Forum Non Conveniens v. 1404 Transfer Forum

[scrumcenter1]

Quick Civ Pro Question

I know basically that a forum non conveniens is a common law rule that allows a court that has jurisdiction and venue to dismiss a case based on a variety of factors (both the public and the private factors). I know that a 1404 transfer allows a court to transfer to another, more convenient venue a claim over which they had jurisdiction and venue. For a transfer, the same basic public and private factors are also considered.

My question is, strategically, when would you want to use one over the other? They both seem to be based on the same idea that there is a more convenient location for a lawsuit. Is the only true difference that forum non conveniens dismisses the suit, while transfer just moves it to another federal district? Does that mean that strategically, the forum non conveniens is only really used when you are dealing with a foreign defendant and you cannot transfer? In dealing with an exam question, would you say to use both?

[bwv812]

Quick Civ Pro Question

I know basically that a forum non conveniens is a common law rule that allows a court that has jurisdiction and venue to dismiss a case based on a variety of factors (both the public and the private factors). I know that a 1404 transfer allows a court to transfer to another, more convenient venue a claim over which they had jurisdiction and venue. For a transfer, the same basic public and private factors are also considered.

My question is, strategically, when would you want to use one over the other? They both seem to be based on the same idea that there is a more convenient location for a lawsuit. Is the only true difference that forum non conveniens dismisses the suit, while transfer just moves it to another federal district? Does that mean that strategically, the forum non conveniens is only really used when you are dealing with a foreign defendant and you cannot transfer? In dealing with an exam question, would you say to use both?

FNC is used in fed court when you want to transfer to a foreign jurisdiction. It's also used in state court when you transfer to another state's court. 1404 and 1406 are used to transfer from one district to another in fed court.

[Merrill]

I am envious of people who learn actual civil procedure in their Civil Procedure classes.

[scrumcenter1]

Thanks so much for the replies.

Here's my understanding now (this is just for Federal Courts, not state-state yet)
FNC = Used when there is a foreign party and the court feels that another foreign court is more suited to deal with the case
Transfer = Used for domestic parties

Is there ever a time where domestic parties would want to use FNC in Federal Court? It seems to me like the answer would be no, transfer would be the answer.

[bwv812]

Thanks so much for the replies.

Here's my understanding now (this is just for Federal Courts, not state-state yet)
FNC = Used when there is a foreign party and the court feels that another foreign court is more suited to deal with the case
Transfer = Used for domestic parties

Is there ever a time where domestic parties would want to use FNC in Federal Court? It seems to me like the answer would be no, transfer would be the answer.

Sure. If all parties are domestic but the events giving rise to the claim happened internationally, and ∆ might think they'll be subject to lower liability in a foreign court, they might come up with some compelling argument for why it would be most convenient to litigate in a foreign court (witness & evidence availability, the foreign court's interest in hearing cases that happened there, etc.) and try FNC on those grounds.

[TRave]

I understand that FNC is most likely used when trying to move the suit to a foreign jurisdiction, but what about this though:
End goal is to move the suit from one federal court to another federal court, but venue would be improper at the desired fed court. Could you use FNC to move the suit to the desired fed court? I am running on the understanding that 1404 transfer only lets the suit move from places that would be proper under 1391 venue analysis, so if the desired (more convenient) federal court is not one of the proper venue options, can FNC be invoked? (Also this hypo relies on the basis that the parties would not all consent to the more convenient court)

[Catsinthebag]

I understand that FNC is most likely used when trying to move the suit to a foreign jurisdiction, but what about this though:
End goal is to move the suit from one federal court to another federal court, but venue would be improper at the desired fed court. Could you use FNC to move the suit to the desired fed court? I am running on the understanding that 1404 transfer only lets the suit move from places that would be proper under 1391 venue analysis, so if the desired (more convenient) federal court is not one of the proper venue options, can FNC be invoked? (Also this hypo relies on the basis that the parties would not all consent to the more convenient court)

No, because the alternative forum needs to be both available and adequate. If the suit can't proceed in the desired venue, then that venue is not available, nor adequate.