Toward a More “Convenient” Standard of Review in Cases Involving Forum Non Conveniens Issues
The common law doctrine of forum non conveniens (FNC) first emerged from Scottish estate cases and was subsequently adopted and refined by American jurisdictions.1 This Latin phrase means “inconvenient forum.”2 As a practical tool, FNC addresses the difficulties that arise when a plaintiff-selected tribunal technically possesses jurisdiction over an action, but the action is more appropriately and conveniently prosecuted in another jurisdiction that similarly possesses the ability to resolve the matter.3 In state court, an FNC motion to dismiss may indicate that another American state or a foreign nation provides a more convenient forum to resolve a given dispute.4 In federal court, such a motion only applies to the dismissal of a cause of action in favor of a foreign forum.5
The U.S. Supreme Court has described FNC as “nothing more or less than a supervening venue provision, permitting displacement of ordinary rules of venue when, in light of certain conditions, the trial court thinks that jurisdiction ought to be declined.”6 Upon reading this brief description from the high court, one might assume that a trial court’s analysis of an FNC motion involves a totally unbridled, fact-intensive level of discretion. This article will explore whether definitive federal and Florida FNC precedent truly provides, or should provide, such an expansive level of discretion to trial courts when ruling upon all aspects of FNC motions.
Appellate Standards of Review Generally
The suitable standard of review in an appeal depends on the nature of the decision reached by the trial court.7 While the result below is usually clothed with a presumption of correctness, divergent levels of deference apply depending upon the question addressed and the analysis provided by the lower court.8 There are at least four categories of deference, which correspond to four types of review.
First, appellate courts need not, and do not, defer to trial courts regarding questions of law. Appellate courts, therefore, address legal questions de novo.9 Second, it is equally true that a high level of deference is often owed to trial courts concerning questions of fact. If the lower court commanded a superior vantage point to determine the facts in question, an appellate court will simply determine whether the trial court’s factfinding is supported by competent, substantial evidence contained in the record.10 Third, some issues involve the careful balancing of competing interests and, hence, necessarily entail the exercise of case-specific discretion. In that event, deference to the trial court is at its highest, and the appellate court will only reverse the trial court if the decision below resulted from an abuse of discretion.11 Fourth and finally, a given issue may involve a combination of two or more of the abovementioned categories and standards.12 For example, a multifactor test might involve one or more prongs that address questions of law, whereas the remainder of the prongs might address the discretionary balancing of competing interests. Under these circumstances, to promote consistency and logic in the law, a de novo standard may be appropriate to review the legal prongs, and an abuse-of-discretion standard may be appropriate to review the prongs that involve the case-specific balancing of competing interests.13 The end product would be a “mixed” standard of review.14
Federal FNC Framework
Although there are many federal FNC decisions, the two most significant for these purposes are Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947), and Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981). These decisions outline the general parameters of a federal FNC analysis. Reading them in pari materia provides a four-prong test: 1) At the outset, does an available and adequate alternative forum exist that possesses jurisdiction over the parties and may resolve the dispute? 2) Do the private interests of the litigants favor one forum or another? 3) Do the public interests associated with each forum favor one over the other? And 4) If the alternative forum is more appropriate and convenient, may the plaintiff reinstate the claim there?15 Our discussion will focus upon prongs one to three.16
With regard to prongs two and three, the high court provided that if the trial court’s “balancing” or “weighing” of the private and public interest factors is reasonable, then this determination is entitled “substantial deference” and is reviewed on appeal for abuse of discretion.17 Importantly, however, the U.S. Supreme Court did not indicate that prong one — whether an available and adequate alternative forum exists — is reviewed for abuse of discretion. Instead, the Piper court provided:
At the outset of any [FNC] inquiry, the court must determine whether there exists an alternative forum. Ordinarily, this requirement will be satisfied when the defendant is “amenable to process” in the other jurisdiction. In rare circumstances, however, where the remedy offered by the other forum is clearly unsatisfactory, the other forum may not be an adequate alternative, and the initial requirement may not be satisfied. Thus, for example, dismissal would not be appropriate where the alternative forum does not permit litigation of the subject matter of the dispute.18
Consequently, prong one is a legal condition precedent to addressing prongs two and three.
Based on the Supreme Court’s language, prong one involves purely legal issues: 1) whether the defendant is amenable to process in the proposed alternative forum (“availability”), and 2) whether the proposed alternative forum provides a nonillusory remedy with regard to the subject matter of the dispute (“adequacy”).19 These issues present questions of foreign law, and, as learned above, appellate courts typically review questions of law de novo, not for abuse of discretion.20 Gilbert and Piper do not require a contrary conclusion given that the court’s discussion of “balancing” or “weighing” occurred within the context of prongs two and three.21 Indeed, subsequent U.S. Supreme Court decisions also discuss the discretionary balancing involved in an FNC analysis with reference to the private and public interest factors, not in connection with the preliminary legal question of whether an available and adequate alternative forum exists.22
Florida FNC Framework
The Florida Supreme Court has adopted the federal FNC standard.23 Specifically, in 1996, the court recognized a “growing trend in private international law of attempting to file suit in an American state even for injuries or breaches that occurred on foreign soil. There already is evidence the practice is growing to abusive levels in Florida.”24 In adopting the federal FNC analysis, the state high court sought to curtail what it viewed as an unwarranted expansion of foreign litigation in Florida’s courts:
Nothing in our law establishes a policy that Florida must be a courthouse for the world, nor that the taxpayers of this state must pay to resolve disputes utterly unconnected with this state’s interests.. . . We must rightly question expenditures of this type where the underlying lawsuit has no genuine connection to the state. Florida’s judicial interests are at their zenith, and the expenditure of tax-funded judicial resources most clearly justified, when the issues involve matters with a strong nexus to Florida’s interests. But that interest and justification wane to the degree such a nexus is lacking.. . . The use of Florida courts to police activities even in the remotest parts of the globe is not a purpose for which our judiciary was created.25
As the Fourth District Court of Appeal later explained: “In its Kinney opinion, the Supreme Court made quite clear that it did not intend for Florida taxpayers to have to foot the bill for judicial expenses so that the world can litigate in Florida.”26 In fact, following Piper and Kinney, many Florida state courts have dismissed personal injury actions brought by non-Floridians as a result of injuries that occurred outside of Florida.27 Yet, the sheer number of such foreign-based actions filed in Florida’s state courts establishes that foreign plaintiffs continue to press their claims here. This continued trend, combined with scarce state funding, highlights the need to apply an appropriate FNC standard of review.
Similar to the U.S. Supreme Court’s decisions in Gilbert and Piper, the decision of the Florida Supreme Court in Kinney did not discuss “weighing,” “balancing,” or discretion in connection with prong one. Instead, the Supreme Court discussed the trial court’s latitude during an FNC analysis with reference to prongs two and three — the private and public interest factors.28 Thus, much like its federal counterparts, a reading of Kinney supports the conclusion that prong one is merely a preliminary legal question (a condition precedent), which requires a positive answer for the trial court to then apply its discretion and conduct a subsequent FNC analysis.29 This is unsurprising given that Kinney sought to adopt the federal FNC framework.
Interestingly, Fla. R. Civ. P. 1.061(a), which ostensibly codifies Kinney and outlines the four-prong federal FNC framework, provides: “The decision to grant or deny the motion for dismissal rests in the sound discretion of the trial court, subject to review for abuse of discretion.” A plain-text reading of this rule seems to indicate that the abuse of discretion standard applies to each prong of the FNC framework. However, this “discretion” language should arguably be read with reference to the U.S. and Florida supreme courts’ actual, explicit discussion of the prongs to which the trial court’s discretion applies — namely the balancing of the private and public interest factors (i.e., prongs two and three).30
Conclusion: A More “Convenient” FNC Standard of Review
Despite the bounded discussion of balancing, discretion, and weighing provided by Gilbert, Piper, and Kinney, lower courts applying a federal FNC analysis have not thus far explicitly recognized that prong one involves a question of law, whereas prongs two and three entail the discretionary balancing of competing interests. Recent exchanges between Florida’s Third and Fourth district courts of appeal substantiate this observation. Namely, the Third District has recognized that some form of mixed FNC standard of review might be appropriate.31 Conversely, the Fourth District has refused to apply a mixed standard of review.32 However, at least one judge from the Fourth District has expressed support for some type of mixed FNC standard of review.33
Ultimately, the general aspects of appellate review detailed above might support the conclusion that prong one ought to be reviewed de novo, while the trial court’s balancing or weighing of prongs two and three ought be reviewed for abuse of discretion. First, as discussed above, a careful reading of the relevant precedent from the U.S. and Florida supreme courts supports this mixed standard of review. There was no reason for those courts to assume that a preliminary question of law would be reviewed under anything other than a de novo standard, but it was important for the respective justices to communicate that prongs two and three would involve the sound exercise of judicial discretion. Second, and of great significance, “availability” and “adequacy” indeed turn on the interpretation of substantive foreign law. For example, the “availability” inquiry focuses on whether the defendant is amenable to process in the alternative jurisdiction.34 Defendants seeking an FNC dismissal often agree to subject themselves to the jurisdiction of the alterative forum.35 When that is the case, the sole inquiry is whether the foreign court will accept consent-based jurisdiction — an issue which requires the interpretation of foreign law. With respect to the “adequacy” inquiry, an alternative forum is deemed adequate except in “rare circumstances. . . where the remedy offered by the other forum is clearly unsatisfactory,” so as to constitute “no remedy at all.”36 This, too, requires an inquiry into the foreign forum’s substantive law. In that regard, it is well established that “[a] trial court’s determination of foreign law is treated as a ruling on a question of law over which an appellate court exercises plenary review.”37
A recent Third District decision may be helpful in this context. In Scotts Co. v. Hacienda Loma Linda, 2 So. 3d 1013 (Fla. 3d DCA 2008), review denied, 2009 WL 2393451 (Fla. Aug. 5, 2009), the district court reviewed de novo Panamanian law to determine whether Panama was truly an “unavailable” forum for purposes of reinstating a suit previously dismissed on FNC grounds. The issue was whether a foreign plaintiff was entitled to reinstate its suit in Florida based on a retaliatory dismissal in Panama, or whether, in contrast, the plaintiff had stymied its own prospects for relief in Panama to force inappropriately the resumption of its suit in Florida. Specifically, the plaintiff had relied upon a Panamanian blocking statute,38 and a foreign abstention doctrine known as “preventive jurisdiction,” in seeking to have its suit thrown out of Panama’s courts.39 In a footnote describing its standard of review, the Third District confirmed that Florida appellate courts “exercise plenary review over [a] trial court’s determination of foreign law.”40
This same analysis should apply with equal force to the initial FNC question of whether an available and adequate alternative forum exists based upon the laws of that proffered jurisdiction. Doing otherwise could produce doctrinal inconsistencies and is likewise at odds with a close reading of Gilbert, Piper, and Kinney. To some extent, incongruous results may have already occurred in Florida because of a credulous tendency to review prong one for abuse of discretion, rather than as a de novo legal question. For instance, at least one district court of appeal has upheld a trial court’s determination that Argentina is an unavailable, inadequate alternative forum in a products liability suit.41 The Garcia court did so without independently examining Argentine law to determine whether this was the correct conclusion; instead, the Fourth District concluded there was no abuse of discretion because the plaintiffs’ expert affidavit supported this conclusion. In due course, Garcia turned out to be inconsistent with federal decisions when similarly situated plaintiffs conceded that Argentina was, in fact, an available and adequate alternative forum in which to prosecute identical products liability actions.42 Interestingly, Garcia, Abad, and Paolicelli each involved affidavits from the same foreign law experts.43
One lesson to draw from this potential morass is that a mixed FNC standard of review might prevent such seemingly incompatible results. After all, it would appear logical that a proposed alternative forum is either “available” and “adequate” based on its pertinent laws, or it is not. Consistent with Gilbert, Piper, and Kinney, this proposed standard would explicitly recognize that prong one involves questions of foreign law, while prongs two and three necessarily involve the trial court’s discretionary, case-specific balancing of the private and public interest factors. In Florida, where appellate tribunals “are encouraged to take an active role in ascertaining foreign law,”44 this hybrid FNC standard of review may eventually prove to serve all parties to the litigation and, at a minimum, would reduce the risk of incongruous outcomes.
1 See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 248 n.13 (1981); Am. Dredging Co. v. Miller, 510 U.S. 443, 449 (1994).
2 Kinney Sys., Inc. v. Cont’l Ins. Co., 674 So. 2d 86, 87 n.1 (Fla. 1996).
3 Id. at 87.
4 Compare Kinney, 674 So. 2d 86 (addressing FNC motion to dismiss in favor of another state), with Bacardi v. Lindzon, 845 So. 2d 33 (Fla. 2002) (addressing FNC motion to dismiss in favor of foreign nations).
5 See Miller, 510 U.S. at 449 n.2.
6 Miller, 510 U.S. at 453 (emphasis supplied).
7 See Philip J. Padovano, Florida Appellate Practice §18:1, at 335 (2009).
8 See generally id. at Ch. 18.
9 Id. §§18:3-18:4, at 338-45.
10 Id. §18:6, at 353-58; but see Adams v. Adams, 385 So. 2d 688, 689 (Fla. 3d D.C.A. 1980) (“The presumption of correctness which attaches to a ruling of a trial court made upon written reports is slight.”) (footnote omitted).
11 Padovano, Florida Appellate Practice §18:5, at 345-53; see also Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980).
12 See Padovano, Florida Appellate Practice §18:3, at 339 (“In some instances, the nature of the adjudication in the lower tribunal may be a mixture of these judicial functions. . . . It would then be important to identify the aspect of the decision that is alleged to be erroneous.”).
13 Id. §18:5, at 346-47.
14 Cf. Buxton v. Buxton, 963 So. 2d 950, 953-56 (Fla. 2d D.C.A. 2007) (applying a mixed standard of review to determine whether a former spouse had entered into a “supportive relationship,” within the meaning of Fla. Stat. §61.14(1)(b) (2005)).
15 See Gilbert, 330 U.S. at 506-07 (prong one), 508-09 (prongs two and three); Piper, 454 U.S. at 241, 241 n.6 (prongs two and three), 254 n.22 (prong one), 242 (prong four).
16 Prong four may be understood as an off-shoot of prong one. If an alternative forum is more convenient, the trial court, in dismissing, must ensure that the plaintiff is likely able to reinstate the cause of action there (for example, by requiring the defendant to waive any statute of limitations defense). See, e.g., Tananta v. Cruise Ships Catering & Servs. Int’l., N.V., 909 So. 2d 874, 888 (Fla. 3d D.C.A. 2004) (en banc); see also Fla. R. Civ. P. 1.061(b), (c), (f).
17 Piper, 454 U.S. at 255, 257; see also id. at 241 (citing Gilbert, 330 U.S. at 508-09) (“To guide trial court discretion, the [Gilbert] [c]ourt provided a list of “private interest factors” affecting the convenience of the litigants, and a list of “public interest factors” affecting the convenience of the forum.”) (emphasis supplied).
18 Piper, 454 U.S. at 254 n.22 (internal citations omitted); see also Gilbert, 330 U.S. at 506-07.
19 See Piper, 454 U.S. at 254-55 (citing, e.g., Gilbert, 330 U.S. at 506-07).
20 See, e.g., Cooper v. Meridian Yachts, Ltd., 575 F.3d 1151, 1164 n.4 (11th Cir. 2009) (“[T]he [trial] court’s interpretation of foreign law is a question of law that we review de novo.”); Am. Airlines, Inc. v. Mejia, 766 So. 2d 305, 307 (Fla. 4th D.C.A. 2000) (substantially similar).
21 See Piper, 454 U.S. at 241, 255, 257; Gilbert, 330 U.S. at 508-09. But see Bridgestone/Firestone N. Am. Tire, LLC v. Garcia, 991 So. 2d 912, 914, 916-17 (Fla. 4th D.C.A. 2008), review denied, 8 So. 3d 1133 (Fla. 2009) (applying an abuse of discretion standard to prong one).
22 See, e.g., Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 429 (2007); Van Cauwenberghe v. Biard, 486 U.S. 517, 528-29 (1988).
23 See Kinney, 674 So. 2d at 93; see also Sanwa Bank, Ltd. v. Kato, 734 So. 2d 557, 561 (Fla. 5th D.C.A. 1999).
24 Kinney, 674 So. 2d at 87-88 (footnote omitted).
25 Id. at 88, 90, 93.
26 Ciba-Geigy Ltd. v. Fish Peddler, Inc., 691 So. 2d 1111, 1124 (Fla. 4th D.C.A. 1997).
27 See, e.g., Hilton Int’l Co. v. Carrillo, 971 So. 2d 1001 (Fla. 3d D.C.A.), review dismissed,982 So. 2d 684 (Fla. 2008); Fihe v. Rexall Sundown, Inc., 966 So. 2d 415 (Fla. 4th D.C.A. 2007), review dismissed, 3 So. 3d 317 (Fla. 2009); R.J. Reynolds Tobacco Co. v. Carter, 951 So. 2d 105 (Fla. 3d D.C.A. 2007); Scotts Co. v. Hacienda Loma Linda, 942 So. 2d 900 (Fla. 3d D.C.A. 2006); Tananta, 909 So. 2d 874; Aerolineas Argentinas, S.A. v. Gimenez, 807 So. 2d 111 (Fla. 3d D.C.A. 2002); Calvo v. Sol Melia, S.A., 761 So. 2d 461 (Fla. 3d D.C.A. 2000); Pearl Cruises v. Cohon, 728 So. 2d 1226 (Fla. 3d D.C.A. 1999); Value Rent-A-Car, Inc. v. Harbert, 720 So. 2d 552 (Fla. 4th D.C.A. 1998); Brunschwig v. Simpson, 711 So. 2d 255 (Fla. 3d D.C.A. 1998); Guerra v. Selsdon Mar. Corp., 711 So. 2d 1298 (Fla. 3d D.C.A. 1998); Resorts Int’l, Inc. v. Spinola, 705 So. 2d 629 (Fla. 3d D.C.A. 1998); Ryder Truck Rental, Inc. v. Rosenberger, 699 So. 2d 713 (Fla. 3d D.C.A. 1997); Pearl Cruises v. Bestor, 678 So. 2d 372 (Fla. 3d D.C.A. 1996).
This is consistent with results reached throughout the country. See, e.g., Abad v. Bayer Corp., 563 F.3d 663 (7th Cir. 2009); Vasquez v. Bridgestone/Firestone, Inc., 325 F.3d 665 (5th Cir. 2003); Gonzalez v. Chrysler Corp., 301 F.3d 377 (5th Cir. 2002); Leon v. Millon Air, Inc., 251 F.3d 1305 (11th Cir. 2001); Satz v. McDonnell Douglas Corp., 244 F.3d 1279 (11th Cir. 2001); Gschwind v. Cessna Aircraft Co., 161 F.3d 602 (10th Cir. 1998); Magnin v. Teledyne Cont’l Motors, 91 F.3d 1424 (11th Cir. 1996); Baumgart v. Fairchild Aircraft Corp., 981 F.2d 824 (5th Cir. 1993); De Melo v. Lederle Labs., Div. of Am. Cynamid Corp., 801 F.2d 1058 (8th Cir. 1986); Sibaja v. Dow Chem. Co., 757 F.2d 1215 (11th Cir. 1985); DeShane v. Deere & Co., 747 F.2d 1194 (8th Cir. 1984); Dahl v. United Techs. Corp., 632 F.2d 1027 (3d Cir. 1980).
28 See Kinney, 674 So. 2d at 89-90 (recounting the private and public interest factors, and then explaining that “[t]he federal doctrine. . . provides a well-defined method of balancing the often competing interests described above”); id. at 91-92 (discussing the trial court’s discretion to balance or weigh the opposing private and public interests associated with the litigants and the competing fora); cf. id. at 90-91 (discussing prong one with reference to 1) perfecting legal process, and 2) the potential remedy provided in the proposed alternative forum).
29 See, e.g., Kato, 734 So. 2d at 561 (explaining that prong one “is a prerequisite to the application of [FNC]”) (emphasis supplied).
30 See Fla. R. Civ. P. 1.061(a) cmt. (“This section was added to elaborate on Florida’s adoption of the federal [FNC] doctrine. . . , and it should be interpreted in light of [Kinney].”).
31 See WEG Industrias, S.A. v. Compania de Seguros Generales Granai, 937 So. 2d 248, 252 n.2, 253 (Fla. 3d D.C.A. 2006) (indicating that “the Kinney standard” may have “evolved” into a mixed de novo/abuse of discretion standard of review (quoting Kawasaki Motors Corp. v. Foster, 899 So. 2d 408, 410 (Fla. 3d D.C.A. 2005))); Gimenez, 807 So. 2d at 115-17 (Sorondo, J., specially concurring) (substantially similar); cf. Ryder Sys., Inc. v. Davis, 997 So. 2d 1133, 1134-35 (Fla. 3d D.C.A. 2008) (limiting these statements from Foster and WEG to situations where the trial court failed to address one or more prongs of the FNC framework).
32 See, e.g., Wood v. Bluestone, 9 So. 3d 671, 672-73 (Fla. 4th D.C.A. 2009) (refusing to apply a mixed FNC standard of review).
33 See Garcia, 991 So. 2d at 917-18 (Polen, J., specially concurring) (“[T]he [pure] abuse of discretion standard may not be the most appropriate standard of review in these cases.”).
34 See Piper, 454 U.S. at 254 n.22; Kinney, 674 So. 2d at 90.
35 See, e.g., Satz, 244 F.3d at 1283; Ciba-Geigy, 691 So. 2d at 1115.
36 Piper, 454 U.S. at 254, n.22; Kinney, 674 So. 2d at 90-91.
37 Transportes Aereos Nacionales, S.A. v. De Brenes, 625 So. 2d 4, 5 (Fla. 3d D.C.A. 1993).
38 A blocking statute is foreign legislation that seeks to destroy native jurisdiction over cases that were previously dismissed from U.S. courts on FNC grounds. See Scotts, 2 So. 3d at 1015 n.2.
39 See id. at 1015-17.
40 Scotts, 2 So. 3d at 1017 n.7 (citing De Brenes, 625 So. 2d at 5).
41 See Garcia, 991 So. 2d at 914, 916-17.
42 See Abad, 563 F.3d at 666; Paolicelli v. Ford Motor Co., 289 Fed. Appx. 387, 390 (11th Cir. 2008) (unpublished).
43 Ms. Alonso was counsel of record for defendant Ford Motor Company in Garcia, Abad, and Paolicelli. Abad was consolidated on appeal with Pastor v. Bridgestone/Firestone North American Tire, LLC, No. 08-3101, and Ms. Alonso’s participation related exclusively to Pastor.
44 De Brenes, 625 So. 2d at 6.
Alina Alonso is a shareholder with Carlton Fields, P.A., in Miami, and is a member of the firm’s appellate and trial support practice group. She was previously a law clerk to Justice R. Fred Lewis of the Florida Supreme Court.
David L. Luck is an associate with Carlton Fields and practices with Ms. Alonso. He, too, is a former law clerk to Justice Lewis.
Both Ms. Alonso and Mr. Luck attended the University of Miami School of Law in Coral Gables.
This column is submitted on behalf of the Appellate Practice Section, Dorothy F. Easley, chair, and Tracy R. Gunn, Heather M. Lammers, and Kristin A. Norse, editors.