Belize Social Dev. Ltd. v. Gov’t of Belize, 794 F.3d 99, 105 (D.C. Cir. 2015); BCB Holdings Ltd. v. Gov’t of Belize, 650 Fed. Appx. 17, 19 (D.C. Cir. 2016); Newco Ltd.v.Gov’t of Belize, 650 Fed. Appx. 14, 16 (D.C. Cir. 2016).See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254 n.22 (1981)); Sinochem International Co., Ltd. v. Malaysia International Shipping Corp., 549 U.S. 422, 429 (2007).Piper Aircraft Co., 454 U.S. at 254 n.22 (citations omitted).
G. Kendall Sharp, Senior US District Court Judge, dismissed the case on the grounds of forum non conveniens, which he described as follows: "Under the federal doctrine of forum non conveniens, when an alternative forum has jurisdiction to hear a case, and when the trial in the chosen forum would establish oppressiveness and vexation to a defendant out of all proportion to the plaintiff's convenience, or when the chosen forum is inappropriate because of considerations affecting the court's own administration and legal problems the case may, in an exercise of its sound discretion, dismiss the case even if jurisdiction is in a proper venue or established." (Am. Dredging Co. v. Miller, 510 U.S. 443, 447-48 (1994) [quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 (1981)]. The Judge based his decision on a number of factors.
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 Federal Circuit found this reasoning lacking because the relevant provisions of the Berne Convention merely provided “national treatment” for works of foreign authors, e.g., Canada should treat Canadian and foreign authors identically for purposes of Canadian copyrights. The Federal Circuit applied the general forum non conveniens test from Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254 (1981), involving a determination as to whether there exists an alternative forum that is (i) available and (ii) adequate (i.e., “permits litigation of the subject matter of the dispute”). Under this framework, the Federal Circuit specified that the following evidence must be shown when considering dismissing a U.S. intellectual property infringement matter on forum non conveniens grounds: an infringing act occurred in the foreign jurisdiction; the foreign jurisdiction would apply U.S. law; and the foreign jurisdiction would provide a remedy for the infringement of the U.S. IP rights.
For his part the plaintiff, wishing to keep the case where he brought it, will often argue that the proposed foreign forum is in some aspect problematic. The problems urged by plaintiff may include at the more serious end, corruption, politicization, lack of impartiality and due process, and at the less serious one, backlog, judicial inexperience, difficulty in obtaining evidence, lack of compulsory process, etc.In Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981), the Supreme Court set a high bar for forum inadequacy: A foreign forum will be found inadequate only "in rare circumstances," and only when the remedy available abroad will be "so clearly inadequate or unsatisfactory that it is no remedy at all." Since Piper, not many countries have lived up (or down) to its stringent standard.
To understandAtlantic Marine’simpact, it is important to distinguish two different but similar legal tests: the standard for the doctrine of forum non conveniens and the standard for enforcing forum-selection clauses.Forum non convenienscan apply whenever a litigant argues that private or public reasons justify litigating a case in a different forum, not just when a party is enforcing a forum-selection clause. For example, in the landmark Supreme Court decision interpreting §28 U.S.C. 1404(a),Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981), the plaintiffs sued in California, and then in Pennsylvania, over a plane crash that occurred in Scotland killing Scottish subjects. Id.
However, the burden under Rule 12(b)(3) is more onerous than the burden imposed by section 1404(a). See, e.g., Piper Aircraft Co. v. Reyno, 454 U.S. 235, 253 (1981). In all but the clearest cases, section 1404(a) provides a tactical advantage because it affords additional time to create a winning record to present to the court.
SeeAtlantic Marine at fn. 6 (quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241, n.6 (1981)).This is the potential hook to hang a state public policy argument upon.
Shipping Corp., 549 U.S. 422, 430 (2007) ("When the plaintiff's choice is not its home forum, however, the presumption in the plaintiff's favor 'applies with less force,' for the assumption that the chosen forum is appropriate is in such cases 'less reasonable.'") (quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255-56 (1981)). Accordingly, the district court gave little weight to Circuit Check's second choice of forum.