It begins with an engaging narrative of the origins of forum non conveniens–too many foreign ships and crews in American ports seeking access to federal courts to resolve claims. This segues to the gradual state court adoption of limited notions of forum non conveniens, largely centered on the status of the parties and claims. The authors focus on Federal Employers’ Liability Act (FELA) actions as a twentieth-century crucible through which state courts considered discretion to decline jurisdiction over actions involving no state residents or in-state claims and how FELA contributed to the problem of plaintiff forum-shopping. The article then discusses Piper Aircraft, which expanded the doctrine to international foreign plaintiffs suing in-state local domestic corporations; state courts followed Piper’s reduced deference to foreign plaintiffs’ choice of forum. Finally, the authors consider how state tort reform movements sought to expand forum non conveniens through statutes intended to override judicial reticence to apply the doctrine, particularly in foreign personal injury litigation.
The authors next analyze the similarities and differences among state doctrines compared to federal law, finding a significant number of states “have chartered independent courses.” Thirty-three states and the District of Columbia follow the basic federal model, while one-third of states diverge from the federal model in one or more significant ways; this suggests that federal procedural law exerts a “gravitational” pull on the states. But their findings do not suggest “rampant mimicry” among the states. Five states have eliminated the federal threshold requirement of an alternative available forum; some states differ in the deference to be accorded to the plaintiff’s choice of forum; and nine states differ from federal law in the balancing of factors. Six states exclude from forum non conveniens local plaintiffs and/or local causes of action, or both.
In view of this empirical data, the authors locate the discussion about forum non conveniens in the broader context of procedural federalism. This discussion has much to recommend to federal courts scholars with scant familiarity with this political science literature. They apply lessons from political science policy diffusion theory to identify what drives convergence and divergence in procedural law development. They discuss how courts with concurrent jurisdiction assert hydraulic pressure, competition, momentum, and emulation to adopt or reject procedural rules or doctrines. This can inspire cross-doctrinal comparisons in other areas of procedural law. It recommends a different approach to procedural history than federal courts scholars currently embrace, highlighting instead a dynamic and iterative evolution of doctrinal reforms.
