PIERRE N. LEVAL and JOSÉ A. CABRANES, Circuit Judges.
Our court convened this rehearing en banc not out of dissatisfaction with the panel's disposition, Iragorri v. Int'l Elevator, Inc., 243 F.3d 678 (2d Cir.2001) (per curiam), but because we believed that it would be useful for the full court to review the relevance of a plaintiff's residence in the United States but outside the district
On October 3, 1992, Mauricio Iragorri — a domiciliary of Florida since 1981 and a
The Iragorris brought suit in the United States District Court for the District of Connecticut (Arterton, J.) on September 30, 1994. The named defendants were Otis Elevator Company ("Otis"), a New Jersey corporation with its principal place of business in Connecticut; United Technologies Corporation ("United") — the parent of Otis — a Delaware corporation whose principal place of business is also in Connecticut; and International Elevator, Inc. ("International"), a Maine corporation, which since 1988 had done business solely in South America. It is alleged that prior to the accident, an employee of International had negligently wedged open the elevator door with a screwdriver to perform service on the elevator, thereby leaving the shaft exposed and unprotected.
The complaint alleged two theories of liability against defendants Otis and United: that (a) International acted as an agent for Otis and United so that the negligent acts of its employee should be imputed to them, and (b) Otis and United were liable under Connecticut's products liability statute for the defective design and manufacture of the elevator which was sold and installed by their affiliate, Otis of Brazil.
On February 12, 1998, the claims against International Elevator were transferred by Judge Arterton to the United States District Court for the District of Maine. That district court then dismissed the case against International Elevator on forum non conveniens grounds, and the First Circuit affirmed. Iragorri v. Int'l Elevator, Inc., 203 F.3d 8 (1st Cir.2000).
Defendants Otis and United meanwhile moved to dismiss under forum non conveniens, arguing that plaintiffs' suit should be brought in Cali, Colombia, where the accident occurred. On March 31, 1999, Judge Arterton granted the motion and dismissed the claims against Otis and United on the condition that they agree to appear in the courts of Cali. Iragorri v. United Techs. Corp., 46 F.Supp.2d 159 (D.Conn.1999).
A panel of this Court vacated and remanded to the District Court for reconsideration in light of our recent decisions on forum non conveniens. Iragorri, 243 F.3d at 680-81. Nearly simultaneously, this Court issued the order to hear the case en banc.
I. The Degree of Deference Accorded to Plaintiff's Choice of Forum
The United States Supreme Court authorities establish various general propositions about forum non conveniens. We are told that courts should give deference to a plaintiff's choice of forum. "[U]nless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed." Gulf Oil
At the same time, we are led to understand that this deference is not dispositive and that it may be overcome. Notwithstanding the deference, "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 Co. v. Reyno, 454 U.S. 235, 256 n. 23, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981).
We are instructed that the degree of deference given to a plaintiff's forum choice varies with the circumstances. We are told that plaintiff's choice of forum is generally entitled to great deference when the plaintiff has sued in the plaintiff's home forum. Koster v. (Am.) Lumbermens Mut. Cas. Co., 330 U.S. 518, 524, 67 S.Ct. 828, 91 L.Ed. 1067 (1947); see also Piper, 454 U.S. at 255-56, 256 n. 23, 102 S.Ct. 252. But we are also instructed that the choice of a United States forum by a foreign plaintiff is entitled to less deference. Piper, 454 U.S. at 255-56, 102 S.Ct. 252 ("The District Court's distinction between resident or citizen plaintiffs and foreign plaintiffs is fully justified.... When the plaintiff is foreign, ... [the] assumption [favoring the plaintiff's choice of forum] is much less reasonable.").
In our recent cases on the subject of forum non conveniens, our Court has faced situations involving a fact pattern not directly addressed by the Supreme Court: a United States resident plaintiff's suit in a U.S. district other than that in which the plaintiff resides. As a full court, we now undertake to apply to this general fact pattern the principles that we find implicit in Supreme Court precedents.
We regard the Supreme Court's instructions that (1) a plaintiff's choice of her home forum should be given great deference, while (2) a foreign resident's choice of a U.S. forum should receive less consideration, as representing consistent applications of a broader principle under which the degree of deference to be given to a plaintiff's choice of forum moves on a sliding scale depending on several relevant considerations.
The Supreme Court explained in Piper that the reason we give deference to a plaintiff's choice of her home forum is because it is presumed to be convenient. Id. at 255-56, 102 S.Ct. 252. ("When the home forum has been chosen, it is reasonable to assume that this choice is convenient.") In contrast, when a foreign plaintiff chooses a U.S. forum, it "is much less reasonable" to presume that the choice was made for convenience. Id. at 256, 102 S.Ct. 252. In such circumstances, a plausible likelihood exists that the selection was made for forum-shopping reasons, such as the perception that United States courts award higher damages than are common in other countries. Even if the U.S. district was not chosen for such forum-shopping reasons, there is nonetheless little reason to assume that it is convenient for a foreign plaintiff.
Based on the Supreme Court's guidance, our understanding of how courts should address the degree of deference to be given to a plaintiff's choice of a U.S. forum is essentially as follows: The more it appears that a domestic or foreign plaintiff's choice of forum has been dictated by
The decision to dismiss a case on forum non conveniens grounds "lies wholly within the broad discretion of the district court and may be overturned only when we believe that discretion has been clearly abused." Scottish Air Int'l, Inc. v. British Caledonian Group, PLC, 81 F.3d 1224, 1232 (2d Cir.1996) (emphasis added). In other words, "[o]ur limited review ... encompasses the right to determine whether the district court reached an erroneous conclusion on either the facts or the law," Guidi, 224 F.3d at 145 (internal quotation marks omitted); Capital Currency Exch., N.V. v. Nat'l Westminster Bank PLC, 155 F.3d 603, 609 (2d Cir.1998) ("Our review of a forum non conveniens dismissal is extremely limited." (emphasis added)), or relied on an incorrect rule of law in reaching its determination, Wiwa, 226 F.3d at 103. Accordingly, we do not, on appeal, undertake our own de novo review, simply substituting our view of the matter for that of the district court. Nonetheless, the district court must follow the governing legal standards. In our recent cases, we vacated dismissals for forum non conveniens because we believed that the district courts had misapplied the basic rules, apparently assuming that deference is given to the plaintiff's choice of forum only when the plaintiff sues in the plaintiff's home district.
The rule is not so abrupt or arbitrary. One of the factors that necessarily affects a plaintiff's choice of forum is the need to sue in a place where the defendant is amenable to suit. Consider for example a hypothetical plaintiff residing in New Jersey, who brought suit in the
II. The Assessment of Conveniences
The deference given to a plaintiff's choice of forum does not dispose of a forum non conveniens motion. It is only the first level of inquiry. Even after determining whether the plaintiff's choice is entitled to more or less deference, a district court must still conduct the analysis set out in Gilbert, Koster, and Piper.
The court also considers public interest factors. As the Supreme Court has explained:
Id. at 508-09, 67 S.Ct. 839.
Thus, while plaintiff's citizenship and residence can serve as a proxy for, or indication of, convenience, neither the plaintiff's citizenship nor residence, nor the degree of deference given to her choice of forum, necessarily controls the outcome. Alcoa S.S. Co., Inc., v. M/V Nordic Regent, 654 F.2d 147, 152, 154 (2d Cir.1980) (en banc) (observing that "American citizenship alone is not a barrier to dismissal on the ground of forum non conveniens") (summarizing the trend as "away from according a talismanic significance to the citizenship or residence of the parties"). There is no "rigid rule of decision protecting U.S. citizen or resident plaintiffs from dismissal for forum non conveniens." Wiwa, 226 F.3d at 102.
As is implicit in the meaning of "deference," the greater the degree of deference to which the plaintiff's choice of forum is entitled, the stronger a showing of inconvenience the defendant must make to prevail in securing forum non conveniens dismissal. At the same time, a lesser degree of deference to the plaintiff's choice bolsters the defendant's case but does not guarantee dismissal. A defendant does not carry the day simply by showing the existence of an adequate alternative forum. The action should be dismissed only if the chosen forum is shown to be genuinely inconvenient and
Courts should be mindful that, just as plaintiffs sometimes choose a forum for forum-shopping reasons, defendants also may move for dismissal under the doctrine of forum non conveniens not because of genuine concern with convenience but because of similar forum-shopping reasons. District courts should therefore arm themselves with an appropriate degree of skepticism in assessing whether the defendant has demonstrated genuine inconvenience and a clear preferability of the foreign forum. And the greater the degree to which the plaintiff has chosen a forum where the defendant's witnesses and evidence are to be found, the harder it should be for the defendant to demonstrate inconvenience.
III. The Application of the Principles to the Facts of This Case
We believe that the District Court in the case before us, lacking the benefit of our most recent opinions concerning forum non conveniens, did not accord appropriate deference to the plaintiff's chosen forum. Although the plaintiff's had resided temporarily in Bogota at the time of Mauricio Iragorri's accident, it appears that they had returned to their permanent, long-time domicile in Florida by the time the suit was filed. The fact that the children and their mother had spent a few school terms in Colombia on a foreign exchange program seems to us to present little reason for discrediting the bona fides of their choice of the Connecticut forum. Heightened deference to the plaintiffs' chosen forum usually applies even where a plaintiff has temporarily or intermittently resided in the foreign jurisdiction. So far as the record reveals, there is little indication that the plaintiffs chose the defendants' principal place of business for forum-shopping reasons. Plaintiffs were apparently unable to obtain jurisdiction in Florida over the original third defendant, International, but could obtain jurisdiction over all three in Connecticut. It appears furthermore that witnesses and documentary evidence relevant to plaintiffs' defective design theory are to be found at the defendants' installations in Connecticut. As we have explained, "live testimony of key witnesses is necessary so that the trier of fact can assess the witnesses' demeanor." Alfadda v. Fenn, 159 F.3d 41, 48 (2d Cir.1998) (internal quotation marks omitted); Scottish Air Int'l, 81 F.3d at 1233 (live witness testimony crucial for jury to assess witness credibility, notwithstanding possibility of deposition). Also, in assessing where the greater convenience lies, the District Court must of course consider how great would be the inconvenience and difficulty imposed on the plaintiffs were they forced to litigate in Cali. Among other factors, plaintiffs claim that they fear for their safety in Cali and that various witnesses on both sides may be unwilling to travel to Cali; if these concerns are warranted, they appear highly relevant to the balancing inquiry that the District Court must conduct.
Accordingly, we remand for reconsideration in light of the principles here discussed. The District Court should determine the degree of deference to which plaintiffs' choice is entitled, the balance of hardships to the respective parties as between the competing fora, and the public interest factors involved. The District Court's decision, if appealed, would be reviewable under the clear-abuse-of-discretion
The judgment of the District Court is hereby VACATED and the case REMANDED for further proceedings.
The DOJ began by acknowledging that "the United States is a party to a number of treaties that include various obligations regarding access to courts, including in some treaties an obligation to grant `national treatment,'" generally meaning that "nationals of the other party to the treaty are entitled to access to U.S. courts on terms no less favorable than those enjoyed by U.S. nationals `in like situations.'" (Id. at 2 (citing Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176, 188 & n. 18, 102 S.Ct. 2374, 72 L.Ed.2d 765 (1982)).) The DOJ then articulated three points that it believed pertinent to our framing of standards for forum non conveniens analysis. First, the DOJ noted that "the Supreme Court has already made clear that the fact that the plaintiff is a citizen or resident of the United States is relevant but not dispositive in a forum non conveniens analysis." (Id. at 2 (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255-56 n. 23, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981)).) Second, the DOJ observed that "any right to court access afforded to a foreign national plaintiff by treaty will generally be only a right to the same access that would be accorded to a U.S. national plaintiff who is otherwise similarly situated." (Id. at 2.) Third, the DOJ posited that "even if citizenship or nationality per se were held to be dispositive in otherwise evenly balanced cases, and even if national treatment provisions were interpreted under some circumstances to require that the same tie-breaking rule be applied in favor of those non-national plaintiffs who are entitled to the benefit of treaties that include such provisions, ... it is not obvious that applying such provisions in that way would necessarily be either unworkable or inappropriate." (Id. at 2-3.)
Though the instant case does not implicate any treaty obligations, the forum non conveniens analysis that we articulate here is mindful of those considerations.