Donald Hayden, Mark Migdal & Hayden

“Good fences make good neighbors.” Robert Frost, “Mending Wall”

In a time when we speak of the need for walls on our borders, we are also seeing a revival of the application of the doctrine of forum non conveniens to send matters involving foreign law, foreign litigants and having little or no impact on U.S. public policy back to a more convenient forum found elsewhere. For too long, U.S. jurists particularly in “gateway” jurisdictions like Florida felt more inclined to be the “default” courthouse for all global disputes and act as policeman to the world. These altruistic efforts on the part of both federal and state jurists are inconsistent with the realities of today, and not at all practical in execution especially given the budget tightening requirements place upon our judicial systems, which for the most part are already heavily congested. As of 2017, reports show that both the state and federal judicial caseloads continue to rise year over year. At the same time, the judiciaries are required to handle their congested dockets on significantly reduced budgets.

While the doctrine of forum non conveniens has been around in the federal courts since it was adopted by the U.S. Supreme Court in Gulf Oil v. Gilbert, 330 U.S.  501 (1947) and codified as federal statute thereafter, the Florida state courts adopted the doctrine much later. See, Kinney System v. Continental Insurance, 674 So. 2d 88 (Fla. 1996), and its subsequent progeny. The analysis followed by the state and federal courts is essentially the same. There are four major factors when determining whether there is a more convenient forum available: first, determining if an adequate forum is available; second, weighing private factors that pertain to the interests and conveniences of the parties including all the practical considerations that would make the process easier, more expeditious and less expensive; third, weighing public interest factors like the alternative forum's interest in deciding the dispute, the administrative burden it would impose, or the need to apply the law of a foreign jurisdiction to resolve the matter; and finally, that the plaintiff could easily reinstate its claims in the alternative forum.

In the last few decades of deciding forum non conveniens motions, based in large part upon public policy, both the state and federal courts in Florida leaned heavily toward accepting “foreign” cases due to very legitimate concerns about government corruption, or lack of confidence in the alternative judicial system providing the litigants basic due process, but the current tide is turning more toward relocating cases to the most appropriate forum, especially when it is the majority of the  litigants' country of origin. Florida courts have certainly become more circumspect, and just establishing some “minimum contacts” for jurisdictional purposes does not ensure that a foreign litigant will get a U.S. style jury trial resolution of its disputes.

Recent cases out of the state and federal courts have been much more liberal in sending cases to a more appropriate forum on forum non conveniens grounds, and especially in cases where the parties have pre-determined the intended forum for their disputes through valid forum selection clauses (Aviation One of Florida v. Airborne Insurance Consultants,722 Fed. Appx. 870 (11th Cir. 2018)), or where the plaintiff is shopping for a friendly forum after not obtaining the relief it sought in its home forum (order granting forum non conveniens dismissal in SMC Pnuematicos do Brasil v. Visconte, Case No. 50-2018-CA-003030-XXXX-MB in Circuit Court of 15th Judicial Circuit in and for Palm Beach County dated Sept. 13, 2018). In fact, some recent cases granting dismissal based upon forum non conveniens have found that private and public factors trump previous precedent that gave deference to United States plaintiffs' choices of forum, see Aaron Data Systems v. GLD International, 2018 WL 1973653 (S. D. Fla. March 23, 2018).

We should anticipate U.S. courts more liberally granting forum non conveniens motions in part to address the cuts in the funding of our judicial systems and congestion of their dockets unless U.S. courts, and Florida courts in particular, want to be the courthouse for all global disputes. In that case, the judiciary needs more funding and we need more judges in place to address the growing number of these cross-border disputes.

Don Hayden is partner with Miami boutique litigation law firm Mark Midgal & Hayden. With more than 32 years of experience as reputable commercial litigator and international arbitrator, he serves clients in multiple jurisdictions and is widely known for his litigation expertise in the courtroom and considerable pro bono work.