A motion for forum non conveniens is usually filed by a defendant after having been served with a complaint when the defendant believes or claims that the place where the complaint has been filed is not the proper place for the trial of the claims in the plaintiff’s complaint because, among other reasons, the underlying facts that gave rise to the complaint occurred elsewhere and the pertinent documents and witnesses are in another location.
In California, in determining the merits of a forum non conveniens motion, a court must engage in a two-pronged analysis. The first prong is determining whether the suggested alternative forum is a suitable place for adjudicating the action. This prong of the analysis is nondiscretionary. Thus, only where the court finds that a proposed alternative forum is suitable, may it proceed to the analysis of the second prong. If a suitable forum does not exist, the court must deny the motion as a matter of law.
Generally, a suitable forum is where a defendant is amenable to process and no procedural bars impede a plaintiff’s claims to be heard in the foreign jurisdiction on their merits. However, in rare circumstances, a proposed alternative forum must be deemed unsuitable even if a defendant is amenable to process and even where there is no procedural bar to hearing the issues on the merits. This exception generally applies when a proposed forum is a foreign country whose judiciary is not independent or does not adhere to the due process of the law. Where a foreign forum fails to apply the principles of the due process of the law as that term is interpreted and applied by American courts, the foreign forum is considered unsuitable as a matter of law.
The second, discretionary prong is a fairness analysis that involves the weighing of the private interests of the parties and the interests of the court and the public in retaining the action in California. Some of the many factors courts may consider in conducting this balancing test are the possibility of harassment in the inconvenient forum; the enforceability of the judgment; fairness; convenience to the parties; reasonableness; the parties’ residence; where the parties conduct their regular business; whether the plaintiff would be substantially disadvantaged in litigating elsewhere; and expense.
While California courts have identified numerous private factors for consideration, with the exception of a brief period between 1986 and 1992, it has been repeatedly reiterated that as a matter of law, courts must afford substantial weight to a California resident’s choice of forum, and absent extraordinary circumstances, deny the requesting party’s motion. Where the defendant is a California resident, California is presumed to be a convenient forum.
The public factors involve the analysis of the following questions: (1) the forum that best serves judicial efficiency; (2) the forum most able to obtain jurisdiction over the parties and compel the testimony of witnesses; and (3) the interest of each forum in adjudicating the issue.
On requesting to stay or dismiss an action for forum non conveniens, the requesting defendant must carry the burden of proof. Specifically, to prevail, he or she must make a twofold showing that the proposed alternative forum is suitable, and that California is a seriously inconvenient forum. In establishing this burden of proof, the requesting defendant must present evidence. Mere assertions are insufficient.