Espinoza v. Evergreen Helicopters, Inc.

No. 22 April 14, 2016 63

IN THE SUPREME COURT OF THE

STATE OF OREGON

Rosa Aurelia Palacios ESPINOZA,

Personal Representative of the Estate of

Victor Andres Espinoza Horna, Deceased,

for her own benefit as the surviving spouse

and for the benefit of Micaela Ariana Espinoza

and Mariam Andrea Espinoza,

surviving children of the deceased,

Plaintiff-Appellant,

Respondent on Review,

v.

EVERGREEN HELICOPTERS, INC.,

an Oregon corporation,

Defendant-Respondent,

Defendant on Review,

and

Bobbi CRANN,

Personal Representative of the Estate of

Alan Crann, Deceased,

Defendant.

Erika Consuelo Machado MERINO,

Personal Representative of the Estate of

Juan Francisco Garcia Rubio, Deceased,

for her own benefit as the surviving spouse

and for the benefit of Macarena Garcia Machado

and Mariono Garcia Santolalla,

surviving children of the deceased,

and Arturo Benjamin Garcia Pinillos,

surviving father of the deceased,

Plaintiff-Appellant,

Respondent on Review,

v.

EVERGREEN HELICOPTERS, INC.,

an Oregon corporation,

Defendant-Respondent,

Defendant on Review,

and

64 Espinoza v. Evergreen Helicopters, Inc.

Bobbi CRANN,

Personal Representative of the Estate of

Alan Crann, Deceased,

Defendant.

July Marlene Churata FERNANDEZ,

Personal Representative of the Estate of

Christian Martin Querevalu Quiroz, Deceased,

for her own benefit as the surviving spouse and for

the benefit of Camila Milagros Querevalu Churata,

surviving child of the deceased,

and Freddy Quiroz Dulanto De Querevalu

and Rolandi Querevalu Suarez,

surviving parents of the deceased,

Plaintiff-Appellant,

Respondent on Review,

v.

EVERGREEN HELICOPTERS, INC.,

an Oregon corporation,

Defendant-Respondent,

Defendant on Review,

and

Bobbi CRANN,

Personal Representative of the Estate of

Alan Crann, Deceased,

Defendant.

Flor De Maria Gamboa ALVAREZ,

Personal Representative of the Estate of

Fernando Cesar Nunez Del Prado Reynoso, Deceased,

for her own benefit as the surviving spouse and for the

benefit of Caroline Anthuanet Nunez Del Prado Gamboa

and Fernando Junior Nunez Del Prado Gamboa,

surviving children of the deceased,

and Margarita Severiana Reynoso Quispe

and Ricardo Cesar Nunez Del Prado Saavedra,

surviving parents of the deceased,

Plaintiff-Appellant,

Respondent on Review,

v.

Cite as 359 Or 63 (2016) 65

EVERGREEN HELICOPTERS, INC.,

an Oregon corporation,

Defendant-Respondent,

Defendant on Review,

and

Bobbi CRANN,

Personal Representative of the Estate of

Alan Crann, Deceased,

Defendant.

Flor Katherine Soto LICAN,

Personal Representative of the Estate of

Jose Luis Saldana Eustaquio, Deceased,

for her own benefit as the surviving spouse

and for the benefit of Joseph Saldana Soto,

Luiggi Saldana Soto, Miguel Angel Saldana Soto,

Maria Elizabeth Saldana Gutierrez,

and Alexandra Himena Saldana Gutierrez,

surviving children of the deceased,

and Amadeo Saldana Narro,

surviving father of the deceased,

Plaintiff-Appellant,

Respondent on Review,

v.

EVERGREEN HELICOPTERS, INC.,

an Oregon corporation,

Defendant-Respondent,

Defendant on Review,

and

Bobbi CRANN,

Personal Representative of the Estate of

Alan Crann, Deceased,

Defendant.

Olga Paulina Chiba QUISPE,

Personal Representative of the Estate of

Peter Michael Liza Chiba, Deceased,

for her own benefit as the surviving mother

and for the benefit of Jose Armando Liza Nunton,

surviving father of the deceased,

Plaintiff-Appellant,

Respondent on Review,

66 Espinoza v. Evergreen Helicopters, Inc.

v.

EVERGREEN HELICOPTERS, INC.,

an Oregon corporation,

Defendant-Respondent,

Defendant on Review,

and

Bobbi CRANN,

Personal Representative of the Estate of

Alan Crann, Deceased,

Defendant.

Brenda Vilma Hoyle DE CASTRO,

Personal Representative of the Estate of

Miguel Max Castro Gutierrez, Deceased,

Plaintiff-Appellant,

Respondent on Review,

v.

EVERGREEN HELICOPTERS, INC.,

an Oregon corporation,

Defendant-Respondent,

Defendant on Review,

and

Bobbi CRANN,

Personal Representative of the Estate of

Alan Crann, Deceased,

Defendant.

Giovanna Patricia Otero DE VASQUEZ,

Personal Representative of the Estate of

Jhon Henry Vasquez Lopez, Deceased,

for her own benefit as the surviving spouse and

for the benefit of Angie Patricia Vasquez Otero,

Henry Gianpierre Vasquez Otero,

Karen Elizabeth Vasquez Otero,

and Jhon Henry Vasquez Otero,

surviving children of the deceased,

Pablo Wilfredo Vasquez Meza,

surviving father of the deceased,

and Catalina Lopez De Vasquez,

surviving mother of the deceased,

Plaintiff-Appellant,

Respondent on Review,

Cite as 359 Or 63 (2016) 67

v.

EVERGREEN HELICOPTERS, INC.,

an Oregon corporation,

Defendant-Respondent,

Defendant on Review,

and

Bobbi CRANN,

Personal Representative of the Estate of

Alan Crann, Deceased,

Defendant.

(CC 090912350, 090912777, 090913294, 091015153,

091015154, 091217035, 100202814, 100303637;

CA A147028; SC S062903)

On review from the Court of Appeals.*

Argued and submitted September 15, 2015.

Thomas W. Sondag, Lane Powell PC, Portland, argued

the cause and filed the brief for the petitioner. With him on

the brief was David G. Hosenpud and Peter D. Hawkes of

Lane Powell PC, Portland.

Richard S. Yugler, Landye Bennett Blumstein LLP,

Portland, argued the cause and filed the brief for the

respondent. With him on the brief was Robert B. Hopkins

and Matthew K. Clarke, of Landye Bennett Blumstein LLP,

Portland, and Arthur C. Johnson of Johnson, Johnson and

Schaller PC, Eugene.

Cody Hoesly, Larkins Vacura LLP, Portland, filed the

brief on behalf of amicus curiae Oregon Trial Lawyers

Association.

Before Balmer, Chief Justice, and Kistler, Walters,

Landau, Baldwin, Justices, and Duncan, Judge of the Court

of Appeals, Justice pro tempore.**

______________

**  Appealed from Multnomah County Circuit Court, Jerry B. Hodson, Judge.

266 Or App 24, 337 P3d 169 (2014).

** Brewer and Nakamoto, JJ., did not participate in the consideration or

decision of this case. Linder, J., retired December 31, 2015, and did not partici-

pate in the decision of this case.

68 Espinoza v. Evergreen Helicopters, Inc.

BALMER, C. J.

The decision of the Court of Appeals is affirmed. The

judgment of the circuit court is vacated, and the case is

remanded to the circuit court for further proceedings.

Case Summary: Plaintiffs, whose relatives were killed in a helicopter crash

in Peru, filed wrongful death actions against defendant, an Oregon aviation ser-

vices company that provided the helicopter and pilot. Defendant filed motions to

dismiss the actions for forum non conveniens, on the grounds that Peru provided

an adequate alternative forum, that trying plaintiffs’ claims in Oregon would be

seriously inconvenient, and that Peru had a stronger interest in the controversy.

The trial court granted defendant’s motions and dismissed plaintiffs’ claims

without prejudice so that plaintiffs could re-file their actions in Peru. Plaintiffs

appealed, arguing that the doctrine of forum non conveniens is not available in

Oregon, or, in the alternative, that if it was, dismissal on that ground was not

appropriate in their cases. The Court of Appeals reversed in part, concluding

that the doctrine of forum non conveniens is available in Oregon, but that the trial

court applied the wrong substantive law in determining whether to grant defen-

dant’s motion. Held: The doctrine of forum non conveniens is part of the common

law of Oregon and, under certain circumstances when the ends of justice require

it, permits a trial court to dismiss or stay an action.

The decision of the Court of Appeals is affirmed. The judgment of the cir-

cuit court is vacated, and the case is remanded to the circuit court for further

proceedings.

Cite as 359 Or 63 (2016) 69

BALMER, C. J.

This case arises from a helicopter crash in a remote

part of Peru, which resulted in the deaths of everyone on

board. Plaintiffs brought wrongful death actions in Oregon

against Evergreen Helicopters, Inc. (Evergreen), an Oregon

corporation that provided the helicopter and the pilot.

Evergreen filed motions to dismiss plaintiffs’ actions on the

ground that, under the doctrine of forum non conveniens,

Peru was the appropriate forum in which to litigate those

cases. The trial court consolidated the cases and granted

Evergreen’s motions.1 Plaintiffs appealed and the Court of

Appeals reversed. Although it concluded that the doctrine

of forum non conveniens is available in Oregon, the Court

of Appeals held that the trial court erred as a matter of law

because it made factual determinations that went to the

underlying merits of plaintiffs’ claims and failed to assess

the materiality of the documentary and testimonial evi-

dence with respect to the different claims in the complaint.

Espinoza v. Evergreen Helicopters, Inc., 266 Or App 24, 49-51,

337 P3d 169 (2014). The Court of Appeals further held that

the trial court erred by failing to make the requisite find-

ings, expressly or implicitly, as to the availability of evidence

in Peru and failing to discuss what factors it considered in

reaching its decision. Id. at 50-51. On review, we consider

two issues: (1) whether the doctrine of forum non conveniens

is available under Oregon law, and (2) if so, what standards

guide its application. For the reasons discussed below, we

conclude that forum non conveniens is part of the common

law of Oregon and permits a trial court to dismiss or stay an

action under certain circumstances when the ends of justice

require it. We disagree in some respects with the Court of

Appeals as to the standards that govern the application of

forum non conveniens, but we agree with its decision vacat-

ing the trial court judgments and remanding the cases to

the trial court.

I.  FACTUAL AND PROCEDURAL BACKGROUND

We state the facts based on the allegations in the

pleadings, supplemented by additional facts in the record.

1

As noted, plaintiffs originally filed eight separate complaints, which the

trial court consolidated. For purposes of appeal and review in this court, all eight

cases have been combined.

70 Espinoza v. Evergreen Helicopters, Inc.

Plaintiffs are the appointed personal representatives

of the families and estates of eight passengers who died

in a helicopter crash in Peru. Defendant Evergreen, an

Oregon corporation with its principal place of business in

Oregon, owns and leases aircraft, including the helicopter

that crashed in this case, and provides related services

worldwide.2 The crash occurred when the helicopter, which

was transporting employees and subcontractors of a min-

ing company to a remote Andean copper mining project,

flew into a mountainside. The helicopter was being flown

pursuant to a service contract between Rio Tinto Mining

Peru S.A.C., the Peruvian subsidiary of a global mining

and minerals company, and Helinka S.A.C., a Peruvian

commercial aviation services provider. Pursuant to that

contract, and other side agreements, Evergreen provided

the helicopter, as well as pilots, mechanics, parts, and an

on-site contract administrator to help coordinate the air

transport service to and from the mining camp. The pilot

in charge of the helicopter on the day of the crash was

an Evergreen employee who had been provided to Helinka

as a part of that arrangement. Although it is undisputed

the helicopter was operating in inclement weather at the

time of the crash, the parties disagree as to the cause of

the crash, and in particular whether pilot error was to

blame or whether mechanical problems might also have

contributed.3

Plaintiffs filed civil actions against Evergreen

and the pilot’s estate in Multnomah County Circuit

Court for the wrongful deaths of the deceased passen-

gers, based on theories of direct and vicarious liability in

2

In 2013, Evergreen International Aviation, the parent company of defen-

dant Evergreen Helicopters, Inc., sold that company to Erickson Air-Crane,

Inc., another aviation services provider based out of Portland, Oregon. The

sale of Evergreen Helicopters has no impact on the issues before this court on

review. However, the name of that company has since been changed to Erickson

Helicopters, Inc. For purposes of clarity and to be consistent with the decisions of

the courts below, we refer to defendant by its prior name.

3

The parties also disagree as to who exercised operational control over the

helicopter and supervisory authority over the pilot. Plaintiffs alleged in their

complaints that Evergreen was in control of the helicopter and that the pilot was

its employee and agent. Before the trial court, Evergreen disputed that charac-

terization, and argued that Helinka had both operational control of the helicopter

and supervisory authority over the pilot.

Cite as 359 Or 63 (2016) 71

negligence.4 Plaintiffs alleged that Evergreen, individually

and through its agents, was negligent or grossly negligent

in failing to “properly maintain, inspect, test and/or repair

the subject helicopter,” to properly train and supervise its

crew, to properly navigate and operate the helicopter on

the day of the crash, and to warn plaintiffs of the dangers

associated with flying in adverse weather. 5 In addition,

plaintiffs alleged, Evergreen had negligently entrusted the

helicopter. Plaintiffs alleged that Evergreen’s negligence, or

gross negligence, in those various ways was a substantial

factor in causing the helicopter crash and the deaths of their

relatives.

Invoking the doctrine of forum non conveniens,

Evergreen moved to dismiss plaintiffs’ actions on the

grounds that an adequate alternative forum was available

in Peru and that the balance of private and public inter-

ests favored dismissal. Evergreen asserted that a Peruvian

court would be better-situated to hear the cases for several

reasons. Evergreen argued that litigating the actions in

Oregon would be seriously inconvenient because “the over-

whelming evidence relating to [plaintiffs’] claims for negli-

gence” is in Peru and because crucial third-party witnesses

are also located there. Evergreen noted that a view of the

premises was unavailable in Oregon and asserted that liti-

gating plaintiffs’ actions here was likely to result in practi-

cal difficulties, due, for example, to the fact that translators

would be required for many witnesses. Evergreen further

asserted that it would be unable to implead Helinka as a

third-party defendant in Oregon and that Peru had the

strongest interest in the controversy, particularly since

that is where the crash occurred, plaintiffs are Peruvian

4

The trial court dismissed plaintiffs’ claims against the pilot’s estate for

insufficient service of process and lack of personal jurisdiction. Plaintiffs do not

challenge that decision on appeal.

5

Seven of the plaintiffs filed nearly identical complaints and alleged, as

noted, both that Evergreen was directly liable for its own negligence and that it

was vicariously liable for the negligence of individuals working under its author-

ity. The eighth plaintiff, de Castro, alleged only vicarious liability based on the

negligent operation of the helicopter in Peru. The trial court granted Evergreen’s

motions to dismiss as to all eight actions without distinguishing between them.

We express no opinion as to whether the differences between the allegations in

de Castro’s complaint and the others may be material to the trial court’s forum

non conveniens analysis on remand.

72 Espinoza v. Evergreen Helicopters, Inc.

nationals and Peruvian law will most likely apply to their

claims.

In response, plaintiffs argued first that the doctrine

of forum non conveniens never has been expressly recognized

in Oregon and that a court may not dismiss an action on that

ground because under Oregon law, a court must exercise

jurisdiction over a case that has been properly conferred.

In the alternative, plaintiffs argued that even if that doc-

trine were available in Oregon, dismissal was not appropri-

ate in their cases because the balance of private and public

interest factors actually weighed strongly in favor of retain-

ing jurisdiction here. Plaintiffs asserted that a substantial

amount of the evidence relevant to the litigation of their

claims is located in the United States, and particularly in

Oregon, where Evergreen is headquartered and has its prin-

cipal place of business. Plaintiffs argued that even if their

actions were litigated in Peru, a view of the premises was

unlikely given its remote location, and that wherever the

trial was held, the parties would be relying on demonstra-

tive evidence and expert testimony to convey information

about the crash site to the jury. Noting that their complaints

alleged both vicarious and direct liability claims against

Evergreen, including that Evergreen had been negligent in

installing, maintaining and testing mechanical systems on

the helicopter, plaintiffs asserted that a substantial factor

in the cause of the crash may have been defects in avion-

ics installed by Evergreen in Oregon. As a result, plaintiffs

asserted, Oregon has a strong interest in this litigation.

The trial court concluded that the doctrine of forum

non conveniens is available and that Oregon trial courts

have the “discretion to dismiss an otherwise properly filed

case if the court determines that an adequate alternative

forum exists and that trying the action elsewhere would

best serve the convenience of the parties and the ends of

justice.” Applying that standard, the court dismissed plain-

tiffs’ actions. The trial court issued a letter opinion setting

out its conclusions. First, the court considered whether

Peru provided an adequate alternative forum. Noting that

plaintiffs had initially conceded that point in their briefing,

before later arguing that the statute of limitations had run

in Peru and that it therefore was not an adequate forum,

Cite as 359 Or 63 (2016) 73

the trial court determined that Evergreen’s offer to waive

its statute of limitations defenses in Peru was sufficient to

address that concern. The trial court then proceeded to “the

weighing of a number of private and public interest factors

to determine whether trying the action in Peru would best

serve the convenience of the parties and the ends of justice.”

The trial court recognized that its analysis would “depend[ ]

in large part on how one views the dispute between the par-

ties.” However, it did not make any express factual findings

to support its conclusions or state how those findings would

shape its analysis. Rather, the court summarily concluded:

“The materials submitted by the parties persuade me that

trial of this lawsuit will largely center on, and depend

upon, witnesses and documents regarding circumstances

in Peru at the time of the crash, rather than circumstances

in Oregon or the United States.”

The court did acknowledge that plaintiffs had pointed to evi-

dence of “squawks” in the helicopter’s navigational systems

near the time of the crash and that discovery might reveal

evidence of technical malfunctions attributable to Evergreen

that would support the direct negligence claims. However, it

declined “to base [its] decision on such possibilities, espe-

cially given the record that is before [the court].” The court

concluded, without further elaboration, that “the private and

public interest factors weigh in favor of dismissal,” granted

Evergreen’s motion, and entered general judgments of dis-

missal without prejudice for all of the actions.6

6

The trial court imposed certain conditions on the dismissal of plaintiffs’

claims. It required that Evergreen submit to the jurisdiction of a Peruvian court

and agree to be bound by any judgment entered there, that it waive certain stat-

ute of limitations defenses in Peru, and that it agree to make evidence in the

United States available in Peru. Further, for the dismissal to be effective, the

trial court required that the courts in Peru accept those conditions and that none

of the cases be rejected there for lack of subject matter or personal jurisdiction.

On review, neither party has asserted that the trial court erred in imposing con-

ditions on the dismissals of plaintiffs’ claims. In other jurisdictions, courts have

deemed conditions similar to those imposed here permissible, and sufficient to

address concerns about the adequacy of the proposed alternative forum. See, e.g.,

Paulownia Plantations de Panama Corp. v. Rajamannan, 793 NW2d 128, 134-35

(Minn 2009) (trial court may dismiss action on forum non conveniens grounds

even when adequacy of alternative forum is uncertain, if nonmoving party is

protected by conditions attached to dismissal and holding that alternative forum

was adequate in that case, where defendant agreed to submit to jurisdiction and

waive all jurisdictional defenses).

74 Espinoza v. Evergreen Helicopters, Inc.

Plaintiffs appealed and the Court of Appeals

reversed in part. The Court of Appeals agreed with the

trial court that forum non conveniens is available in Oregon.

To articulate the standard that trial courts should apply

in deciding whether to dismiss a case on that ground, the

Court of Appeals drew from Gulf Oil Corp. v. Gilbert, 330

US 501, 67 S Ct 839, 91 L Ed 1055 (1947), and subsequent

federal cases. Reviewing the trial court decision for abuse

of discretion, the Court of Appeals held that the court did

not err in concluding that Peru offered an adequate alter-

native forum,7 but that it did err in its analysis of whether

the relative inconvenience of trying plaintiffs’ actions in

Oregon warranted dismissal in favor of a Peruvian forum.

The Court of Appeals first concluded that, in arriving at

its decision, the trial court improperly made and relied on

factual determinations that went to the merits of plaintiffs’

claims. Id. at 48-49. Second, it determined that the trial

court disregarded the significance of witnesses and evidence

in Oregon that would relate to plaintiffs’ direct negligence

claims. Third, it faulted the trial court for failing to make

any findings, implicit or express, about the availability of,

or ease of access to, evidence in Peru. Id. at 50-51. Finally,

it held that the trial court erred in not considering factors

other than the availability of evidence, contrary to the test

set out in Gulf Oil. However, because it concluded that the

lack of explanation in the trial court’s letter opinion pre-

vented meaningful appellate review of that decision, the

Court of Appeals vacated the dismissals and remanded the

consolidated cases for reconsideration in light of its opinion.

Id. at 51. Evergreen sought review, which we granted.8

7

On appeal, plaintiffs argued that the Peruvian courts were inadequate due

to “institutional corruption, discrimination against indigenous and poor peo-

ple, and retaliation against plaintiffs who seek redress in Peru’s legal system.”

Because plaintiffs did not raise those issues before the trial court, the Court of

Appeals held that those issues were not preserved and declined to consider them.

See Espinoza, 266 Or App at 47-48.

8

Before the Court of Appeals, Evergreen challenged the exercise of appel-

late jurisdiction over all eight actions, because plaintiffs joined and filed a single

notice of appeal, with only one of the eight judgments attached to that notice.

That argument was rejected by the Appellate Commissioner of the Court of

Appeals, and the Chief Judge of that court denied reconsideration. Evergreen

again argues on review that ORAP 2.10(1), which provides that in consolidated

cases “a separate notice of appeal must be filed as to each judgment,” is a juris-

dictional requirement such that plaintiffs’ failure to file eight separate notices of

Cite as 359 Or 63 (2016) 75

On review, Evergreen focuses on two issues. First,

Evergreen argues that the Court of Appeals afforded too

much deference to plaintiffs’ choice of Oregon as the forum

in which to litigate their claims. Evergreen contends that

less deference is required in this case because plaintiffs

are all Peruvian residents, relying on Piper Aircraft Co. v.

Reyno, 454 US 235, 102 S Ct 252, 70 L Ed 2d 419 (1981),

where the United States Supreme Court held that on a

motion to dismiss for forum non conveniens, the ordinary

presumption in favor of the plaintiff’s forum choice applies

with less force where the plaintiff is not a resident of that

forum.9 Evergreen argues that such a rule is appropriate,

because there is no reason to presume that a forum is con-

venient to the plaintiff when the plaintiff is not a resident of

that forum. Evergreen suggests that under the appropriate

standard for non-resident plaintiffs, an action should be dis-

missed if it may be litigated more conveniently elsewhere.

Dismissal is especially appropriate here, Evergreen claims,

because Oregon’s connection to this dispute is objectively

weak.

Second, Evergreen disputes the Court of Appeals’

statement that the trial court erred in making factual deter-

minations that relate too closely to the “merits” of plaintiffs’

underlying claims. Noting that the trial court never expressly

stated that it was disregarding any evidence or that it had

decided what that evidence might show, Evergreen asserts

that the trial court did not improperly disregard those direct

negligence claims that could have required discovery of wit-

nesses and documents in Oregon. Evergreen further con-

tends that even if the trial court did conclude that plaintiffs’

direct negligence claims lacked merit and relied on that con-

clusion in weighing the relative advantages and obstacles

appeal deprives both the Court of Appeals and this court of jurisdiction. We agree

with the orders below that ORAP 2.10(1) is not a jurisdictional requirement and

that plaintiffs’ combined notice of appeal was sufficient in this case.

9

In both federal and state case law, plaintiffs that reside outside of the

forum where an action is brought are referred to as “foreign.” The plaintiffs in

the reported cases are often foreign nationals, that is, residents and citizens of

other countries. However, the term “foreign” can also apply to plaintiffs who are

simply residents of different states within the United States. Here, we use the

terms “non-resident” and “foreign” interchangeably to refer to all plaintiffs who

reside outside of the forum state.

76 Espinoza v. Evergreen Helicopters, Inc.

to a fair trial, it did not err in doing so. Rather, Evergreen

asserts, resolving a motion to dismiss for forum non conve-

niens may require consideration of at least some aspects of

the merits of a plaintiff’s claims, and, as a practical matter,

any preliminary view expressed by a trial court in disposing

of a case on forum non conveniens grounds could not possibly

interfere with a party’s right to trial of disputed issues of

fact in the underlying dispute.

In response, plaintiffs urge us to reject the doc-

trine of forum non conveniens. Noting that this court need

not rely on federal precedents in deciding that common

law issue, they contend that its origin is dubious and that

it “is a parochial, xenophobic and outcome-determinative

doctrine that permits reverse forum shopping by powerful

corporations seeking to altogether avoid accountability in

their home forum for transnational torts.” Plaintiffs also

argue that we should not recognize the doctrine because,

under Oregon law, “there is no inherent discretionary

authority to decline jurisdiction in damages actions over

a local defendant in favor of another venue for the sake

of convenience.” Finally, plaintiffs contend that even if

such authority does exist, significant policy reasons weigh

against allowing courts to exercise it, and that, for that

reason, whether courts should be allowed to stay or dismiss

an action for forum non conveniens should be left to the leg-

islature to decide.

In the alternative, plaintiffs urge us to affirm the

Court of Appeals’ articulation of how the doctrine of forum

non conveniens should be applied under Oregon law. Plaintiffs

assert that the degree of deference given to their choice to

litigate in Oregon should not depend on their status as for-

eigners or their assumed motive in making that choice. To

the extent that the court makes any presumption about the

convenience of Oregon as the forum, plaintiffs contend, the

court should presume that it is convenient, since defendant is

located and operates its business here. Noting that Oregon

courts are hardly overrun by plaintiffs from other countries

and that advances in modern technology have reduced the

burden of litigating transnational cases, plaintiffs argue

that an action should be dismissed on the grounds of forum

Cite as 359 Or 63 (2016) 77

non conveniens only in the rare circumstance where the

defendant sustains its heavy burden to show that the plain-

tiff’s choice of forum is “vexatious, harassing or oppressive

to the defendant.” Plaintiffs argue that the trial court failed

to adhere to that standard and erroneously imposed a much

less stringent burden on Evergreen.

Finally, plaintiffs argue that the trial court erred

in analyzing the public and private interest factors set out

in Gulf Oil and that, as a result, it struck an unreasonable

balance in weighing those factors. Plaintiffs contend that

the procedural posture of defendant’s motion, as a motion

to dismiss, required the trial court to assume the truth of

all well-pleaded allegations and to construe disputed facts

liberally in their favor. Pointing to the trial court’s state-

ment in its letter opinion that the substance of the case is

“dependent on circumstances in Peru,” plaintiffs argue that

this shows that the trial court relied on factual conclusions

going to the merits of their claims that are contrary to the

well-pleaded allegations in their complaints, and that in

the process, the trial court erred by “picking and choosing”

which allegations and theories to consider when assessing

the ease of access to relevant witnesses and documents in

each forum.

Plaintiffs acknowledge that assessing the mate-

riality of witness testimony and other evidence requires a

degree of “entanglement with the merits,” but they distin-

guish those kinds of determinations from judging whether

a particular claim or theory of liability is likely to succeed.

Plaintiffs argue that a trial court deciding a motion to dis-

miss for forum non conveniens may ascertain certain facts,

such as where particular evidence is located, but that a trial

court may not shape its assessment of the relative inconve-

nience of litigating an action in a particular forum accord-

ing to its assessment of the strength of the various claims

asserted. Plaintiffs argue that treating all claims and the-

ories of recovery the same for purposes of weighing the

materiality of the available evidence and the relative ease

of access to the sources of that proof in each forum is par-

ticularly appropriate where, as here, the parties have yet to

conduct merits discovery.

78 Espinoza v. Evergreen Helicopters, Inc.

II. ANALYSIS

A.  The Doctrine of Forum Non Conveniens

A brief discussion of the origins and elements of the

doctrine of forum non conveniens will provide context for

our consideration of the issues on review. Generally, rules of

personal jurisdiction and venue ensure that actions are liti-

gated in an appropriate forum. See World-Wide Volkswagen

Corp. v. Woodson, 444 US 286, 292, 100 S Ct 559, 62 L Ed 2d

490 (1980) (jurisdictional due process requirement of “mini-

mum contacts” is intended to protect defendant from burden

of litigating in “distant or inconvenient forum”); Kohring v.

Ballard, 355 Or 297, 312, 325 P3d 717 (2014) (“Jurisdiction

refers to the authority of the court to hale a defendant into

court, while venue concerns the particular location where it

is appropriate for the court to exercise that authority.”). In

rare cases, however, jurisdiction and venue for an action are

proper in a forum where litigating the action would be seri-

ously inconvenient to the parties, witnesses, or the court.

The doctrine of forum non conveniens—Latin for “inconve-

nient forum”—provides that, in such cases, “a court having

jurisdiction may decline to exercise it on considerations of

convenience, efficiency, and justice.” Kedy v. A.W. Chesterton

Co., 946 A2d 1171, 1178 (RI 2008) (citing AT & T Corp. v.

Sigala, 274 Ga 137, 138, 549 SE2d 373, 375 (2001)); see also

Restatement (Second) of Conflict of Laws § 84, comment

a (1971) (“The rule has been developed that a court, even

though it has jurisdiction, will not entertain the suit if it

believes itself to be a seriously inconvenient forum provided

that a more appropriate forum is available to the plaintiff.”).

The importance of forum non conveniens and the fre-

quency with which courts have invoked that doctrine in dis-

missing certain actions have varied over time. Historically,

restrictive jurisdictional rules tended to prevent more

than one forum from being competent to adjudicate a dis-

pute, and as a result, the rule that a court with jurisdiction

might nonetheless decline to hear a case in favor of allowing

a forum with concurrent jurisdiction to do so instead was

infrequently used.10 See Peter B. Rutledge, With Apologies to

10

Prior to the development of modern jurisdictional rules, concurrent juris-

diction occurred most often in cases that arose from activity aboard a foreign

Cite as 359 Or 63 (2016) 79

Paxton Blair, 45 NYU J Int’l L & Pol 1063, 1065-66 (2013)

(describing history and evolution of forum non conveniens

doctrine).

Nonetheless, the basic principles from which forum

non conveniens originates are deeply rooted in the common

law. It has long been an established rule that a court may

sometimes refuse to consider a case on the merits, despite

having jurisdiction over the parties and subject matter.

See David Shapiro, Jurisdiction and Discretion, 60 NYU L

Rev 543, 546-60, 547-60, 571-74 (1985) (describing a court’s

“traditional equitable discretion not to proceed”). Indeed,

although the doctrine’s Latin name was not commonly used

in this country until the twentieth century, a court’s author-

ity to decline to hear a case involving foreign litigants or

subject matter for prudential reasons has been recognized

in the United States and Great Britain for nearly two hun-

dred years. See Gulf Oil, 330 US at 504 (describing history

of doctrine noting that “courts of equity and of law also occa-

sionally decline, in the interest of justice, to exercise juris-

diction, where the suit is between aliens or nonresidents,

or where for kindred reasons the litigation can more appro-

priately be conducted in a foreign tribunal.” (internal cita-

tions and quotation marks omitted)); Robert Braucher, The

Inconvenient Federal Forum, 60 Harv L Rev 908, 909-18

(1947) (discussing history of forum non conveniens doctrine).

As one United States district court in Maine noted in 1836:

“The courts of this country are not bound to take jurisdic-

tion of controversies between foreigners having no domi-

cil in this country * * *. It is a question of discretion to the

court, whether it will take cognizance of the case, or not,

and it cannot be charged with a denial of justice if it remits

the parties, with their rights entire, to their domestic

vessel on the high seas. As a result, many of the early examples of the doctrine of

forum non conveniens are found in cases involving actions of that type. Peter B.

Rutledge, With Apologies to Paxton Blair, 45 NYU J Int’l L & Pol 1063, 1065-66

(2013). See, e.g., Willendson v. Forsoket, 29 Fed Cas 1283, 1284, 1 Pet Adm 197

(DC Pa 1801) (declining for prudential reasons to exercise jurisdiction over con-

tract case brought by sailor against captain); Johnson v. Dalton, 1 Cow 543, 548,

13 Am Dec 564, 1823 WL 1885, *4 (NY Sup Ct 1823) (describing well-settled rule

that courts have sound discretion to decline to exercise jurisdiction over cases

arising from torts committed on high seas involving foreign litigants; affirming

decision of trial court to hear case, because under the circumstances, “to send the

plaintiff to a foreign tribunal would be a denial of justice.”).

80 Espinoza v. Evergreen Helicopters, Inc.

forum. * * * The question is, therefore, not one affecting the

competency of the court, but it turns upon the expediency

of taking jurisdiction in the particular case.”

The Bee, 3 F Cas 41, 43, 1 Ware 332, 336 (D Me 1836) (inter-

nal citations omitted); see also, e.g., Tulloch v. Williams,

8 Dunlop, 657 (Scot Sess 1846) (notwithstanding court’s

jurisdiction over matter, it would decline to hear case;

forum was not convenient because evidence and witnesses

were in Jamaica, Jamaican law was likely to apply, and

defendant had agreed to answer any process served on him

there).

By the latter half of the nineteenth century, as the

development of modern jurisdictional rules allowed courts to

expand their extraterritorial reach, the risk of jurisdictional

competition between forums increased. Accordingly, so too

did the importance of forum non conveniens as a mecha-

nism for addressing cases where jurisdiction and venue

were proper but the forum unsuitable. Rutledge, Apologies,

at 1067; see also Paxton Blair, The Doctrine of Forum Non

Conveniens in Anglo-American Law, 29 Colum L Rev 1, 20-30

(1929) (describing examples of doctrine’s use and evolution).

Thus, as the basic contours of the doctrine crystallized, it

was invoked with greater frequency by courts in a variety

of jurisdictions. See, e.g., Western Railway Co. v. Miller, 19

Mich 305, 315-316, 1869 WL 3643, *6-7 (1869) (articulating

version of rule similar to modern doctrine of forum non con-

veniens); Pierce v. Equitable Life Assur. Soc., 145 Mass 56,

62-63, 12 NE 858, 863-64 (1887) (recognizing that court may

decline to exercise jurisdiction over action against defendant

foreign corporation if it would be gravely inconvenient due to

location of parties and evidence, but retaining case because

inconvenience in that instance not insuperable). 11

11

Another Scottish case, Clements v. Macaulay, 4 Macpherson, 583 (Scot

Sess 1866), not only contains a well-developed discussion of the doctrine of forum

non conveniens, as it was understood at the time, but turns on facts that are inter-

esting from a historical standpoint. In that case, a merchant brought an action

in Scotland against his business partners, seeking his share of the proceeds from

a joint venture to provide supplies to the confederate army during the United

States’ Civil War. After the trial court refused to dismiss the action, the Scottish

Court of Session reversed, holding that the action was more appropriately tried in

the United States where the parties had entered into the arrangement and where

most of the relevant evidence was located.

Cite as 359 Or 63 (2016) 81

Today, forum non conveniens is an ingrained fea-

ture of the common law, having been adopted throughout

the federal courts and in nearly every state, either by judi-

cial decision or legislative mandate. See Kedy, 946 A2d at

1179-80 (noting recognition of doctrine in jurisdictions

throughout United States). The defendant, as the moving

party, bears the “heavy burden” to establish that an action

should be dismissed, or stayed, on forum non conveniens

grounds. Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp.,

549 US 422, 430, 127 S Ct 1184, 167 L Ed 2d 15 (2007). As

an equitable doctrine reserved to the sound discretion of the

trial court, however, there is no bright line rule for when a

court should grant such a motion. See Piper Aircraft, 454

US at 249-50 (declining to lay down a “rigid rule” to govern

forum non conveniens because “each case turns on its facts”

and “[i]f central emphasis were placed on any one factor, the

forum non conveniens doctrine would lose much of the very

flexibility that makes it so valuable.” (internal citations and

quotation marks omitted)); see also Sinochem, 549 US at

429 (“Dismissal for forum non conveniens reflects a court’s

assessment of a ‘range of considerations, most notably the

convenience to the parties and the practical difficulties that

can attend the adjudication of a dispute in a certain local-

ity.’ ” (citing Quackenbush v. Allstate Ins. Co., 517 US 706,

723, 116 S Ct 1712, 135 L Ed 2d 1 (1996))).

A court’s exercise of discretion in granting or deny-

ing a motion to dismiss for forum non conveniens in most

jurisdictions today is guided by the two-stage, multi-factor

test set out by the United States Supreme Court in Gulf Oil,

discussed below, which identifies a number of private and

public considerations intended to help determine the relative

advantages and costs of the available forums. Restatement

at § 84 comment c; see, e.g., Stangvik v. Shiley Inc., 54 Cal

3d 744, 751, 819 P2d 14, 17 (1991) (noting adoption of Gulf

Oil test); Lesser v. Boughey, 88 Haw 260, 263-64, 965 P2d

802, 805-06 (1998) (same); Myers v. Boeing Co., 115 Wash

2d 123, 128, 794 P2d 1272, 1275 (1990) (same); see also, e.g.,

State ex rel. Ford Motor Co. v. Nibert, 235 W Va 235, 239-40,

773 SE2d 1, 5-6 (2015) (describing West Virginia forum non

conveniens statute, which adopts test similar to that in Gulf

Oil).

82 Espinoza v. Evergreen Helicopters, Inc.

At the first stage of the Gulf Oil test, the court

considers whether there is an alternative forum in which

the action may be tried. At that stage, the moving party

is usually required to establish, as a threshold issue, that

an alternative forum is available and capable of provid-

ing relief. See Gulf Oil, 330 US at 506-07 (“In all cases in

which the doctrine of forum non conveniens comes into play,

it presupposes at least two forums in which the defendant

is amenable to process; the doctrine furnishes criteria for

choice between them.” (emphasis added)); see also Carijano

v. Occidental Petroleum Corp., 643 F3d 1216, 1225 (9th Cir

2011), reh’g den, 686 F3d 1027 (9th Cir 2012), cert den, 133

S Ct 1996 (2013) (under Gulf Oil, to prevail on motion to

dismiss based on forum non conveniens, defendant must

demonstrate existence of adequate alternative forum, mean-

ing forum where defendant is amenable to process and that

“offers a satisfactory remedy”); but see, e.g., Islamic Republic

of Iran v. Pahliavi, 62 NY2d 474, 484, 467 NE2d 245, 249

(1984) (although availability of another suitable forum is

important consideration, it is not prerequisite to application

of forum non conveniens doctrine).

At the second stage of the test, the court’s discre-

tion is guided by a balancing of the interests at stake. The

court initially looks to the private interests of the parties to

“weigh relative advantages and obstacles to fair trial.” Gulf

Oil, 330 US at 508. Some of those factors may include:

“[T]he relative ease of access to sources of proof; availabil-

ity of compulsory process for attendance of unwilling, and

the cost of obtaining attendance of willing, witnesses; pos-

sibility 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[;] * * * [and] the

enforceability of a judgment if one is obtained.”

Id. In addition, the court may consider public-interest fac-

tors that are relevant to whether litigating in the plaintiff’s

chosen forum would serve the ends of justice. Public-interest

factors identified in Gulf Oil include: the administrative

difficulties and burden on the court in the plaintiff’s cho-

sen forum; the unfairness of imposing the expense of trial

and the burden of jury duty on residents of a community

with little or no connection to the controversy; the interest

Cite as 359 Or 63 (2016) 83

in “having localized controversies decided at home”; and

choice of law issues, including whether the court will be

required to apply its own law, or that of another jurisdic-

tion. Id. at 508-09. When, on balance, the relevant private

and public interests “strongly favor” litigating the action in

the alternative forum, the court may dismiss the complaint,

or alternatively, in some jurisdictions, stay the action. Id.

at 508; see Stangvik, 54 Cal 3d at 749-51 (under California

law, court may either dismiss or stay action for forum non

conveniens).

B.  The Availability of Forum Non Conveniens in Oregon

We next consider the threshold question presented:

whether the doctrine of forum non conveniens is available in

Oregon. Under the Oregon Constitution, rules of the common

law that existed when the Constitution took effect in 1859 are

incorporated into the laws of this state. See Oregon Const.,

Art 18, § 7 (“All laws in force in the Territory of Oregon when

this Constitution takes effect, and consistent therewith,

shall continue in force until altered, or repealed.”); Laws of

Oregon 1843-49, Act of June 27, 1844, Art III, § 1, p 100

(1853) (“[T]he Common Law of England and principles of

equity, not modified by the statutes of Iowa or of this govern-

ment, not incompatible with its principles, shall constitute

a part of the law of this land.”); see also Fulmer v. Timber

Inn Restaurant and Lounge, Inc., 330 Or 413, 424, 9 P3d

710 (2000) (unless modified or abrogated, applicable com-

mon law rules are binding on Oregon courts). As discussed,

the doctrine that courts may decline to hear cases involv-

ing foreign subject matter or litigants for reasons of conve-

nience and justice was well-established in 1859. Indeed, by

that time, courts throughout the United States and Great

Britain already were articulating the key elements of forum

non conveniens and employing it with increasing regularity.

See, e.g., McIvor v. McCabe, 26 How Pr 257, 16 Abb Pr 319,

1863 WL 3736, *2 (NY Super 1863) (“Every court is pri-

marily the judge of its own jurisdictional powers, and may

assume them or decline them * * *. Whether, therefore, the

court will afford jurisdiction in cases of trespass occurring

out of the State may be said to rest in discretion merely, and

may be denied whenever substantial justice may require it

* * *.”).

84 Espinoza v. Evergreen Helicopters, Inc.

Recognizing those common law roots, this court

has noted the existence of forum non conveniens and its rel-

evance as a mechanism for addressing the question of where

a particular action ought to be litigated. See, e.g., Myers

v. Brickwedel, 259 Or 457, 464-65, 486 P2d 1286 (1971)

(acknowledging doctrine); Reeves v. Chem Industrial Co.,

262 Or 95, 100, 495 P2d 729 (1972) (noting that “[c]ourts

often refuse to hear a case because of forum non conveniens

considerations” (internal citation and quotation marks omit-

ted) (emphasis added)). Thus, although this court has never

expressly held that forum non conveniens is part of Oregon

law or reached the issue of whether a court may decline to

hear a case on that ground, it has suggested as much. State

ex rel. Hydraulic Servocontrols Corp. v. Dale, 294 Or 381, 390

n 5, 657 P2d 211 (1982) (recognizing that forum non conve-

niens could apply to tort action where actual injury occurred

outside forum and at least one party is foreign, but conclud-

ing that was not dispositive of personal jurisdiction in that

case); North Pacific v. Guarisco, 293 Or 341, 356 n 12, 647

P2d 920 (1982) (suggesting that a trial court might consider

factors such as whether there is an alternative convenient

forum available and whether “center of gravity” for dispute

is in that alternative forum in determining whether to exer-

cise jurisdiction over action).

Notwithstanding that history, plaintiffs argue

that we are now prevented from formally adopting the

doctrine of forum non conveniens, because the dismissal

or stay of an action on that ground is inconsistent with

Oregon law. Plaintiffs first contend that our precedents

require courts to proceed with actions where jurisdiction

and venue are proper. That characterization of our case

law is incorrect. We never have held that an Oregon court

is required to adjudicate any case. Cf. Couey v. Atkins, 357

Or 460, 522, 355 P3d 866 (2015) (although trial courts

have constitutional authority to consider certain moot

cases, they are not required to adjudicate such actions,

merely because there is jurisdiction). Rather, we have

repeatedly recognized that for a variety of reasons, “a

court is not always required to exercise such jurisdiction

as it may possess.” Reeves, 262 Or at 100. Under appropri-

ate circumstances, a court may sometimes dismiss or stay

Cite as 359 Or 63 (2016) 85

an action for entirely prudential reasons, regardless of the

type of relief sought.

This court addressed the authority of a trial court

to dismiss an action for prudential reasons in Reed v. First

Nat. Bank of Gardiner, 194 Or 45, 241 P2d 109 (1952), an

action to recover money damages stemming from an alleged

fraud. There, the trial court dismissed the action for want of

prosecution. Id. at 49. On appeal, the plaintiff argued that

the trial court had acted without authority because it did

not comply with a statute requiring notice prior to such a

dismissal. Id. at 53-54. This court disagreed. Noting that

the efficient and diligent litigation of disputes is an essential

public policy interest, we held that “[t]he power of a court

to dismiss an action for want of prosecution is an inherent

power, and it exists independently of statute or rule of court.”

Id. at 55. Because the trial court’s dismissal of the plaintiff’s

complaint was “fully justified” and therefore reasonable and

appropriate under the circumstances, this court held that

the trial court had not abused its discretion and affirmed

the dismissal. Id. at 57.

Since Reed, we have confirmed that courts may dis-

miss or stay an action, without reaching the merits, for pru-

dential reasons in a variety of situations. See, e.g., League of

Oregon Cities v. State of Oregon, 334 Or 645, 652, 56 P3d 892

(2002) (stating rule that even when a court has jurisdiction

over an action pursuant to Uniform Declaratory Judgments

Act, it may decline to exercise that jurisdiction on equita-

ble grounds if it determines that another more appropriate

remedy exists); Oregon Medical Assn. v. Rawls, 276 Or 1101,

1106, 557 P2d 664 (1976) (when constitutionality of statute

is challenged, court may decline to entertain suit and leave

issue for another day when issue is better presented in order

“to most efficiently ration scarce judicial resources”); Reeves,

262 Or at 100–01 (upholding trial court’s dismissal of action

for breach of contract based on its conclusion that forum-

selection clause was not unfair or unreasonable).

Plaintiffs argue that the doctrine of forum non con-

veniens is contrary to the principle of comity, which, they

argue, requires Oregon courts to enforce legal obligations

arising under foreign law and prohibits them from treating

86 Espinoza v. Evergreen Helicopters, Inc.

an action differently because the litigants or subject matter

originate outside the forum. Plaintiffs contend that our cases

on the role of comity oblige trial courts to proceed with dam-

ages actions brought by foreign suitors.12 To the extent that

our cases recognize principles of comity and require Oregon

courts to respect them, however, comity does not prevent

courts from dismissing or staying an action brought by a for-

eign plaintiff for forum non conveniens. “Comity” refers to

“[a] principle or practice among political entities (as coun-

tries, states, or courts of different jurisdictions) whereby

legislative, executive, and judicial acts are mutually recog-

nized.” Black’s Law Dictionary 324 (10th ed 2014); see also

Kotera v. Daioh Int’l U.S.A. Corp., 179 Or App 253, 274, 40

P3d 506 (2002) (“Comity is a flexible concept that counsels

us to enforce the laws of other states when, in the circum-

stances at hand, those laws neither offend international duty

or convenience nor fail to protect the recognized rights of our

citizens.” (internal citations and quotation marks omitted)).

Although the concept of comity is consistent with

the view that courts ought generally to recognize and

enforce rights arising under foreign law or out of conduct

in other jurisdictions, we have never considered that obli-

gation to be absolute. See State ex rel. Kahn v. Tazwell, 125

Or 528, 544, 266 P 238, motion to recall mandate den, 126

Or 585 (1928), overruled on other grounds by Reeves, 295 Or

95 (“Under principles of comity the courts of one state will

enforce rights arising in other states, unless contrary to the

laws or public policy of the state in which such enforcement

is sought, and will entertain suits brought by citizens of

other states.” (Emphasis added.)); see also Reeves, 262 Or at

100-01 (court may decline to enforce a contractual provision

pointing to law of another jurisdiction if it would be “unfair

or unreasonable”); McGirl v. Brewer, 132 Or 422, 445-46,

285 P 208 (1930) (on rehearing) (noting that the extent of

12

In support of that view, plaintiffs cite dicta in Bowles v. Barde Steel Co.,

177 Or 421, 435, 164 P2d 692 (1945) that “courts are not free to refuse to enforce

a foreign right at the pleasure of the judges, to suit the individual notion of expe-

diency or fairness.” Plaintiffs’ reliance on Bowles is misplaced. The issue in that

case was the extent to which state courts are obligated to entertain rights of

action created by federal law. See generally id. at 428, 452-80. Taken in context,

none of the passages from Bowles that plaintiffs cite stand for the propositions

they assert.

Cite as 359 Or 63 (2016) 87

comity afforded to courts in other jurisdictions is a matter of

judicial policy and discretion).

Moreover, the principle of comity suggests that

courts should treat their foreign counterparts with respect

and not presume that the justice they offer is inherently

inferior or inadequate, directly contrary to plaintiffs’ posi-

tion that the Peruvian courts are inadequate to decide this

dispute. Rather, the respect that comity requires is con-

sistent with the dismissal or staying of an action so that

it may be litigated more conveniently and effectively in a

forum abroad, particularly when that forum has a stronger

interest in the underlying controversy. See Blair, Doctrine,

at 6 n 34 (“To apply the doctrine of forum non conveniens

to a particular case consequently does not involve ignoring

the requirements of comity; on the contrary in some cases

only by doing so can the requirements of comity be met.”).

See, e.g., Kotera, 179 Or App at 273-5 (upholding trial court’s

exercise of discretion in declining, for reasons of comity

and convenience, to hear case more appropriately suited to

Japanese tribunal). In sum, there is no rule of decision by

this court that prevents us from recognizing the doctrine of

forum non conveniens as part of the common law of Oregon.

Plaintiffs next contend that forum non conveniens

is inconsistent with the legal framework that the Oregon

legislature has provided to address where certain actions

may be litigated and when trial courts may change the place

of trial. Because the legislature has the power to alter or

repeal common law rules by statutory enactment, plaintiffs

are correct that we must consider whether the doctrine of

forum non conveniens is inconsistent with other applicable

laws. See Fulmer, 330 Or at 424.

Plaintiffs and amicus argue that Oregon’s venue

statutes are inconsistent with the doctrine of forum non

conveniens. Oregon’s venue statutes do establish where cer-

tain actions may be litigated and allow a court to transfer

an action to another venue within the state for a variety of

reasons, including the convenience of the parties, but those

statutes are silent as to whether, in the interest of justice

and convenience, a court may dismiss or stay an action in

favor of allowing it to be litigated in another forum outside

88 Espinoza v. Evergreen Helicopters, Inc.

the state. See ORS 14.030 - 14.165 (statutes specifying

where venue is proper and when venue transfer is autho-

rized);13 cf. Cal Civ Proc Code § 410.30 (authorizing court

to stay or dismiss an action when it finds in the interest of

substantial justice that dispute should be heard in forum

outside state).

Plaintiffs and amicus argue that Oregon’s venue

statutes nonetheless prohibit forum non conveniens by neg-

ative implication. In support of that view, they cite Elliott

v. Wallowa County, 57 Or 236, 239, 109 P 130 (1910), abro-

gated by State ex rel. Douglas Cty. v. Sanders, 294 Or 195,

655 P2d 175 (1982), where this court noted that “there is

no authority given a circuit court to change the venue of

a case except for the causes specified in the [venue] stat-

ute,” and argue that because Oregon’s statute provides only

that a court may transfer venue on inconvenience grounds, a

court may not dismiss or stay an action for the same reason.

They contrast Oregon law with other states where legisla-

tures have enacted statutes expressly providing that courts

may dismiss or stay actions for forum non conveniens. Cf. La

Code Civ Proc art 123 (providing that upon motion a court

may dismiss certain actions predicated on acts or omissions

originating outside the state for forum non conveniens and

setting out standard for application of doctrine); W Va Code

§ 56-1-1a (same).

However, the enactment of a statute concerning a

particular subject does not necessarily eliminate related

common law rules. See, e.g., Holien v. Sears, Roebuck and

Co., 298 Or 76, 90-97, 689 P2d 1292 (1984) (enactment of

statutory remedy for employment discrimination did not

abrogate common law action for wrongful discharge);14

13

ORS 14.110(1), which governs venue transfers, provides in part:

“The court or judge thereof may change the place of trial, on the motion

of either party to an action or suit, when it appears from the affidavit of such

party that the motion is not made for the purpose of delay and:

“* * * * *

“(c) That the convenience of witnesses and the parties would be pro-

moted by such change[.]”

14

Superseded in part by statute, Or Laws 2007 ch 903, as stated in Gladfelder

v. Pacific Courier Services, LLC, No. 3:12-CV-02161, 2013 WL 2318840, at *2

(D Or May 28, 2013).

Cite as 359 Or 63 (2016) 89

Cordon v. Gregg, 164 Or 306, 315-16, 101 P2d 414 (1940) (on

rehearing) (common law rules relating to disposition of real

property not abrogated by statutory scheme for intestate dis-

position, but remain in force as background rules to operate

when statute does not address specific situation). Rather, for

a pre-existing common law rule to be abrogated, it must be

evident that that the legislature intended “to negate [that

rule], either expressly or by necessary implication.” Holien,

298 Or at 96-97 (citing Brown v. Transcon Lines, 284 Or 597,

610, 588 P2d 1087 (1978)).

Although the venue statutes set out certain proce-

dural parameters for addressing the appropriateness of a

particular forum, plaintiffs have offered nothing to suggest

that those statutes were intended to eliminate the common

law doctrine of forum non conveniens, either expressly, or by

necessary implication. To the contrary, plaintiffs’ contention

is belied by the text of those statutes, which neither require

a court to adjudicate every case that is properly before it, nor

prohibit a court from taking other measures in response to

concerns about whether a dispute may be fairly and effec-

tively adjudicated in that forum. The general venue rule is

permissive; it provides, “When the court has jurisdiction of

the parties, it may exercise it in respect to any cause of action

or suit wherever arising, except for the specific recovery of

real property situated without this state, or for an injury

thereto.” ORS 14.030 (emphasis added); but see Kohring, 355

Or at 301 (notwithstanding permissive wording of venue

statute, defendants have “right” to insist that action be tried

in proper, rather than improper forum). As noted, although

ORS 14.110 sets out conditions for when a court may change

the place of trial, it does not prohibit the stay or dismissal

of an action for similar reasons. See ORS 14.110 (providing

grounds for change of venue). Except for specific and limited

categories of cases, the venue statutes do not mandate the

adjudication of an action in any particular venue. Compare

ORS 14.040 (providing that certain actions relating to dis-

position of property “shall be commenced and tried in the

county in which the subject of the action or suit, or some

part thereof, is situated” (emphasis added)); ORS 14.050

(listing types of suits that must be brought and tried in

county where the cause of action arose). The venue statutes

90 Espinoza v. Evergreen Helicopters, Inc.

do not abrogate the common law doctrine of forum non

conveniens.

Further, the law of venue is not the only source of

judicial authority for addressing the appropriateness of a

particular forum. Even if forum non conveniens were not

a well-developed common law doctrine, courts would have

authority to stay or dismiss an action for prudential reasons

as an exercise of their inherent power to administer justice.

See Couey, 357 Or at 491-93, 502 (courts have inherent judi-

cial power, which is plenary and vested in them by Article

VII (amended) of the Oregon Constitution).15 For, as we have

long recognized, “courts of general jurisdiction * * * have the

inherent power to do whatever may be done under the gen-

eral principles of jurisprudence to insure to the citizen a fair

trial, whenever his life, liberty, property or character is at

stake. The possession of such power involves its exercise as

a duty whenever public or private interests require.” State

ex rel. Ricco v. Biggs, 198 Or 413, 430, 255 P2d 1055 (1953),

overruled in part on other grounds by State ex rel. Maizels v.

Juba, 254 Or 323, 460 P2d 850 (1969) (quoting Crocker v.

Justices of Superior Court, 208 Mass 162, 179, 94 NE 369,

377 (1911)) (emphasis in State ex rel. Ricco). 16

15

Article VII, (amended) section 1, provides in part:

“The judicial power of the state shall be vested in one supreme court and in

such other courts as may from time to time be created by law.”

Although Article VII (amended) refers to slightly different judicial bodies as

being vested with the “judicial power” than Article VII (original), the operative

phrase “judicial power” is the same in both versions. See Couey, 357 Or at 491-92

(discussing text and history of original and amended versions of Article VII and

differences between them).

16

That Article VII (amended) vests courts with the power to dismiss or stay

cases for forum non conveniens is made evident by the historical and legal con-

text of that provision. See Couey, 357 Or at 492-93 (because text of Article VII

does not include any limitation on the exercise of the “judicial power,” we exam-

ine its historical context and the common law for evidence of its boundaries). As

noted, during the nineteenth century, courts were generally understood to be

able, under the common law, to decline to hear certain types of actions that were

otherwise proper. That power was not limited to cases where the litigants or sub-

ject matter were foreign, but could be exercised in a variety of circumstances. For

example, if a case that was already underway became moot during the course of

the litigation, courts had discretion to allow the case to continue, or, for pruden-

tial reasons, to dismiss it without reaching the merits. See id. at 500-01 (describ-

ing how judicial power was understood to confer authority on courts to “dispose[ ]

of moot cases as a matter of prudence, discretion, and judicial economy” and cases

applying that standard).

Cite as 359 Or 63 (2016) 91

The dismissal or stay of an action according to the

doctrine of forum non conveniens is consistent with those

principles, for, as an equitable doctrine, forum non conve-

niens is concerned at its core with “considerations of funda-

mental fairness and sensible and effective judicial admin-

istration.” Kedy, 946 A2d at 1179 (citing Adkins v. Chicago,

R.I. & P.R. Co., 54 Ill 2d 511, 514, 301 NE2d 729, 730 (1973));

see also id. at 1180 (stating well-established principle that

“[t]he inherent power of courts includes the authority to dis-

miss on the basis of forum non conveniens” and noting cases

recognizing that power).

This court has confirmed that, under appropriate

circumstances, courts have inherent authority to change

the place where a case will be tried even when the venue

statutes do not expressly provide for it. In State v. Nagel, 185

Or 486, 202 P2d 640, cert den, 338 US 818 (1949), the defen-

dant appealed his criminal conviction, assigning error to

the trial judge’s refusal to move his trial to another county.

Id. at 497-98. The defendant asserted that a change of venue

was necessary in his case because the alleged victim was

the daughter of a prominent county judge, making it impos-

sible for him to receive a fair trial in that same county. Id. at

500-01. This court disagreed and affirmed the judgment of

the trial court. Id. at 520. Considering Oregon’s venue stat-

ute as it then existed, and the various circumstances under

which that statute authorized a court to change venue for

trial, this court concluded that a change of venue was not

authorized in that case. Id. at 497-506. However, this court

declined to rest its decision on that lack of statutory author-

ity. Id. at 506. Instead, disavowing the statement in an ear-

lier case that a trial court may only change venue as pro-

vided by statute, this court confirmed that a trial court has

inherent authority to change the place of trial to ensure the

fairness of the proceedings. Id. at 505-06. The trial judge’s

refusal to grant the defendant’s motion was affirmed, not

because the trial court lacked authority to transfer, but

because there was no evidence that the jury was biased or

that the defendant had been deprived of a fair trial. Id. at

507-08. Although the issue raised in Nagel had particular

constitutional implications due to the nature of the proceed-

ings, the concerns underlying a court’s decision to dismiss or

92 Espinoza v. Evergreen Helicopters, Inc.

stay an action for forum non conveniens—the fair and effec-

tive administration of justice—are similar.

Finally, plaintiffs cite a number of scholarly arti-

cles that articulate various policy grounds for rejecting the

doctrine of forum non conveniens and argue that we should

refuse to recognize it in Oregon for those reasons.17 One

such policy argument is that forum non conveniens is no lon-

ger necessary as a standalone doctrine and that its objec-

tives may be more effectively realized through jurisdictional

rules. See, e.g., Rutledge, Apologies, at 1069-71 (arguing

that reduced jurisdictional competition between forums has

lessened need for doctrine as means of channeling disputes

between international fora); Simona Grossi, Forum Non

Conveniens as a Jurisdictional Doctrine, 75 U Pitt L Rev 1,

32-36 (2013) (arguing that forum non conveniens should be

reformulated as a jurisdictional rule); Markus Petsche, A

Critique of the Doctrine of Forum Non Conveniens, 24 Fla J

Int’l L 545, 573-79 (2012) (arguing that objectives of forum

non conveniens are more appropriately addressed through

jurisdictional rules). However, even if forum non conveniens

is less pertinent today than previously, or may be addressed

through changes to other legal rules, it does not follow that

we should decline to recognize the doctrine entirely. As it

stands today, civil legal proceedings may still be filed in a

forum where jurisdiction and venue are proper, but where

litigation of the action would be extraordinarily inconve-

nient and inappropriate. In such a case, a court may, and

in fact should, exercise its power to dismiss or stay the case

and allow the dispute to be resolved elsewhere.

Other scholars criticize the doctrine on the grounds

that it is difficult to articulate a coherent standard for

when it should be applied. As a result, its critics argue,

forum non conveniens tends, at a minimum, to be applied

inconsistently and, at worst, applied too often and for ille-

gitimate and even discriminatory reasons. See, e.g., Pamela

17

In a related vein, plaintiffs and amicus argue that because the issue of

whether forum non conveniens should be adopted in this jurisdiction is laden with

policy considerations, we should defer to the legislature and decline to recog-

nize it by judicial decision. As discussed above, legislative authorization is not

required for a court to identify and apply the common law. We see no infirmity in

recognizing the doctrine here.

Cite as 359 Or 63 (2016) 93

Bookman, Litigation Isolationism, 67 Stan L Rev 1081,

1095 (2015) (criticizing frequency with which federal courts

dismiss actions and arguing that doctrine has become a

“most-suitable-forum” rule, where dismissal is based on a

judge’s belief, for virtually any reason, that trial elsewhere

would be more appropriate); Grossi, Jurisdictional Doctrine,

at 23-31 (criticizing indeterminacy and arbitrariness of

doctrine); Petsche, Critique, at 559-72 (criticizing inconsis-

tent application of doctrine and impermissible motivations

behind dismissals). As a practical consequence, some argue,

forum non conveniens has become a mechanism for “reverse

forum-shopping”:

“[C]onvenience has little to do with why defendants seek a

forum non conveniens dismissal. The real reason is to force

the plaintiff to re-file the lawsuit in another country, whose

substantive and procedural laws are more favorable to the

defendant. No one seriously disputes that this is the real

function of the current doctrine.”

Walter Heiser, Forum Non Conveniens and Choice of Law:

The Impact of Applying Foreign Law in Transnational Tort

Actions, 51 Wayne L Rev 1161, 1167 (2005).

Although criticisms of the doctrine, as applied,

may well have merit, there is nothing inherent in the forum

non conveniens doctrine that makes it more prone to mis-

use than any other common law doctrine that requires the

consideration and weighing of multiple factors. Rather, like

any discretionary power, the decision to dismiss or stay an

action for forum non conveniens is guided by legal principles

that provide a range of permissible options. The narrow-

ness with which those options are prescribed is a question of

striking the right balance between uniformity and flexibil-

ity in the law—for, although we appropriately seek to avoid

inconsistency, strict rules rigidly applied also can lead to

unjust results in particular cases. The doctrine of forum non

conveniens provides a means of striking an appropriate bal-

ance between the court’s obligation to decide cases properly

before it and its authority to dismiss or stay certain actions

in order to protect the interests of fundamental fairness

and effective judicial administration. To the extent that a

trial court might dismiss actions for forum non conveniens

too freely, that issue bears more on how we articulate the

94 Espinoza v. Evergreen Helicopters, Inc.

legal principles that guide its application than on whether

we should recognize the doctrine at all.

In conclusion, nothing in our cases or any applicable

statute suggests that the doctrine of forum non conveniens

is unavailable in Oregon. Although there may be legitimate

reasons to restrict its application as a matter of policy, we

do not find any of those considerations to be so weighty as to

cause us to reject the doctrine entirely. Therefore, because

forum non conveniens is a long-established part of the com-

mon law and no legislative enactment or decision of this

court has altered or repealed that doctrine or the power of

a court to dismiss or stay an action on that ground, we now

recognize it as part of Oregon law and hold that, consistent

with the standards announced in this opinion, courts in this

state may dismiss or stay an action for that reason.

C.  The Doctrine of Forum Non Conveniens Under Oregon

Law

We next consider the contours of the doctrine of

forum non conveniens under Oregon law. As noted, most

jurisdictions that have adopted the doctrine rely on the two-

step framework described by the United States Supreme

Court in Gulf Oil and subsequent cases to articulate the

standards that should guide its application. Because the

approach articulated in Gulf Oil offers a helpful way of

categorizing and weighing the considerations pertinent to

whether a dismissal or stay is appropriate in a particular

case, we follow the majority of other jurisdictions in adopt-

ing the two-step analysis and non-exclusive list of factors set

out in that opinion.18

18

In some jurisdictions, particularly those where forum non conveniens has

been adopted by statute, the law provides that courts must consider each of a

specified list of private- and public-interest factors. See, e.g., State ex rel. Mylan,

Inc. v. Zakaib, 227 W Va 641, 649-50, 713 SE2d 356, 364 (2011) (stating rule

that courts must state findings of fact and conclusions of law as to each of eight

factors listed in West Virginia statute authorizing dismissal of actions for forum

non conveniens). Because we adopt forum non conveniens as a common law doc-

trine, we consider it appropriate to preserve the flexibility inherent in that doc-

trine by following the traditional rule that courts need only consider those factors

that are relevant in a particular case. See Piper Aircraft, 454 US at 257 (stating

general rule that analysis of private- and public-interest factors is within sound

discretion of trial court and that court need only consider those factors that are

relevant).

Cite as 359 Or 63 (2016) 95

Federal precedent, however, does not control our

interpretation of forum non conveniens. See Am. Dredging

Co. v. Miller, 510 US 443, 453, 456 114 S Ct 981, 127 L Ed

2d 285 (1994) (forum non conveniens is “procedural rather

than substantive;” adoption of doctrine is matter of local pol-

icy for states); Hust v. Moore-McCormick Lines, Inc., 180 Or

409, 415, 177 P2d 429 (1947) (where question is procedural,

federal precedent is not controlling and Oregon courts

may apply Oregon law). Cf. PSU Association of University

Professors v. PSU, 352 Or 697, 710-11, 291 P3d 658 (2012)

(when this court interprets Oregon law, federal precedents

interpreting analogous federal laws are persuasive but not

binding). Therefore, we also look to other sources of author-

ity to determine what standards should guide Oregon courts

in determining whether to dismiss or stay an action on that

ground.

1.  Moving Party’s Burden of Proof Generally

A defendant that moves to dismiss or stay an action

for forum non conveniens must demonstrate that the legal

standards for a dismissal or stay on that ground have been

met. See Sinochem, 549 US at 430 (“A defendant invoking

forum non conveniens ordinarily bears a heavy burden in

opposing the plaintiff’s chosen forum.”). Thus the burden

rests on the defendant, as the moving party, to demonstrate

that an alternative forum is available and adequate, and

that the interests of convenience and justice weigh so heav-

ily in favor of litigating the action in that forum that it is

appropriate for the court to dismiss or stay the action. See

Kedy, 946 A2d at 1183 (“It is well settled that the defendant

carries the burden of persuasion at each stage of the forum

non conveniens inquiry.”).

Consistently with the standard for motions to dis-

miss under ORCP 21 generally, in considering a motion

to dismiss for forum non conveniens, the trial court must

“assume the truth of all well-pleaded facts alleged in the

complaint and give plaintiff, as the nonmoving party, the

benefit of all favorable inferences that may be drawn from

those facts.”19 Bradbury v. Teacher Standards and Practices

19

We leave for another day whether a trial court would be obligated to accept

as “well-pleaded” allegations that appear to be preemptively directed at a forum

96 Espinoza v. Evergreen Helicopters, Inc.

Comm., 328 Or 391, 393, 977 P2d 1153 (1999) (stating gen-

eral standard applicable to a motion to dismiss); see also,

e.g., Carijano, 643 F3d at 1222 (factual allegations in plain-

tiff’s complaint accepted as true for purposes of forum non

conveniens motion); Energy Claims Ltd. v. Catalyst Inv. Grp.

Ltd., 2014 UT 13, ¶ 3 n 1, 325 P3d 70, 73 (2014) (same);

Acharya v. Microsoft Corp., 189 Wash App 243, 251, 354 P3d

908, 912 (2015) (court must accept nonmoving party’s evi-

dence, including factual allegations in complaint, and all

reasonable inferences that may be drawn from them, as

true).

In order to resolve the motion, the trial court may

find it necessary to make preliminary factual findings as

to issues outside the pleadings. For example, the trial court

may find it necessary to make findings pertaining to the

adequacy of the proposed alternative forum, or to the avail-

ability and location of potentially relevant evidence. To do so,

the trial court may consider facts asserted by the parties and

resolve contested facts based on record evidence submitted

by the parties. Cf. Black v. Arizala, 337 Or 250, 265, 95 P3d

1109 (2004) (in determining, on motion to dismiss, whether

to exercise jurisdiction pursuant to venue agreement, court

may consider both facts alleged in complaint and “matters

outside the pleading, including affidavits, declarations and

other evidence”). That is not to say, however, that the court

necessarily must engage in extensive fact-finding and con-

duct hearings to resolve disputed factual issues. As noted

by the Delaware Chancery Court, “[t]he entire purpose of

the forum non conveniens doctrine is to relieve defendants

from the undue burdens of litigating in an especially incon-

venient forum. That purpose would be subverted if a defen-

dant had to endure costly, protracted proceedings in order

to avail itself of the doctrine in the first place.” Aveta, Inc.

v. Colon, 942 A2d 603, 609 (Del Ch 2008). In many cases,

it may be sufficient for the parties to present their factual

assertions to the court through affidavits.

non conveniens motion, for example, allegations that do not bear on the merits of

any of the claims asserted but which relate only to the location and availability of

evidence that is likely to be material to those claims. Cf. Bliss v. Southern Pacific

Co. et al, 212 Or 634, 650-52, 321 P2d 324 (1958) (allegations in amended com-

plaint not “well-pleaded;” they offered no material support for plaintiff’s claims).

Cite as 359 Or 63 (2016) 97

Plaintiffs argue that a trial court deciding a motion

to dismiss for forum non conveniens should be prohibited

from making any factual finding that “goes to the merits”

of a plaintiff’s claims. However, in the ordinary forum non

conveniens case, evaluating the relevant private- and public-

interest factors will always require some degree of “entan-

glement” with the merits. See Van Cauwenberghe v. Biard,

486 US 517, 528, 108 S Ct 1945, 1952, 100 L Ed 2d 517

(1988) (noting that to evaluate Gulf Oil factors, court “must

scrutinize the substance of the dispute between the parties

to evaluate what proof is required, and determine whether

the pieces of evidence cited by the parties are critical, or

even relevant, to the plaintiff’s cause of action and to any

potential defenses to the action” and likewise “consider the

locus of the alleged culpable conduct, often a disputed issue,

and the connection of that conduct to the plaintiff’s chosen

forum.”).

In any case, the factual issues that the trial court

actually resolves to decide a forum non conveniens motion

will tend to be qualitatively different from those that deter-

mine the outcome on the merits. For the most part, the fac-

tual issues that go directly to the merits—for example, in

a tort action sounding in negligence, the parties’ relation-

ship, the defendant’s actions, and whether those actions

were the cause of the plaintiff’s injury—will be alleged in

the complaint. Because the trial court must accept all of the

plaintiff’s well-pleaded allegations as true, it need not, and

should not, decide those facts, even if they are disputed. On

the other hand, the factual issues outside of the pleadings

that the trial court may resolve to decide a forum non conve-

niens motion ordinarily will concern, for example, the condi-

tion of the judiciary in the proposed alternative forum, the

enforceability of a judgment from that forum, and the ease

or difficulty of obtaining evidence there, as compared to the

forum where the plaintiff filed its action.

Finally, even when a factual issue does bear directly

on the merits, making factual findings as to issues outside of

the pleadings for purposes of deciding a forum non conveniens

motion does not violate “a party’s right to trial on disputed

questions of material fact.” See Black, 337 Or at 265. Simply

98 Espinoza v. Evergreen Helicopters, Inc.

put, determining whether to stay or dismiss an action for

forum non conveniens “does not entail any assumption by the

court of substantive law-declaring power.” Sinochem, 549 US

at 433 (internal citations and quotation marks omitted). For

that reason, a trial court’s factual findings made for the pur-

pose of deciding a forum non conveniens motion are distinct

from any finding on the merits. As in other circumstances

where the trial court makes such preliminary findings, those

findings do not constitute a valid and final determination as

to any issue, and therefore cannot have any preclusive effect

on a plaintiff’s underlying claims. See Nelson v. Emerald

People’s Utility Dist., 318 Or 99, 103, 862 P2d 1293 (1993)

(“Issue preclusion arises in a subsequent proceeding when

an issue of ultimate fact has been determined by a valid

and final determination in a prior proceeding.” (Emphasis

added.)); see also Vasquez v. Yll Shipping Co., Ltd., 692 F3d

1192, 1198-99 (11th Cir 2012) (concluding that factual deter-

minations made by Florida court in dismissing action for

forum non conveniens had no preclusive effect; dismissal on

that ground did not bar plaintiff from litigating same claims

and legal theories in federal court). Therefore, although a

trial court is required to accept the plaintiff’s well-pleaded

allegations, there is no rule barring the court from making

any additional preliminary findings, as necessary, for pur-

poses of deciding a forum non conveniens motion.

2.  Step One:  Adequacy of Alternative Forum

As noted, at the first step of the Gulf Oil test, the

court must determine, drawing on the facts alleged in the

complaint and on other findings as necessary, whether there

is an adequate alternative forum in which to try the action.

See 330 US 506-07 (forum non conveniens “presupposes at

least two forums in which the defendant is amenable to pro-

cess” and “furnishes criteria for choice between them”); Piper

Aircraft, 454 US at 254 n 22 (“At the outset of any forum

non conveniens inquiry, the court must determine whether

there exists an alternative forum.”). At this first step, most

jurisdictions require the moving party to establish that an

alternative forum is available and capable of providing the

plaintiff with relief. See Restatement § 84 comment c (one of

most important factors in determining whether to dismiss

action for forum non conveniens is whether “a suitable forum

Cite as 359 Or 63 (2016) 99

is available to plaintiff”; ordinarily, “the suit will be enter-

tained, no matter how inappropriate the forum may be, if

the defendant cannot be subjected to jurisdiction in other

states.”); Nemariam v. Fed. Democratic Republic of Ethiopia,

315 F3d 390, 392-95 (DC Cir 2003) (adequacy of alterna-

tive forum must be established as prerequisite; reversing

dismissal of action because defendant was “unable to sub-

stantiate its claim that [plaintiff] will receive a remedy” in

the alternative forum).

We agree with the majority of jurisdictions that

establishing the adequacy of the proposed alternative forum

is a threshold requirement. In our view, it would be contrary

to the ends of justice to force a plaintiff into another forum

if the result would be to deprive the plaintiff of a remedy

entirely. See Mace v. Mylan Pharm., Inc., 227 W Va 666,

676, 714 SE2d 223, 233 (2011) (“Undeniably, the interest of

justice would not be served, nor would a plaintiff be conve-

nienced, if an action over which a court in this state had

proper jurisdiction was dismissed in favor of an alternate

jurisdiction in which the remedy provided is so clearly inad-

equate or unsatisfactory that it is no remedy at all.”).

In considering the adequacy of the proposed alter-

native forum, the focus of the court’s inquiry is on the suffi-

ciency of the proposed alternative forum from the plaintiff’s

perspective. To be adequate, the alternative forum must be

one in which the defendant is amenable to service of process,

where the courts would have jurisdiction, and where the law

and the judicial system are capable of providing the plaintiff

with meaningful redress. Piper Aircraft, 454 US at 250, 254-

55, n 22.20 That means that the plaintiff is not prevented

by some procedural bar from filing its action (for example,

by the running of the applicable statute of limitations), that

courts in that forum offer a reasonably comparable means

of redress and that those courts are not “so fraught with

corruption, delay and bias as to provide no remedy at all.”

Carijano, 643 F3d at 1227 (internal citations omitted); see

also Piper Aircraft, 454 US at 250, 254 n 22 (noting that

20

Because of the facts of this case, we focus primarily on situations where the

proposed alternative forum is outside the United States, although the doctrine

also may be applicable where the alternative forum is a court in another state or

territory of the United States.

100 Espinoza v. Evergreen Helicopters, Inc.

where applicable law in alternative forum is “clearly unsat-

isfactory,” such as when it fails to provide plaintiff any com-

parable cause of action, it may be inadequate); 21 Nemariam,

315 F3d at 395 (“While a more limited recovery than is

available in the plaintiff’s forum of choice does not automat-

ically make the alternative forum inadequate, we fail to see

how an alternative forum in which the plaintiff can recover

nothing for a valid claim may also be deemed adequate.”).

One way that an alternative forum may be inad-

equate is if a judgment obtained in that forum would be

unenforceable.22 The defendant, for example, may have

few assets in the alternative forum, rendering any judg-

ment obtained in that jurisdiction meaningless unless the

plaintiff can enforce its judgment elsewhere. See gener-

ally Christopher Whytock & Cassandra Burke Robertson,

Forum Non Conveniens and the Enforcement of Foreign

Judgments, 111 Colum L Rev 1444 (2011) (describing “trans-

national justice gap” whereby plaintiffs may be prevented

from obtaining redress in any forum). If, in such a case, the

court determines that the judicial system in the alternative

forum fails to comport with minimum standards of due pro-

cess, such that its judgments would be unenforceable where

the defendant’s assets are located, that forum is inherently

inadequate and the defendant’s motion will fail at this first

step. See ORS 24.360 (setting out standards for recognition

of foreign money judgments and circumstances under which

Oregon court may refuse to do so).23

21

Whether the substantive law applied in plaintiff’s chosen forum will actu-

ally differ from that which would apply in the proposed alternative forum, of

course, will depend on a choice-of-law analysis, which a trial court deciding a

forum non conveniens motion may be unsuited, or unable, to resolve. See, e.g.,

D’Agostino v. Johnson & Johnson, Inc., 115 NJ 491, 496-97, 559 A2d 420 (1989)

(it was inappropriate for trial court to resolve motion to dismiss for forum non

conveniens on ground that change in law due to litigating in alternative forum

would be unfavorable to plaintiff; without discovery, there were insufficient facts

from which to determine what law would apply to action).

22

The potential enforceability of a judgment obtained in the proposed alter-

native forum is identified in Gulf Oil as a private interest factor to be weighed

at the second step of the court’s analysis. For the reasons discussed, we conclude

that that issue also is relevant at this first step.

23

The Uniform Foreign-Country Money Judgments Recognition Act, adopted

in Oregon, sets forth a wide range of circumstances under which a court may

refuse to enforce a judgment obtained in another country, including:

Cite as 359 Or 63 (2016) 101

Notwithstanding the defendant’s burden, the mere

possibility that the alternative forum may be less favorable

to the plaintiff is not alone sufficient to render that forum

inadequate for forum non conveniens purposes. Once the

defendant makes a showing that the alternative forum is

adequate, the plaintiff must offer some evidence that would

substantiate the claim that it is not. See Leon v. Million

Air, Inc., 251 F3d 1305, 1312-13 (11th Cir 2001) (although

defendant has ultimate burden to establish adequacy of

alternative forum, plaintiff asserting that forum is inad-

equate due to corruption or delay must substantiate those

allegations); RIGroup LLC v. Trefonisco Mgmt. Ltd., 949 F

Supp 2d 546, 554 (SDNY 2013), aff’d, 559 F App’x 58 (2d Cir

2014) (notwithstanding defendant’s burden of persuasion,

plaintiff must produce evidence of corruption, delay or lack

of due process in alternative forum; “conclusory submis-

sions,” “bare denunciations” and “sweeping generalizations”

about forum’s legal system insufficient to overcome defen-

dant’s showing of adequacy (internal citations and quotation

marks omitted)). Once evidence is presented that calls the

adequacy of the proposed alternative forum into doubt, how-

ever, it is the defendant’s burden to persuade the court that

the facts are otherwise. Leon, 251 F3d at 1312. See also, e.g.,

Bridgestone/Firestone N. Am. Tire, LLC v. Garcia, 991 So 2d

912, 917 (Fla Dist Ct App 2008), rev den, 8 So 3d 1133 (Fla

2009) (where evidence was in conflict as to whether alterna-

tive forum was available and adequate, trial court did not

err in concluding that defendant failed to carry burden to as

to first step of forum non conveniens test).

3.  Step 2:  Weighing the Private and Public Interests

At the second step of the Gulf Oil test, the court con-

siders and balances the relevant private and public interests

“(g) The judgment was rendered in circumstances that raise substantial

doubt about the integrity of the rendering court with respect to the judg-

ment; or

“(h)  The specific proceeding in the foreign court leading to the judgment was

not compatible with the requirements of due process of law.”

ORS 24.360(3)(g), (h). Further, an Oregon court is prohibited from recognizing

any judgment from a foreign country where “the judgment was rendered under a

judicial system that does not provide impartial tribunals or procedures compati-

ble with the requirements of due process of law.” ORS 24.360(2)(a).

102 Espinoza v. Evergreen Helicopters, Inc.

to determine whether, on the whole, those interests justify

granting the defendant’s motion. Gulf Oil, 330 US at 508. As

noted, although the doctrine of forum non conveniens “leaves

much to the discretion of the court,” the exercise of that dis-

cretion is not unlimited. Id. Rather, “unless the balance is

strongly in favor of the defendant, the plaintiff’s choice of

forum should rarely be disturbed.” Id.; see also Carijano, 643

F3d at 1224 (noting that forum non conveniens is “an excep-

tional tool to be employed sparingly” (internal citations and

quotation marks omitted)). What it means for the balance of

interests to be “strongly in favor of the defendant,” however,

varies across jurisdictions and, indeed, is difficult to articu-

late with precision.

For the reasons set out below, we conclude that in

Oregon, a trial court may dismiss or stay an action for forum

non conveniens only when the moving party demonstrates

that there is an adequate alternative forum available, and

that the relevant private and public-interest considerations

weigh so heavily in favor of litigating in that alternative

forum that it would be contrary to the ends of justice to

allow the action to proceed in the plaintiff’s chosen forum.24

Courts in different jurisdictions have taken vary-

ing approaches to defining how strongly the balance of

interests must favor the alternative forum for an action to

be dismissed or stayed on forum non conveniens grounds.

Under federal law, a district court may grant a defendant’s

forum non conveniens motion “when an alternative forum

has jurisdiction to hear [a] case, and when trial in the cho-

sen forum would ‘establish * * * oppressiveness and vexa-

tion to a defendant * * * out of all proportion to plaintiff’s

24

Amicus urge us to impose an even more stringent standard that would

allow an action to be dismissed only if the balancing of relevant interests shows

that the plaintiff brought its action in that forum with the intent of “vexing,

harassing or oppressing” the defendant. We reject that proposal for two rea-

sons. First, whether litigating an action in the plaintiff’s chosen forum would

be seriously inconvenient and contrary to the interests of justice does not turn

on the plaintiff’s intent in bringing its action in that forum. Second, the abuse

and harassment of a defendant by filing in a forum that is inconvenient for that

party is readily addressed by the court’s analysis of the relevant private- and

public-interest factors. See Carijano, 643 F3d at 1228 (“A party’s intent in joining

a lawsuit is relevant to the balancing of the forum non conveniens factors only to

the extent that it adds to an overall picture of an effort to take unfair advantage

of an inappropriate forum”).

Cite as 359 Or 63 (2016) 103

convenience,’ or when the ‘chosen forum [is] inappropriate

because of considerations affecting the court’s own admin-

istrative and legal problems.’ ” Am. Dredging Co., 510 US at

447–48 (quoting Piper Aircraft, 454 US at 241) (ellipsis and

brackets in original).

In other jurisdictions, the moving defendant must

demonstrate that litigating in the plaintiff’s chosen forum

would be so “unduly inconvenient, expensive or otherwise

inappropriate” that it would cause “overwhelming hardship”

or would effectively deprive one party “a meaningful day in

court.” See, e.g., Aveta, 942 A2d at 608 (“[T]o achieve a stay

or dismissal for forum non conveniens, a defendant must

demonstrate that litigating in the plaintiff’s chosen forum

would present an overwhelming hardship.”); Christian v.

Smith, 276 Neb 867, 876, 759 NW2d 447,457 (2008) (“[A]

forum is seriously inconvenient only if one party would be

effectively deprived of a meaningful day in court.”).

Still other courts have stated that a defendant need

only demonstrate that the alternative forum is more con-

venient and that the balance of circumstances otherwise

“strongly favors” that forum. See, e.g., First Am. Bank v.

Guerine, 198 Ill 2d 511, 518, 764 NE2d 54, 59 (2002) (An

action may be dismissed for forum non conveniens if defen-

dant demonstrates “that the plaintiff’s chosen forum is

inconvenient to the defendant and another forum is more

convenient to all parties” and that “the balance of factors

strongly favors transfer.”).

Considering those variations, we conclude that an

action should be stayed or dismissed for forum non conve-

niens only when the ends of justice require it. It is an estab-

lished rule that a plaintiff has the right to seek redress in

any forum where subject matter and personal jurisdiction

can be established and where venue is proper, and that if

multiple forums are available, the plaintiff may choose from

those forums available to it. See Cortez v. Palace Resorts,

Inc., 123 So 3d 1085, 1094 (Fla 2013) (“[I]t is axiomatic that

the plaintiff has the right to choose the forum.”); Sales v.

Weyerhaeuser Co., 163 Wash 2d 14, 19, 177 P3d 1122, 1124

(2008) (“A plaintiff has the original choice to file his or her

complaint in any court of competent jurisdiction.”); see also

104 Espinoza v. Evergreen Helicopters, Inc.

Van Dusen v. Barrack, 376 US 612, 633-37, 84 S Ct 805, 11

L Ed 2d 945 (1964) (recognizing and discussing plaintiff’s

venue privilege in federal context). In light of those princi-

ples, the role of forum non conveniens is limited. It is “not a

‘doctrine that compels plaintiffs to choose the optimal forum

for their claim.’ ” Carijano, 643 F3d at 1224 (quoting Dole

Food Co., Inc. v. Watts., 303 F3d 1104, 1118 (9th Cir 2002)).

Likewise, as the Connecticut Supreme Court has noted,

forum non conveniens may not be used by defendants to cir-

cumvent the plaintiff’s venue right in order to obtain a more

favorable forum generally:

“[A court] cannot exercise its discretion [to dismiss for

forum non conveniens] in order to level the playing field

between the parties. The plaintiff’s choice of forum, which

may well have been chosen precisely because it provides

the plaintiff with certain procedural or substantive advan-

tages, should be respected unless equity weighs strongly in

favor of the defendant.”

Picketts v. Int’l Playtex, Inc., 215 Conn 490, 501, 576 A2d

518, 524 (1990) (internal citations and quotation marks

omitted). See also Restatement § 84 comment c (“[S]ince it

is for the plaintiff to choose the place of suit, his choice of a

forum should not be disturbed except for weighty reasons.”).

Rather, forum non conveniens serves as a corrective mech-

anism to be employed only when allowing an action to pro-

ceed in the chosen forum would jeopardize the interests of

“fundamental fairness” and “sensible and effective judicial

administration.” Kedy, 946 A2d at 1179.

Evergreen argues that we should afford less defer-

ence to a plaintiff’s choice of forum when the plaintiff, or

the real party in interest, resides outside that forum. Such

a rule is appropriate, Evergreen contends, because the pur-

pose of forum non conveniens is to ensure that actions are

tried where they are convenient and when a plaintiff is for-

eign to the forum where it files suit, it is less reasonable

to presume that it is convenient for the plaintiff to litigate

there. See Piper Aircraft, 454 US at 255-56 (holding that

the “ordinarily strong” presumption in favor of the plain-

tiff’s choice of forum “applies with less force” when the plain-

tiff has not chosen its home forum and that in that circum-

stance, “the plaintiff’s choice deserves less deference”). We

Cite as 359 Or 63 (2016) 105

recognize that a majority of jurisdictions do adhere to such

a rule. However, the Washington Supreme Court, consider-

ing the doctrine of forum non conveniens under its own state

law, has rejected that approach entirely. See, e.g., Myers, 794

P2d at 1280-81 (expressly declining to adopt Piper Aircraft

“lesser deference” rule because it lacks well-reasoned sup-

port and is unnecessary to ensure equitable result). And

courts in other states have rejected it in part. See, e.g., Cortez,

123 So 3d at 1094 (rejecting Piper “lesser deference” rule

with respect to plaintiffs who are residents of other states);

Kennecott Holdings Corp. v. Liberty Mut. Ins. Co., 578 NW2d

358, 361 (Minn 1998) (rejecting Piper “lesser deference” rule

for United States citizen plaintiffs because “[t]o accord less

deference to the choice of forum of a United States citizen

because the plaintiff is not a resident of Minnesota simply

defies fairness and logic.”).

We agree with the Washington Supreme Court that

there is no principled reason to vary the degree of deference

afforded to the plaintiff’s choice of forum based on where

the plaintiff, or real party in interest, resides. As noted, we

defer to a plaintiff’s choice not because it is assumed to be

convenient, but because it is the plaintiff’s right to choose

from those forums that are available to it. Moreover, under

the standard that we have articulated, whether an action

should be dismissed or stayed for forum non conveniens

turns not on whether that forum is convenient for the plain-

tiff, but on whether litigating there would be so inconvenient

generally—for litigants, third parties, and the court—that

the court ought to override the plaintiff’s choice. Cf. First

Am. Bank, 198 Ill 2d at 518 (defendant cannot meet its bur-

den under forum non conveniens doctrine by “assert[ing]

that the plaintiff’s chosen forum is inconvenient to the plain-

tiff”); Ison v. E.I. DuPont de Nemours & Co., 729 A2d 832,

846 (Del 1999) (overarching factor that court must consider

in forum non conveniens analysis is substantial hardship

to defendant). The answer to that question, and whether a

plaintiff’s place of residency is even relevant, is fact-specific

and will vary from case to case.

In sum, considering the nature of forum non con-

veniens as an extraordinary equitable remedy and the def-

erence owed to every plaintiff’s forum choice, we hold that

106 Espinoza v. Evergreen Helicopters, Inc.

a trial court may dismiss or stay an action for forum non

conveniens only when the moving party demonstrates that

there is an adequate alternative forum available, and that

the relevant private and public-interest considerations

weigh so heavily in favor of litigating in that alternative

forum that it would be contrary to the ends of justice to

allow the action to proceed in the plaintiff’s chosen forum.

See Aveta, 942 A2d at 608 (grant of forum non conveniens

motion permitted only when hardship to defendant is “over-

whelming”); Adkins v. Hontz, 280 SW3d 672, 676 (Mo Ct

App 2009) (“The doctrine [of forum non conveniens] is to be

applied with caution and only upon a clear showing of incon-

venience and when the ends of justice require it.” (internal

citations and quotation marks omitted) (emphasis added));

Christian, 276 Neb at 876 (forum is “seriously inconvenient”

such that dismissal for forum non conveniens is appropriate

when defendant would be “deprived of a meaningful day in

court”). See also State ex rel. Ricco, 198 Or at 430 (courts

have “inherent power to do whatever may be done under the

general principles of jurisprudence to insure to the citizen a

fair trial” and should exercise that power “whenever public

or private interests require” it. (emphasis added)).

a.  Private-Interest Factors to Be Considered

Having established the general substantive stan-

dard that should guide courts in determining whether the

balance of interests sufficiently favors granting a defen-

dant’s forum non conveniens motion, we turn to an examina-

tion of the specific private-interest factors to be considered

in reaching that decision. In Gulf Oil, the Supreme Court

stated that in considering those interests, the trial court

should “weigh the relative advantages and obstacles to fair

trial.” Gulf Oil, 330 US at 508. Keeping that in mind, trial

courts should consider not only the relative convenience of

one forum compared to another, but the consequences that

litigating in each forum might have on the plaintiff’s access

to effective redress, and on both parties’ ability to prosecute,

or defend, the claims asserted.

The first factor, and often the most important, is

“the relative ease of access to sources of proof,” including the

time, expense and difficulty of obtaining the evidence that

Cite as 359 Or 63 (2016) 107

the parties will need to litigate the action, and in particu-

lar, whether certain evidence is likely to be unavailable. Id.

When examining the accessibility of witnesses and evidence

for trial, the court should not only determine where evidence

is located, but consider the actual and practical burden it

would create to try the case in the plaintiff’s chosen forum,

as compared to the proposed alternative forum. For exam-

ple, although access to a view of the premises where a tort

arose is sometimes helpful to a jury, it may be less so in

some cases. Where the site is remote and the parties are

likely to rely instead on photographs, videos and expert tes-

timony, an inability to visit that location in person, whether

the case proceeds in one forum or another, may be of mar-

ginal importance. See, e.g., Reid-Walen v. Hansen, 933 F2d

1390, 1398 (8th Cir 1991) (inability to view premises of acci-

dent unimportant where defendant failed to establish that

view was necessary and where testimony regarding site and

demonstrative evidence were adequate).

Similarly, a trial court should not assume or spec-

ulate that it will necessarily be burdensome to obtain evi-

dence located in other states or overseas. Consistent with its

burden of establishing that the relevant private and public

interests weigh so heavily in favor of the alternative forum

that the ends of justice require the court to dismiss or stay

the action, the moving party must identify specific evidence

located in other places that is material to the case and

demonstrate that accessing it for purposes of litigating in

the plaintiff’s chosen forum will be extraordinarily difficult.

See Aveta, 942 A2d at 609-10 (to prevail on motion to dis-

miss for forum non conveniens, moving party must identify

particular, specific evidence necessary to case that it can-

not produce in plaintiff’s chosen forum); Pierce v. Albertson’s

Inc., 121 NM 369, 372, 911 P2d 877, 880 (1996) (“The mov-

ing party, therefore, has the heavy burden of an early show-

ing of inaccessibility of concrete sources of proof essential

to a fair adjudication * * *. Showings of expense and delay

and of public interest likewise must be concrete and not

speculative.”).

When considering whether obtaining evidence

located outside the plaintiff’s chosen forum is likely to impose

an undue burden, the court should consider what means are

108 Espinoza v. Evergreen Helicopters, Inc.

available for obtaining that evidence. For example, although

a substantial amount of the evidence relevant to the claims

and defenses asserted in this case may be found in Peru,

and even held by third parties there, mechanisms exist for

obtaining that evidence.25 Although obtaining evidence from

another country will always be somewhat inconvenient, diffi-

culties of that sort are inherent in transnational actions and

do not necessarily demonstrate an undue burden to litigate

in the plaintiff’s chosen forum. Whether that is the case will

depend on the type of evidence in question, how important

it is to the issues in dispute, and the cost and effectiveness

of the procedures necessary to obtain access for discovery

purposes and for use at trial. 26 Absent any showing on those

issues, it is unlikely that the moving party will be able to

meet its burden to show that this first factor weighs in favor

of a dismissal or stay.

The trial court also must take into consideration

the fact that litigating the action in the proposed alter-

native forum will not necessarily alleviate the burden of

discovering relevant evidence and presenting it at trial.

Transnational actions, in particular, often involve evidence

in multiple locations, and therefore pose some degree of dif-

ficulty regardless of where they are tried. When that is the

case, the inaccessibility of some evidence in the plaintiff’s

chosen forum may be counterbalanced by the inaccessibility

of other evidence in the alternative forum, such that this

25

Peru and the United States are parties to the Inter-American Convention

on Letters Rogatory and its Additional Protocol, which provide means of gath-

ering evidence in Peru to aid litigation in the United States, even when that

evidence is held by a third party. See generally Inter-American Convention on

Letters Rogatory, available at http://www.oas.org/juridico/english/treaties/b-36.

html (last accessed Apr 4, 2016) (text of treaty and list of signatories); Additional

Protocol to The Inter-American Convention on Letters Rogatory, available at

http://www.oas.org/juridico/english/treaties/b-46.html, (last accessed Apr 4,

2016) (text of protocol and list of signatories).

26

To say that routine processes for obtaining evidence from other jurisdic-

tions are available is not to say that it such mechanisms are never unduly bur-

densome or that they are always adequate substitutes. For example, where a case

turns on the credibility of an unwilling third-party witness who is located over-

seas, a videotaped deposition obtained through a letters rogatory process may be

an inadequate substitute for live testimony at trial. As other courts have noted,

“depositions serve as poor proxies for live testimony because the fact finder loses

the opportunity to effectively and contemporaneously evaluate the credibility of

the witness.” Aveta, 942 A2d at 612-13.

Cite as 359 Or 63 (2016) 109

factor weighs little in the court’s overall analysis. See Ison,

729 A2d at 843 (burden of obtaining evidence was neutral in

forum non conveniens analysis where evidence was located

in multiple countries, including in both alternative forum

and plaintiff’s chosen forum).

The second private-interest factor encompasses

“all other practical problems that make trial of a case easy,

expeditious and inexpensive.” Gulf Oil, 330 US at 508. One

such practical problem might include, for example, language

barriers. If much of the key documentary and testimonial

evidence is in a foreign language, the expense and difficulty

of translation to English could pose a significant obstacle to

litigating in the plaintiff’s chosen forum. See, e.g., Aveta, 942

A2d at 614 (concluding that language barrier was signifi-

cant factor in forum non conveniens analysis where transla-

tors would be needed not only for witness testimony but to

allow defendant to communicate with counsel). The need for

translation, of course, may cut both ways, and some amount

of translation may be required regardless of where the action

is litigated. Similarly, another practical consideration could

be the parties’ location and whether they would be required

to travel far from home. See id. at 1187 (noting location of

Puerto Rican defendant in evaluating whether litigation in

Rhode Island would cause hardship); cf. Stangvik, 54 Cal 3d

at 755 (forum presumptively convenient for corporate defen-

dant incorporated and with its principal place of business in

that forum).

Also relevant under this factor is the practical bur-

den that forcing the plaintiff to bring its action anew in

the alternative forum will create. See Reid-Walen, 933 F2d

at 1398 (“As part of the Gilbert private interest analysis,

courts must be sensitive to the practical problems likely to

be encountered by plaintiffs in litigating their claim, espe-

cially when the alternative forum is in a foreign country.”),

Energy Claims, 2014 UT 13 at ¶ 37 (in weighing private

interests, “courts must take into account the practical bur-

den plaintiffs will face in filing a new action after dismissal

for forum non conveniens”). For example, the plaintiff may

be faced with procedural rules in the alternative forum that

make it more difficult to initiate and sustain its action, such

as an inability to pursue claims on a contingent fee basis,

110 Espinoza v. Evergreen Helicopters, Inc.

restrictions on types of damages recoverable, limited pre-

trial discovery rules, or mandatory fee-shifting. See id.;

see also Picketts, 215 Conn at 506-08 (acknowledging that

plaintiff whose action is dismissed for forum non conveniens

may face procedural differences in alternative forum, such

as more restrictive discovery rules, that undermine its abil-

ity to obtain redress there); Ison, 729 A2d at 845 (where no

other actions pending, trial court should consider cost and

prejudice that would result from dismissal, including, for

example, how far discovery has commenced and whether

that process would have to begin anew in alternate forum).

As discussed, the practical burden that the plaintiff will

face in the alternative forum might be so extreme that that

forum cannot offer an effective remedy, rendering it inad-

equate at the first step of the court’s analysis. Even when

the proposed alternative forum is adequate for purposes of

the first step in the analysis, however, such practical reper-

cussions are relevant to whether trying the action in that

forum would be easy, expeditious and efficient. See, e.g.,

Reid-Walen, 933 F2d at 1399 (concluding that where try-

ing case in alternative Jamaican forum was practically and

financially infeasible for plaintiff, that was important factor

weighing against dismissal).

Another private-interest factor is the extent to which

the defendant may seek to implead or join third parties and

the jurisdictional and logistical ease with which that can be

done in the alternative forum compared to plaintiff’s cho-

sen forum. See Piper Aircraft, 454 US at 259 (recognizing

that “the problems posed by the inability to implead poten-

tial third-party defendants” in plaintiff’s chosen forum sup-

ported holding trial in alternative forum). The importance

of this factor will depend on the context. If the court finds

that there is an indispensible party that cannot be made a

part of the action in the plaintiff’s chosen forum, that factor

may weigh heavily in favor of dismissal.27 See Radeljak v.

Daimlerchrysler Corp., 475 Mich 598, 609, 719 NW2d 40, 45

(2006) (defendant’s inability to implead persons or entities

partially responsible for plaintiffs’ injuries significant factor

27

Moreover, in such a case, the court’s inability to join an indispensible or

necessary party may be an independent ground for dismissal under ORCP 29.

Cite as 359 Or 63 (2016) 111

weighing in favor of dismissal for forum non conveniens). On

the other hand, where there is no compulsory joinder issue,

it is not necessarily unreasonable to require a defendant to

pursue indemnification or contribution claims against other

parties by the way of a separate action in a different forum.28

See, e.g., Ison, 729 A2d at 846 (concluding that where defen-

dant made no attempt to implead third-parties and where

inability to do so would not create overwhelming hardship

for defendant, that factor was illusory did not require dis-

missal of action for forum non conveniens).

Finally, an additional private interest that some-

times is relevant is the potential difficulty of enforcing a

judgment obtained in the alternative forum. Gulf Oil, 330

US at 508. As noted, when a judgment obtained in the

alternative forum is likely to be unenforceable, that forum

is inadequate and the defendant’s motion will fail at the

first step. Even when that is not the case, however, and the

judgment will be merely difficult to enforce, the burden of

doing so may still weigh against compelling the plaintiff to

try its action in the alternative forum. See Carijano, 643

F3d at 1231-32 (concluding that where defendant had not

agreed to accept enforcement of Peruvian judgment, poten-

tial difficulty of doing so was relevant private-interest fac-

tor weighing against dismissal so that action may be tried

in Peru).

b.  Public-Interest Factors to Be Considered

In addition to the private interests of the parties,

Gulf Oil provides that the court also may consider public-

interest factors that are relevant to the administration of

justice generally. 330 US at 508-09. One important public-

interest factor is the extent to which either forum has an

interest in, and connection to, the underlying controversy.

Id. at 509; Pain v. United Technologies Corp., 637 F2d 775,

791 (DC Cir 1980), cert den, 454 US 1128 (1981), overruled

in part on other grounds by Piper Aircraft, 454 US at 241

(“[T]he central question which a court must answer when

28

Here, the parties dispute whether certain contractual arrangements

between Evergreen and Helinka would allow Evergreen to compel Helinka to

appear in Oregon. We express no opinion on that issue or on the issue of whether

Helinka could be considered an indispensible party.

112 Espinoza v. Evergreen Helicopters, Inc.

weighing the public interests in the outcome and adminis-

tration of a case such as this is whether the case has a gen-

eral nexus with the forum sufficient to justify the forum’s

commitment of judicial time and resources to it.”).

Often, a forum’s interest in a particular case will be

strongest when the events that gave rise to that action took

place within the forum, or when a large number of affected

persons are located there. In Gulf Oil, the Court noted that

“[i]n cases which touch the affairs of many persons, there is

reason for holding the trial in their view and reach rather

than in remote parts of the country where they can learn of

it by report only. There is a local interest in having localized

controversies decided at home.” 330 US at 508-09. A forum

also may have a strong interest in providing redress to its

own residents, regardless of where the activity giving rise to

the action occurred or who else is affected. See Stangvik, 54

Cal 3d at (noting that a “state has a strong interest in assur-

ing its own residents an adequate forum for the redress of

grievances “and that until recent statutory enactment, dis-

missal for forum non conveniens was not permitted if plain-

tiff was California resident).

On the other hand, a forum’s interest in a partic-

ular controversy is not contingent on whether the plaintiff

is a forum resident or on whether the events that gave rise

to liability occurred there. The fact that the defendant is a

forum resident can be a relevant consideration also in deter-

mining the forum’s connection to an action. See Stangvik, 54

Cal 3d at 760 (court may consider defendant corporation’s

connection to forum, given that it was incorporated in and

had its principal place of business there, in determining

forum’s interest in action and deciding forum non conve-

niens motion). For example, regardless of whether any of the

alleged wrongful conduct occurred there, a forum may have

some interest in providing a place where claims against its

own corporate residents may be heard. See Picketts, 215

Conn at 502 (“Connecticut continues to have a responsibility

to those foreign plaintiffs who properly invoke the jurisdic-

tion of this forum; especially in the somewhat unusual sit-

uation where it is the forum resident who seeks dismissal.”

(internal quotation marks and brackets omitted)); see also

Margaret Stewart, Forum Non Conveniens: A Doctrine in

Cite as 359 Or 63 (2016) 113

Search of A Role, 74 Cal L Rev 1259, 1282 (1986) (discussing

sovereign’s interest in providing forum for obtaining redress

from its own corporate residents, especially when jurisdic-

tion elsewhere is uncertain).

Another public-interest factor that is sometimes

considered is whether litigating the action in the plaintiff’s

chosen forum is likely to involve significant administra-

tive difficulties, or impose a particularly great burden on

the court system. Gulf Oil, 330 US at 508-09. For exam-

ple, when an action with minimal connection to a forum is

likely to undermine the administration of justice generally

by consuming substantial resources that would otherwise

be available to other litigants, that factor may weigh in favor

of dismissing or staying the action. See, e.g., Stangvik, 54

Cal 3d at 763 (upholding stay of action for forum non con-

veniens where forum had minimal interest in action and it

would unduly burden California court system). However,

the doctrine of forum non conveniens is not a mechanism for

courts to control their dockets, and the resolution of disputes

is in fact the courts’ raison d’etre. While impacts on the judi-

cial system may be relevant to whether a dismissal or stay

would promote the ends of justice overall, such consider-

ations ordinarily will not take precedence over the private

interests of the litigants or the interest of the forum itself in

the underlying dispute. See First Am. Bank, 198 Ill 2d at 517

(“Court congestion is a relatively insignificant factor, espe-

cially where the record does not show the other forum would

resolve the case more quickly.”).

A final public-interest factor that some courts have

identified is whether litigating the action in the plaintiff’s

chosen forum implicates conflicts of laws issues that pose

practical difficulties for the court. As the United States

Supreme Court noted in Gulf Oil:

“There is an appropriateness, too, in having the trial of a

diversity case in a forum that is at home with the state law

that must govern the case, rather than having a court in

some other forum untangle problems in conflict of laws, and

in law foreign to itself.”

330 US at 509. When the court in the plaintiff’s chosen

forum will be required to apply the law of another country,

114 Espinoza v. Evergreen Helicopters, Inc.

and when doing so will be difficult for the court, that too

may weigh in favor of requiring the plaintiff to litigate

its action in the alternative forum. See, e.g., Archangel

Diamond Corp. Liquidating Trust v. Lukoil, 812 F3d 799,

808 (10th Cir 2016) (trial court did not abuse discretion in

dismissing action for forum non conveniens where it con-

cluded that interpreting and applying Russian law would

impose significant administrative burden on court in plain-

tiff’s chosen forum).

As noted, however, what law will apply to an action

may not be clear at the early stage of litigation at which the

issue of forum non conveniens is typically raised. That is par-

ticularly so for transnational tort actions involving parties

domiciled in different jurisdictions and stemming from con-

duct in multiple locations. In cases such as those, the trial

court may be unable to determine which law applies with-

out resolving factual issues that go directly to the merits,

such as whose conduct caused the injury, and where those

conduct occurred. See, e.g., ORS 15.440 (setting out gen-

eral rules for choice of law determinations for tort claims);

cf. D’Agostino, 115 NJ at 496-97 (trial court unable to resolve

motion to dismiss for forum non conveniens based on choice-

of-law considerations when, in absence of discovery, there

were insufficient facts to perform that analysis).

Moreover, even when the court can determine with

some degree of certainty that foreign law will apply to the

action, it is not necessarily the case that applying that law

will impose an unreasonable burden. See Picketts, 215 Conn

at 512 (“Connecticut courts are quite capable of applying for-

eign law when required to do so and it would be improper to

invoke the doctrine of forum non conveniens solely to avoid a

choice of law analysis.”); cf. DiRienzo v. Philip Servs. Corp.,

294 F3d 21, 31 (2d Cir 2002) (on motion to dismiss for forum

non conveniens, factor of avoiding application of foreign law

was neutral, since both foreign and United States law would

apply in part). Oregon courts are competent to apply the law

of other jurisdictions, including other countries, and some-

times do so, particularly when the foreign law is relatively

simple, similar to that in the United States, and in the same

language. See, e.g., Fisher v. Huck, 50 Or App 635, 642-43

624 P2d 177, rev dismissed, 291 Or 566 (1981) (concluding

Cite as 359 Or 63 (2016) 115

that British Columbia law applied to tort action arising

from automobile accident in British Columbia; remanding

to trial court to apply correct law). Thus, while choice-of-

law considerations may be relevant, a trial court need not

always give them significant weight in its forum non conve-

niens analysis.

To summarize, in Oregon, courts considering a

motion to dismiss or stay an action for forum non conveniens

should apply a two-step analysis to determine whether to

grant such a motion. At the first step, the court must consider

whether there is an adequate alternative forum in which

to try the action. If the alternative forum is inadequate,

the defendant’s motion should be denied. If the alternative

forum is adequate, the court proceeds to the second step,

where it considers the relevant private and public interests

to determine whether, on the whole, those interests weigh so

heavily in favor of the alternative forum that that it would

be contrary to the ends of justice to allow the action to pro-

ceed in the plaintiff’s chosen forum. At each stage of the

forum non conveniens inquiry, the burden remains with the

moving party to establish those underlying facts necessary

for the court to decide the appropriateness of a stay or dis-

missal. Consistent with that burden, and the standard for

a motion to dismiss generally, a court considering a defen-

dant’s motion to dismiss for forum non conveniens must

accept as true all well-pleaded facts alleged in the plaintiff’s

complaint, and give the plaintiff, as the non-moving party,

the benefit of all favorable inferences that might be drawn

from those facts.

4.  Application of Forum Non Conveniens to Plaintiffs’

Actions

We turn now to the application of forum non conve-

niens in this case. We begin with the appropriate standard

of review. It is well-settled law in other jurisdictions that

whether to dismiss or stay an action for forum non con-

veniens is committed to the sound discretion of the trial

court. See Piper Aircraft, 454 US at 238 (stating standard

of review); Stangvik, 54 Cal 3d at 751 (same). That stan-

dard is consistent with the manner in which we review

similar trial court rulings. See, e.g., Bremner v. Charles,

116 Espinoza v. Evergreen Helicopters, Inc.

312 Or 274, 278-80, 821 P2d 1080 (1991) 29 (order to bifur-

cate liability and damages phases of trial); Reed, 194 Or

at 57 (dismissal of action for want of prosecution); Horner

v. Pleasant Creek Min. Corp., 165 Or 683, 703-04, 107 P2d

989 (1940), reh’g den, 165 Or 683 (1941) (decision whether

to assume jurisdiction over action instituted by foreign

plaintiff against foreign corporation “a matter within the

sound judicial discretion of the trial court.”). We conclude

that the decision of a trial court to dismiss or stay an action

for forum non conveniens also should be reviewed for abuse

of discretion.

In considering that standard, it is helpful to under-

stand what we mean by “discretion.” When a trial court

exercises discretion, it acts within certain legal boundaries

to choose from several permissible outcomes:

“Judicial discretion should * * * be exercised according to

fixed legal principles in order to promote substantial jus-

tice. * * * In short, judicial discretion is always bounded by

a simple framework: It must be lawfully exercised to reach

a decision that falls within a permissible range of legally

correct outcomes.”

State v. Harrell/Wilson, 353 Or 247, 254, 297 P3d 461

(2013) (internal citations and quotation marks omitted); see

also State v. Rogers, 330 Or 282, 312, 4 P3d 1261 (2000)

(“[D]iscretion, as this court has used that term, refers to the

authority of a trial court to choose among several legally cor-

rect outcomes.”). In deciding a forum non conveniens motion,

the trial court exercises discretion in several respects: by

determining what private- and public-interest factors to

consider, whether evidence in the record demonstrates that

those factors weigh in favor of the dismissal or stay of the

action, and ultimately, whether the ends of justice require

stay or dismissal of the action.

In making those determinations, a trial court can

exceed the bounds of its permitted discretion in several

ways. First, a trial court’s decision may be legally imper-

missible because it was guided by the wrong substantive

29

Modified on recons, 313 Or 339 (1992), cert den, 506 US 975 (1992), adh’d to

as modified on recons, 315 Or 291 (1993).

Cite as 359 Or 63 (2016) 117

standard. See State v. Sarich, 352 Or 600, 615, 291 P3d

647 (2012) (as prerequisite to exercise of discretion, court

must apply correct legal standard for determining scope

of that discretion). Because whether a trial court applied

the correct substantive standard to guide its decision is a

question of law, we review that issue for legal error. See

id. at 615-17 (reviewing for legal error whether trial court

applied correct standard for determining competency of

witness).

Second, a trial court may abuse its discretion if its

decision is based on predicate legal conclusions that are

erroneous or predicate factual determinations that lack suf-

ficient evidentiary support. For example, in order to weigh

the private interests at stake, a trial court deciding a forum

non conveniens motion must make factual findings about the

availability of relevant evidence in each forum. Likewise,

the court may draw and rely on legal conclusions about the

choice of law applicable to the action, or the enforceability

of a judgment from the alternative forum. We review the

trial court’s predicate legal conclusions “without defer-

ence to determine whether proper principles of law where

applied correctly,” Rogers, 330 Or at 312, and its predicate

factual findings—express or implicit—for any evidence in

the record to support them. See State v. Davis, 345 Or 551,

564-65, 201 P3d 185 (2008), cert den, 558 US 873 (2009)

(where trial court ruling depends on resolution of disputed

factual issues, “we will not disturb the trial court’s express

or implicit factual findings so long as those findings are sup-

ported by evidence”); see also State v. Washington, 355 Or

612, 630, 330 P3d 596, cert den, 135 S Ct 685 (2014) (apply-

ing any evidence standard to factual findings predicate to

trial court exercise of discretion in requiring criminal defen-

dant to be restrained at trial).

Finally, even when the correct law is applied and

there is sufficient evidentiary support for underlying fac-

tual findings, a trial court abuses its discretion if its deci-

sion is clearly against all reason and evidence. See Port of

Umatilla v. Richmond, 212 Or 596, 625, 321 P2d 338 (1958)

(“abuse of discretion” is “a clearly erroneous conclusion and

judgment—one that is clearly against the logic and effect of

such facts as are presented in support of the application, or

118 Espinoza v. Evergreen Helicopters, Inc.

against the reasonable and probable deductions to be drawn

from the facts disclosed upon the hearing.’ ” (citing State v.

Draper, 83 UT 115, 27 P2d 39, 49-50 (1933)).

Here, plaintiffs contend that the trial court abused

its discretion in several respects. They take issue with the

substantive standard that the trial court applied to guide

its decision, arguing that the trial court failed to give suf-

ficient deference to their choice of Oregon as the forum in

which to litigate their claims. Plaintiffs also argue that the

trial court abused its discretion by failing to accept as true

the well-pleaded allegations in their complaints. Pointing

to the court’s statements at oral argument and in its letter

opinion, plaintiffs assert that the trial court made factual

determinations that went to the underlying merits of their

claims and that it based its decision at least in part on those

determinations and on its own view of the relative strength

of the claims asserted, all without the benefit of merits dis-

covery. As a result, plaintiffs argue, the trial court failed

to give sufficient credit to all of their claims and struck an

unreasonable balance in weighing the relevant private- and

public-interest factors, leading to an outcome—dismissal of

the action—that was an abuse of the trial court’s discretion.

For the reasons stated below, we conclude that the trial court

erred as a matter of law by applying the wrong substantive

standard to guide its decision and by failing to accept as

true plaintiffs’ well-pleaded allegations.30

As described above, the first step in the forum non

conveniens analysis is whether there is an adequate alter-

native forum in which the action may be tried. Consistently

with that standard, the trial court first considered, as a

threshold issue, whether Evergreen demonstrated that

there was an adequate alternative forum available. The trial

court concluded that Evergreen had met its burden, because

Peruvian courts were available to try the action and plain-

tiffs had conceded in their briefing before that court that

Peru offered an adequate alternative forum. The court did

30

Because we conclude that the trial court failed to apply the correct sub-

stantive standard to guide its discretion, we do not consider whether the trial

court abused its discretion in either balancing the private- and public-interest

factors relevant to this case, or in concluding that the dismissal of plaintiffs’

actions would best serve the ends of justice.

Cite as 359 Or 63 (2016) 119

note that plaintiffs later contended that Peruvian courts

were inadequate, on the ground that the relevant statutes

of limitations had run in Peru. However, because Evergreen

agreed to waive any statute of limitations defenses it might

have otherwise raised in Peru, the trial court concluded that

nothing would prevent plaintiffs from pursuing their claims

in that forum.

Evergreen did present evidence to the trial court

that Peru offered comparable legal remedies for wrong-

ful death and that plaintiffs could obtain redress in Peru

through those remedies. In response, the only issue that

plaintiffs raised before the trial court was that the statute of

limitations for those claims had run in Peru., Plaintiffs nei-

ther asserted nor presented any evidence to the trial court

that those remedies were defective in any other way, that

the Peruvian legal system was incapable of providing relief,

or that a judgment obtained there would not be enforceable

against Evergreen.31 As a result, the trial court did not err

in concluding, based on the evidence presented to it, that

Peru offered an adequate alternative forum.

At the second step in its forum non conveniens

analysis, however, the trial court erred by applying the

wrong substantive standard for when a dismissal or stay

on that ground is appropriate. As noted, when considering

whether an action should be dismissed or stayed for forum

non conveniens, a trial court’s discretion is limited. It can-

not grant a defendant’s forum non conveniens motion “simply

because another forum, in the court’s view, may be superior

to that chosen by the plaintiff.’ ” Picketts, 215 Conn at 501

(citing Pain, 637 F2d at 783). Rather, under the standard

we have articulated, the moving party must affirmatively

establish that the relevant private- and public-interest fac-

tors weigh so heavily in favor of dismissing or staying the

action that allowing it to proceed would be contrary to the

ends of justice.

31

As noted, plaintiffs raised the argument that Peruvian courts were fun-

damentally inadequate due to corruption and other institutional defects for the

first time before the Court of Appeals. That court declined to consider the issue

because it was not preserved. Espinoza, 266 Or App at 47-48. It does not appear

that plaintiffs raised the issue of whether a judgment against Evergreen obtained

in Peru would be enforceable in Oregon.

120 Espinoza v. Evergreen Helicopters, Inc.

In this case, the trial court appears to have applied

a less stringent standard. In its letter opinion, the trial court

stated that dismissal is permitted if, after determining that

there is an adequate alternative forum, the court concludes

“that trying the action elsewhere would best serve the con-

venience of the parties and the ends of justice.” (Emphasis

added.) Concluding that “trial of this lawsuit will largely

center on, and depend upon, witnesses and documents

regarding circumstances in Peru at the time of the crash,

rather than circumstances in Oregon or the United States”

such that “the private and public interest factors weigh in

favor of dismissal,” the trial court appears to have granted

Evergreen’s motion primarily, if not exclusively, on the

ground that litigating the actions in Peru would be simply

more convenient. (Emphasis added.) The trial court stated

that the ends of justice would be “best served” by trial in

Peru, but not that trial in Oregon would be so inconvenient

as to be contrary to the ends of justice. Because the trial

court therefore applied the wrong substantive standard

to guide its decision, it abused its discretion in granting

Evergreen’s motions to dismiss.

The trial court also applied the wrong substantive

standard to guide its decision by failing to “assume the truth

of all well-pleaded facts alleged in the complaint and give

plaintiff[s], as the nonmoving part[ies], the benefit of all

favorable inferences that may be drawn from those facts.”

Bradbury, 328 Or at 393. Although it is entirely appropriate

for a trial court to resolve factual issues related to the ease

with which the parties might prove, or disprove, facts mate-

rial to the merits of their dispute, by deciding, for example,

where certain evidence is located, a trial court may not rely

on factual findings that contradict—implicitly or expressly—

the well-pleaded allegations in the plaintiff’s complaint.

Here, plaintiffs’ complaints contained factual alle-

gations that would support both direct negligence and vicar-

ious liability claims against Evergreen. In particular, plain-

tiffs alleged that Evergreen “fail[ed] to properly maintain,

inspect, test and/or repair the subject helicopter and ensure

that the subject helicopter was kept in a safe condition” and

that those failures were “[a] substantial factor in causing

the crash and [decedents’] injuries.” There is no dispute that

Cite as 359 Or 63 (2016) 121

Evergreen performed work on the helicopter’s mechanical

systems in the months just prior to the crash, or that the

helicopter had been in use for only a matter of weeks when

the crash occurred.

Despite plaintiffs’ well-pleaded allegations, the trial

court appears to have based its decision, at least in part,

on its determination that mechanical systems installed and

tested by Evergreen in Oregon played no role in the crash,

and that pilot error instead was its cause. For example, in

its letter opinion, the trial court stated that it would not

base its decision on the possibility that the crash resulted

from “a malfunction in the warning or altimeter systems

installed by Evergreen in the United States” and dismissed

as speculative plaintiffs’ contention that discovery might

reveal evidence of such a defect.

That the trial court made factual findings that

contradicted the well-pleaded allegations in plaintiffs’ com-

plaint is supported further by the parties’ arguments before

that court. When arguing in favor of its motion, Evergreen

relied heavily on the contention that, because there was lit-

tle evidence to support plaintiffs’ theory that a mechanical

failure was the cause of the crash, the trial court should

give that claim, and the evidence in Oregon pertinent to it,

little weight in assessing which forum has a greater con-

nection to the litigation and in which location most of the

relevant evidence was likely located. Further, at the hear-

ing on Evergreen’s motion, the parties discussed the eviden-

tiary support for plaintiffs’ mechanical failure theory, and,

as part of that exchange, the trial court specifically asked

plaintiffs’ counsel what evidence they had that a mechanical

failure was the cause of the crash:

“[PLAINTIFFS’ COUNSEL]:  And then maybe another

key either to causation or to debunk a defense is really going

to be what’s going on with that enhanced ground proximity

warning system. It was installed just two months before

it took off here. It was tested and inspected here. It was

cleared here, and yet there were squawks and things that

we know nothing about that Evergreen’s people found on

this system.

“* * * * *

122 Espinoza v. Evergreen Helicopters, Inc.

“THE COURT:  Where in the record will I find this—the

squawks that you referred to?

“[PLAINTIFFS’ COUNSEL]:  Unfortunately, we don’t

have the squawks.

“* * * * *

“[PLAINTIFFS’ COUNSEL]:  Could I just start by talking

about what the systems are and giving the Court just a

brief explanation about them?

“THE COURT:  You can. But I think I understand.

* * * What I’m interested in is what evidence do you have

that there was potentially some issue associated with [the

mechanical systems on the helicopter]?”

(Emphasis added.)

Rather than assuming the truth of plaintiffs’ well-

pleaded allegations and limiting its factual findings to those

issues outside the pleadings that the trial court needed

to resolve to dispose of Evergreen’s motion, the trial court

instead looked to plaintiffs to identify evidence in the record

to support those allegations. When it found such evidence

lacking, the trial court appears to have made its own, con-

trary, finding as to the probable cause of the crash. Insofar

as it based its decision, at least in part, on that determina-

tion, the trial court failed to accept as true the well-pleaded

factual allegations supporting plaintiffs’ direct negligence

claims, erred as a matter of law, and abused its discretion in

granting Evergreen’s motions. Cf., Koss Corp. v. Sachdeva,

363 Ill Dec 434, 446-44, 975 NE2d 236, 248-49 (Ill Ct App),

rev den, 981 NE2d 998 (Ill 2012) (trial court abused discre-

tion when it disregarded some of plaintiff’s allegations as

lacking support in record, and as a result, failed to consider

all of plaintiffs claims in determining whether dismissal for

forum non conveniens was appropriate).

Evergreen argues that we should not require trial

courts to accept all well-pleaded allegations as true, because

that standardmakes it possible for a plaintiff to avoid dis-

missal for forum non conveniens by asserting meritless theo-

ries and claims to link its action to the forum it has chosen.

Evergreen’s argument is not well-taken. Although styled as

a motion to dismiss when raised by a defendant, the purpose

Cite as 359 Or 63 (2016) 123

and function of forum non conveniens is not to test the suf-

ficiency of a plaintiff’s complaint. Rather, forum non conve-

niens allows the court and the parties to avoid considering

the merits of an action, at least at that early stage, precisely

because the defendant claims that the plaintiff’s chosen

forum is unsuited to that task. See Sinochem, 549 US at

432 (“A forum non conveniens dismissal denies audience to

a case on the merits;” “it is a determination that the merits

should be adjudicated elsewhere.” (internal citation and quo-

tation marks omitted)). It is for that reason that defendants

typically raise the issue of forum non conveniens at the out-

set of a case, before any merits discovery has taken place.

Considering the purpose and function of the doc-

trine of forum non conveniens, we see no reason to depart

from the well-established standard for deciding motions to

dismiss of accepting as true the well-pleaded allegations in

the complaint. As noted by another appellate court faced

with the same issue, “[i]t is unreasonable to require a plain-

tiff to prove up its entire case on a motion to dismiss for forum

non conveniens where a defendant, with its greater eviden-

tiary burden, has no such obligation.” Koss, 363 Ill Dec at

446. If a defendant truly believes that some of the plaintiff’s

claims are insufficiently pled or that they lack merit, noth-

ing would bar it from filing a motion to dismiss for failure

to state a claim, or even a motion for summary judgment.

See id. at 446-47 (arguments that plaintiff’s allegations are

conclusory or that they fail to state a claim cannot be prop-

erly addressed through forum non conveniens motion; defen-

dant should raise such issues by separate motion). Likewise,

nothing would prevent a court from deciding, on an appro-

priate motion and under the correct legal standard, that a

claim should be dismissed and thus not considered in deter-

mining whether the action should be dismissed or stayed on

forum non conveniens grounds.

On this record, the cause of the crash is disputed,

and while the trial court was undoubtedly and appropri-

ately concerned that much of the evidence concerning the

crash would be found in Peru, it appears as though the

trial court did not consider the possibility that a significant

amount of documentary and testimonial evidence pertinent

124 Espinoza v. Evergreen Helicopters, Inc.

to plaintiffs’ direct negligence claims is likely to be found

in Oregon. Plaintiffs’ complaints contained sufficient fac-

tual allegations to state a claim upon which relief could be

granted on that theory. To the extent that the trial court,

having concluded that plaintiffs’ direct negligence claims

were speculative and weak, discounted the importance of

evidence in Oregon that would have been relevant to those

claims, it not only failed to give sufficient credit to the well-

pleaded allegations in plaintiffs’ complaints, it veered into

the merits of the dispute at a stage in the litigation when it

was poorly equipped to do so.

III. CONCLUSION

For the reasons discussed above, we hold that the

doctrine of forum non conveniens is part of the common law

of this state. When a party moves to dismiss or stay an action

on that ground, the court may grant the motion if that party

demonstrates that an alternative forum is available and

adequate, and that the relevant private- and public-interest

considerations weigh so heavily in favor of a dismissal or

stay that allowing the litigation to proceed would be con-

trary to the ends of justice. Because the trial court failed to

apply that standard in its dismissal of plaintiffs’ claims, and

likewise, consistent with the posture of a motion to dismiss,

failed to accept plaintiffs’ well-pleaded allegations as true,

it erred as a matter of law and exceeded the bounds of its

discretion.

The decision of the Court of Appeals is affirmed.

The judgment of the circuit court is vacated, and the case is

remanded to the circuit court for further proceedings.