Amicus Curiae Brief — Thomas Wood, Individually and as Personal Representative of the Estate of Philip Talmadge Wood, Petitioner v. The Boeing Co.

No. 20-98

IN THE

Supreme Court of the United States

THOMAS WOOD, INDIVIDUALLY AND AS PERSONAL

REPRESENTATIVE OF THE ESTATE OF PHILIP TALMAGE

WOOD,

Petitioner,

v.

THE BOEING CO.,

Respondent.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

BRIEF OF AMICI CURIAE LEGAL SCHOLARS

IN SUPPORT OF PETITIONER

James A. Hemphill

Counsel of Record

Matthew C. Powers

GRAVES, DOUGHERTY,

HEARON & MOODY, P.C.

401 Congress Ave., Ste.

2700

Austin, Texas 78701

(512) 480-5600

jhemphill@gdhm.com

mpowers@gdhm.com

Counsel for Amici Curiae

Legal Scholars

TABLE OF CONTENTS

Table of Authorities .....................................................ii

Interest of Amici Curiae .............................................. 1

Summary of Argument ................................................ 1

Argument ..................................................................... 3

I. The Doctrine of Forum Non Conveniens,

in its Application by Federal Courts, is

Marred by Inconsistency ................................ 3

A. The appellate courts disagree over the

deference due a plaintiff’s forum choice .... 4

B. The defendant’s burden has not been

consistently articulated or applied by

the appellate and district courts ................ 7

C. The lower courts disagree in their

weighing of public and private

factors and on the imposition of

dismissal conditions .................................... 8

D. Courts are divided with respect to

the choice of law analysis. ....................... 10

II. The Court Should Take this Opportunity to

Revisit the Doctrine ...................................... 12

A. Proposals for reform ................................ 12

B. Proposals and grounds for

abandonment ........................................... 17

Conclusion ................................................................. 20

APPENDIX

3634426.v1

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Abad v. Bayer Corp.,

563 F.3d 663 (7th Cir. 2009) ................................ 6

American Dredging Co. v. Miller,

510 U.S. 443 (1994)......................................... 2, 12

Archangel Diamond Corp. Liquidating Trust v.

Lukoil, 812 F.3d 799 (10th Cir. 2016) ................ 10

Ayco Farms, Inc. v. Ochoa,

862 F.3d 945 (9th Cir. 2017) ................................ 5

Burt v. Isthmus Development Co.,

218 F.2d 353 (5th Cir. 1955) ................................ 4

Capital Currency Exchange, N.V. v. National

Westminster Bank PLC,

155 F.3d 603 (2d Cir. 1998) ................................ 11

Carijano v. Occidental Petroleum Corp.,

643 F.3d 1216 (9th Cir. 2011) .............................. 6

Delta Air Lines, Inc. v. Chimet, S.p.A.,

619 F.3d 288 (3d Cir. 2010) .................................. 8

DiFederico v. Marriott International Inc.,

714 F.3d 796 (4th Cir. 2013) ................................ 5

Gschwind v. Cessna Aircraft Co.,

161 F.3d 602 (10th Cir. 1998) ........................ 8, 10

iii

Gulf Oil Corp. v. Gilbert,

330 U.S. 501 (1947)....................................... 2, 3, 8

Hefferan v. Ethicon Endo-Surgery Inc.,

828 F.3d 488 (6th Cir. 2016) ............................ 5, 6

Howe v. Goldcorp Investments, Ltd.,

946 F.2d 944 (1st Cir. 1991) ............................... 11

Interface Partners International Ltd. v. Hananel,

575 F.3d 97 (1st Cir. 2009) ............................... 6, 8

Iragorri v. United Technologies Corp.,

274 F.3d 65 (2d Cir. 2001) (en banc) .................... 5

Kedy v. A.W. Chesterton Co.,

946 A.2d 1171 (R.I. 2008) ..................................... 3

Kisano Trade & Invest Ltd. v. Lemster,

737 F.3d 869 (3d Cir. 2013) .................................. 5

Lehman v. Humphrey Cayman, Ltd.,

713 F.2d 339 (8th Cir. 1983) ................................ 5

Lueck v. Sundstrand Corp.,

236 F.3d 1137 (9th Cir. 2001) ............................ 10

Otto Candies, LLC v. Citigroup, Inc.,

963 F.3d 1331 (11th Cir. 2020)..................... 4, 6, 8

Piper Aircraft Co. v. Reyno,

454 U.S. 235 (1981)................................. 4 & n.2, 8

Simon v. Republic of Hungary,

911 F.3d 1172 (D.C. Cir. 2018) ............................. 6

iv

Sinochem International Co., Ltd. v. Malaysia

International Shipping Corp.,

549 U.S. 422 (2007)................................. 1, 4, 7, 12

Sumlicz v. Norwegian Am. Line, Inc.,

698 F.2d 1192 (11th Cir. 1983)........................... 11

Trotter v. 7R Holdings LLC,

873 F.3d 435 (3d Cir. 2017) ................................ 11

Wiwa v. Royal Dutch Petroleum Co.,

226 F.3d 88 (2d Cir. 2000) .................................... 6

Zipfel v. Halliburton Co.,

832 F.2d 1477 (9th Cir. 1987) ............................ 11

Scholarly Authorities

Pamela K. Bookman, Litigation Isolationism,

67 Stan. L. Rev. 1081 (2015) ............................ 8, 13

Stephen B. Burbank, Jurisdictional

Conflict and Jurisdictional

Equilibration: Paths to a Via

Media, 26 Houston J. Int’l Law

385 (2004) ............................................................. 10

Donald Earl Childress, III, Forum Non

Conveniens: The Search for a Convenient

Forum in Transnational Cases, 53 Va. J.

Int’l L. 157 (2012) ................................................. 16

v

Martin Davies, Time to Change the

Federal Forum Non Conveniens

Analysis, 77 Tul. L. Rev. 309

(2002) .......................................................... 9–10, 15

Henry J. Friendly, Indiscretion About

Discretion, 31 Emory L.J. 747

(1982) .......................................................... 2, 12–13

Maggie Gardner, Parochial Procedure,

69 Stan. L. Rev. 941 (2017) ................................ 6–7

Maggie Gardner, Retiring Forum

Non Conveniens, 92 N.Y.U. L. Rev.

390 (2017) ....................................................... 18–19

Tarik R. Hansen & Christopher A.

Whytock, The Judgment Enforceability

Factor in Forum Non Conveniens

Analysis, 101 Iowa L. Rev. 923

(2016) .................................................................... 15

Lonny Hoffman, The Case Against Vicarious

Jurisdiction, 152 U. Pa. L. Rev. 1023,

1093 (2004)) .......................................................... 10

Lonny Hoffman & Keith A. Rowley,

Forum Non Conveniens in Federal

Statutory Cases, 49 Emory L.J.

1137 (2000) ..................................................... 10–12

Elizabeth T. Lear, Congress, the Federal

Courts, and Forum Non Conveniens:

Friction on the Frontier of the Inherent

Power, 91 Iowa L. Rev. 1147 (2006) .................... 19

vi

Elizabeth T. Lear, National Interests,

Foreign Injuries, and Federal Forum

Non Conveniens, 41 U.C. Davis

L. Rev. 559 (2007) .......................................... 17–19

David W. Robertson, Forum Non Conveniens in

America and England: ‘A Rather Fantastic

Fiction,’ 103 L.Q. Rev. 398 (1987) ....................... 16

David W. Robertson, The Federal Doctrine

of Forum Non Conveniens: “An Object

Lesson in Uncontrolled Discretion,” 29

Tex. Int’l L.J. 353 (1994) ...................................... 18

Allan R. Stein, Forum Non Conveniens and

the Redundancy of Court-Access Doctrine,

133 U. Pa. L. Rev. 781 (1985) .............................. 19

Margaret G. Stewart, Forum Non

Conveniens: A Doctrine in Search of

a Role, 74 Cal. L. Rev. 1259 (1986)...................... 19

Christopher A. Whytock & Cassandra Burke

Robertson, Forum Non Conveniens and

the Enforcement of Foreign Judgments,

111 Colum. L. Rev. 1444 (2011) ....................... 9–10

Christopher A. Whytock, Foreign State

Immunity and the Right to Court Access,

93 B.U. L. Rev. 2033 (2013) ................................. 14

1

INTEREST OF AMICI CURIAE1

Amici Curiae, named in alphabetical order in the

attached Appendix, are legal scholars who study and

teach civil procedure, federal courts, and conflict of

laws. They share a common interest in the doctrine

of forum non conveniens, as applied by federal and

state courts in the United States.

Amici are dedicated to the development of the

law on this subject and are united in promoting its

clear and consistent application.

SUMMARY OF ARGUMENT

Motions to dismiss based on forum non

conveniens have become routine in federal cases

involving a foreign or transnational element. Long

criticized for its vague guidelines, inconsistent

application, and excessive appellate deference, the

doctrine of forum non conveniens has been invoked

with even greater frequency since the Court held it

may be decided at the outset of a case, even before

personal or subject matter jurisdiction. Sinochem

Int’l Co., Ltd. v. Malaysia Int’l Shipping Corp., 549

U.S. 422, 436 (2007). As many commentators have

noted, the doctrine’s only consistency is its

inconsistency.

Judge Henry Friendly was an early critic,

complaining in 1982 of the doctrine’s excessively

1 Pursuant to Supreme Court Rule 37.6, counsel for amici states

that no counsel for a party authored this brief in whole or in

part, and that no person other than amici or their counsel made

a monetary contribution to the preparation or submission of

this brief. All parties have consented to the filing of this amicus

brief pursuant to Supreme Court Rule 37.2. Amici submit this

brief on behalf of themselves alone. This brief does not purport

to represent the view or position of any of their respective

universities, nor of any person or institution other than Amici.

2

discretionary standard and its correspondingly

inconsistent application. See Henry J. Friendly,

Indiscretion About Discretion, 31 Emory L.J. 747

(1982). Later, this Court itself remarked on the

doctrine’s inconsistency:

[T]o tell the truth, forum non conveniens

cannot really be relied upon in making

decisions about secondary conduct—in

deciding, for example, where to sue or where

one is subject to being sued. The

discretionary nature of the doctrine,

combined with the multifariousness of the

factors relevant to its application, see the

quotation from Gilbert, supra, at 985–986

[quoting the list of private and public factors

from Gulf Oil Corp. v. Gilbert, 330 U.S. 508–

09

(1947)],

make

uniformity

and

predictability of outcome almost impossible.

Am. Dredging Co. v. Miller, 510 U.S. 443, 455 (1994)

(Scalia, J.). Because state law, rather than federal

common law, controlled the forum non conveniens

decision in American Dredging, id. at 457, the case—

while flagging the more troublesome aspects of the

doctrine—did not present the Court with the

opportunity to reassess its own forum non conveniens

jurisprudence.

And although American Dredging accepted that

some variability will follow from the lack of a single

federal rule to be applied across jurisdictions, this

Court need not resign itself to the view that

inconsistent

and

aberrational

results

are

2

unavoidable in cases decided under federal law.

2 This Court has never expressly answered whether uniform

federal common law or state law should furnish the basis for

3

Instead, this Court can and should provide the

federal district and appellate courts the guidance

and clarity that they need to alleviate the

inconsistency that afflicts their decision-making.

State courts too will look to this Court for leadership

on the doctrine, as they have always done. See Kedy

v. A.W. Chesterton Co., 946 A.2d 1171, 1180 & n.9

(R.I. 2008) (cataloging state forum non conveniens

doctrines).

The Petition now before the Court alludes to this

case’s potential to be a vehicle for a fundamental

reassessment of the law of forum non conveniens.

Amici agree with Petitioner and believe that such an

exercise is long overdue. Amici here seek to

summarize some of the ways in which the doctrine

has failed and to highlight various approaches that

scholars and commentators have put forward for

improvement. In its endorsement of the certiorari

grant for Wood v. Boeing, this Amicus Brief does not

propose a policy other than clarity.

ARGUMENT

I. The Doctrine of Forum Non Conveniens, in

its Application by Federal Courts, is

Marred by Inconsistency.

Since Gulf Oil Corp. v. Gilbert, 330 U.S. 501

(1947) was first decided—and notwithstanding this

forum non conveniens decisions in diversity cases. See Piper

Aircraft v. Reyno, 454 U.S. 235, 248 n.13 (1981). Nonetheless,

like most lower federal courts deciding such motions, the

district court below applied federal common law in resolving the

forum non conveniens motion here. See In re Air Crash Over S.

Indian Ocean, 352 F. Supp. 3d 19, 36 (D.D.C. 2018) (“Because

forum non conveniens is a procedural question, this Court

applies D.C. Circuit law in deciding forum non conveniens

motions.”).

4

Court’s return to the doctrine in Piper Aircraft Co. v.

Reyno, 454 U.S. 235 (1981) and in Sinochem—federal

district and appellate courts have struggled to

develop a consistent and coherent body of forum non

conveniens law. The discord among the lower courts

covers virtually every aspect of the doctrine’s

application: from the amount of deference to be

afforded a plaintiff’s choice of forum, to the burden

the defendant must meet before a district court may

exercise its discretion to dismiss on forum non

conveniens grounds, to the weight to be applied to the

private and public interest factors that inform the

analysis, and finally to the role for choice of law

considerations.

A. The appellate courts disagree over the

deference due a plaintiff’s forum choice.

Notwithstanding its purported significance to the

forum non conveniens inquiry, courts of appeals have

failed to develop a consistent and coherent standard

for the deference due a plaintiff’s choice of forum.

Three distinct approaches predominate. First,

several courts have required that the defendant meet

a high, “manifest injustice” bar in their recitation of

the governing standard:

The defendant must offer “positive evidence

of unusually extreme circumstances,” and

the district court must be “thoroughly

convinced that material injustice is manifest

before exercising any such discretion as may

exist to deny a United States citizen access

to the courts of this country.”

Otto Candies, LLC v. Citigroup, Inc., 963 F.3d 1331,

1339 (11th Cir. 2020) (quoting Burt v. Isthmus Dev.

Co., 218 F.2d 353, 357 (5th Cir. 1955)); see also

5

DiFederico v. Marriott Int’l, Inc., 714 F.3d 796, 803

(4th Cir. 2013); Lehman v. Humphrey Cayman, Ltd.,

713 F.2d 339, 342 (8th Cir. 1983).

In a second approach, several courts apply a

sliding scale informed by whether the case involves a

domestic or foreign plaintiff and on whether

improper

forum-shopping

considerations

are

apparent in the plaintiff’s choice of forum. The

Second Circuit’s en banc opinion in Iragorri v. United

Technologies Corp., 274 F.3d 65 (2d Cir. 2001)

epitomizes this approach:

Based on the Supreme Court’s guidance, our

understanding of how courts should address

the degree of deference to be given to a

plaintiff’s choice of a U.S. forum is

essentially as follows: The more it appears

that a domestic or foreign plaintiff’s choice of

forum has been dictated by reasons that the

law recognizes as valid, the greater the

deference that will be given to the plaintiff’s

forum choice. . . . On the other hand, the

more it appears that the plaintiff’s choice of a

U.S. forum was motivated by forumshopping reasons . . . the less deference the

plaintiff’s

choice

commands

and,

consequently, the easier it becomes for the

defendant to succeed on a forum non

conveniens motion . . . .

Id. at 71–72; see also Ayco Farms, Inc. v. Ochoa, 862

F.3d 945, 950 (9th Cir. 2017); Hefferan v. Ethicon

Endo-Surgery Inc., 828 F.3d 488, 494 (6th Cir. 2016);

Kisano Trade & Invest Ltd. v. Lemster, 737 F.3d 869,

876 (3d Cir. 2013).

In yet a third approach, the First Circuit Court

of Appeals questions whether a plaintiff’s choice of

6

forum is due any meaningful deference at all.

Interface Partners Int’l Ltd. v. Hananel, 575 F.3d 97,

101–02 (1st Cir. 2009). Though that court

acknowledges the general principle that “a plaintiff

enjoys some degree of deference,” id. at 101, it has

done little to show how the presumption should

affect outcomes, particularly with respect to domestic

plaintiffs, whom it suggests may be entitled to no

higher deference than foreign plaintiffs. Id. at 101–

02.

Courts have likewise struggled to bring

consistency to other aspects of the doctrine. For

example, in circumstances in which United States

plaintiffs and foreign plaintiffs have joined together

in the same suit, no consistent standard has emerged

for the impact of each plaintiff group’s presence in

the suit. See, e.g., Otto Candies, 963 F.3d at 1344;

Simon v. Republic of Hungary, 911 F.3d 1172, 1183

(D.C. Cir. 2018); Carijano v. Occidental Petroleum

Corp., 643 F.3d 1216, 1228 (9th Cir. 2011).

Indeed, the cases lack uniformity even with

regard to what constitutes a “United States

plaintiff,” with courts taking inconsistent positions

on what weight to give citizenship versus residency

in the analysis. See Hefferan, 828 F.3d at 493–94;

Abad v. Bayer Corp., 563 F.3d 663, 666–67 (7th Cir.

2009); Wiwa v. Royal Dutch Petroleum Co., 226 F.3d

88, 101–03 (2d Cir. 2000).

Here, the devil is in the details, and as Professor

Gardner has persuasively argued, any clarity that

this Court’s prior formulations sought to provide has

given way to inconsistency born of the questions they

left unanswered:

Though the concept seems simple—U.S.

plaintiffs get more deference, foreign

7

plaintiffs get less—that binary clarity falls

away on closer examination. What exactly

does “less deference” or “somewhat more

deference” mean, and what is the baseline

from which deference is measured? Should

courts similarly assume that a local

defendant is not inconvenienced by suit in its

home forum? And if so, what counts as a

“local” defendant? Is a U.S. plaintiff doing

significant business in a foreign country

really inconvenienced if forced to litigate

there? What about a corporation that is only

nominally incorporated in the United States

but is in all other respects foreign? Or a U.S.

plaintiff who initially brought suit in the

foreign forum? And in transnational cases

with multiple parties, is one U.S. plaintiff

enough? Should courts count the number of

foreign versus domestic plaintiffs in deciding

whether

to

invoke

the

lightened

presumption, or should they instead assess

the legitimacy of the U.S. plaintiff’s interest

in the case?

Maggie Gardner, Parochial Procedure, 69 Stan. L.

Rev. 941, 991–92 (2017).

B. The defendant’s burden has not been

consistently articulated or applied by

the appellate and district courts.

This Court has clearly placed on the defendant

the burden of demonstrating the basis and support

for a dismissal on forum non conveniens grounds.

Sinochem, 549 U.S. at 430.

Beyond generalized statements, what this entails

in practice is far less clear. Though the Court has

repeatedly identified the presence of “oppressiveness

8

and vexation to a defendant . . . out of all proportion

to plaintiff’s convenience” as the ultimate basis for a

forum non conveniens dismissal, courts have placed

little reliance on this standard in their decisions.

Frequently, courts appear to rely far more on the

mere location of evidence and witnesses and fail to

tie their conclusions on such matters back to the

ultimate inquiry that this Court has suggested is

foundational. E.g., Delta Air Lines, Inc. v. Chimet,

S.p.A., 619 F.3d 288, 300 (3d Cir. 2010); Interface

Partners Int’l, 575 F.3d at 105; Gschwind v. Cessna

Aircraft Co., 161 F.3d 602, 608 (10th Cir. 1998).

Also unclear in the caselaw is whether the

defendant’s burden varies depending on the facts of

the case. While for some courts, the burden on the

defendant is elevated when it is a domestic party

sued here in its home country, see, e.g., Otto, 963

F.2d at 1342–43, this Court has not yet articulated

the weight to be accorded this salient fact in the

analysis. See Pamela K. Bookman, Litigation

Isolationism, 67 Stan. L. Rev. 1081, 1106 (2015)

(critiquing the result in Piper—where this Court

approved a forum non conveniens dismissal of a

defendant sued in its home state—as “go[ing] against

traditional assumptions that the most fair and

convenient place to sue a defendant is in his home

forum and that home fora are most likely to afford

preferential or at least nonprejudicial treatment”).

C. The lower courts disagree in their

weighing of public and private factors

and on the imposition of dismissal

conditions.

Since this Court’s first introduction in Gulf Oil

Corp. v. Gilbert, 330 U.S. 501 (1947) of the public and

private interest factors that inform the forum non

9

conveniens inquiry, the law has been unsettled in

assessing the factors’ interplay and the relative

weight to be accorded to each. As Professor Davies

has summarized:

There is a considerable body of authority in

the Fifth Circuit for the proposition that it is

unnecessary to consider the public interest

factors at all if the private interest factors

indicate that the case should be dismissed.

The Eleventh Circuit and District of

Columbia Circuit have both taken a similar

position, holding that consideration of the

public interest factors is only necessary when

the private interest factors are “in equipoise

or near equipoise.” However, in all three

circuits, there are examples of courts acting

inconsistently with the prevailing view,

either by considering the public interest

factors after concluding that the private

interest factors favored dismissal, or simply

by considering the public and private

interest factors together. There is no

discrimination between public and private

factors in the First, Second, Third, Fourth,

Sixth, Seventh, Eighth, Ninth, and Tenth

Circuits, which all give the same weight to

both kinds of factor.

Martin Davies, Time to Change the Federal Forum

Non Conveniens Analysis, 77 Tul. L. Rev. 309, 352

(2002).

Courts likewise diverge in the details of the

application of specific factors, including with respect

to enforceability of a judgment that may arise in the

case and the relevance of docket congestion, as well

as with regard to the need for a return-jurisdiction

10

clause in orders of dismissal. Id. at 318, 348–49 &

nn.185–87, 356–60, 363–64 & nn.257–62; see also

Christopher A. Whytock & Cassandra Burke

Robertson, Forum Non Conveniens and the

Enforcement of Foreign Judgments, 111 Colum. L.

Rev. 1444, 1499 & n.279 (2011).

D. Courts are divided with respect to the

choice of law analysis.

Disagreements over the proper role of choice of

law in forum non conveniens analysis have sown

further confusion. As Professor Hoffman has

explained, the courts are badly splintered on what

weight to give domestic regulatory interests in their

decision-making. See generally Lonny Hoffman &

Keith A. Rowley, Forum Non Conveniens in Federal

Statutory Cases, 49 Emory L.J. 1137 (2000); Lonny

Hoffman, The Case Against Vicarious Jurisdiction,

152 U. Pa. L. Rev. 1023, 1093 (2004); see also

Stephen B. Burbank, Jurisdictional Conflict and

Jurisdictional Equilibration: Paths to a Via Media,

26 Houston J. Int’l Law 385, 399–400 (2004).

In some circuits, a forum non conveniens

dismissal is either entirely or largely unavailable if

the district court’s choice of law analysis leads it to

conclude that domestic law must be applied to the

dispute. See, e.g., Archangel Diamond Corp.

Liquidating Trust v. Lukoil, 812 F.3d 799, 804 (10th

Cir. 2016) (noting that one of two “threshold

requirements” for dismissal is confirming that

foreign law is applicable “because forum non

conveniens is improper if foreign law is not

applicable and domestic law controls”) (citing, inter

alia, Gschwind, 161 F.3d at 605–06); Lueck v.

Sundstrand Corp., 236 F.3d 1137, 1148 (9th Cir.

2001) (explaining that “[b]efore dismissing a case for

11

forum non conveniens, a district court must first

make a choice of law determination” and that “the

choice of law analysis is only determinative when the

case involves a United States statute requiring

venue in the United States, such as the Jones Act or

the Federal Employers’ Liability Act”) (internal

citations omitted); Zipfel v. Halliburton Co., 832 F.2d

1477, 1483 (9th Cir. 1987) (finding that the thenextant version of Jones Act barred application of

forum non conveniens); Sumlicz v. Norwegian Am.

Line, Inc., 698 F.2d 1192, 1195 (11th Cir. 1983).

By contrast, other circuits have held that a case

may be dismissed on forum non conveniens grounds

even after recognizing that U.S. law would govern

the dispute. See, e.g., Capital Currency Exch., N.V. v.

Nat’l Westminster Bank PLC, 155 F.3d 603, 609 (2d

Cir. 1998); Howe v. Goldcorp Inv., Ltd., 946 F.2d 944,

949 (1st Cir. 1991) (Breyer, C.J.), cert. denied, 502

U.S. 1095 (1992) (“We can find no good policy reason

for reading the special venue provisions as if

someone in Congress really intended them to remove

the courts’ legal power to invoke the doctrine of

forum non conveniens in an otherwise appropriate

case”); Trotter v. 7R Holdings LLC, 873 F.3d 435,

441–42 (3d Cir. 2017) (noting, after Congress’s

removal of the special venue provision in the Jones

Act, that the amended statute “demonstrates that

there is no special-venue exception to the normal

forum non conveniens approach and therefore no

choice of law inquiry is required”).

In sum, the degree to which the choice of law

analysis influences the forum non conveniens

determination varies widely. As Professor Hoffman

has observed, the outcome of a forum non conveniens

motion in “a case involving federal statutory claims

12

may depend as much on the circuit in which the

forum court is located as on the merits of the

motion.” Hoffman & Rowley, supra, 49 Emory L.J. at

1161.

II. The Court Should Take this Opportunity to

Revisit the Doctrine.

Though approaches vary, the emerging scholarly

consensus

is

that

forum

non

conveniens

jurisprudence has become untethered from its

foundational underpinnings and is ripe for

reassessment and reform. Sinochem’s conclusion that

courts may reach forum non conveniens issues before

deciding jurisdictional issues gives new urgency to

the calls for clarification and improvement.

Below, Amici outline some of the proposals that

legal scholars have made. Though this brief does not

urge any one approach, Amici are unanimous in their

assessment that the law of forum non conveniens can

and should be improved, and the Court will benefit

from having familiarity with the scholarship

described here in doing so.

A. Proposals for reform.

Despite this Court’s acknowledgement in

American Dredging that the doctrine of forum non

conveniens as presently conceived and applied

“make[s] uniformity and predictability of outcome

almost impossible,” Am. Dredging, 510 U.S. at 455,

this Court has not yet taken an opportunity to

address the doctrine’s shortcomings. Amici urge the

Court to do so without delay.

In affirming the dismissal of an American

plaintiff’s suit against an American company for a

tort alleged to have been committed in the United

13

States, the judgment below underscores just how

unpredictable the doctrine has become.

Legal scholars’ proposals for reform run a broad

spectrum. At the modest end, Judge Friendly—in his

piece, “Indiscretion About Discretion”—called simply

for more searching appellate review, finding that the

level of appellate deference accorded trial judges on

forum non conveniens grounds has been far too great.

Friendly, supra, 31 Emory L.J. at 747.

Other calls for change have gone further, looking

to the substance of the inquiry that the district court

performs in deciding motions to dismiss. For

example, Professor Bookman has forcefully argued

for a presumption (if not a bright-line rule) that a

forum non conveniens dismissal should be

unavailable to a United States defendant sued in the

United States. As she points out:

The presumption that defendants may be

sued in their home fora is widely recognized

internationally and also creates a simple and

logical starting point for plaintiffs’ forum

selection choices. Indeed, the Court may

have adopted the “at home” rule for general

jurisdiction in Goodyear and Daimler in part

for these reasons. Defendants’ home fora also

often have a significant sovereign interest

over a suit, even if the underlying conduct

occurred

elsewhere,

because

of

the

sovereign’s interest in regulating the conduct

of its own nationals and residents.

Bookman, supra, 67 Stan. L. Rev. at 1106. This

recommendation is also in accord with the reality

that few nations even recognize the doctrine of forum

non conveniens, and that for those who do, the

doctrine’s application is rare. Id. at 1106; see also

14

Christopher A. Whytock, Foreign State Immunity

and the Right to Court Access, 93 B.U. L. Rev. 2033,

2052 n.111 (2013).

Professor Davies has called for revisiting the

entire public and private interest factor framework,

noting that changes in law and technology affecting

transportation and evidence have rendered much of

the original formulation obsolete:

For example, it should no longer be possible

for a defendant seeking a forum non

conveniens dismissal simply to argue that it

would be expensive and inconvenient to

transport willing witnesses from some

distant country to a courthouse in the United

States. In order to discharge its onus of

persuading the court to dismiss the

plaintiff’s complaint, the defendant should be

required to show why the taking of evidence

from those witnesses by video link or

videotaped

deposition

would

be

impermissible under the Federal Rules of

Civil Procedure and, or in the alternative,

technically or legally impossible under the

conditions prevailing in the foreign country.

If it is both permissible and possible to take

the evidence by video link or videotaped

deposition, this factor should, if anything,

militate in favor of retention, particularly if

such techniques are not available in the

alternative foreign forum. Although there

are signs that some courts are already

modifying their use of the factors in this way,

a modernizing Supreme Court should

mandate the practice.

15

Davies, supra, 77 Tulane L. Rev. at 383–84.

Professor Davies suggests that the Court restate the

test in its entirety “as well as the factors, spelling out

clearly and unambiguously how much deference the

court should give to the plaintiff’s choice of forum.”

Id. at 384. As it stands, “many federal courts simply

list the Gilbert factors, state the vague Gilbert

‘strongly favors’ standard, and then arrive at a

conclusion”: a recipe for unpredictability. A more

“highly articulated test” has the potential for

substantially improving the predictability of

outcomes. Id. at 384–85.

Others, including Professor Whytock, have called

for a reformulation of the forum non conveniens test,

to place greater emphasis on the enforceability of

judgment factor in forum non conveniens decisions.

As these commentators have pointed out, judgment

enforceability matters for both justice and efficiency.

However, this factor “is often neglected,” and even

when not neglected, “it tends to be applied

inconsistently” by district courts or “in a conclusory

manner.” Tarik R. Hansen & Christopher A.

Whytock, The Judgment Enforceability Factor in

Forum Non Conveniens Analysis, 101 Iowa L. Rev.

923, 927 (2016). Their proposal thus suggests a

pragmatic approach to forum non conveniens

decision-making that focuses not simply on a balance

of miscellaneous convenience factors at the trial

phase but instead asks the courts to confront, on the

front end of the case, the reality that its ultimate

outcome will be driven in part by whether (and

where) the judgment can be enforced and collected.

Id. at 953–54.

Professor Childress advocates a reformulation of

the forum non conveniens doctrine that would

16

combine aspects of each of these approaches. His

calls for reform begin with an acknowledgement of

the reality that forum non conveniens dismissals—

despite their theoretical status as vehicles for

determining venue only—all too frequently dictate

ultimate merits outcomes:

A successful forum non conveniens motion

means that the case will not be heard in the

United States and may not be heard

elsewhere. As empirically documented in the

late-1980s, the result of a successful forum

non conveniens motion was that “plaintiffs

generally did not refile their suits in foreign

courts following forum non conveniens

dismissals; instead, they tended to settle on

terms favorable to the defendants or

abandon their suits altogether.” A forum non

conveniens motion, therefore, does not

merely delay a case; it can end it.

Donald Earl Childress, III, Forum Conveniens: The

Search for a Convenient Forum in Transnational

Cases, 53 Va. J. Int’l L. 157, 161 (2012) (quoting

David W. Robertson, Forum Non Conveniens in

America and England: ‘A Rather Fantastic Fiction,’

103 L.Q. Rev. 398, 418–20 (1987)).

Professor Childress calls for a set of clearly

delineated venue selection rules as a means for

avoiding the unpredictability of the private and

public interest factor analysis. Under his favored

analysis, in a case like this one, where both the

plaintiff and defendant are domestic, the only

relevant considerations to decide the defendant’s

motion would be the choice of law and enforceability

of judgment factors. Id.

17

Like Professor Whytock, Professor Childress’s

approach focuses on the pragmatic significance of the

place where a judgment could be enforced once the

case is concluded.

But all those who have called for reform agree

that the present formulation of the doctrine is

unsatisfactory both in its application and the results

it generates.

B. Proposals

and

grounds

for

abandonment.

In addition to those calling for reform, many

scholars believe the Court should eschew

reformulations or amendments to the doctrine and

instead simply abandon the forum non conveniens

doctrine altogether. The Court should give due

consideration to these proposals and their underlying

bases as well.

Those calling for abandonment have focused

their criticism on access to justice considerations that

the doctrine neglects, the doctrine’s inconsistent

application by courts, impracticability of the

doctrine’s multi-factor test, and constitutional

considerations affecting the doctrine’s application.

Professor Lear has identified the many occasions

that U.S. residents have found “their foreign injury

claims relegated to foreign court systems” as among

the “shocking aspects of federal forum non

conveniens jurisprudence.” Elizabeth T. Lear,

National Interests, Foreign Injuries, and Federal

Forum Non Conveniens, 41 U.C. Davis L. Rev. 559,

570 (2007). She argues for reassessment of the

assumptions that inform such dismissals and the

policy considerations they neglect:

18

Our national interest does not diminish

when an American resident is injured

abroad; it is equivalent to the national

interest implicated in cases in which

American residents are injured in domestic

accidents. Our interest in providing a

domestic forum, however, increases palpably

when

the

accident

moves

offshore.

“Adequate” compensation can only be defined

in American terms if the injured American

resident will live in the United States. The

U.S. judicial system is uniquely designed to

assess the proper level of compensation for

the resident plaintiff: American juries

provide a community measure of appropriate

damages; the American contingency fee

mechanism ensures critical access to private

compensation; and American civil procedure

facilitates recovery envisioned by the system

we embrace. The American resident

relegated to a foreign forum runs the risk of

being significantly under-compensated in the

best of circumstances.

Id. at 572.

While Professors Whytock and Childress look to

access to justice considerations as a jumping-off point

for reform, Professor Lear favors the doctrine’s

abandonment: “It is time to give up the experiment.”

Id. at 603. Professor Gardner concurs in that

assessment: “[R]eform will not be enough: The

problems in the structure and history of the doctrine

run too deep.” Maggie Gardner, Retiring Forum Non

Conveniens, 92 N.Y.U. L. Rev. 390, 398 (2017); see

also David W. Robertson, The Federal Doctrine of

Forum Non Conveniens: “An Object Lesson in

19

Uncontrolled Discretion,” 29 Tex. Int’l L.J. 353, 353–

65 (1994).

Alongside the access to justice considerations,

these scholars have also faulted the idiosynchratic

nature of the lower courts’ decision-making in forum

non conveniens cases. E.g., Lear, supra, 41 U.C.

Davis L. Rev. at 603 (“[F]orum non conveniens

decisions appear to depend more on the individual

biases of district court judges than any identifiable

legal standard. . . . Circuit splits running the gamut

from the petty to the fundamental infect the federal

system.”).

Professor Gardner traces these defects in part to

the fact that the lower courts are attempting to apply

virtually without modification a test first adopted to

decide a domestic venue dispute in 1947. Gardner,

supra, 92 N.Y.U. L. Rev. at 401. She concludes:

“[T]hat 1947 test is the wrong test for transnational

litigation today.” Id.

Both of these scholars are in agreement that the

Court should take seriously the criticism that the

forum non conveniens doctrine presents separationof-powers concerns, to which the Court has not yet

attended. See Elizabeth T. Lear, Congress, The

Federal Courts, and Forum Non Conveniens: Friction

on the Frontier of the Inherent Power, 91 Iowa L. Rev.

1147, 1152 (2006); Gardner, supra, 92 N.Y.U. L. Rev.

at 397; see also Margaret G. Stewart, Forum Non

Conveniens: A Doctrine in Search of a Role, 74 Cal. L.

Rev. 1259 (1986); Allan R. Stein, Forum Non

Conveniens and the Redundancy of Court-Access

Doctrine, 133 U. Pa. L. Rev. 781 (1985).

20

CONCLUSION

Assessments of the forum non conveniens

doctrine vary. But all agree or at least concede that

the analytical formula is vague and the outcomes are

inconsistent. It is time to reconsider the doctrine’s

vague formula, its unfettered trial discretion, and its

light appellate review. This case offers an optimal

factual and legal setting to accomplish this, and

Amici urge the granting of the petition for certiorari

here.

Respectfully submitted,

James A. Hemphill

Counsel of Record

Matthew C. Powers

GRAVES, DOUGHERTY,

HEARON & MOODY, P.C.

401 Congress Ave.,

Suite 2700

Austin, Texas 78701

(512) 480-5600

jhemphill@gdhm.com

mpowers@gdhm.com

Counsel for Amici

Curiae Legal Scholars

August 31, 2020

APPENDIX

1

Amici Curiae, listed in alphabetical order below,

are legal scholars who study and teach civil

procedure, federal courts, and conflict of laws. Their

professional

affiliations

are

provided

for

identification purposes only and are not intended to

reflect

any

sponsorship,

endorsement,

or

participation by any institution or organization with

respect to this brief.

Martin Davies.

Professor Davies is the

Admiralty Law Institute Professor of Maritime Law

at the Tulane Law School, where he studies, teaches,

and writes in conflict of law and transnational

litigation.

James P. George. Professor George teaches

civil procedure and international litigation at Texas

A&M Law School. He has written extensively on

private international law, and dealt specifically with

forum non conveniens in practice, teaching, and

scholarship. He serves in the members consultative

group for the American Law Institute’s project on

Transnational Civil Procedure.

Lonny Hoffman. Professor Hoffman is the Law

Foundation Professor at the University of Houston

Law Center, where he studies, teaches, and writes in

civil procedure in federal and state courts. He is a

member of the American Law Institute and has

served as Chair of the Civil Procedure Section of the

American Association of Law Schools.

Stephen I. Vladeck. Professor Vladeck is the A.

Dalton Cross Professor in Law at the University of

Texas School of Law, where he studies, teaches, and

writes in federal courts and constitutional law. He is

a member of the American Law Institute and a

Distinguished Scholar at the Robert S. Strauss

Center for International Security and Law.

2

Christopher Whytock. Professor Whytock is

the Vice Dean and Professor of Law and Political

Science at the University of California, Irvine, where

he studies, teaches, and writes in transnational

litigation and conflict of laws. He has served as

adviser on the new Restatement (Fourth) of the

Foreign Relations Law of the United States and as

associate reporter for the new Restatement (Third) of

Conflict of Laws.

Patrick Woolley. Professor Woolley is the Beck

Redden LLP Professor in Law at the University of

Texas School of Law. He studies, teaches, and writes

in civil procedure, conflict of laws, and federal courts.

He is a member of the American Law Institute and

serves in the members consultative group for the

Third Restatement of Conflicts.