Making Forum Non Conveniens Convenient Again: Finality and Convenience for Transnational Litigation in U.S. Federal Courts

by Matthew J. Eible

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Abstract

The forum non conveniens (“FNC”) doctrine allows a federal court to dismiss a case from the U.S. legal system in favor of a more convenient foreign jurisdiction. When a party moving for dismissal under the FNC doctrine succeeds, the losing party may immediately appeal that decision as of right to an appellate court. But if the motion to dismiss for FNC is denied, the right to an appeal is unavailable until after a final judgment is issued in the case.

This dichotomy in appellate review results from Van Cauwenberghe v. Biard , where the Supreme Court held that motions to dismiss for FNC do not fall within the collateral order exception to the final judgment rule in federal courts.

Yet motions to dismiss for FNC by definition deal with transnational disputes, and the Supreme Court has recently been limiting the ability for transnational litigation to proceed in U.S. courts. This Note argues that the values underpinning the Supreme Court’s recent jurisprudence restrictive of transnational litigation—separation of powers, comity, fairness, and efficiency—similarly support the Supreme Court altering the appellate regime for denied motions to dismiss for FNC to allow for immediate appeals as of right.

Currently, there are some limited, case-by-case opportunities to seek interlocutory review of FNC denials. But these mechanisms have proven to be ineffective. Overruling Biard is the best way to alter the appellate framework for denied motions to dismiss for FNC. Doing so would strengthen the utility of the FNC doctrine and serve the Supreme Court’s interest in limiting the volume of transnational litigation heard in U.S. federal courts.

Making Forum Non Conveniens Convenient Again: Finality and Convenience for Transnational Litigation in U.S. Federal Courts

by Matthew J. Eible

Click here for a PDF file of this article

Abstract

The forum non conveniens (“FNC”) doctrine allows a federal court to dismiss a case from the U.S. legal system in favor of a more convenient foreign jurisdiction. When a party moving for dismissal under the FNC doctrine succeeds, the losing party may immediately appeal that decision as of right to an appellate court. But if the motion to dismiss for FNC is denied, the right to an appeal is unavailable until after a final judgment is issued in the case.

This dichotomy in appellate review results from Van Cauwenberghe v. Biard , where the Supreme Court held that motions to dismiss for FNC do not fall within the collateral order exception to the final judgment rule in federal courts.

Yet motions to dismiss for FNC by definition deal with transnational disputes, and the Supreme Court has recently been limiting the ability for transnational litigation to proceed in U.S. courts. This Note argues that the values underpinning the Supreme Court’s recent jurisprudence restrictive of transnational litigation—separation of powers, comity, fairness, and efficiency—similarly support the Supreme Court altering the appellate regime for denied motions to dismiss for FNC to allow for immediate appeals as of right.

Currently, there are some limited, case-by-case opportunities to seek interlocutory review of FNC denials. But these mechanisms have proven to be ineffective. Overruling Biard is the best way to alter the appellate framework for denied motions to dismiss for FNC. Doing so would strengthen the utility of the FNC doctrine and serve the Supreme Court’s interest in limiting the volume of transnational litigation heard in U.S. federal courts.