law-forum-non-conveniens-inconvenient forum FNC
Unless the balance weighs heavily in favor of the defendant, a court should rarely disturb the
plaintiff's choice of forum. In re ENSCO Offshore Intern. Co., 311 S.W.3d 921, 928-29 (Tex. 2010).
The defendant bears the burden of proving the factors are in its favor. Id.
FORUM NON CONVENIENS
Generally, courts are required to determine questions of jurisdiction before reaching the merits of a
case. See Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). We
further recognize that the doctrine of forum non conveniens applies only if the trial court has
jurisdiction over the parties. See Exxon Corp. v. Choo, 881 S.W.2d 301, 302 n. 2 (Tex. 1994)
("Before a court may invoke forum non conveniens, the court must find that it has jurisdiction over
the defendant."). Nonetheless, the United States Supreme Court has held that certain non-merits,
non-jurisdictional issues, such as forum non conveniens, may be decided before jurisdictional
issues under the proper circumstances. For example, in Sinochem Int'l Co. v. Malaysia Int'l Shipping
Corp., 549 U.S. 422, 432, 127 S. Ct. 1184, 1192 (2007), the United States Supreme Court held that
the question of forum non conveniens can be addressed before considering whether subject matter
jurisdiction exists. Id. at 1188 (explaining that "a district court has discretion to respond at once to a
defendant's forum non conveniens plea, and need not take up first any other threshold objection[,]"
including subject matter jurisdiction or personal jurisdiction). "A district court therefore may dispose
of an action by a forum non conveniens dismissal, bypassing questions of subject-matter and
personal jurisdiction, when considerations of convenience, fairness, and judicial economy so
warrant." Id. at 1192 (stating that forum non conveniens dismissal "denies audience to a case on
the merits" and "is a determination that the merits should be adjudicated elsewhere" (internal
quotation marks and brackets omitted)). Thus, Sinochem stands for the proposition that certain
non-merits, non-jurisdictional issues may be addressed preliminarily, because "[j]urisdiction is vital
only if the court proposes to issue a judgment on the merits." Id. at 1191-92; see Forsythe v. Saudi
Arabian Airlines Corp., 885 F.2d 285, 290 (5th Cir. 1989) (concluding that disposal of case on
forum non conveniens grounds obviated need to consider subject matter jurisdiction); see also
Leroy v. Great W. United Corp., 443 U.S. 173, 180, 99 S. Ct. 2710, 2715 (1979) (upholding
decision to address venue before jurisdiction). In this case, judicial economy is best served by
addressing the forum non conveniens issue first because it pertains to the dismissal of Vinmar's
claims against Utility and Kenworth. In contrast, the trial court's grant of the special appearance
disposed of Vinmar's claims against Utility only.
Principles of Forum Non Conveniens
Forum non conveniens is an equitable doctrine exercised by courts to prevent the imposition of an
inconvenient jurisdiction on a litigant. Exxon Corp. v. Choo, 881 S.W.2d 301, 302 (Tex. 1994). A
trial court will exercise the doctrine of forum non conveniens when it determines that, for the
convenience of the litigants and witnesses and in the interest of justice, the action should be
instituted in another forum. See id. In short, the "central focus of the forum non conveniens inquiry
is convenience." Quixtar Inc. v. Signature Management Team, LLC, 315 S.W.3d 28, 33 (Tex. 2010)
(quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235, 249, 102 S. Ct. 252, 262 (1981)).
Building on its holding in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S. Ct. 839 (1947), the Supreme
Court set out the framework for analyzing forum non conveniens in an international context in Piper
Aircraft. First, "the court must determine whether there exists an alternative forum." Piper Aircraft,
454 U.S. at 255, n.22, 102 S. Ct. at 265. The court considers the amenability of the defendant to
service of process and availability of an adequate remedy in the alternative forum. See id., 454 U.S.
at 255 n.22, 102 S. Ct. at 265; In re General Elec. Co., 271 S.W.3d 681, 688 (Tex. 2008) (orig.
proceeding). Second, the court must determine which forum is best suited to the litigation. See
Piper Aircraft, 454 U.S. at 255, 102 S. Ct. at 265. In performing this second step, a court must
consider whether certain private and public interest factors weigh in favor of dismissal. See Gulf Oil,
330 U.S. at 508, 67 S. Ct. at 843. A court must be mindful that "the ultimate inquiry is where trial will
best serve the convenience of the parties and the interests of justice." Koster v. Am. Lumbermens
Mutual Casualty Co., 330 U.S. 518, 527, 67 S. Ct. 828, 833 (1947).
The defendants bear the burden of proof on all elements of the forum non conveniens analysis and
must establish that the balance of factors strongly favors dismissal. See RSR Corp. v. Siegmund,
309 S.W.3d 686, 710-11 (Tex. App.-Dallas 2010, no pet.); see also DTEX, LLC v. BBVA Bancomer,
S.A., 508 F.3d 785, 794 (5th Cir. 2007). Ordinarily, a defendant seeking forum non conveniens
dismissal "bears a heavy burden in opposing the plaintiff's chosen forum." Sinochem Int'l Co., Ltd.
v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 430, 127 S. Ct. 1184, 1191 (2007); see Gulf Oil, 330
U.S. at 508, 67 S. Ct. at 843 ("[U]nless the balance is strongly in favor of the defendant, the
plaintiff's choice of forum should rarely be disturbed.").
Nonetheless, a plaintiff's choice of forum is not dispositive. Piper Aircraft, 454 U.S. at 255-56 n.23;
see DTEX, 508 F.3d at 795. The Piper Aircraft court explained,
Citizens or residents deserve somewhat more deference than foreign plaintiffs, but dismissal should
not be automatically barred when a plaintiff has filed suit in his home forum. As always, if the
balance of conveniences suggests that trial in the chosen forum would be unnecessarily
burdensome for the defendant or the court, dismissal is proper.
Piper Aircraft, 454 U.S. at 255-56 n. 23
As recognized by the Fifth Circuit in Dtex,
Judicial concern for allowing citizens of the United States access to American courts has been
tempered by the expansion and realities of international commerce. When an American corporation
doing extensive foreign business brings an action for injury occurring in a foreign country, many
courts have partially discounted the plaintiff's preference of a United States forum.
Dtex, 508 F.3d at 795. The court recognized,
In an era of increasing international commerce, parties who choose to engage in international
transactions should know that when their foreign operations lead to litigation they cannot expect
always to bring their foreign opponents into a United States forum when every reasonable
consideration leads to the conclusion that the site of the litigation should be elsewhere.
Id. (quoting Mizokami Bros. of Ariz., Inc. v. Baychem Corp., 556 F.2d 975, 977 (9th Cir. 1977)); see
also Base Metal Trading SA v. Russian Aluminum, 253 F. Supp. 2d 681, 696 (S.D.N.Y. 2003)
(explaining that "[w]here an American plaintiff chooses to invest in a foreign country and then
complains of fraudulent acts occurring primarily in that country, the plaintiff's ability to rely upon
citizenship as a talisman against forum non conveniens dismissal is diminished").
TEXAS SUPREME COURT CASES ON FNC
In re ENSCO Offshore Intern. Co., 311 S.W.3d 921 (Tex. 2010) (orig. proceeding) (per curiam);
In re Pirelli Tire, L.L.C., 247 S.W.3d 670, 679 (Tex. 2007) (orig. proceeding).
COURT OF APPEALS CASES
JUDY S. BAGGS AND MICHAEL J. BAGGS v. DENNIS BECKER AND SHANNON BRAY; from Bastrop
County; 3rd district (03-07-00731-CV, ___ SW3d ___, 02-06-09, pet. denied June 2009)
(grandparent suit, inconvenient forum, Florida)