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Abad v. Bayer Corp.

May 1, 2009


Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. MDL No. 986 JFG, No. 93 C 7452-John F. Grady, Judge. Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 04 C 5812-Sarah Evans Barker, Judge.

The opinion of the court was delivered by: Posner, Circuit Judge.


Before POSNER, EVANS, and TINDER, Circuit Judges.

We have consolidated for decision two appeals (Abad and Pastor) that present similar issues concerning the doctrine of forum non conveniens ("inappropriate forum"). The doctrine allows a court to dismiss a suit if there are strong reasons for believing it should be litigated in the courts of another, normally a foreign, jurisdiction. E.g., Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 429-30 (2007); In re Factor VIII or IX Concentrate Blood Products Litigation, 484 F.3d 951, 954-56 (7th Cir. 2007). In both our cases the plaintiffs are Argentine citizens, resident in Argentina, who filed products-liability suits in federal district courts against American manufacturers under the diversity (technically, the alienage, 28 U.S.C. § 1332(d)(2)(B)) juris-diction for injuries sustained in Argentina. In each case the district judge, on the defendants' motion, after considerable pretrial discovery, invoked forum non conveniens and dismissed the case in favor of the courts of Argentina. In re Factor VIII or IX Concentrate Blood Products Litigation, 531 F. Supp. 2d 957 (N.D. Ill. 2008); In re Bridgestone/ Firestone, Inc. Tires Products Liability Litigation, No. 04 C 5812 (S.D. Ind. Jan. 31, 2007). The plaintiffs have appealed; dismissal of a case on grounds of forum non conveniens is deemed a final judgment appealable under 28 U.S.C. § 1291 even though it does not end the litigation. Mañez v. Bridgestone Firestone North American Tire, LLC, 533 F.3d 578, 583-84 (7th Cir. 2008).

The plaintiffs press on us language, from a leading case that deals with the related doctrine of abstention in favor of a parallel proceeding in another court, about the "virtually unflagging obligation of the federal courts to exercise the jurisdiction given them." Colorado River Conservation District v. United States, 424 U.S. 800, 817 (1976). The defendants counterpunch with the well-supported assertion that a ruling granting a motion to dismiss on the basis of forum non conveniens can properly be reversed only if the judge in granting the motion was guilty of an abuse of discretion. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257 (1981); In re Factor VIII or IX Concentrate Blood Products Litigation, supra, 484 F.3d at 954, 956; Scottish Air Int'l, Inc. v. British Caledonian Group, PLC, 81 F.3d 1224, 1232 (2d Cir. 1996). That is a deferential standard of appellate review, designed for cases in which the first-level decision-maker is asked to apply a general standard that requires him to balance a number of competing considerations. As long as the judge doesn't commit a demonstrable factual error, or an error of law, his decision is unlikely to be reversed. There are two reasons. It is difficult to pin error on a judgment based on a comparison of imponderables, as is the character of most standards. And the main responsibility of appellate courts-to declare and elaborate principles of law and police compliance with those principles by the first-level decision-makers-is not engaged in reviewing a decision that involves weighing the unique circumstances of a particular case rather than creating or articulating a legal rule or principle. These are "case-specific rulings, which, even if they do not compose a consistent pattern across similar cases (the possibility inherent in deferential appellate review-deference implying that the appellate court might well have affirmed an opposite ruling by the district court), do not unsettle the law because the rulings set forth no general propositions of law." Thomas v. General Motors Acceptance Corp., 288 F.3d 305, 308 (7th Cir. 2002).

The plaintiffs do not deny that abuse of discretion is the applicable principle of appellate review in forum non conveniens cases but they say that the judge's thumb has to be on one side of the scale-that he must deny the motion to dismiss unless the balance of relevant factors inclines very steeply in favor of dismissal, because of the presumption that we mentioned (the "unflagging obligation") in favor of giving the plaintiff his choice of courts. This is provided of course that there is subject-matter and personal jurisdiction, and venue, in the court in which the plaintiff has sued, but these conditions are satisfied in this case. Indeed, the plaintiffs argue that an Argentine court would not exercise jurisdiction over a case that had initially been filed in a foreign country, but this appears not to be true, see, e.g., Satz v. McDonnell Douglas Corp., 244 F.3d 1279, 1282-83 (11th Cir. 2001), and if, contrary to what we believe, it should turn out to be true, the plaintiffs could resume suit in the United States. The judge in Pastor explicitly conditioned dismissal on the right to resume the suit in her court if the Argentine courts refuse to exercise jurisdiction. The judge in Abad did not, but achieved the same result by stating that the dismissal was without prejudice and hence does not have res judicata effect.

The plaintiffs are right that there is a presumption in favor of allowing a plaintiff his choice of courts rather than insisting that he choose the optimal forum, as we explained in U.S.O. Corp. v. Mizuho Holding Co., 547 F.3d 749, 752-53 (7th Cir. 2008), though it is not so powerful a presumption as they think. A case should not be lightly shifted from one court to another, forcing the plaintiff to start over, especially when the rules of personal jurisdiction often force a plaintiff to litigate on the defendant's home turf. Yet in the two cases before us the plaintiffs could have sued-all concede-in their own nation's courts, the courts of Argentina, where the defendants would have been in the uncomfortable position of being giant American corporations accused of killing and injuring citizens of Argentina. (Or so one might think; but of course the defendants want to be in the Argentine, not the American, courts.)

We are not saying that the plaintiffs should have sued in Argentina. They were entitled to sue these American corporations in American courts. They say they are entitled to all the litigation rights of an American citizen because of a treaty between the United States and Argentina which says just that. Treaty of Friendship, Commerce and Navigation Between Argentina and the United States, July 27, 1853, Art. VIII, 10 Stat. 1005. Even without the treaty, we would agree that a foreign plaintiff has the same rights in an American court as an American citizen has, see In re Factor VIII or IX Concentrate Blood Products Litigation, supra, 484 F.3d at 956-discrimination against foreign litigants should be unthinkable in this cosmopolitan age of commercial globalization. It should make no difference that the plaintiffs are Argentines rather than Alaskans. But a suit by our plaintiffs in Illinois or a suit in Florida (where the Pastor suit was originally filed) would be a case of a "plaintiff [who] is suing far from home," and in such a case "it is less reasonable to assume that the forum [chosen by the plaintiff] is a convenient one" and therefore the presumption in favor of allowing the plaintiff to stay in the court of his choice is weakened. Id.; see Piper Aircraft Co. v. Reyno, supra, 454 U.S. at 266; Iragorri v. United Technology Corp., 274 F.3d 65, 72 (2d Cir. 2001) (en banc).

The district judge in Pastor said that she was applying a "neutral" rule of forum non conveniens, implying, the plaintiffs argue, that she failed to apply the presumption in favor of their choice to sue in the United States. But when the judge's statement is read in context, it is apparent that all she meant was that since the plaintiffs were foreign, relegating them to litigate in the courts of their home country would not impose on them as great a hardship as when a ruling of forum non conveniens would eject the plaintiff from his home court and send him to the defendant's home court in another country. When the plaintiff wants to sue on the defendant's home turf, and the defendant wants to be sued on the plaintiff's home turf, all really that the court is left to weigh is the relative advantages and disadvantages of the alternative forums. In such a case there is no reason to place a thumb on the scale, since there is no prima facie reason to think a plaintiff discriminated against by being sent to his home court or a defendant discriminated against by being forced to stay and defend in his home court.

One can find strong language about the plaintiff's right to his chosen forum in many judicial opinions, such as Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947), but they usually are referring to an American plaintiff wanting to litigate in an American rather than foreign court, that is, to a plaintiff who has sued in his home court and wants to stay there. Moreover, while "in times past, a dismissal for forum non conveniens was a relatively infrequent occurrence..., the tremendous growth in international commerce, travel, and interdependence since World War II has increased the number and variety of cases in which a foreign court would be a more convenient forum." 14D Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure: Jurisdiction § 3828, p. 623 (3d ed. 2007).

It is especially odd for the plaintiffs in the Pastor case to describe the courts of Argentina as "foreign," and to quote as if in support of their position the statement in Lehman v. Humphrey Cayman, Ltd., 713 F.2d 339, 346 (8th Cir. 1983) (emphasis added), that "the fact that the defendants are located in this country is one indication that it would be less burdensome for the defendants to defend suit in this country than it would be for [the plaintiff] to litigate in a foreign country." To Argentines, Argentina is not a foreign country. The implication of the plaintiffs' argument is that if they were opposing in an Argentine court a motion to dismiss on grounds of forum non conveniens filed by an American defendant, they would lose because the treaty we cited had turned them into Americans!

When application of the doctrine would send the plaintiffs to their home court, the presumption in favor of giving plaintiffs their choice of court is little more than a tie breaker. And so our focus in these cases must be on particularized circumstances that lean in favor of U.S. courts or foreign courts. For guidance judges often turn to a multifactor test for applying forum non conveniens that the Supreme Court laid down more than sixty years ago, in Gulf Oil Corp. v. Gilbert, supra, 330 U.S. at 508-09. American law has long been hospitable to multifactor tests-maybe too hospitable. Menard, Inc. v. Commissioner, 2009 WL 595587, at *2 (7th Cir. Mar. 10, 2009); Sullivan v. William A. Randolph, Inc., 504 F.3d 665, 671 (7th Cir. 2007); Short v. Belleville Shoe Mfg. Co., 908 F.2d 1385, 1394 (7th Cir. 1990); United States v. Borer, 412 F.3d 987, 992 (8th Cir. 2005). The factors that the Gulf Oil opinion deemed relevant to whether to dismiss a suit on the basis of forum non conveniens form quite a laundry list:

the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforceability of a judgment if one is obtained. The court will weigh relative advantages and obstacles to fair trial. It is often said that the plaintiff may not, by choice of an inconvenient forum, "vex," "harass," or "oppress" the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy.... Administrative difficulties follow for courts when litigation is piled up in con- gested centers instead of being handled at its origin. Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation. In cases which touch the affairs of many persons, there is reason for holding the trial in their view and reach rather than in remote parts of the country where they can learn of it by report only. There is a local interest in having localized controversies decided at home. There is an appropriateness, too, in having the trial of a diversity case in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself.

The Court prefaced the list with the rather alarming statement that "it has not been attempted to catalogue the circumstances which will justify or require either grant or denial of remedy. The doctrine leaves much to the discretion of the court to which plaintiff resorts." 330 U.S. at 508. Thus, long as it is, the list is incomplete. That gives a party free rein to suggest any reason that occurs to him for why the case should be litigated in one court rather than another. But because there is a list, and a list sponsored by the Supreme Court, albeit in a case more than half a century old, parties find it difficult to resist trying to make their case correspond to the items in the list, however violent a dislocation of reality results. And so the plaintiffs in our two cases argue that the United States has a greater interest in the litigation than Argentina because the defendants are American companies, while the defendants argue that Argentina has a greater interest than the United States because the plaintiffs are Argentines. The reality is that neither country appears to have any interest in having the litigation tried in its courts rather than in the courts of the other country; certainly no one in the government of either country has expressed to us a desire to have these lawsuits litigated in its courts. For this is ordinary private tort ...

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