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Forum Non Convenience

Forum non convenience is a Latin phrase for an inconvenient court.  This signifies a discretionary power exercised by the common law courts to refuse to hear any case brought before it.  The court exercises this power when it is convinced that there is a more appropriate forum available to the parties.

The defendant may move to dismiss an action on the ground of Forum Non Convenience. This doctrine is invoked when the plaintiff properly files a suit within the jurisdiction of the court, but when the court and the defendant find it inconvenient to have a trial in the original jurisdiction. The court balances convenience against the plaintiff’s choice of forum.  To conclude on the forum non convenience motion, defendant must show the court a compelling reason to change jurisdiction.  If transferring the case may shift the inconvenience from one party to another the court may not alter the plaintiff’s choice of forum

To grant a Forum Non Convenience motion, the court considers the following factors:

1) The location of potential witnesses. The defendant must make detailed showing, of the names and locations of the witnesses and the importance of their testimony for the defense and setting forth how they may be inconvenienced by having to testify in the court chosen by plaintiff.

2)  The location of relevant evidence and records. The defendant must identify the records; add an explanation; and specifically rule out the existence of duplicate records in the jurisdiction chosen by the plaintiff.

3)  Possible undue hardship for the defendant. The defendant must explain what the hardship is and how material the costs are.  To prove his hardship, the standard that the defendant must meet is “overwhelming hardship” if they are required to litigate in the forum’s State.

4)  Availability of adequate alternative forums for the plaintiff and the expeditious use of judicial resources.

5)  The choice of law applicable to the dispute should essentially be considered.  If all other factors weigh in favor of keeping the case in the jurisdiction where it was filed, then the court may choose between application of local law or relevant foreign law. Therefore the mere fact that foreign law may apply to case is not a valid reason to dismiss the case on Forum Non Convenience grounds.

6)  Questions of public policy are also considered by the court in deciding the motion for non convenience.   While analyzing the factors, if the subject matter of the complaint touch on a sensitive issue that is important to the laws of either the original jurisdiction or the alternative forum. Those public policy issues must be pinpointed, analyzed and briefed in a way that makes it clear why this issue overrides the other factors.

In addition, the court considers factors such as place where the cause of action arose; the identities of the parties; vexatious motive; Jurisprudential development and political conditions at the foreign forum.

The determination of the court should not be arbitrary or abusive as the forum non convenience issue is a drastic remedy to be applied with caution and restraint.

To transfer a trial to a jurisdiction outside the U.S., courts shall grant the transfer only if it finds that a foreign court is “more appropriate” and that there may be a real opportunity to obtain justice there.

State legislatures try to limit the availability of the Forum Non Convenience doctrine to make local jurisdictions more plaintiff friendly.  For example, in Texas, parties in product liability cases may not invoke this rule.

Inside Forum Non Convenience