United States: Eighth Circuit Reverses Dismissal Based On Forum Non Conveniens Motion

The Eighth Circuit recently held that a motion to dismiss based on forum non conveniens filed 18 months after the start of litigation was untimely. According to the decision, if the forum was truly inconvenient, the defendants should have filed a motion to dismiss earlier than 18 months after the complaint was filed and before the end of discovery.

The Case

In Estate of I.E.H., et al. v. CKE Restaurants, Holdings, Inc., et al., the parents of a six-year-old boy who died after touching an exposed wire at an Amman, Jordan, Hardee's restaurant sued Hardee's in the Eastern District of Missouri, its home district at the time. Namely, of the parties sued, Tourist Projects and International Restaurants Company, the non-American Hardee's franchisee and owner of the restaurant located in the country of Jordan, was not named.  Eighteen months after the lawsuit was initiated and 17 days after the close of discovery, the defendants moved to dismiss based on the doctrine of forum non conveniens. Defendants argued Jordan was the more appropriate forum. The District Court agreed, granting the motion and dismissing the case.

Appeal

On appeal, the Eighth Circuit reversed and remanded. The Court focused on the first of Plaintiffs' three arguments: the district court erred in dismissing the case based on the doctrine of forum non conveniens because the defendants' motion was untimely. Under Missouri's two part doctrine analysis, courts first determine whether an adequate alternative forum exists and then weigh private and public interest factors to determine whether dismissal is appropriate. This two part analysis does not explicitly address timeliness and the Court noted that it has not otherwise addressed the timeliness of such motions. Looking to its sister circuits, the Court found that in the Fifth Circuit, timeliness is analyzed as a private interest factor, while the Third Circuit looks at timeliness as both a private and public interest factor. The Sixth Circuit seemingly addresses timeliness as a stand-alone consideration, requiring instead that a motion to dismiss based on forum non conveniens be made within a reasonable time after the party learns the facts that give rise to the motion.

Choosing not to explicitly adopt the approaches of its sister courts, the Eighth Circuit simply found that the defendants' motion was sufficiently untimely to warrant reversal. All the forum arguments brought by the defendants were predicated on one fact: the child died from events and allegedly negligent actions in the country of Jordan. This was not a new fact first raised during discovery. From the time Plaintiffs filed their complaint, the defendants were aware of this allegation.

Three considerations supported the Eighth Circuit's reversal: judicial economy, time spent in the inconvenient forum, and impermissible gamesmanship. First, encouraging parties to file earlier promotes judicial economy in preventing the investment of time, money, and effort in litigating before a court that will dismiss the case. Second, a party's forum non conveniens claim is progressively undercut the longer that party litigates in the supposedly inconvenient forum. Unnecessary delay goes against the goal of efficient litigation that the doctrine seeks to promote. Finally, without considering the timeliness of a motion based on the doctrine, parties could simply raise a forum non conveniens argument once they feel litigation in the current court is going poorly, even if litigation has significantly progressed in the court.

Insights

This decision serves as a warning for toxic tort defendants. Motions to dismiss based on forum non conveniens are a useful tool, but they are not unlimited in time. Defendants hoping to keep a motion under this doctrine in their back pocket must be careful not to lose the option altogether. While the Eighth Circuit did not adopt a specific timeframe, it made clear that motions to dismiss under the doctrine of forum non conveniens should be brought within a reasonable time after the fact or facts supporting that motion are known.

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