Cross-Jurisdictional Forum Non Conveniens Preclusion

Harvard Law Review, June 2008 | Go to article overview

Cross-Jurisdictional Forum Non Conveniens Preclusion


The volume of transnational litigation filed in the United States is growing. (1) Economic globalization has increased the number of claims filed in U.S. courts by plaintiffs seeking relief for injuries suffered abroad, and the doctrine of forum non conveniens--which allows a court to decline to exercise jurisdiction on the ground that it is an inappropriate forum for adjudication of a dispute--is an increasingly prominent tool for judicial management of these cases. (2) Despite heightened judicial and scholarly attention to the problems raised by forum non conveniens, one aspect of the doctrine remains relatively unexplored: what is the preclusive effect of a forum non conveniens dismissal across jurisdictions?

This cross-jurisdictional preclusion question arises when a plaintiff whose suit has been dismissed on forum non conveniens grounds in one U.S. jurisdiction files suit in another U.S. jurisdiction in the hope of obtaining a different result. This Note addresses the question of when a determination of the forum non conveniens issue in one U.S. jurisdiction should be treated as binding in subsequent litigation between the same parties in a different U.S. jurisdiction. It argues that a court should analogize to ordinary rules of intrajurisdictional issue preclusion to determine the preclusive effect of another jurisdiction's forum non conveniens ruling. Admittedly, the forum non conveniens analysis in the second court might differ substantially from the first court's analysis, either because the two jurisdictions apply different legal standards to the forum non conveniens question, or because different underlying facts are relevant to the inquiry in each forum. In such a case, this Note proposes the following rule: the second court should allow those legal and factual differences to counteract preclusion only to the extent that new legal arguments or new evidence would justify relitigation of the issue in the jurisdiction where it was originally decided. This approach would create an incentive for the plaintiff to choose a convenient forum initially and would permit relitigation of the forum non conveniens determination only in exceptional circumstances. It would also make the application of issue preclusion to forum non conveniens determinations more predictable and discourage attempts to relitigate the issue, thereby affording defendants more meaningful repose than they currently enjoy.

Part I of this Note summarizes the (relatively sparse) law of cross-jurisdictional forum non conveniens preclusion. It focuses in particular on three important decisions by the federal circuit courts, each of which represents a distinct approach to analyzing the preclusion problem. Together, these cases suggest three considerations that courts have in view when deciding whether to afford preclusive effect to another jurisdiction's forum non conveniens determination: whether the law of forum non conveniens is the same in both jurisdictions; whether the factual circumstances material to the forum non conveniens inquiry are the same in both jurisdictions; and whether the determination in the first jurisdiction explicitly or implicitly resolved the precise issue presented in the second jurisdiction. Part II examines how courts have analyzed each of these three considerations, and it attempts to identify the circumstances under which each consideration is generally deemed to support relitigation of the forum non conveniens issue. It also evaluates the usefulness of each consideration. Finally, Part III defends the alternative approach described above--one in which cross-forum legal and factual differences that existed at the time of the first lawsuit would generally not give the plaintiff grounds to reopen the forum non conveniens issue.

I. JUDICIAL APPROACHES TO CROSS-JURISDICTIONAL FORUM NON CONVENIENS PRECLUSION

Given the rising use of forum non conveniens by U. …

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