In law school, many students struggle with the distinctions between personal jurisdiction, venue, and forum non conveniens (aka, FNC).  In the real world of product liability, FNC is definitely viewed as a less effective tool in the defense litigation toolbox than the other two.  Part of the reason is that the showing required for a dismissal is that the forum the plaintiff chose, which is typically accorded deference, is not a convenient forum for the case to proceed.  It is not simply that there might be a slightly more convenient forum somewhere else, a forum minus commodus motion, if you will.  Thus, the bar for winning an FNC motion is high and depends heavily on the discretion of the trial judge.  If you compare the number of our surveys and other posts on FNC to the number of our surveys and other posts on personal jurisdiction, then you will get an idea of how rarely we see a decision that is worth discussing. 

Back when we were a 1L in law school, long before the Blog was twinkle in the eye of Bexis, we know that one of the Supreme Court cases featured in the discussion of FNC in our Civil Procedure class was Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981).  Piper is the primary Supreme Court case cited in the Eighth Circuit’s decision in Dibble v. Torax Med., Inc., — F.4d –, 2025 WL 2250561 (8th Cir. Aug. 7, 2025), that we are discussing today, so we figure it is worth a bit of a recap. 

Piper built on the principles around since at least Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947), that dismissal on FNC imposed a heavy burden on the movant and that the decision based on the trial judge’s discretion in applying a number of public and private interest factors.  Piper, though, involved an early version of litigation tourism, so it took a look at what might be different in the sort of case where our clients might give FNC a shot.  Scottish plaintiffs sued over an accident in Scotland of a plane that was owned and operated by U.K. companies and registered in the U.K.  They sued the Pennsylvania manufacturer of the plane and an Ohio manufacturer of the propeller in California because their lawyers were in California and liked California law.  The case was removed and transferred to the Middle District of Pennsylvania, which dismissed the case on forum non conveniens.  (Under current standards, there would not have been general or specific personal jurisdiction over the defendants in California in the first place.)  In the Supreme Court, plaintiffs offered the expected arguments for why U.S. courts should entertain suits from foreign plaintiffs against U.S. companies based on sales and alleged injuries abroad.  The Piper court did not see ensuring that U.S. courts decide cases involving U.S. defendants as a reason to allow foreign plaintiff to sue:

At least where the foreign plaintiff named an American manufacturer as defendant, a court could not dismiss the case on grounds of forum non conveniens where dismissal might lead to an unfavorable change in law. The American courts, which are already extremely attractive to foreign plaintiffs, would become even more attractive. The flow of litigation into the United States would increase and further congest already crowded courts.

454 U.S. at 251-52.  Piper also rejected the idea that U.S. courts have to entertain suits from foreign plaintiffs to deter bad acts by U.S. companies:

Respondent argues that American citizens have an interest in ensuring that American manufacturers are deterred from producing defective products, and that additional deterrence might be obtained if [the manufacturers] were tried in the United States, where they could be sued on the basis of both negligence and strict liability.

Id. at 60.  After this discussion, the Supreme Court reinstated the FNC dismissal.  This walk down memory lane was brought to you by the letter “D,” as in “discretion” and “deference.”  Perhaps the most lasting influence of Piper was its emphasis on the deference that is supposed to be shown to the district court’s decision:

The forum non conveniens determination is committed to the sound discretion of the trial court. It may be reversed only when there has been a clear abuse of discretion; where the court has considered all relevant public and private interest factors, and where its balancing of these factors is reasonable, its decision deserves substantial deference.

Id. at 257.

The Eighth Circuit dabbled with discretion in Dibble, but did not show much deference to the district judge’s decision.  Indeed, the only references in its opinion to deference related to the deference afforded to a plaintiff’s forum choice and how much less there should be with a foreign plaintiff.  2025 WL 2250561, *3.  There was no discussion of the reasonableness of the district judge’s balancing or a finding that there had been a failure to consider all the relevant factors.  Even without saying what either court held—save in our title, which we know most of you blow right by—we can relay that this appellate treatment looked much more like a de novo review than the type of review dictated by the Supreme Court in Piper.

After all that, we will be brief with what actually happened in Dibble per the opinion.  An unspecified medical device was “installed” for an unspecified purpose—three analysis flags already—in a Japanese citizen in the United Kingdom.  An unspecified “failure” led the plaintiff to have the first device explanted in Colorado, at which time an unspecified second device—perhaps the same kind as the first—was implanted.  The plaintiff found the second device somehow inadequate, had some unspecified treatment in Thailand, and later sued the manufacturers of the first device in Minnesota federal court.  One of the manufacturers used to be based on Minnesota perhaps at a time relevant to the design, manufacture, or labeling of the first device, but had apparently moved to Ohio, and the other had always been in New Jersey.  Dibble was pretty loose in its recounting of the alleged facts, for sure.  The district court had dismissed on FNC because “most if not all of the facts underlying this case occurred outside in the U.K. or elsewhere outside Minnesota” and most of the documents and witnesses were also elsewhere.  Id.  By all appearances, the district court considered the appropriate public and private interest factors.

However, the Eighth Circuit disagreed with the weight the district court—in its discretion—afforded the various factors and concluded that it “erred when it viewed all evidence outside of Minnesota as weighing in favor of the United Kingdom.”  Id. (emphasis added).  That does not sound like substantial deference to us.  For us, we think it is a little strange to put all the contacts with Colorado, New Jersey, or Ohio in Minnesota’s column, which is what the Eighth Circuit did in Dibble.  Id. at *4.  After all, there could be an FNC decision about whether a case should be dismissed from Minnesota state court in favor of proceeding in Colorado state court.  But that is the difference between a de novo review of the recognized factors on appeal and affording substantial deference to the weighing of those same factors already done by the district court.  In the implanted medical device product liability space, where the plaintiff resides, where the implant occurred, where the injury occurred, or where the defendant is currently based tend to be the options for where a case sticks.  Where one of manufacturers used to be based rarely is.  Of course, as was generally rejected in Piper, the desire to avoid less plaintiff-friendly law in the jurisdiction where the plaintiff resides, etc., is not a good reason to invite a foreign plaintiff into U.S. court.