Forum Non-Conveniens: Where and When Does This Make Sense?
The doctrine of forum non-conveniens has nothing to do with avoiding a bad tour guide in Rome. Though that may provide a more interesting article, the doctrine actually provides a mechanism for a party (or the court) to move a case from one jurisdiction to another, such as another U.S. state or foreign country. Maybe even Italy….
Code of Civil Procedure (C.C.P.) §410.30 provides when “in the interest of substantial justice” an action filed in California should be adjudicated elsewhere, it may stay or dismiss the action on such conditions as may be just. This statute simply codifies the common law doctrine of forum non-conveniens, which is an equitable doctrine invoking the discretionary power of the court to decline to exercise jurisdiction over a case when it believes the action may be more appropriately and justly tried elsewhere. Stangvik v. Shiley Inc. (1994) 54 Cal.3d 744, 751. Thus, a defendant may not be forced to defend a case in a jurisdiction in which it believes a fair trial cannot be conducted. This doctrine should not be confused with a motion for change of venue, which typically involves moving a case from one California County to a different county within the state. See, C.C.P. 397.
The recent case of Aghaian v. Minassian (2015 WL 661169 (Cal.App. 2 Dist., 2/17/15)), summarizes and illustrates the application of the forum non-conveniens doctrine very well. There, plaintiffs sued three defendants in California (Los Angeles County) related to powers of attorney covering properties located in Iran. One of the defendants filed a motion to stay the action, or alternatively dismiss the action, under the doctrine of forum non-conveniens in an effort to move the case to Iran. The defendant argued the Iranian civil court provides a suitable forum for an action brought by Iranian citizens against Iranian citizens, involving a dispute over real properties located in Iran. Id. at 1.
Noting that a court can stay or dismiss an action when it could be heard more appropriately in a jurisdiction outside of California, the appellate court addressed the threshold requirement that the alternative forum be a “suitable place for trial.” This issue is satisfied “so long as there is jurisdiction and no statute of limitations bar.” Id. at 2, citing Shiley v. Superior Court (1992) 4 Cal.App.4th 126, 132. If that standard is met the court moves on to the second prong of the analysis, which is balancing the private interests of the litigants and the interests of the public in retaining the action in California.” Id. at 2. Here, the moving defendant waived any statute of limitations defense, so the first prong was essentially satisfied. Moving to the second prong of the analysis is where this case gets interesting and departs from the run-of-the-mill forum non-conveniens cases.
The moving defendant declared he was a citizen of Iran and would submit to its jurisdiction. Other declarations filed on behalf of the moving defendant attested Iranian law is based on a mix of civil law, with roots in Belgian and French civil laws, though they must not directly conflict with defined Islamic tenets. Id. at 3. The moving defendant also claimed balancing the interests favored litigating the matter in Iran because most of the witnesses, documents and properties were located there. Id.
The plaintiffs opposed the motion with their own declarations. Those declarants stated Iran does not afford the same rights and protections to the plaintiff the American legal system does, is biased against women such as two of the plaintiffs, requires the application of Islamic law against non-Muslims (as plaintiffs were) and is biased against those who left Iran at the time of the Islamic revolution in 1979. Id.
In weighing these factors, the appellate court in Aghaian reversed the trial court’s decision that granted the motion and concluded Iran was not a suitable forum for the case. The appellate court believed, per the opposing declaration, plaintiffs could not have an Iranian trial free from discrimination based on gender or religion, as guaranteed by the Due Process Clause of the constitution. Id. at 4. The court further found the evidence submitted by plaintiffs was “overwhelming that Iranian courts discriminate against woman and non-Muslims.” Id. at 5. This evidence led the court to conclude this case was one of the “rare” circumstances in which an alternative forum “provides no remedy at all.” Id. Thus, the case remained in Los Angeles to be tried.
Assuming your case does not involve a request to move the case to Iran, the potential success of a motion under C.C.P. §410.30 should be a closer call. However, a defendant’s burden remains quite heavy to succeed on such motion. Where a plaintiff is a California resident, there is a “strong presumption” in favor for their choice of forum. See, N.F.L. v. Fireman’s Fund Ins. Co. (2013)216 Cal.App.4th 902, 926-927. Even a non-resident plaintiff’s choice of forum is entitled to “due deference,” though not a “strong presumption.” Id. at 929-930. But if your circumstances lead you to believe trial elsewhere may be more advantageous, the forum non-conveniens doctrine remains an available tool in your litigation arsenal.
ABOUT THE AUTHOR: Mark Petersen is senior counsel at Tyson & Mendes LLP. He specializes in personal injury, insurance coverage, and bad faith litigation . Contact Mark at 858.263.4111 or firstname.lastname@example.org.
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