Amicus Curiae Brief — Máxima Acuña-Atalaya, et al., Petitioners v. Newmont Mining Corporation, et al.

No. 21-33

IN THE

Supreme Court of the United States

MÁXIMA ACUÑA-ATALAYA; DANIEL CHAUPE-ACUÑA; JILDA

CHAUPE-ACUÑA; CARLOS CHAUPE-ACUÑA; YSIDORA

CHAUPE-ACUÑA, PERSONALLY AND ON BEHALF OF HER

MINOR CHILD M.S.C.C.; ELIAS CHAVEZ-RODRIGUEZ,

PERSONALLY AND ON BEHALF OF HIS MINOR CHILD; AND

MARIBEL HIL-BRIONES,

Petitioners,

v.

NEWMONT MINING CORPORATION, NEWMONT SECOND

CAPITAL CORPORATION, NEWMONT USA LIMITED, AND

NEWMONT PERU LIMITED,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Third Circuit

BRIEF OF AMICI CURIAE LEGAL SCHOLARS

IN SUPPORT OF PETITIONERS

Matthew C. Powers

Counsel of Record

Christopher C. Cyrus

GRAVES, DOUGHERTY, HEARON & MOODY, P.C.

401 Congress Ave., Suite 2700

Austin, Texas 78701

(512) 480-5600

mpowers@gdhm.com

ccyrus@gdhm.com

Counsel for Amici Curiae Legal Scholars

LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com

TABLE OF CONTENTS

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

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

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

Argument ..................................................................... 4

I.

The Doctrine of Forum Non Conveniens,

in its Application by Federal Courts, is

Marred by Inconsistency ................................ 4

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 ................ 8

C. The lower courts disagree in their

weighing of public and private

factors and on the imposition of

dismissal conditions .................................... 9

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 ................................ 13

B. Proposals and grounds for

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

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

APPENDIX ................................................................ 1a

ii

TABLE OF AUTHORITIES

Cases

Page(s)

Abad v. Bayer Corp.,

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

Acuña-Atalaya v. Newmont Mining Corp.,

308 F. Supp. 3d 812 (D. Del. 2018) ...................... 3

American Dredging Co. v. Miller,

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

Archangel Diamond Corp. Liquidating Trust v.

Lukoil, 812 F.3d 799 (10th Cir. 2016) ................ 11

Ayco Farms, Inc. v. Ochoa,

862 F.3d 945 (9th Cir. 2017) ................................ 6

Burt v. Isthmus Development Co.,

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

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

iii

Gschwind v. Cessna Aircraft Co.,

161 F.3d 602 (10th Cir. 1998)......................... 8, 11

Gulf Oil Corp. v. Gilbert,

330 U.S. 501 (1947)....................................... 2, 4, 9

Hefferan v. Ethicon Endo-Surgery Inc.,

828 F.3d 488 (6th Cir. 2016) ............................ 6, 7

Howe v. Goldcorp Investments, Ltd.,

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

In re Air Crash Over S. Indian Ocean,

352 F. Supp. 3d 19 (D.D.C. 2018) ......................... 3

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) .................................... 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) .................................. 6

Lehman v. Humphrey Cayman, Ltd.,

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

Lueck v. Sundstrand Corp.,

236 F.3d 1137 (9th Cir. 2001)............................. 11

Otto Candies, LLC v. Citigroup, Inc.,

963 F.3d 1331 (11th Cir. 2020)..................... 5, 6, 8

iv

Piper Aircraft Co. v. Reyno,

454 U.S. 235 (1981)....................................... 3, 4, 9

Simon v. Republic of Hungary,

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

Sinochem International Co., Ltd. v. Malaysia

International Shipping Corp.,

549 U.S. 422 (2007)................................. 2, 4, 8, 12

Szumlicz 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) ................................ 12

Wiwa v. Royal Dutch Petroleum Co.,

226 F.3d 88 (2d Cir. 2000) .................................... 7

Zipfel v. Halliburton Co.,

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

Scholarly Authorities

Amy Coney Barrett, Procedural Common Law,

94 Va. L. Rev. (2008) .......................................... 1, 3

Pamela K. Bookman, Litigation Isolationism,

67 Stan. L. Rev. 1081 (2015) ...................... 8, 13. 14

v

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

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

vi

Lonny Hoffman, The Case Against Vicarious

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

(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

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) ...................................... 19

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

vii

Christopher A. Whytock & Cassandra Burke

Robertson, Forum Non Conveniens and

the Enforcement of Foreign Judgments,

111 Colum. L. Rev. 1444 (2011) ........................... 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 CURIAE 1

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. But the doctrine has

long been criticized for its vague guidelines,

inconsistent application, and excessive appellate

deference. As many commentators have noted, the

doctrine’s only consistency is its inconsistency.

Moreover, questions persist as to the legitimacy of a

doctrine that exists apart from, and arguably in

conflict with, enacted law instructing federal courts to

exercise jurisdiction. See Amy Coney Barrett,

Procedural Common Law, 94 Va. L. Rev. 813, 826

(2008) (“[F]orum non conveniens might be said to exist

not only in the absence of enacted law on point but in

spite of it: forum non conveniens exists in spite of

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

jurisdiction and venue statutes that arguably instruct

a district court to adjudicate.”). These issues have

taken on additional salience in light of this Court’s

determination that federal courts may adjudicate

forum non conveniens 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).

Judge Henry Friendly was an early critic,

complaining in 1982 of the doctrine’s excessively

discretionary standard and its correspondingly

inconsistent application. See Henry J. Friendly,

Indiscretion About Discretion, 31 Emory L.J. 747,

748–53, 769–70 (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

3

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 unavoidable

in cases decided under federal law. 2

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.

This Court has never answered whether uniform federal

common law or state law should furnish the basis for forum non

conveniens decisions in diversity cases. See Piper Aircraft v.

Reyno, 454 U.S. 235, 248 n.13 (1981); Barrett, supra, at 885

(“While the courts have made clear that forum non conveniens is

a common law doctrine, they have not made clear the source of

their authority to develop it.”). 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 Acuña-Atalaya v. Newmont Mining

Corp., 308 F. Supp. 3d 812, 820 n.5 (D. Del. 2018) (“Plaintiffs

argue that, under Erie R. Co. v. Tompkins, . . . Delaware FNC

law, which describes Defendants’ burden as ‘heavy,’ should

govern, as opposed to the federal standard I am applying.”); see

also 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.”).

2

4

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 a grant of

certiorari in Acuña-Atalaya v. Newmont Mining, 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

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

5

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

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

6

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 forum-shopping

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

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), rev’d on other grounds, 141 S. Ct. 691 (2021);

Carijano v. Occidental Petroleum Corp., 643 F.3d

1216, 1228 (9th Cir. 2011).

7

Indeed, the cases lack uniformity even as 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

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,

8

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 that a forum non conveniens

motion should be granted. 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

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

9

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

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

10

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 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

Hous. J. Int’l L. 385, 399–400 (2004).

11

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) (citing, inter alia, Gschwind, 161 F.3d at

605–06) (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”); Lueck v. Sundstrand Corp., 236 F.3d

1137, 1148 (9th Cir. 2001) (explaining that “[b]efore

dismissing a case for 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

then-extant version of the Jones Act barred

application of forum non conveniens); Szumlicz 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’

12

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

may depend as much on the circuit in which the forum

court is located as on the merits of the motion.”

Hoffman & Rowley, supra, 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.

13

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.

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, 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

14

interest in regulating the conduct of its own

nationals and residents.

Bookman, supra, at 1106–07. This recommendation is

also in accord with the reality that “few other nations

recognize forum non conveniens, and those that do

tend to permit it more sparingly.” Id. at 1096 & n.90;

see also Christopher A. Whytock, Foreign State

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

Rev. 2033, 2052 n.111 (2013) (listing the few nations

that recognize forum non conveniens).

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

15

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.

Davies, supra, 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.” Id. That is 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 the

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

16

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 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

17

considerations to decide the defendant’s motion would

be the choice of law and enforceability of judgment

factors. Id.

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, the 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

18

reassessment of the assumptions that inform such

dismissals and the policy considerations they neglect:

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

19

David W. Robertson, The Federal Doctrine of Forum

Non Conveniens: “An Object Lesson in 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, 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, 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 separation-ofpowers 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, 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, the unfettered discretion it affords

trial courts, and its resistance to more searching

review by appellate courts. 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,

Matthew C. Powers

Counsel of Record

Christopher C. Cyrus

GRAVES, DOUGHERTY,

HEARON & MOODY, P.C.

401 Congress Ave.

Suite 2700

Austin, Texas 78701

(512) 480-5600

mpowers@gdhm.com

ccyrus@gdhm.com

Counsel for Amici

Curiae Legal Scholars

September 3, 2021

APPENDIX

1a

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 holds the

Charles Alan Wright Chair in Federal Courts at the

University of Texas School of Law and is a nationally

recognized expert on the federal courts, constitutional

law, national security law, and military justice. He is

a member of the American Law Institute and a

Distinguished Scholar at the Robert S. Strauss Center

for International Security and Law.

2a

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 A.W.

Walker Centennial Chair 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.