Sample Answer: # 9 (B) (Opposition to Motion)
The court should deny 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 and thus is subject to jurisdiction there.
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 not carried their substantial burden.
Plaintiffs’ choice of forum is entitled to deference. Doe is a citizen of the United States and of California. Roe is not a citizen of the United States, although he is domiciled in California. In any event, Roe is not a citizen of Germany.
The evidence will focus on Lufthansa’s computer and communications systems and whether and how plaintiffs’ information was disclosed. Those systems are accessible from all Lufthansa offices, including in California. This case is unlikely to be witness-intensive; the case turns on how Saudi Arabia obtained plaintiffs’ information. Nevertheless, witnesses are not substantially more available in Germany than California. LGBS will provide the primary information about whether and how Lufthansa’s computer system was hacked. LGBS is a U.S. citizen, so it is more convenient for it to travel to California than Germany. Several Lufthansa employees (the pilot and crew of the second flight) who might be witnesses regularly travel to California. The Lufthansa employees who sent the information from the Riyadh airport reside in Saudi Arabia, not Germany. Other Lufthansa employees reside in Germany. But Germany is not substantially easier, more expeditious, or less inexpensive as a forum than California. Private interest factor favor the current forum, especially given Doe’s venue privilege. At worst, these
If the court looks to the public-interest factors, they do not show that Germany has a sufficiently greater interest in providing the forum than the United States so as to support dismissal. The contract claims are governed by California law, meaning California courts are “at home” with the law. The dispute involves local people and events on both sides—plaintiffs are local to the forum, while Germany is local to the proposed transferee court. The docket of the Northern District of California is smaller and less congested than that of either German court in which this case might be heard;l the median time to judgment in the federal court (7.5 months) is approximately half of the time in the German court in Cologne (11.6) or Frankfurt (13.3 months).
Forum non conveniens requires that defendants show the alternative forum is substantially more convenient; in a close case, dismissal should be denied. To the extent some factors point to Germany, this is a close case. The court thus should deny dismissal.
