We generally file motions to dismiss for forum non conveniens under one of two circumstances. Most often we are resisting blatant forum shopping—plaintiffs who try to import their claims into a forum that they view as favorable, but with which neither they nor their claims bear any arguable relationship. Plaintiffs’ lawyers often do this as part and parcel of inventory litigation, where they combine multiple claimants into mass complaints and file them in places like California or Illinois. Maybe there are one or two Californians or Illinois residents among the masses, but everyone else is just tagging along. You would think that judges would react poorly to this imposition on their courtrooms and state taxpayers, but it does not always work that way. Some grant our motions and send the carpetbaggers home, but others see no harm in presiding over dozens or hundreds of claims involving similar products, even though the claims themselves (usually personal injury claims) all require individual adjudication. Post-Bauman, challenges to personal jurisdiction have packed more punch in thinning out such “mass” complaints.
The other circumstance under which we generally file forum non conveniens motions is when the forum shopping is not so blatant, but there is an alternate forum that is both more appropriate for the plaintiff’s claims and more advantageous for our clients. An example is a foreign plaintiff suing a U.S. company in the company’s home forum. In that case, the plaintiff can certainly gain jurisdiction over the defendant in the defendant’s home forum, but is that the best forum in which to conduct the case? The answer was “no” in a recent order from the Northern District of California, Kleiner v. Spinal Kinetics, Inc., No 5:15-cv-02179, 2016 WL 1565544 (N.D. Cal. Apr. 19, 2016). In Kleiner, the German plaintiffs alleged injuries that they attributed to spinal implants that were designed and manufactured in California. However, the devices were sold by the defendant’s German subsidiary; the devices were implanted in Germany; the plaintiffs suffered their alleged injuries in Germany; and they were treated for their alleged injuries in Germany by German doctors. Id. at *1. They sued in California, and it is no mystery why: Their attorneys perceived it as a more favorable forum, including through the potential recovery of punitive damages. German law, by contrast, does not permit punitive damages.
The defendant moved to dismiss the case on the basis or forum non conveniens. It might seem odd that a defendant would assert that its home state is an inconvenient forum, but it depends on the facts of the case, and there are a number of prominent authorities supporting such a motion. The case we always cite in California is Stangvik v. Shiley, 54 Cal. 3d 744 (1991), where Swedish and Norwegian plaintiffs sued a California-based medical device manufacturer in California, and the California Supreme Court sent them back to Scandinavia. At the federal level, the case you will want to review is Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981), where the U.S. Supreme Court held that Scottish plaintiffs could not proceed with their lawsuit against a plane manufacturer in Pennsylvania, even though the plane was manufactured there.
Because of precedents like these, the defendant’s motion in Kleiner was a strong motion, and the district court agreed. The court determined first that there was a suitable alternative forum—Germany. Sure, the German courts are not the same as federal court in California, and they may not even be as good. Some would say the German courts are better. It really doesn’t matter, because an alternate forum is adequate if the forum’s laws do not “completely deprive” the plaintiff of a remedy. Id. at **2-3. Whether imperfect or superior or something in between, the German forum cleared this low bar.
The more interesting part is the district court’s treatment of the private and public interest factors that courts weigh in determining which forum is more suitable. On the private interest factors, we appreciate how the district court focused on the locale of the plaintiffs’ treatment and its impact on the evidence. As the court observed, “The surgeons, by virtue of their role in implanting and subsequently removing Defendant’s products from Plaintiffs, possess substantial material information regarding the cause and extent of the Plaintiffs’ injuries. Likewise the treating physicians possess material information regarding the extent of Plaintiffs’ injuries and the effect of their treatment.” Id. at *4. This is exactly the right place for the analysis to start. These are critical witnesses, and their presence outside the subpoena power of the California-based court was a significant problem. The court also noted that the plaintiff’s claims arose in Germany and that the plaintiff’s choice of forum was “entitled to less deference” because they resided outside their chosen forum. Id. at *5.
The private interest factors thus weighed in favor of Germany, and so did the public interest factors. Germany had a significant local interest in the controversy because the plaintiffs “are residents of Germany, underwent their respective implantation operations in Germany, and suffered similar injuries there.” Id. at *6. California’s interest? It was “identifiable, albeit tenuous.” Id. Similarly, Germany’s interest in applying its laws (including the lack of punitive damages) “far outweighs the interest of California,” because while the product was designed and manufactured in California, that fact alone was insufficient to apply California law. Id. at *7.
The order came with conditions, which they always do. The defendant has to submit to the jurisdiction of the German courts and satisfy any judgment obtained in Germany, and it has to produce employee witnesses for discovery and trial. Id. at **7-8. We are sure the defendant can live with that, and although we have not read its motion, we are equally sure that the defendant suggested those conditions to help the court reach the desired and correct result.
We will reiterate that the district court’s focus on the plaintiff-specific evidence, and particularly on evidence regarding the plaintiffs’ surgery and other medical treatment, is the story of this case. The plaintiffs surely emphasized the evidence in California regarding the design, manufacture, and sale of the produce, but in the final analysis the balance tipped to Germany. We commend the order to our readers, who likely will handle similar disputes.