Sample Answer: # 9(A) (Support of Motion):
The court should grant Defendants’ Motion to Dismiss on Forum Non Conveniens.
Forum non conveniens is a common law doctrine under which a federal dismisses an an otherwise-properly filed action in deference to a different judicial system that is more convenient. It governs the movement of cases between judicial systems—from courts within the United States to courts in another nation, as well as from courts of one state to courts of another state.
The defendant has the burden of showing that dismissal is proper. The defendants must first show that the proposed alternative forum—in this case, Germany—offers an available and adequate to resolve the case. It does. The United States has certified Germany as committed to fundamental due process akin to the United States and an adequate forum, as a modern Western democracy. Federal Republic. Lufthansa is a German corporation with its principal place of business in Germany, while LGBS is a subsidiary of Lufthansa; both are subject to jurisdiction in Germany.
Having identified an alternative forum, the court balances three considerations. The first is the plaintiffs’ “venue privilege,” which requires deference to the plaintiffs’ chosen forum where they sue “at home.” That deference is greater in forum non conveniens than in venue transfer, when the result is moving the plaintiffs to a new judicial system in a different country.
The court then considers the parties’ private interests, relating to the convenience of litigation. Courts frame these factors two ways. One lists the factors as relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling witnesses; the cost of obtaining attendance of willing witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. Atlantic Marine. Another framing considers the location of events giving rise to the case, the ability to implead other parties in the court, the ability to take a view the premises involved in the dispute, and the location of relevant witnesses and documentary evidence. Gulf Oil.
Finally, the court considers public-interest factors, again framed two ways. One focuses on administrative difficulties flowing from court congestion; the local interest in having localized controversies decided at home; and whether the action is likely to be decided under local law. Atlantic Marine. Alternatively, the court looks at whether the dispute involves local events and whether it will be decided under local law.
Defendants bear the burden of persuasion. They must show that the balance of factors strongly favor dismissal and the alternative forum is substantially more convenient; the purpose of forum non conveniens is not to transfer inconvenience from the defendants to the plaintiffs. In addition, the court considers public-interest factors only if the private-interest factors favor dismissal or are in equipoise; public-interest factors will not support dismissal when private-interest considerations favor the initial forum.
Defendants have carried this burden.
Although Doe is suing in his home state of California, Roe is not a U.S. citizen and thus is not entitled to venue privilege.
The private-interest factors favor Germany. The events giving rise to this action occurred in Germany—the information at issue was transmitted from Saudi Arabia to Germany and entered on a computer system located in Germany and operated and controlled from Germany. The failure to protect or delete that information occurred in Germany. Other than plaintiffs, no witnesses reside in California. The Lufthansa employees who transmitted plaintiffs’ information reside in Saudi Arabia and regularly travel to Germany. The Lufthansa employees who received the information and who communicated with plaintiffs’ during their flights reside in Germany. As a practical matter, trial would be easier, less expensive, and more expeditious in Germany.
Because the private-interest factors favor transfer, the court must look at the public-interest factors. This controversy involves a party local to Germany, giving Germany a sovereign interest in providing the forum for a dispute involving one of its major international business entities. The German courts are not substantially more congested than the Northern District of California. The median time to resolution in the federal court (7.5 months) is only a few months less than the German court of Cologne (11.6) or Frankfurt (13.3 months). Although California law controls the interpretation of the contract, this action does not involve local events; it involves international travel among three countries, with Germany as the fulcrum of the events.
Balancing the public and private interest factors and given the absence of a venue privilege for Roe, Germany offers a substantially better and more convenient forum. This court should dismiss this action, allowing plaintiffs to refile their action in a German court.
