Forum Non and Foreign Plaintiff Treaty Rights

On Monday, the Eleventh Circuit rendered an interesting opinion in the case of King v. Cessna Aircraft on the subject of forum non conveniens and the rights foreign plaintiffs under bilateral treaties. The case arose out of wrongful death actions by American and European plaintiffs against Cessna Aircraft arising from a plane crash in Italy. The district court dismissed on forum non the claims of all the European plaintiffs but none of the American plaintiffs. It then stayed the litigation pending resolution of the European plaintiffs’ claims in Italian courts. The question presented is whether bilateral FCN treaties between the United States and Denmark, Finland, Italy, Norway, and Romania–all of which guarantee the foreign nationals “no less favorable” access to U.S. courts–should impact the private interest analysis under forum non conveniens. Here is how the Eleventh Circuit ruled on the question:

With regard to weighing the private interests, a “plaintiff’s choice of forum should rarely be disturbed.” The presumption in favor of the plaintiff’s forum choice is strongest when the plaintiff is a United States citizen, resident, or corporation. A foreign plaintiff’s choice of forum, however, is a weaker presumption that receives less deference. The European Plaintiffs point out a majority of them are from countries having bilateral treaties with the United States that accord them “no less favorable” access to U.S. courts to redress injuries caused by American actors. Thus, they argue, the district court erred in giving their choice less deference. We disagree.

The Second Circuit in Farmanfarmaian v. Gulf Oil Corp., 588 F.2d 880 (2d Cir.1978), concluded a foreigner’s right to sue in the United States is not of a lesser magnitude than an American’s right when a treaty exists between the two countries giving a foreigner “no less favorable” access to the other country’s courts However, in a later case, Pollux Holding Ltd. v. Chase Manhattan Bank, 329 F.3d 64 (2d Cir.2003), the Second Circuit further explained the level of deference that would be given to a foreign plaintiff’s choice of forum:

Even assuming that, by treaty, plaintiffs were entitled to access American courts on the same terms as American citizens …, our case law does not support plaintiffs’ assertion that such a treaty would require that their choice of forum be afforded the same deference afforded to a U.S. citizen bringing suit in his or her home forum. Such a proposition impermissibly conflates citizenship and convenience ….

A court considering a motion for dismissal on the grounds of forum non conveniens does not assign “talismanic significance to the citizenship or residence of the parties,”… and there is no inflexible rule that protects U.S. citizen or resident plaintiffs from having their causes dismissed for forum non conveniens….

[A]ppellants cannot successfully lay claim to the deference owed an American citizen or resident suing in her home forum. Plaintiffs are only entitled, at best, to the lesser deference afforded a U.S. citizen living abroad who sues in a U.S. forum.

This analysis makes clear that although citizenship often acts as a proxy for convenience in the forum non conveniens analysis, the appropriate inquiry is indeed convenience.

In this case, then, the lesser deference given by the district court to the European Plaintiffs’ choice of forum was consistent with the treaty obligations of the United States. Just as it would be less reasonable to presume an American citizen living abroad would choose an American forum for convenience, so too can we presume a foreign plaintiff does not choose to litigate in the United States for convenience.

So based on this logic, foreign plaintiffs stand in the shoes of ex pat Americans living abroad. If so, one should find case law in which Americans living abroad enjoy this lesser presumption. But I am aware of no such case law and the court provides none.

Second, and more problematic, the Pollux case, on which the Eleventh Circuit relies, specifically rejects reliance on the bilateral treaty because the relevant treaty (U.S.-Liberia) guarantees access to U.S. courts, but not access that is “no less favorable” than American nationals. The treaties in this case, by contrast, do include a “no less favorable” access provision.

Finally, the problem with the opinion is that all the convenience factors they discuss on the defendant side are identical as between the European and American plaintiffs. The court notes that the location of much of the evidence is in Italy, including evidence from Italian witnesses. That is true for both the American and European plaintiffs. If convenience of the defendant is identical as between the claims by American and European plaintiffs, and all the plaintiffs prefer the American forum, why should the presumption of plaintiffs’ choice be given less weight just because the plaintiff is a foreigner?