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The Doctrine of "Forum Non Conveniens" Author(s): Edward L. Barrett, Jr. Source: California Law Review, Vol. 35, No. 3 (Sep., 1947), pp. 380-422 Published by: California Law Review, Inc. Stable URL: . Accessed: 17/01/2011 16:25
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[Vol.3 a

The Doctrine of ForumNon Conveniens
Edward L. Barrett, Jr.*

civil action frequentlyconflict.The defendant,for obviousand will reasons, usuallypreferto be suedwherehe residesor legitimate wherethe facts givingrise to the plaintiff's causeof actionoccurred. But a ruleso limiting venueof actionswouldpermitthe defendant the in to avoidhis obligations manycasesby the simpleexpedient perof fromthe jurisdiction himselfand his property of manently removing the courtsof the states wherethe venueis laid. The patentinjustice of sucha resulthas led common-law courtsto devisevenuerulesdeto assist the plaintiffin his pursuitof an elusive signed primarily defendant.1 to Underthesevenuerulesactionsrelating realproperty local are mustbe brought lies.2But substantially other and wherethe land all and the actionsare transitory maybe sueduponwherever defendant of can be found and subjectedto the jurisdiction the court.3Frequently, therefore,the plaintiffhas a choice of several forumsin often may be subjected the to whichto sue sincetoday a defendant
*B.S. Utah State Agricultural College,1938; LL.B. Universityof California,1941; and Lecturerin Jurisprudence Secretaryof the Faculty of Jurisprudence, Universityof California. L. Place of Trial in Civil Actions (1930) 43 HARV. REV.1217,44 ibid. 41; Kuhn, Local and TransitoryActionsin Private International Law (1918) 66 U. or PA.L. REV. 301; Storke, Venueof Actions of Trespassto Land (1921) 27 W. VA.L. Q. 301; Wheaton, 456. Nature of Actions--Localand Transitory(1922) 16 ILL.L. REV. The traditionalattitude of the courts was best expressedin Barrellv. Benjamin (1819) 15 Mass. 354, 357, where a Connecticutresidentserved a Demerararesidentin Boston when he was there to board ship en route to Demeraraand was permittedto recovera personaljudgmenton a causeof action which arose in Demerara:"It is true that the debtor may be put to inconvenience being obliged to answer in a foreign by if country.But the creditormay also be put to inconvenience he should be denied the privilegeof suingin a foreigncourt; for the debtormay withdrawhis personand effects from the placeof his business;and if he cannotbe pursued,may defraudhis creditorof his due."See also Robertsv. Dunsmuir(1888) 75 Cal. 203, 16 Pac. 782. 2In these actionsthe plaintiffcan usuallysatisfy his demandseven thoughthe court does not have personaljurisdictionof the defendant,with the exception,of course,of actionsfor trespassto land when they are considered local. See authoritiescited in note 1, supra. 8 Stonev. UnitedStates (1897) 167U. S. 178.

THE interestsof plaintiffand defendantin the place of trial for a




of jurisdiction many courts. Individualsmay travel widely in the normal courseof business therefore subjectto personal and be service states.And corporations, whichoncewerethoughtto dwell in many may only in the states of theirincorporation,' nowbe suedon transiamount torycausesof actionin anystatein whichtheydoa substantial to of business5 in whichthey have expresslyconsented such suits or of as a condition doingbusiness." in The plaintiff's rightto choosejurisdictions whichto sue, howon an has often imposed unnecessary harshburden the deand ever, fendantwho is makingno effortto avoidhis obligations. Numerous a are difficulties involvedin defending suit at a placeotherthanthe of residence the defendantor the localitywherethe causeof action of attendance witnesses arose.'Personal across maynotbe compelled of witnessesor busistate lines.'The expense transporting voluntary in to nessrecords be outof proportion the amount suit.Necessary may whoseabsence would be the defendant's employees witnesses key may
THE 4 Bank of Augustav. Earle (1839) 38 U. S. (13 Pet.) 519; HENDERSON, POSIin JurisMcGovney,A SupremeCourt Fiction: Corporations the Diverse Citizenship diction of the FederalCourts (1943) 56 HARV. REV. L. 853, 1090,1225. 5 Underrecentcasescorporations may be suedin any statein whichthey do business on causes of action arising out of that business.InternationalShoe Co. v. State of Washington(1945) 326 U. S. 310; McBaine,JurisdictionOver Foreign Corporations: ActionsArisingOut of Acts Done Withinthe Forum (1946) 34 CALIF. REv.331. And, L. while the cases are not entirely clear, there appearsto be little doubt that service of whichis doingsubstantial business processupon an actualagentof a foreigncorporation in the state is sufficientto give jurisdictionof an action arisingoutside the state. See RailroadCo. v. Harris(1870) 79 U. S. (12 Wall.) 65; New York, Lake Erie& W. R. Co. v. Estill (1893) 147 U. S. 591; Missouri,K. & T. Ry. Co. v. Reynolds (1921) 255 U. S. 565, aff'g Reynoldsv. Missouri,K. & T. Ry. Co. (1917) 228 Mass. 584, 117 N. E. 913; International Shoe Co. v. State of Washington, ON CASES TRIAL supra,at 318; McBAINE, PRACTICE ed. 1941) 134,n.; Note (1936) 45 YALEL. J. 1100,1114.But cf. OldWayne (2d Life Ass'n v. McDonough (1907) 204 U. S. 8; Simon v. SouthernRy. Co. (1915) 236 U. S. 115; Davis v. FarmersCo-operative (1923) 262 U. S. 312. Co. Fire Ins. Co. v. Gold Issue Mining Co. (1917) 243 U. S. 93; Smolik 6 Pennsylvania v. Philadelphia ReadingCoal & Iron Co. (S. D. N. Y. 1915) 222 Fed. 148; McBAINE, & loc. cit. supra note 5; Note (1936) 45 YALE J. 1100, 1112. The filing of an actual L. consentto be sued pursuantto state statute is now construedas a consentto be sued in the federalas well as the state courtsand thus constitutesa waiver of the federalvenue Neirbo Co. v. BethlehemCorp. (1939) 308 U. S. 165. Apparentlythis requirements. extendsto permittingsuit in the federalcourt upon causesof action arisingoutsidethe state. See Gulf Oil Corp.v. Gilbert(1947) 330 U. S. 501. 7See Gulf Oil Corp.v. Gilbert,ibid. at 508, quotedinfra. 8 See 8 WIGMORE, (3d EVIDENCE ed. 1940) ? 2195a. The alternativeof trial upon depositionis obviously of limited usefulness,particularlyin personalinjury actions.




interfere with the business as would the absence of essential records.9 In other cases a view of the place where the action arose may be essential to a proper understanding of a defense. These and similar factors frequentlyhave made it profitablefor a plaintiff with a doubtful or speculativecause of action to select the forummost inconvenient to the defendant so as to coerce a larger settlement than the merits of his case would warrant.'o The railroads,in particular, have long complainedof the burden of defending suits for personal injuries brought by employees under the Federal Employers'Liability Act" in states far removed from the place of injury. During World War I the burden on the railroadsbecame so great that the Director General of Railroads issued orders requiringsuit to be brought in the county or district where the cause of action arose or where the plaintiff resided at the time it accrued.'2 With the return of the railroads to private hands the practice of suing in distant jurisdictions was revived"' and today is so wide9 For a detailedpictureof the difficulties facinga defendantsee Heine v. New York Life Ins. Co. (C. C. A. 9th, 1931) 50 F. (2d) 382 (burden of transportingrecordsin contractaction); Union Pac. R. Co. v. Utterback(1944) 173 Ore. 572, 146 P. (2d) 76 witnessesin tort action). (burdenof transporting cited in note 9, supra,and notes 13, 14, 16, infra. See o10 authorities 1135 STAT. (1908) 65, 45 U. S. C. (1940) ? 51. The statute provides that suit may be of broughtin the federalor the state courtin the districtof the residence the defendant, or in whichthe causeof actionarose,or in which the defendantshall be doingbusinessat the the time of commencing action. 36 STAT. (1910) 291, 45 U. S. C. (1940) ? 56. For a of discussion the history and purposesof this venue sectionsee Baltimore& Ohio R. Co. v. Kepner (1941) 314 U. S. 44; Miles v. Illinois CentralR. Co. (1942) 315 U.S. 698; L. Note (1930) 39 YALE J. 388. 12General etc. No. Orders 18 and 18A,upheldin Alabama Ry. Co. v. Journey (1921) 257 U. S. 111. 1 The worst offenses were in Minnesotawhereit had previouslybeen held that the to courtshad no discretion refuseto hearsuch suits. State ex rel. Prall v. District Court St. (1914) 126 Minn. 501, 148 N. W. 463; Davis v. Minneapolis, P. & S. S. M. Ry. Co. (1916) 134Minn.455, 159N. W. 1084.In 1923,1,028personalinjurycaseswere pending in the Minnesotacourtsin whichnonresident plaintiffswere seekingdamagesaggregating which did not even operatelines in from foreignrailroadcorporations some $26,000,000 the state. See Davis v. FarmersCo-operative Co., supranote 5, at 316, n. In Windersv.

Illinois Central R. Co. (1929) 177 Minn. 1, 5, 223 N.W. 291, 292, 226 N. W. 213, the

court held: "Thetrial court rightly refusedto dismissthe action even though convinced that plaintiffhad retainedhis attorneysunder a champertous agreement,or that they are, by illegal methods, obtainingcases for prosecutionin this state which in fairness M., Cf. ought to be triedelsewhere." Chicago, St. P. &P. R. Co. v. Wolf (1929) 199 Wis. 278, 226 N. W. 297, criticizingthe Winderscase. For other Minnesotacases permitting such suits againstrailroads, Ervingv. Chicago& North WesternRy. Co. (1927) 171 see Minn. 87, 214 N. W. 12; Borightv. Chicago,R. I. & P. R. Co. (1930) 180 Minn. 52, 230 N. W. 457; Hoch v. Byramn (1930) 180 Minn. 298, 230 N. W. 823; see also Doyle v.
Northern Pac. Ry. Co. (D. Minn. 1932) 55 F. (2d) 708, (1933) 46 HARv.L. REv. 521.

op. op. 4.For other casesgiving details of champertous solicitationof litigationagainst railroads. 14.The averagemileagevia Santa Fe from the scene of the accidentto Chicagowas computedto be 1. 613.representing Law . The most extreme example of unethicalpractice is presentedin injunctionsuits against a Chicagolawyer now pendingin the SuperiorCourt of Cook County. The railroads have taken a very strong position in support of this measure.Jr.Topeka& S.California. JuD. the ethics. op. both supranote 13.'" It has become apparent that under modern conditions "the open door may admit those who seek not 14A survey conducted 51 leadingrailroads showedthat duringa five year period by endingin 1946some2. 4. The "Exportation" PersonalInjury and Death Claims of BAR in (1945) 13 DETROIT Q. Windersv.No. Co. came from the legal profession.that the railroads are petitioning Congress for relief. The complaintin the SantaFe case containsa tabulationshowingthat in the periodfrom September. but has not been acted upon by the Senate. cit. &P. 1639.Committee the Associationof AmericanRailroads.supranote 15. in and New Mexico for a total alleged liability of $2.throughMarch. R. Its from Tennessee. See HEARINGS BEFORE SUB- No. Co. Chicago. 1639. supra note plaintiffs in these cases.512suitswerefiledoutsidethe federaldistrictin whichthe accident occurredor in which the plaintiffresidedat the time of the accidentand that 92% of in these suits were concentrated the states of Illinois. Minnesota. at 24. the of HEARINGS BEFORE SUBCOMMITTEENo. SouthernPacific Co.See testimony of Floyd E. New York.InterstateCommerce DamageSuits (1946) 29 J. 1947. Ry. New Mexicoto bringtheircasesto him for suit in Chicagocourts. Freels. See note 29. 11.1946. 613. Co. cit. 4.The proofin thesecasesis said to have shownthat the lawyer No. REP. 1639. United States Representative that the purposeof the act was to do two things: "It is to avoid the inconvenience to which runthroughmanyStates. Winters. P. at 2. at 18. 1639. Andrews. Am. 46 S 4586. and California.. See generallyHenderson. REP. supranote 14. HOUSEOF REPRESENTATIVES.M. (1947). v. R.Missouri No. R.Hon. St. op. 388. Soc. J.Illinois. at 31. testified author.California. v. The Atchison. an staff of some 25 or 30 chaserswith headquarters a in organized elaborate procurement Los Angelesmansion inducerailroad to and employees injuredin Arizona.. R. cit.060. John Jennings.No. Note (1930) 39 YALE L. at 5. 1st Sess.H.000. cit. lawyers who observe the canons. supra note 14. W. Illinois see CentralR.the attorneyfiled40 suits against the Santa Fe based on injurieswhich occurred Arizona. 1945. cit. Andrews. v. ON H.R. H. Wolf.930miles. infra.'5 Furthermore the organized bar has become aroused by the opportunity affordedunethical lawyers to solicit such causes of action arising in outlying areas for suit in large cities by promises of more liberal settlements or larger for the COMMITEE No. the decenciesand high requirements of the profession. (1947) a bill designedto limit the venue of personal injury actions againstrailroads. 613.000. 15H. R. See also Hendersonand Winters. 1st Sess. 80th Cong. cit. 46 S 9155. 19. The American and bar associationsof 35 states passedresolutionsapprovingH. in HEARINGSBEFORE SUBCOMMITTEE . supranote 14. supranote 14. REP. supra note 14."HEARINGS BEFORE Bar Association the SUBCOMMITTEE No.1st Sess. 16Majorsupportfor H.and it is to stop this racketeering carriers practicewhich has grownup to the prejudice the profession.80th Cong. statementof John H. R.. was passedby the House of Representatives July 17. COMMITTEE ON THE JUDICIARY.that in a year'stime he filed 100suitsin Chicago foreigncausesof actionagainstthe two railroads a total alleged on for liability of over $6. the injusticethat is done to legitimate of and lawyers. 135.loc. 80th Cong.both loc. No. F. Thompson.who have been deprivedof this litigation. (1947) Serial4. R.000. at 3. 4.19471 FORUMNON CONVENIENS 383 spread".

(1942) 27 CORN. W.: The Jurisdiction a Courtof EquityOverPersonsTo Compelthe Doing of Acts Outside of the Territorial Limits of the State (1930) 14 MINN. Ry. v. T.'8 It and solution obviouslimitations. 99. Denver & R. L. Co. 494. v. 19 See the critical discussion in Foster. 492. (1940) 46 W. 20 Since the injunction operates only on the person of the defendant. at 1240. S. Farmers Co-operativeCo. see Note (1941) 51 YAL~L.? and obstructed undulyburdened reasonably has of Thedevelopment thisdoctrine beentracedin detailelsewhere. F. v." The Court held suit that a state statutepermitting by a nonresident againsta foreign in carrier a statein whichthecauseof actiondidnot ariseandin which the carrierdid no businessotherthan the solicitationof trafficuninterstatecommerce. S. Suits 17 Gulf Oil Corp. 24Dainow. VA.?Andthe UnitedStates Court heldthatsuchinjunctions notbe issuedwhere has may Supreme underthe FederalEmployers' suit is brought LiabilityAct. L. S. 511. See also Messner. L. 200. (1942) 15 So. 22Supra note 5. International Milling Co. Michigan Central v. cf.l7 simplyjusticebutperhaps justiceblended Courtsand legislatures have attempteda numberof divergent solutionsto the problemthus presentedof limitingthe plaintiff's to the choiceof forumswithoutpermitting defendant escapeor miniof mizehis obligations. 76. G. L. L. Kepner. supra note 1. S. 21 Baltimore & Ohio R. CALun. supra note 6. Co. 344. S. Terte (1932) 284 U. C. Co. Hoffman v. & S. derivedfromthe commerce whentheiroperatof the efficiency railroads The burden placedupon as to had to be transported distantjurisdictions witing employees Courtto apply the comnesses inducedthe United States Supreme merce clause in Davis v. Q. 1075. L. 495-506.210.Moreover. (1942) 20 N. The Inappropriate Forum (1935) 29 ILL. (1934) 292 U.482. Q. at 1240. Miles v. S. op. 867.76.41) 27 IOWA REv. 284. cit. REv.384 CALIFORNIA LAWREVIEW [Vol. Missouri (1927) 274 U.wherean impecunious plaintiff left the state the of at the instigation a lawyerwhois financing suit. Co. REV. both supra L. Farrier. note 11."9 is an expensive wastefulprohas whichrequires partiesto try one law suit at hometo dethe ceeding in anothersuit abroadshallproceed. v. 343. Mix (1929) 278 U. 78-81. Taylor (1924) 266 U. it may be disregarded by the foreign court. the courtmay not be able to makethe injunction effective. REv. 273.. supra note 1. REV.35 withsomeharassment". as Against Foreign Corporations a Burden on Interstate Commerce(1933) 17 MINN. L. Missouri v. Columbia Co. 18 The cases are reviewed in Note (19. 23 See also Atchison. . IOWA REV. cit. 21. Wells (1924) 265 U. 101. R. Wherethe injured partyis a resident the state in whichthecauseof actionarosehis prosecution the actionoutside of This if or thatstatemaybe enjoined it wouldbe vexatious harassing. v. Note (1936) 104 A. op. Illinois Central R. Gilbert. R. Foster. the whether termine has mostvexatious cases.' has to Anotherapproach the problem beento applya restriction clauseof the UnitedStatesConstitution. at 507. J. Note (1941) 27 L.

Canadian Pac. (1946) 271 App. supra note 11. Oceanic Steam Nav.1947] FORUM NON CONVENIENS 385 For presentpurposesit is enoughto note that it affordsno general solution to the problem. 28 U. Foster. Y. or in which the injuredparty resided at the time of the accident. 1639. at 701. That if the defendant cannot be served with process issuing out of any of the courts afore-mentioned.. at 1232. SInternational Milling Co. W. respectively. 28 An Ohio statute has been held to prevent bringing suit against transportation companies for personal injuries received outside the state. at 54. then and only then. OHIOANN. Pennsylvania Rd. v. [1940] ? 112) by adding the following paragraph: "A civil suit for damages for wrongful death or personal injuries against any interstate common carrier by railroad may be brought only in a district court of the United States or in a State court of competent jurisdiction. Georgia Co. 1940) ? 11273. (1923) 235 N. Illinois Central R. R. 625. G." But the rigidity of such statutes may cause L. in the district or county (parish). Co. see Baltimore & Ohio R. 20. C. Co. (1923) 107 Ohio St. The International Milling Co. S. Y. (1889) 112 N. v. Terte. both supra note 23. Co. Co. 2 Hoffman v. & I.C. Co. v. See also Gober v. REV. (1890) ? 1780. Co.. in which the cause of action arose. . 11 S. 381. Philadelphia & R. Y. Klepper v. cit. Co." The venue section of the Federal Employers' Liability Act (see supra note 11) would be repealed with the exception of the portion preventing removals from the state to federal courts. Robinson v.979. 32. Prior to 1913 the New York statutes made no provision for suits by a nonresident against a foreign corporation upon a cause of action arising outside the state. Missouri. E. W. Columbia Co. C. (1924) 32 A. case suggests that the doctrine might be applied to other interstate transportation companies. REv. L. supra note 23.643. 319. supra note 11. Life Ins. 223. E. Loftus v.L. Note (1936) 34 MICH. supra note 15. Fed. N. REV. op. v.provides for the amendment of ? 51 of the Judicial Code (36 STAT. (1946) 46 COL. Ry. 1947. Co. 62 N.2' A third approach has been to restrict the venue of transitory actions by statute. 29 H. But cf. Co. R. in which the cause of action arose. 1. L. 94. 152. PRoc. the action may be brought in a district court of the United States. Denver & R. CODE Civ. (1931) 255 Mich. Div. CODE(Throckmorton. Occasionally state statutes have limited the jurisdiction of local courts so that they could not hear suits against foreign corporationson causes of action arisingoutside the state. 352. at any place where the defendant shall be doing business at the time of the institution of said action. R. E. 237 N. 192. Central R. respectively. E. Gregonis v.S. 25 Cases cited in note 23. 139 N. supra note 1. [19'111 1101. Kepner. R. Miles v. (1890) 32 S. Y. or where the person suffering death or injury resided at the time it arose: Provided.2sCongressis consideringa bill to limit the venue of all actions for wrongful death or personal injuriesbroughtagainst interstate railroadsto the district court or state court of the district or county. 52. as passed by the House on July 17. 19 N. To date only interstate railroadshave been permitted to use the commerce clause as a defense' and then only when suit has been brought by a nonresident2 on a foreign cause of action in a state where the carrier did not own or operate railroad lines. supra. (2d) 627. 315. 140 N. or in a State court of competent jurisdiction.

cit. Atherton on behalf of the Brotherhood of Railroad No. v. Kane (1898) 170 U. Part 2. 1639. even though all the witnesses happened to live in another county or district. 100.30 Consider. infra. cit. 33 For general discussions of the doctrine see Blair. if in a federal court. or else in the federal district. as passed by the House. HmARINGS SUBCOM~MITiEE REI. Dainow. 80th Cong. op. The origins of the doctrine of forum non conveniensare obscure."l And there are cases where the convenience of both parties would best be served by trial in a state other than that of the accident or the residenceof the plaintiff. at 57. loc. if in a state court. S. 400. the injured employee would be required to sue in the county. H. . at 2. (1947). 388. the witnesses who often are most important-those who will testify on the issue of damages-may reside in the latter state. if a railroad employee is injured in one state and hospitalized in another. REv. BEFORE Trainmen. Barrow Steamship Co. Foster. of a New Jersey resident who is injured while temporarilyin the case Californiathroughnegligenceattributableto a Californiacorporation which also does business in New York but not in New Jersey. Even trine of forum non conveniens"3 though jurisdictionover the defendant has been obtained. For example." The term itself appears to have been used first in a series of Scottish 30See Foster. at 1223. 1st Sess. supra note 1.for example. R. Note (1930) 39 YALE L. It might be quite unreasonablenot to allow him to sue in New York but to force him to travel to Californiato sue. cit. No. attempt to solve the problemis being made in some jurisdictionsby applicationof the docwhich will be discussed herein. Under H.3" Another. in which the injury occurred or in which he resided. 1.The doctrine does not appear to be directly traceable to Roman or continental . supra note 14. cit. cases cited in note 149. 31 Cf.386 CALIFORNIA LAWREVIEW [Vol. DEVELOPMENT OF THE DOCTRINE OF Forum Non ConveniensCONSTITUTIONAL AND OTHER LIMITATIONS. supra note 15.35 serious injustice to the plaintiff in the cases where he has entirely legitimate reasons for suing in a state other than that in which the cause of action arose or either party resides. and it is believed more promising. J. R.It will be the purpose of this article (1) to determine the extent to which the doctrine of forum non conveniens has been recognized and to discuss constitutional and other limitations on its applicationin the state and federal courts. by application of this doctrine trial courts are given a discretionary power to refuse to hear transitory causes of action whenever trial in the forum would be inappropriate. 4. 613. 32 See statement of Warren H. op. L. I. supra note 1. and (2) to survey and appraise the operation of the doctrine in the jurisdictions in which it has been accepted. loc. The Doctrine of Forum Non Conveniens in Anglo-American Law (1929) 29 Cot. supra note 24.

n.) 1049.. Y. 4788. 445. Piercev.. Cas. 316. Note (1873) 7 AM.. . See Parkenv. REV. 16. Coffey. No. Col.. See. Pillet. 355.. L. 731.g. of 193. Brog's Heir v. Co. Y.521. see ROBlNsoN. REV. See Brown v. Robertsonv..85 a an independent courts. L. 1848) Fed. [19261 288. of Dec.) 365. 417. cf. Co. (H. Clementsv. L. REV.In later casesthe courtsexpressly that the plea of forumnon competens recognized was availableboth wherethe court lackedjurisdictionand where it was not expedient for the due administration justice to hear the case. REv. Cas. Dalton (N. 421. Dec. 25. W. MissouriPacific Ry. 20. Jurisdictionin ActionsBetween L. Hope (1865) 3 Sess."Andin recentyearsthe L. ADMIRALTY(1939) ? 3. Vernorv.. 744.. (3d ser.LAWS SCOTLAND 180. The Jurisdiction CourtsOverForeigners(1913) 26 HARV. Y. supranote 24.349.. 524. R. 24. EquitableLife Assurance Society (1887) 145 Mass. 283. in 10. Foreigners(1905) 18 HARV. Miller (1869) 19 Mich. Lorenzen.i. Kerr (1793). U. are in op. v. Johnsonv.. Conflictof Laws (1927) 36 YALE J. Morrisv. e. Hayden (1807) 3 Mass.earlyrecognized discretion trialcourtsto in refusejurisdiction certaintypesof cases.g.) 13. Pr. Fergusonv. 1162. Y. REv. Gardner Thomas (N. 1817) v.ais" [19251 Sess. (3d ser. 14 Johns.L. 325.e. v.. 17. and is frequentlystated in referenceto casesin which the Court may considerit more properfor the ends of justicethat the partiesshouldseek their remedyin another OF forum. 56.withoutbenefit development few American the of of the Latinphrase.1947] FORUMNON CONVENIENS 387 whatwasby thena settledrule decisions thelate 1800'sto describe in of Scottishpractice.7 Am.Thecases collected Note (1924)32 A. Now the plea usually thus expresseddoes not mean that the forum is one in which it is wholly incompetentto deal with the question. was mally was directedto a lack of jurisdiction. Elvies (1610) 6 Dict. Cas.. 6 Dict. L.The FrenchRules of the L. (2d ser. sustainedin caseswherethe jurisdiction seemed clear but the parties were nonresidents and trial in Scotlandwould have been inconvenient. 6. Longworthv. GreatWesternRy.").93.Jurisdiction Over Foreigners AdmiraltyCourts (1925) 13 CALIF.The plea has receiveda wide signification. Molonyv. Dows (1859) 8 Abb.. Cas. LAWS OF SCOTIAND note34. Dec.) 583. Anderson Hodgson (1747) 6 Dict. at 881. Cartwright(1883) 20 Scot. (1929) Thereafterthe courts apparentlyinvented the term forum non conveniensto be used instead of forum non competenswhen the jurisdictionof the court was clear and only a question of discretionwas involved. One Hundred& Ninety-FourShawls (S. La Societ6 du Gaz de Paris v. 1053 ("The next questionis the questionof forum non competens. of Dec.The Belgenland(1885) 114 U. (1884) 21 Scot. Co. But cf. S.. La Societ6 Anonyme de Navigation "Les Armateursfran. Neilson (1890) 11 N.. practice. 332. (1890) 78 Tex. Royal Exchange of AssuranceCo.305. 13 Am. REV. 564. (1943) 56 HARV. A similarresultwas reachedin suits betweenaliens in the federaladmiraltycourts.INTERNATIONAL AND HENDERLAWOFJURISDICTION(1926) c. And in a few cases where the plaintiff was a residentof anotherstate of the United States. North-Eastern Ry. (1846) 8 Sess. L. Beale. 228. 134. 7 ENcYC.. (1639) 4779.supra . 1823) 1 Cow. E. But cf. N. 7 ENCYC. 36The earliestcaseswere suits betweenaliens on foreigncausesof action. 543. Supp. op.. 4816. (1933) 13 B. cit. 14 S. 12 N.See Beale. 818.. L. L. cit. Cas.discretionto refusejurisdiction was See recognized. INTRODUCTION THE LAW OF SCOTLAND (1927) (1929) 180. Cas. trial courtscouldrefuseto hearcaseswhen theendsof justicewouldbestbe servedby trialin another In forum. D.E. GLOAG TO SON. Dainow. Macaulay (1866) 4 Sess. Williamsonv. R. 858. reportedin a note to Rea v. R. of Dec. which nor35In a few very early Scottishcasesthe plea of forum non competens. The Scottish cases are fully discussed in GraB.

Argentina (1931) 123 Ohio St. Wisconsin. at 55. Minnesota. cit. McDonald v. Bright v. 122. Gober v. Co. E. 832. but that a subject born in Minorca has as good a right to appeal to the King's Courts of Justice.In others it has been rejected. Div. Mattone v. National Cooperage Co. . E. Beach (1903) 81 App. . North Carolina. 325. W. 578. Co. Wencke (1933) 117 Conn. Chicago. 98 So. contending that all American courts had inherent power to decline jurisdiction under the doctrine. C. 1045. . 1941) 154 S. 352. 119. Hope. E. 582. 205 . L. 272. Longworth v.In most states it has not even been considered. B." After this article the use of the term became so general that in 1941 Justice Frankfurter referred to the "familiar doctrine of forum non conveniens" as a manifestationof a civilized judicial system which is "firmly imbedded in our law". v. v. 81 N. 347. App. 699. supra note 13. Levi v. (1923) 210 Ala. . North-Eastern Ry. 620. 39 In his dissenting opinion in Baltimore & Ohio R. 332. Wheelock (1929) 323 Mo. (1904) 93 App. Civ. 38 Blair. Wintersteen v. Fabrigas (1775) 1 Cowp. App. (1942) 20 Trx. REV. Supp. 285 N. E. W.388 CALIFORNIA LAWREVIEW [Vol. App. 393. Texas. (2d) 684. have accepted the doctrine of forum non conveniens as a means of preventing abuse of the court's process when the plaintiff's choice of forumis vexatious and works unnecessaryhardshipon the defendant. Co. Railway Exp. 44 N. said: ". Bank of Scotland [1906] 1 K. 40 Alabama. (2d) 426. 185 N." Yet few American courts have actually accepted the doctrine. 28 So. Short [1907] 2 Ch. (1935) 361 Ill. E.. 138 S. Y. Herrmann v. W. App. Kaufman (1895) 12 Ind. 161. W. 175 N. 54 Pac. I. L. Bourestom v. Life Ins. supra note 11. Prior to the Logan case the English law was dominated by the famous case of Mostyn v. Harvey (1898) 18 Utah 367. But cf. supra note 28. E. Gartner (1890) 79 Mich. . (2d) 143. 39 N. Dodgem Corp. In re Norton's Settlement [19081 1 Ch. 468. 183 N. Co. Ohio. supra note 33. 145. Bass (Tex. Steed v. Co. 69 S. 68 N. Agency (Tex. 616. (1910) 154 N. Eingartner v. Swadley (1900) 126 Ala. 141. Michigan. Missouri. The doctrine has also been applied in Egbert v. reh'g den. Indiana. 58. Inc. for it is impossible there ever could exist a doubt. 840.. R. D. R. H. (1926) 114 Neb. E. as one who is born within the sound of Bow Bell. v. See Fine v. W. Kepner. 87 N. App. relying on both Scottish and American precedents.3" In 1929 a law review writer brought the term forum non conveniens into Americanlaw. Fed. W. Virginia. Co. 566.193. in which Lord Mansfield. Supp. 325. E. W. (1896) 94 Wis. 884.609. Illinois Steel Co. Bourestom (1939) 231 Wis. 141. 339. Williamson v. D. MacArthur Bros. Boright v. 1011. 603. Nebraska. He found only three or four cases in which the American courts had used the term. (1932) 96 Ind. Jefferson Island Salt Co. 471. 666. Rouw Co." See Leflar. 683. 426.35 English courts. Y. 20 S. Franklin Ice Cream Co. 197 N. 427. Civ. 70. 169 Atl. 664. &P. (1927) 148 Va. J. 1932) 47 S. .. Illinois. 96 Ind. Longyear Co. 623. Connecticut. See Allen v.. Murphy Shows. Morgan v. Cofrode v. the court relied upon Collard v. Div. Extrastate Enforcement of Penal and Governmental Claims (1932) 46 HARV. loc. Steen v. Pennsylvania R. 619. in upholding the jurisdiction of the English courts over an action between residents of the Island of Minorca. v. 95. REV. Utah. both supra note 35. 171.'4And today it can be said to be in opera37 In Logan v. 169. 208 N.

135 N. (1927) 246 N. Co. 518. 259 Pac. IV. (1940) 18 N. he included the "right to institute and maintain actions of any kind in the courts of the state". L. (2d) 135. Coryell. J. L. S. R. Justice Washington concluded that only those privileges and immunities of state citizenship which are "in their nature fundamental" were protected by the Constitution. E. Hunter v. 158 N. 1008. Cas. Chicago. 77. supra note 28. R. 267. R. J. Litchenberg (1920) 148 La. R. 734. 45 See Ward v. Canadian Pacific Railway Co. 323. 895. 396. Hudson v. CONST. Co. See Hagen v. at 155. Humble Oil & Ref. 206.1947] FORUMNON CONVENIENS 389 tion in barely half a dozen states4' and. (1904) 76 Vt.. 1102. 714. (2d) 605.Y A. Louisiana. Stewart v. No. & W. (2d) 820. v. Lumbermen's Mut. (1943) 194 Miss. Chambers v. 155 P. Philadelphia & R. Cas. Lumbermens Mutual Co. v. S. Ins. 107 Atl. & Pac. Gilbert. Asbestos Ltd. 541. 119 S. (1933) 86 N. In listing the privileges which he considered fundamental. 1. v. (12 Wall. R.05) 36 Wash. v. Cl. Washington. aff'd. 560. But cf. Union City Transfer v. Co. W. 509. Morisette v. S. Murnan v. Pleasant Creek Mining Corp.S. Clarendon Boat Oar Co. 697.12 So. 87 A. Co. In the early case of Corfield v. Washington Nat. Justice Washington asserted by dictum that the right of access to the courts of a state is one of the privileges protected by that clause. 79-Pac. Casualty Co. v. See Kantakevich v. Strickland v. 10 A. Massachusetts. 681. Misc. 374. 1. 152. Co. 195. I. 535.App. (1947) 330 U. 86 So. 322. 168 Atl. "The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States. E. Mississippi." Mr. 6 Fed. Tri-State Transit Co. 312. California. 139 N. App. Vermont. 244. R. Wenatchee Land Co. 747. & I. Co. 499. S. Art. 40. (2d) 920. (2d) 108. 430 (a case involving a discriminatory tax against nonresident traders). Co. 3 U. (1938) 196 Ark. Canadian Northern Ry. (2d) 432. at 226. 169 So. Eq. R. Horner v. See Gregonis v. 391. R. 1940) 199 So. 35 A. Universal Adjustment Corp. . 148. Bradbury v. Union Pac. Mondy (1943) 194 Miss. Jackson & Sons v. Baltimore & Ohio R. State Courts. In the following states there are indications that the doctrine might be accepted when a proper case arises: Arkansas. Reynolds v. D. (2d) 651. Pa. 392. L. 128 N. (2d) 42. 751. 142. Mead (1919) 93 Vt. Viney (1936) 124 Fla. ? 2. Ry. Co. J. Leet v. Estate of Knox (1942) 52 Cal. (1944) 25 Cal. 11 So. C. cf. Eggen (1920) 252 U. 158 A. But cf. Quigley Co. 303. 460. Generalacceptanceof the doctrineof forum non conveniensin the state courts has been retardedmore by the privileges and immunities clause of Article IV of the United States Constitution' than by any other factor. (2d) 338. as a result of decisionshanded down only this past term. Wellman v. (1940) 165 Ore.. (19. Gulf Oil Corp. New York (limited to tort actions). (1910) 149 Iowa 51.Y. 1407. 107 P. v. S. 341. Midland Bank (1933) 281 Mass. 533. 39 A. Eq. Maryland (1870) 79 U. E. New Jersey. 683. R. 1823) Fed. New Hampshire. App. 508." 44 (E. (2d) 989. Fields (La. (1922) 257 U. Day (1914) 79 Wash. (1944) 134 N. (2d) 503. 3.230. supra note 6. 184 N. 42 Koster v. A long line of cases in which the United States SupremeCourt has approvedthis leaves little doubt that any arbitrarydenial by a state of the dictum45 41 Only the following states appear to have accepted the doctrine generally: Florida. D. 248. Von Hamm (1927) 85 Cal. W. 553. 56 Atl. Missouri Pac. 194. Oregon. Iowa. Grovey v. in the federal courts. 126 P.) 418. at 552. Wabash Railway Co. 140 Pac. Co. H. (1907) 207 U.

Co. St. Browerv. 244 S. L. Day. Fowler (1928) 196 Wis.This fear of the burdenwhich wouldbe cast upon the apparentlyresultsfrom a long-standing courtsif a generalrightof suit wererecognized. Eingartner Illinois Steel Co. . Day. v. Morganv. St.To so hold would be not only to nullify the spirit of the provisionsof the FederalConstitution previously mentioned [Art. Beach." v. S. 143 S. MacArthur Steed v. which was long a leading case. all supranote 40. Ice Bros. E. Ervingv. supranote 41. F. Michigansupremecourt said at 343. 626. 220N..supranote 37. Co. S. Eingartner IllinoisSteel Co. 44 N. Minneapolis. all supranote 13.supra note 40.g. After holdingthe privilegesand the immunitiesclauseapplicable. Herrmann Franklin CreamCo. As a result. Co. W. in expressed Hoesv. Adm'rv. W. ? 2 and AmendmentXIV. Co. Gartner.35 right of citizens of other states to sue would be held unconstitutional. Ry.N. State v. 451. but the letter thereof as well. State ex rel. the concernover this possibility See. at 12. and deny to them the right or privilegeof suing in the courts thereof. W. ? 1]. a strong argument could be made that any such exercise of discretion to refuse jurisdictionwas a clear violation of the spirit and intent of the constitutional provision. W. New York. Co. Y. E. Co. (1942) 315 U..48however. at 498. Prall v. Collardv. Miles v. Von Hamm. Watson (1922) 146 Tenn. P. W. supranote 41. Co.supranote 40. See also Reynoldsv. 362.. Therefore. supranote 1.. Gartner. (1903) 173N. McKnettv. Harvey. Chicago & NorthwesternRy.. (1934) 292 U. 483. see Hudsonv. cit. Davis v.op. v." In New York. 534. Reynoldsv. many courts held that the privileges and immunitiesclause precluded any discretionarypower in courts to decline suits between nonresidentswhere the plaintiff was an individual citizen of another state. 704. PennsylvaniaR. supranote 33. 489. Grimm. District Court.159. and the argument for refusing jurisdictionover nonresidentswas directed to the burden on the local courts and taxpayers incident to trial of cases from other states. Benjamin. e. 46Barrellv. 66 N.while the citizensof such State enjoy that right or privilege. 698. IV. the trial court justifiedthe exerciseof its discretionto refuseto hear a suit broughtby a nonresidentby a ratherdetailedshowing of the burdenwhich trial of the case would put upon the court and upon the taxpayersof the county. H. supranote 41. Wencke. 59 S. 143S. & S.. REv. R. S. Louis &S. the court said: "It for wouldbe both unjustandintolerable one State of the Union to possessthe powerand authorityto enact a valid statute closingthe doorsof its courtsto citizensof the United States. the courts took the consistent position that the constitutional provision was not violated since the discriminationwas based on residence. &H. 435.390 CALIFORNIA LAW REVIEW [Vol. R. 135. State Life Ins. Note (1930) 18 CA='."In State v. (1907) 107 Va. 4s By far the greatestnumberof casesin which a discretionto deny jurisdictionof has suits between nonresidents been exercisedare found in the New York courts. Deatrick's State v. 119. 230. Co.. 233. at 626: "No court or judge has a lawful right to deny to suitors the privilegeof bringingand their suits upon the groundthat to entertainthem will entail expenseto the prosecuting county. or of other States. See also Blair.supranote 46. Ry. at 184." In most such cases it was assumed that a resident plaintiff would have an absolute right to sue. supranote 40. McDonaldv. 47In Cofrodev. Fine v. Cofrodev. 602. supranote 40. Illinois Central R. Grimm (1911) 239 Mo.. M. supranote 40.

E. & I. L. Y. (1930) 24 ILL. S. (1917) 178 App. S. Div. 159N. REV. S. (1932) 30 MIca. McClung(1898) 172 U. 377. abridges privileges immunities whichsuchcitizensare entitled. Y. Co. 165 N. L." it the and to Cf." in Courtdecisionsinterit had somesupport UnitedStatesSupreme clause"'and was apparently pretingthe privilegesand immunities in Douglas v. Supp. 538. Waisikoskiv. & & (1916) 173App. 256. S.73. GeorgiaCo. "Thedistinctionof the New York and South Carolina and 'citizen'would. Co." prehension Meyers. Philadelphia ReadingC. (1930) 39 YiALE J.L. one of or in the following cases only: . Wingo (1889) 31 S. Loftus Rd. 662. seemto be merelyverbal. 78. In Travisv. Collardv. The case is commentedon in Notes (1930) 18 CALIF. Co. S. 5 (1929) 279 U. New Haven R.. but in the light of the provisionin that Amendment that 'All withinthe UnitedStatesandsubjectto the jurisdiction thereof personsbornor naturalized are citizensof the United Statesand of the state whereinthey reside."The statute is held to give discretionto the courtsto declinejurisdiction of cases broughtundersubdivision(4). 54. 55. L. Blake v. McMaster. 239. Pennsylvania Co. v. Bagdonv. OceanicSteam Nav. Co. 382. 388. C.and insufficient supporttheir to decisions. cf. Co. . R.49 Unrealistic this distinction was. Hatfieldv. 610. 427. Philadelphia ReadingC. This distinctionbetweenresidence citizenship and was also reliedupon in Ohio and to South Carolinato sustainstatutes denyingjurisdiction local courts of suits by nonon residents againstforeigncorporations causesof actionarisingoutsidethe state. 159. (a tax case). by a non-resident."(1903) 17 HARV. the courtheld unconstitutionala provisionof the New York Income Tax Law which discriminated against nonresidents. LAW (1943) ? 225: "An action against a foreign corpora- tion may be maintainedby anotherforeigncorporation. v.19471 FORUM NON CONVENIENS 391 of as not citizenship. therefore.52 adopted by thatCourt In the Douglascase a Connecticut citizenand residentbrought suit againsta Connecticut in thestatecourtsof NewYork corporation underthe FederalEmployers' LiabilityAct to recoverdamagesfor The trial court exercised personalinjuriessufferedin Connecticut. the necessary who are citizensof other States. if 470) . 910. but a generaltaxingschemesuch as the one underconsideration. 826. . the parties. 10 S. Cummingsv.906. 51LaTourettev. and. saying: "Of coursethe terms 'resident'and 'citizen'are not synonymous. 50 The distinctionbetweenresidence and citizenship long been attackedby comhas mentators.248 U. CentralR. Beach. S. REV. (1920) 252 U. Supp. Y. L. courtsbetween'resident' 364. if therebe no reasonable groundfor the diversity of treatment. undera state statute5 to refusejurisdiction disits discretion and 49Robinsonv.. Bugbee (1919) 250 U. McMaster(1919) 248 U. 255. supra note 28. 60. 3 N. Sisson (1899) 28 Misc. Co. and in some cases the distinctionis important(LaTourettev. Supp. it discriminates has effectof includingin the discrimination those againstall non-residents. 59 N. .Div."Possiblybeforethe passageof the Fourteenth Amendment there mighthave been some groundfor this. Maxwellv.supranote 37. REV. REv. 525 .'it passesmy comhow sucha contentioncan for a momentbe considered sustainable. 465 (sustaininga statute limiting the insurance businessin the state to residents) cf. L. both supranote 28. GENERALCORP. (4) Wherea foreign corporation doing businesswithin is this state. 465.. 107. &I. REV. The Privilegesand Immunitiesof Citizensof the SeveralStates (1903) 1 Mica. Yale & Towne Mfg. Y.

59 Doug54 279 U. 58 "The results may then be summarized somewhat as follows: Rights guaranteed under Article IV. Illinois Central R. at 387. Section 2. and this was affirmedby the New York Court of Appeals. nor arbitrarily discriminate against non-citizens or non-residents. but did not mention Travis v. thereis nothingto prohibit legislathe in ture fromusing'resident' the strictprimary senseof one actually " even livingin the placeforthe time. REV.emphafor in are manifestreasons preferring residents accessto often overcrowdedCourts. Eggen. REV. Section 2 are not protected absolutely. n. supra note 50. Yale & Towne Mfg. Bugbee. supra note 45.159.55. There ." After referringto New York decisions upholdingsuch a construction of the statute. He said that the decision in Blake v. L."5 a much more satisfactory interpretationof the Douglas and similarcases would be that the privileges and immunities clause is not only limited to the protection of those privileges and immunities which are "in their nature fundamental"but even as to such fundamentalprivileges only unreasonable the discriminationsare forbidden.and for whatever purposes may have been to assumed followcitizenship. 159. L.. 59As recently as 1942. and the distinction between resident and citizen is valuable only as a factor entering into the determination of the reasonableness of the legislation and not as an independent element withdrawing the legislation from the provisions of Article IV. McMaster and Maxwell v. In upholding the validity of the statute.both in convenience in the fact that broadly and the it speaking is theywhopay formaintaining Courtsconcerned. L. but only to the extent that a state cannot unreasonably. McClung. 1939) 105 F.irrespective of domicile.A to distinctionof privileges to according residence may be basedupon and rationalconsiderations has been upheldby this Court. Cf. 124 A.'8But whatever the theory.. only four justices appear to have concurred in this portion of the opinion. 56 279 U..35 missed the action. (2d) 768. at 386. Co. (1932) 30 MIca. REv." L. 57 Notes (1930) 18 CALIu. Co. supra note 11. (App. v. supra note 50. at 704. Justice Holmes delivering the opinion of the Court said: oftenthe wordresident "Buthowever mayhavebeenusedas equivresidence alentto citizen. Co. Note (1930) 18 CALIF. S. . Acacia Mut. 610. sizing the differencebetween citizenship and residence. S. Miles v. and none bewith tweennon-residents regard these foreigncausesof action. he concludedthat under the statute: "Thereis no discrimination betweencitizensas such. Duehay v. 163. both supra note 51. was modified by the later decision in the LaTourette case. 55 Here Justice Holmes cited LaTourette v. Canadian Northern Ry. C. However.392 CALIFORNIA LAW REVIEW [Vol. the Supreme Court has said that the Douglas case sustained the state statute involved "because it treated citizens and noncitizens alike and tested their right to maintain an adctionby their residence or nonresidence"."56 As pointed out by commentators. 1268. R. Life Ins. D. Co.

Section 2. ? 1) had been construed as applying. Lumbermens Mutual Co. If the suit should be dismissedbecause the plaintiff was not a resident "in the strict primary sense of one actually living in the place for the time. S. 236 N. Co. early case of Anglo-American Prov. What would be the result. 158. 62 Bright v. have been affected. Davis Prov. Bourestom supra note 40.. Gilbert. 1.1947]1 FORUMNON CONVENIENS 393 las case has recently been cited with evident approval" and the validity of a reasonable state statute vesting discretion in its courts to refuse to hear suits between nonresidents-as distinguished from noncitizens-seems clear. I. Belden (1931) 205 Wis. both supra note 13. Hoch v. W. (1903) 191 U. What then of the constitutional validity of a state court applying a nonstatutoryrule of forum non conveniensto dismiss a suit brought by a nonresident?If the court should dismiss a suit solely because the plaintiff was a citizen of anotherstate... supra note 40. at 504. 260 N. v. R. In fact.64 Gulf Oil Corp. Chicago. completely ignoringthe Douglas case. has not resulted in any widespread movement by the states to adopt the doctrine of forum non conveniens. See also dissenting opinion of Justice Go Reed in Koster v. if the court excluded a nonresidentplaintiffin the applicationof the broad doctrineof forum non conveniens under which any plaintiff.L. In Wisconsin' the courts have continued to rely on the privileges and immunities clause. however. Sheehan v. supra note 40. CONST.citizen or noncitizen. IV. the doctrine of forum non conveniens might have been largely excluded from application to suits based on causes of action arising in other states of the United States if the full faith and ART. 64 In addition to the possible bar of the privileges and immunities clause. & P. 31. 63 State ex rel. Wencke. The decision in the Douglas case. 61 Boright v. at 534. resident or nonresident. the In Minnesota6'and Missouri62 courts dismissed the Douglas case that in any event the statutes of the state deprived the by saying courts of discretion to refuse jurisdiction. the validity of its action would seem open to serious question. 588. supra note 6. But in the credit clause (U. however. 373. Smith v. Jackson. here no substantial question as to the constitutional validity of the court'saction would appearsince the applicationof the doctrinewould depend on other factors than the mere residence or citizenship of the parties. irrespectiveeven of domicile". 633. supra note 42. may be denied the right to bring his suit when the ends of justice would be better served by trial in another court? Clearly. Bourestom v. Byram. not even the states which based their rejection of the doctrine on Article IV. the . Wheelock. W. 542. Co. Lewis (1935) 218 Wis. REV. Full Faith and Credit-The Lawyer's Clause of the Constitution (1945) 45 COL. the validity of its action would appear to be settled by the Douglas case. Co.S. See also Fine v. v. R.

. 58. Gulf Oil Corp. 9th. Hopkins v. Co. Co. S. Southern California Tel. Stone (1857) 61 U. 19."). 1924) 300 Fed. cit. Consolidated Gas Co. Hopkins (C. Recently the Court has said by way of dictum that under the clause a state "may in appropriate cases apply the doctrine of forum non conveniens". 1932) 56 F. Virginia (1821) 19 U. Minn. aff'd. S. (18 How.) 66. 60 Schendel v. C. Case where another action was pending in a state court: McClellan v. 6th. S.394 CALIFORNIA LAWREVIEW [Vol. Southern Ry. Railroad Co. in every case to which their jurisdiction extends. Jolly's Adm'rs (1855) 59 U. (14 Pet.35 B. Sherwood (1893) 148 U. This statement was directed to the holding of the case. 6-5Cases where state statutes attempted to restrict remedies to state courts: Suydam v. 294. See also Cohens v.. S. 393. 8th. v. Willcox v. Carland (1910) 217 U. C. Rosner (1935) 294 U.' And a dictum in the Second Employers'Liability Cases'" to the effect that the "existence of the jurisdictioncreates an implication of duty to exercise it. 273. Broderick v. 465. 643.) 503. 1904) 127 Fed. Gilbert. North Carolina (1942) 317 U. McGee (C. 404. They cannot abdicate their authority or duty in any case in favor of another jurisdiction. A. S. S. C. Development of the doctrine of forum non conveniens in the federal courts has been impeded by the oft-expressed assertion that a federal court having jurisdictionof the parties and the subject matter of the action is under a duty to exercise that jurisdiction. supra note 60. and to afford redress to suitors before them. Cochran (C. (1928) 275 U. Co. 40. (C. cf. 175 ("But the courts of the United States are bound to proceed to judgment. Hyde v. (2d) 1019. v. (2d) 814. 1926) 13 F. supra note 6. 1.) 170. 282. Norris v. Southern California Tel. because of local policy or because of the inconvenience of applying different standards to the employers' liability in cases arising under the federal and state statutes.. These cases leave little doubt that the full faith and credit clause does not prevent application of the doctrine of forum non conveniens. 1925) 18 F. 462. Federal Courts. See Jackson. i. 820. S. Co. Empire State-Idaho M. A. (2d) 584. the United States SupremeCourt upheld the jurisdictionof the federal courts. 534. S. L.. Chicot County v.e. and that its exercise may be onerous does not militate against that implication"was relied upon in a numberof lower federal court cases to support their refusal to apply forum non conveniens in Federal Employers'Liability Act cases. S. 18. The Union Bank of Tennessee v. 11. (D. S. & D. D. Smith v.) 264. Broadnax (1840) 39 U. A. A. E. S. 66 (1912) 223 U. 629. 287. E. (1880) 103 U. makingbroad statements to the effect that a federal court having jurisdictionis under a duty to exercise it. v. R.In a number of early cases in which dismissal of the action in the federal court was soughtbecausean actionwas pendingbetweenthe samepartiesfor the same cause in a state court or the state statutes provided for an exclusive remedyin the state courts. state courts could not refuse to hear cases brought under the F. Co. 529. Denick v. loc. C. Illinois Cent. see also Williams v. 268.67 United States Supreme Court held that the New York statute which then denied jurisdiction to the courts of the state in suits by nonresidents against foreign corporations did not violate the full faith and credit clause when applied to deny jurisdiction of a suit between two foreign corporations on an Illinois judgment. (20 How. S. n. Wash. (1909) 212 U. at 504. (6 Wheat.

413.. S. proposition exerciseit. is not universally true. Dodge (1935) 295 U. Langnes v. S.. Paterson Co.. 7th. OF CONFLICT LAWS(1934) ?? 192-202. supra note 36. But it safely may be said that jurisdiction will be declinedwhenever of considerations convenience. Note (1933) 33 COL. cases holding that federal courts may decline to interfere (1) with state criminal prosecutions: Spielman Motor exercisejurisdiction.7rex- . S. 72 The rule had previously become general in state cases that whenever the internal affairs of a foreign corporation were involved in a suit." Shortly after the Canada Malting Co.:" the that a court havingjurisdiction must "Obviously."6 examinationof these cases caused the Court to say in Canada Malting Co. 131. Co. case the Supreme Court in Rogers v. Freundt (C. It wasfreein the exercise a sounddiscretion decline passupon of to to the meritsof the controversy to relegateplaintiffto an approand priate forum . (1930) 281 U.. loc. 541. Mis- More recentlythe Supreme Courtin Burfordv. v. A. See generally FLETCHER. 75E. 1939) 103 F. v. 123. S. at 130. REv. ed. 89. or reasons litigation the aliensornon-residents whereforkindred can be in moreappropriately conducted a foreign tribunal. 422. Sun Oil Co. etc. S. 413. was recognized the grant it that of powerto the federalcourtsdoes not imply an absoluteduty to exercise that power.. S.. 74 (1943) 319 U.7"recognized discretion in the federal courts to decline jurisdiction in another class of cases-those where the internal affairs of foreign corporationswere involved:72 "While districtcourthadjurisdiction adjudge rightsof the the to the parties. REv. Courtsof equityandof law also occasionally decline. else the admiraltycourt could on that the litigation between is neverdeclinejurisdiction the ground Nor is it trueof courtsadministering othersystemsof our foreigners. (2d) 613. doesnot followthat it was boundto exertthat power. jurisdiction would be declined. Green (1931) 282 U.68At an early date it was held that the federal courts had discretion to refuse to hear suits in admiralty brought beAn tween aliens. cf. Bowring. and efficiency justice pointto the courtsof the Stateof the domicile appropriate as tribunalsforthe determination the particular 73 of case. Beal v. 531. supra note 36. 70 (1932) 285 the inwherethe suit is between terest of justice. 1933) ?? 8425-8445. 69The Belgenland. 515.L. 71 (1933) 288 U." tended the list of exceptional situations75where the federal courts 68 See generally American Automobile Ins. v. cit. Guaranty Trust Co. v. 73 288 U. 315. 492.CYCLOPEDIA CORPORATIONS (Perm. The development of the rule in the federal courts is traced in detail in Note (1946) 46 COL.19471 FORUM NON CONVENIENS 395 In othertypesof cases. S..L. OF RESTATEMENT. Charter Shipping Co. see Coffey.g. C.

See also Di Giovanni v. The Supreme Court reversed. when a decision by the federal court would interfere with a state administrativesystem for regulatingthe oil industry. Stratton v. S. The Meredith case limited the Burford case to its facts and expressedthe policy that a federalcourtwith jurisdictionin a diversity case must exercise that jurisdiction. 478. Douglas v. Maryland Casualty Co. S. S. Ass'n (1935) 296 U. Fieldcrest Dairies (1942) 316 U. Chicago v. 228. Great Lakes Co. (1941) 312 U.1162. 549. 573. 168. R. 492. 530. Washington (1935) 295 U. 79 320 U. 377.The Court held that jurisdiction could be refused in a diversity case on essentially forum non conveniens grounds. 521. Co (1941) 312 U.sO holding that the mere fact that internal affairs of a foreign corporationare involved is not enough to justify the federal courts in refusing theiroption. 30. Guaranty Trust Co."79 In the Williams case the court limited the application of Rogers v. S. S. (1940) 309 U. Co. The circuit court of appeals held that in view of the conflict and uncertainty among the Florida courts as to the applicable state law and the fact that no federal question was involved. Gordon v. Railroad Comm. v.. (3) with the state administrative function of prescribing the local rates of public utilities: Central Kentucky Co. (2) with collection of state taxes or with fiscal affairs of the state: Matthews v. Williams (1935) 294 U. Jeannette (1943) 319 U. L. . 45. Kelleam v. S." The decisions in Meredith v. v. Pullman Co. This was a diversity case in which plaintiffs sought declaratory relief as to the extent of liability of a Florida municipality upon its refunding bonds. v. by dictum the Court souri Pacific R. with the narrow exception of situations where a federal equity court in the exercise of its equity jurisdictionmight refuse to grant an equitable remedy. (1933) 290 U. S. S. S. S. (1941) 312 U. L. i. Winter Haven" and Williams v. 157.. S.S. S. (1940) 310 U. Huffman (1943) 319 U. S. 496. Ry. 788. (1944) 53 YALE J. REV. Green Bay & W. 35 could refuse to exercise their equity jurisdiction.7 however. (1932) 284 U. the federal court should refuse jurisdiction. of Ky. S. 264. Railroad Comm. S. holding that mere difficulty of ascertaining state law was not a sufficient basis for refusing to exercise diversity jurisdiction. v.396 CALIFORNIA LAWREVIEW [Vol. so Supra note 71.. asserttheirrightsin the federalratherthanin the state courts. (4) with the liquidation of an insolvent state bank by a state administrative officer: Pennsylvania v. W. (1944) 18 TULANE REv. Magnolia Petroleum Co. for was "Thediversityjurisdiction not conferred the benefitof the courtsorto servetheirconvenience. S. 78 (1946) 326 U. 176. Thompson v.e. 77 (1943) 320 U. purpose generally federal Its was in to affordto suitorsan opportunity suchcases. Rodgers (1932) 284 U. at 234. L. 293. S. 64. cast doubt upon the general availability of the doctrine of forum non conveniens in the federal courts. 76 See also Railroad Comm. However. Camden Ins. (1943) 56 HARV. Oil Co. The cases are discussed in Notes L.

84 The dissenting justices did not question the general validity of the defense of forum non conrveniensbut argued that in this case the defendant had not made a sufficient showing to justify its application. the enforceability if the remedy onebe granted. A Virginia resident brought a suit for damages in the United States District Court for the SouthernDistrict of New York against a Pennsylvania corporation. 83 Supra note 6.v.8" Gulf Oil Corp." and of 85 The Gilbert case was the first suit at law for money damages to come before the SupremeCourt in which forum non conveniens was invoked as a defense. but only one.A motion to dismiss under the doctrine of forum non conveniens was granted and the second circuit court of appeals affirmed.84 that the mere fact that internal affairs of a foreign corporation ever. "Thatis one. Gilbert. at 527.81 The question of the power of federal courts to apply forum non conveniens was settled only this past term in the cases of Koster v.The Supreme Court in a 5-to-4 decision held that since the defendant had shown much harassment and the plaintiff had shown little countervailing benefit to himself in the choice of The Court added. 82 Supra note 42.alleging that the plaintiff's warehouse in Virginia had burned as the result of defendant's negligence in deliveringgasoline to the warehousetanks and pumps. howforum. Juris81 326 U. The district court found that an unnecessaryburden would be placed on the defendants by trial in New York where none of the witnesses nor the records were available and that the suit involved the internal affairs of a foreign corporation. S. appropriateness trial in a forumfamiliar parties with the law of the corporation's and of domicile. 85 330 U. S.413.83 Koster and The case was a derivative action brought in the federal district court for the Eastern District of New York by a New York policyholderagainst an Illinois insurancecompany and other Illinois defendants. LumbermensMutual Co. the ultimate But is inquiry wheretrial will bestservethe convenience theparties theendsof justice. were involved would not be enough to justify the dismissal. See Note (1946) 46 CoL. factorwhichmay showconvenience of the of or witnesses. the judgment should be affirmed. at 554. L. REV. .1947] FORUMNON CONVENIENS 397 asserted that the doctrine of forum non conveniens might apply to permit a federal court to decline an internalaffairscase where the suit would be vexatious or oppressive.or where the relief sought might be so extensive or call for such detailed and continuing supervision that the matter could be better handled nearerhome.

in one form of words or another.398 CALIFORNIA LAWREVIEW [Vol. courtsin actionsfor money beforetoday. S. Winter Haven"8 with a "but cf. The Court rejectedplaintiff'sargumentthat the damagesclaimed 90o the of ($400. 35 diction was based solely on diversity of citizenship. deriving judgments doctrineof forumnon conveniens uponthe statutesfixingjurisdicvenuein the districtcourtsin suchactions. "This Court.I shouldwait for Congress adoptit. at 504. .""'The Court reviewed the earlier cases in which it had referred to the doctrine. Co. apparentlyagreedthat the doctrinecould apply but felt that here showingto justify its application. Ibid. That leaves the Virginiaplaintiffwithout even a suggestedreason this for transporting suit to New York. we cannotsay the District Courtwas boundto entertaina provincialfear of the provincialism of a Virginiajury.000)wereso largeas to "stagger" imagination a local Virginiajury: " . 89330 U. Tomp86JusticesBlack and Rutledgearguedthat federalcourtshad no authorityto apply in forumnon conveniens a law case. 87 330 U.. Whether doctrine forumnonconveniens goodor to bad.however.JusticesReed and Burton. The second circuit court of appeals reversed. at 507.86 statutes the district court had power to hear the case did not control. The Court then discussed the scope of the doctrine"The principle of forum non conveniens is simply that a court may resist impositionupon its jurisdictioneven when jurisdictionis authorized by the letter of a general venue statute"s---and the facts of this case. The Supreme Court in another 5-to-4 decisionheld the doctrineapplicableand reversedthe judgment The mere fact that under the venue of the circuit court of appeals. to "Nosuchdiscretionary authority declineto decidea case. at 510. againthe defendanthad not madea sufficient 88Supranote 77..seemsto tion andproper of me to be far morethanthe merefillingin of the interstices those is of the statutes. by way of a footnote. at 509. . concludingthat it was one "of those rather rare cases where the doctrine should be applied". 91Ibid. at 515. v. The district court dismissed under the doctrine of forum non conveniens. S."9One question left open is whether the state law as to forum non conveniensmust control in diversity cases under Erie R.. fromstatutesor the common To engraftthe law. argued that the decision of the Court amounted to an amendment to the venue statutes. ."."Ibid. has repeatedly recognized the existence of the power to decline jurisdiction in exceptional circumstances. and concluded. dismissed Meredith v. that the application of the doctrine does not depend on whether the action is at law or in equity. 517.beenvestedin federal adoptingtheir dissent in the Koster case." Justice Black. dissenting.

(1947) 330 U.. at 520. 9 330 U. at 387.Y2 second circuit court of appeals has held both ways on this Koster"o and Gilbert"9 cases the Suquestion" and in the Williams." . A. at 558. C. R. But the United States Supreme Court has raised considerabledoubt as to the availability of the doctrinein such cases in either the state or federal courts. (2d) 193. & H. S. assuming in preme each case that the same result would have been reachedif the state law were applied. A. S. It has been argued that forum non conveniens is essentially a jurisdictional question which must be decided by the federal courts without regardto state rules on the subject. 2d. Gulf Oil Corporation (C. 518. The ruling of the Douglas case was approved by dictum in McKnett v. 97 (1946) 14 U. St. REV. 2d. Lumbermen's Mutual Co. supra note 66. 501. The Court made this statement in distinguishing cases such as those cited in note 65. Louis & S. 2d. at 56. Routh (C. N.9'That the Supreme Court may eventually so hold is at least suggested by its assertion. REV. S. S. in which it had been held that a federal court with jurisdiction must exercise it. 1946) 153 F.94 Court expressly refused to decide the question.413. but only to empower themto do so. supra note 93. Note (1946) 46 COL..99 to Employers' LiabilityAct] doesnot purport require "[TheFederal StateCourtsto entertain suitsarisingunderit. 95 330 U. 1945) 149 F. rev'd. Cf.1947] FORUMNON CONVENIENS 399 The kins. 425. Douglas v.." C. n. faras theauthority the UnitedStatesis concerned. at 509. 8 330 U. Ry. S. 1946) 153 F. A. cf. in the Koster case that we "are concernedhere with the autonomousadministrationof the federal courts in the discharge of their own judicial duties". F.. 99 279 U. Co. New the Federal Constitution prohibits state courts of general York. Koster v. 97. jurisdiction from refusing to do so solely because the suit is brought under a federal law. at 529. 93. L. Holding that the state law does not control: Gilbert v. (C. supra note 45. (2d) 888. in another connection. 9326 U. Federal Employers' Liability Act Cases. aff'd. C. S. Second Employers' Liability Cases. Co. H. The matter was thought to be settled in favor of the applicability of the doctrine by the holding in Douglas v. of It mayverywellbethatif the Supreme Court NewYorkweregiven of 92 (1938) 304 U. or CrHL. Lumbermens Mutual Co.Holding that the state law controls: Weiss v. Co. See also Koster v. at 64. (2d) 883. S.. supra. C.L. New Haven R. (1947) 330 U. at 233: "While Congress has not attempted to compel states to provide courts for the enforcement of the Federal Employers' Liability Act. The doctrine of forum non convenienscan be most useful in suits against railroads under the Federal Employers' Liability Act where the most flagrantexamples of abuse of the venue privilege are found.

The Court distinguished the Douglas case. Note (1942) 14 RocKY L. L. A. 100oo L. A. wouldbe subjectto a to But thereis nothingin the Act of Congress that purports duty. The Ohio courts held that the venue provisions of the F. . deprived them of power to enjoin prosecution of the suit. in the federal district court in New York..o03 courts. A. inconvenienceor harassment. REV. A privilege of venue. some question as to the present scope of this ruling is raised by recent cases holding that state courts have no power to enIn join prosecution of actions under the F. under circumstances similar to those in the Kepner case. L. v. on the groundof inequity based on cost. 35 it no discretion. Co. A. (1942) 90 U. Kepner. The injuries which were the basis of the suit were received in Ohio.400 LAWREVIEW CALIFORNIA [Vol. L. (1942) 16 TULANE REV. The Supreme Court affirmed. E. and the petitioner argued that a heavy burdenwould be cast upon it by defending the suit in New York in view of the many witnesses who would have to be transported there. 126. for the benefit of the carrieror the national transportationsystem. L." as However.'0' and then said: "Thisis not to say that statescannotcontroltheircourts. granted by the legislative body which created this right of action.o?0an injunction was sought in an Ohio court against the prosecution by an Ohio resident of an action under the F. supra. MT. forcea dutyuponsuchCourts againstan otherwise validexcuse. 54.. 102314 U. Illinois Central R.290. oF PA. lo1 Supra note 11.. 104Supra note 59. In Miles v. cases. REV."'02 The Court made no reference to the Douglas case nor to the possibility of applyingthe doctrineof forum non conveniensin the the Tennessee forum state. supra.holding that the federal statute conferredupon the injured employee the privilege of bringing suit wherever the railroad was doing business and that under the supremacyclause "no state court may interferewith the privilege. E. at 53.489..We do not or decision legislative of dealherewiththepower Missouri judicial by Prior to these decisions the state courts frequently granted injunctions in F. E. S. A. E. lo3 Supra note 11. L. The Court held this action invalid on the authority of the Kepner case and said by way of dictum that the Missouri courts would be requiredto hear the suit underthe privileges and immunities clause. See law review articles in note 21. Co.'OO Baltimore & Ohio R. L. issued an injunctionagainst prosecutingan action under the F. cannot be frustrated for reasons of convenience or expense. being otherwise competent. in the state courts of Missouri. See authorities in notes 18 and 21. E.

. R. wasapproved anotherstate'spower in the Douglas[case]. The SupremeCourt of Oregonreversedthe decrees of the Oregontrial courtgrantingthe injunctions.. 866. os8(1944) 324 U.19471 FORUMNON CONVENIENS 401 to the as enactment regulate useof its courtsgenerally. Utterback. But in Gulf Oil Corp.the quotation from the Douglas case set out above. The railroadbroughtsuit in an Oregoncourt to enjoin the heirs of the decedentsfrom prosecutingthe Californiaaction.The two situations present differentconsiderations and it is hoped that when the issue is squarely presented the Court will hold that the plea of forum non conveniensis available 105 315 anotherconnection.107In Herb v. the Court was not required to decide the question of the availability of the plea of forum non conveniensin the forum court since the action in each was for an injunctionagainst suit in another jurisdiction. Union Pac. Four justices dissented. E. R. The United States SupremeCourtdeniedcertiorari. S.while in the employ of the defendantrailroad..S. v. 711.1" the California supreme court read the Miles and Kepner cases as deciding that the venue privilege conferredby the F.."os SupremeCourt of the United States quoted with approval. Justice Jackson said that he did not agree with the dictum that the Missouri courts must hear the case. at 505. A. at 704. thiswasbecause special But venue act underwhichthosecases are brought was believedto requireit. v. Gilbert that Court appears to approve by dictum the position taken by the California court in the Leet case: "It is truethat in casesunderthe FederalEmployers' LiabilityAct choiceof a forum cannotbe defeated ..supra note 9. (1945) 58 HARV.. S. L. The United States SupremeCourt the denied certiorari. we haveheldthatplaintiff's non the on thebasisof forum conveniens. Plaintiffbroughtsuit for wrongfuldeath in the SuperiorCourt in Los Angelescounty.Meanwhile the Californiacourt had refusedto declinejurisdiction the case and this action of in was affirmed the Leet case. Pitcairn. Co. however. Co. is absolute and cannot be defeated on the ground of forum non conveniens.(1944) 323 U. L. 117. REV. 100 330 U. S. loaSupra note 41."10" The Courtcited the Kepnerand Miles cases as authority for this statement. S.. (1945) 18 So. REV. Plaintiff was appointed administratrix of the estates of Thatcher and Utterback who were killed in Portland.281. 120. 107 (1945) 325 U. In Leet v.Oregon. . We are considering to so controlits own citizensthat they cannotexercisethe federal of a rightin the courtof another privilege litigating federal state. CALIF. In those cases. L.877. R."'05 In a concurring opinion. Union Pac.

See Dainow. and directed by the reason and conscience of the judge to a just result.. this uncertainty will be reduced. Beach. a discretion exercised not arbitrarily or wilfully. supra note 93. H. New York.of course. R. . In Williams v. Meaning must be given to the phrase. in most cases where the plaintiff has the choice of several forums in which to sue. at 541: "When invoked as a guide to judicial action it [the term 'discretion'] means a sound discretion. Lumbermens Mutual Co. Jackson & Sons v. in fact. to argue that trial courts should have discretion to refuse to hear cases under the doctrine. Our survey thus far has shown that with the possible exception of cases arising under the Federal Employers'Liability Act there are no federal constitutional or statutory provisions preventing the widespread application of the doctrine of forum non conveniens in both state and federal courts. cit.. that is to say. as elsewhere. there will be no doubt of his right to bring suit in most of them. Trial judges must know what factors they are to consider when deciding whether to exercise their discretion. 114Hoes v." See also Universal Adjustment Corp."o II. N. op. it does not mean that there are none . L.dissenting Gulf Oil Corp. at 195: "Here. Midland Bank. at 888. 113 See Weiss v. . if not impossible. Co.. at 144. R.supranote 6. 3 to assist in curbing the abuses which have arisen in suits under the F."2 And here appellate courts have not. cit. A. 111 BOWERS.argued in that the doctrineof forum non conveniensshould not be extendedto law cases in the "The broad and indefinitediscretion federalcourtsbecauseof the uncertaintyproduced.402 CALIFORNIA LAW REVIEW [Vol. It is not enough. Green. supra note 24."3 They either have substituted their own discretion for that of the trial court.. Winters. Collard v. at 516. supranote 14.lies in removingthe necessityfor such suits system to cover employeesof interby adoptingan adequateworkmen'scompensation See state railroads. Routh. PRACTICAL OPERATION OF THE DOCTRINE OF Forum Non Conveniens. & H."'-More important. OF 112JusticeBlack.JUDICIALDISCRETION TRIAL COURTS (1931) ? 10. Only when he seeks to sue in the more unlikely forums must he weigh the disadvantages of uncertainty against the advantages he seeks in the forum. will inevitably produce a complex of close and indistinguishable decisions from which accurate prediction of the proper forum will become difficult. supra note 70. Langnes v."4or have limited the scope of the trial 110The fundamental solution." Cf. but with regard to what is right and equitable under the circumstances and the law. supra note 48. Gilbert. supra note 41. And if the factors governing the exercise of discretion are more closely defined as additional cases come before the appellate courts. E." However.. left the trial courts with untrammelled discretion. left to federal courts to decide the question of convenience from the welter of factors which are relevant to such a judgment. supra note 37. litigants must have some basis for forecasting a court's ruling on assumption of jurisdiction if unnecessary expense and wasted time are to be avoided. although judicial discretion does indeed imply that the limits are not rigidly fixed. v.v.op. however. supra note 41.

R. however. 416. CONRESTATEMENT. 609. supra note 111. however. supra note 78. Paterson Co. and when only.. 115 The conventional statement is that the assumption of jurisdiction is ordinarily within the sound judicial discretion of the trial court and that its ruling will not be disturbed on appeal unless an abuse of that discretion can be shown. REV.621. 116 See generally Williams v. Pleasant Creek Mining Corp. v. Fowler. 119 See CLAax. Green Bay & W. 68 N. R. 120." Cf. Universal Adjustment Corp."9These are rare cases. cit. at 555. Midland Bank. n. Green Bay & W. Canada Malting Co. EVIDENCE (3rd ed. 118 Rothstein v. as in most other phases of law involving judicial discretion.where the court refuses to hear a suit because of its inability to give effective relief. and the special difficulties presented by such cases have been fully discussed elsewhere. Note (1946) 46 CoL. State v. supra note 78. supra note 70. Co. Wabash Railway Co. (2d) 305. at 86: "It is manifest here. and (c) the procedural rules governing application of the doctrine.'o Our main considerationhere will be to examine those rules which govern the trial court in the exercise of its discretion when no doubt is raised as to the effectiveness of the court's decree.x15 major importance.then. 26. But cf."6Where the procedurallaw of the forum affords no remedy comparableto that provided in the jurisdiction creating the right of action. supra. At the outset we can put aside those cases. S. 12oAuthorities cited in note 72.1947]1 FORUM NON CONVENIENS 403 court's discretion. supra note 42. op. Co. it accords with the views of the appellate tribunal as to what ought to have been done in the particular case.. Co. What the courts actually do in these cases. Mexican National R. The Kanto Maru (C. L. Div. REV. S. v. A. Horner v. (1904) 194 U. Y. Murnan v.413. FLICTOF LAWS (1931) ?? 608. is best summarized by BOWERS. Lumbermens Mutual Co. the United States Supreme Court appeared to give little or no scope to the discretion of the trial court in reversing its decision to assume jurisdiction. 1940) 112 F.. and the discussion infra. 117 Slater v. is an examinationof Of the guideposts whichhave been erectedfor the exerciseof the trial court's discretion. (2d) 564. 1 WIGMORE. The cases will be reviewed in an attempt to determine (a) who is to be benefited by application of the doctrine of forum non conveniens and the effect of the answer to this question on (b) the factors which will justify the exercise of discretion to decline jurisdiction. supra note 46. that... all supra note 41. 1940) 312. now thought of as a part of the doctrine. . See (1946) 59 HARV. C.courts have always refused jurisdiction.. the trial court's ruling will be declared conclusive when. Koster v. arising most often when the internal affairs of foreign corporations are involved. L. Rothstein (1947) 272 App."7 where the relief demanded would involve detailed and continuous supervisionof activities in another jurisdiction. 9th."8or where for other reasonsthe court cannot make its decision effective. EQUITY (1919) ? 14. R.

Y. non-residents between this state shouldnot be vexedwith litigations limits.--because courtsof state.these questions must be answeredbefore we know anything of the meaning of the doctrine of forum non conveniens. .404 CALIFORNIA LAW REVIEW [Vol. 31.. Neilson the court was able to say:' rule of this state that.Our outsideof ourownterritorial overcausesof actionarising courtsarenotsupported the peopleforany suchpurpose. Thus in 1890 in Ferguson v. Dewitt v.See also Robinson v. & S.Both partieswere Rhode Island residents.the principal reason given for declining jurisdiction has been avoidance of the burden on the local courts and taxpayers. 513. F. A. Obviously. . This suit was an action for damagesfor personalinjuries sustainedin Rhode Island.. it enoughthat the scale is weightedmoreheavily on the side of inconvenienceto the defendant when the plaintiffhas acted in good faith? In other words. New York Life v. 5th. Accord: Atchison. (S. the search should be a broader one for that forum in which the ends of justice will best be served. supranote 28." by In 1903 the New York Court of Appeals reversed the action of a trial court in assumingjurisdictionof a suit for the wrongful death in Con121One Hundred& Ninety-FourShawls.supranote 9. Ry. 467. Co. 1918) 254 Fed. Weeks (C. Who Is To Be Benefited by the Doctrine. unlessspecialreasons "It is the well-settled or are shownto exist whichmakeit necessary properto do so. it would be lamentable if courts were compelled to defer the busi- ness of the citizens of the country to bestow their time on litigations between parties owing no allegiance to its laws. The general inference to be drawn from the Latin phrase is that jurisdiction should be declined when the forum is inconvenient.. T. Heine v. 1900) 101Fed. v. where the doctrineof forum non convenienshas had its fullest development. Co. . must there be an elementof abuse of court process before jurisdictionis declined? Perhaps. As early as 1848 a federal court in declining to hear an admiralty suit between British subjects said: ". at 504. Withy & Co. But inconvenient to whom? The court? The plaintiff? The defendant? Even if we have an answerto these questions. D. the actionsbetween of courtswill not retainjurisdiction and determine in received that in state forpersonal injuries partiesresiding another the The reasonof the ruleis obvious.supra note 36. OceanicSteamNay. Ins.. 122Supra note 37. As the doctrine has developed in American courts emphasis has been placed primarily on inconvenienceto the court as the principal reason for refusing jurisdiction. and contributingin no way to its support. C... Goldman Furness. Buchanan(1868) 54 Barb. Co."'2'In New York.35 A. at 705.

Hayes & Co. 474. S. 841." This emphasis in New York on inconvenience to the court to refusejurisdiction. Supp.No suchnarrowor and illiberalpolicy has yet been declaredby our courts. Co. Kirk & Co.supranote 118. will openwidethe floodgates litigationin of a and similar thereby upon cases. the court reversedthe trial court'sdecisionrefusingto take jurisdiction of an action by a Germanresidentagainsta Maine residentfor deceit based on false representations inducingthe plaintiffto enterinto a contract. Rothsteinv. 14 N. and correspondence neededon the trial of the actionwerein Mexico. 254 N. which will closethe courtsof this State to non-resident suitorswho invoke their aid againstother non-residents sojourningwithin our bordersfor the enforcement causesof action arisingout of of commercial transactions affectingpropertyor propertyrights.Y. Beach. and certainlynothingrestingin precedent. 179 N. Supp.Ct. Div. H. Y. Y. Rothstein. (N. Sup.. Supp.225N.Forothercasesin whichthe New York courtshave stronglyemphasized local burden. 27 N. 124In the leading case of Wertheimv. R.who may findtheirnon-resident of or debtors.McMahonv.establish newlegalindustry. Accord: Crane.. E. New York. Rodgerv. and said: "If this can be done."' This ruleis appliedeven thoughthe parties 12 Hoes v. Mandlv. 71.N. 223 N.. NationalCity Bankof New York (1931) 142 Misc. Y. W. 125. S. (2d) 330. A.Y. Y. v. (2d) 364. v.where presumablysome benefit will ultimately accrue to the state through encouragingthe use of its courts in the furtherance of business activities. Reep v. In contract actions and other actions of a commercialcharacter.supra the note 37. &H. United States Trust Co. H. 268. 664.supra note48. [We] certainlydo not intend to establisha precedent whichwouldshut our courtsto greatnumbers foreignmerchants..fraudulent honest. 65 N. Mandl (1946) 61 N. N. Y. Y. 713." 125Wedemannv. 122.'24 the trial court has no discretion are nonresidents or aliens and the defendant is able to show serious inconvenience or hardship if he is called upon to defend in New York. . (2d) 798. Y.401. Osborne Banco AlemanAntioqueno (1941) 176 Misc. 1944) 51 N. 251 N. (1927) 131Misc. (2d) 236. Bliss (1927) 130 Misc. E. (1932) 258 N. of non-residents the State. 369.775.The court recognized the general rule applicableto tort cases and then said: "But we know of no reason foundedin publicpolicy. Y. cf. Supp. 712. DeutscheReichbahnGesellschaft (1938) 277N. 753.see Collardv. S. Butcher (1941) 176Misc. 126In an action by a residentof Mexico against a corporationdoing businessin Mexico on a contractenteredinto and to be performed Mexicothe court refusedto in dismissdespitea showing that all the witnesses. temporarily within our jurisdiction . Supp. Donner (1931) 140 Misc. RederietOceanAktieselskab v. . Holzerv. 750.. & H. Gainerv. Y. 168. R. (2d) 565. impose to ouralready overworked courtsthe obligation try actionsimported froma foreign x jurisdiction. New York. Co. R."1 The emphasis of the New York courts on local interests as the basis for the doctrine is made even clearer by the limitation of the doctrine in that state to tort actions. 315. Y.19471 FORUMNON CONVENIENS 405 necticut of a Connecticut resident which was brought by a local administrator whose appointment had been fraudulently obtained. Clergue(1900) 53 App. R. 279. 29 N.

In the Scottish cases inconvenienceto the court is definitely rejected as a factor and it is said that the plea of forum non conveniens will be upheld only when it can be shown that the ends of justice will best be served by trial in another forum.loc.406 CALIFORNIA LAW REVIEW [Vol. Sorenson (1932) 111 N. See also GnsB. La Socite' Anonyme de Navigation "Les Armateurs francais. ". if in anycaseit appeared the Court. 33 S. Casualty Co. and full justicecould not be done there to the parties."' An entirely differentconceptionof the doctrine of forum non conveniens is presented in the English and Scottish cases. of of and to the interests bothparties to the requirements justice. J. Eq. GLOAG HENDERSON. 107. 128 Blair. at 18. Co.but couldbe done in anotherCourt. Grovey v..) at 16. Cas. 130 [19261 Sess. AND 129Supra note 35.. Jackson (1896) 89 Tex.then the formerCourtmightgive and the effectto the plea by declining jurisdiction permitting issues Court.. 1s1 Ibid. v. 47. Mexican Nat.Lord Chancellor Cave summarizedthe doctrine: aftergivingconsideration to ". The Scottish point of view is set forth in detail in La Socigte du Gaz de Paris v. supra note 35. 161 Atl. cit.that the casecouldnot be suitablytriedin the Courtin whichit wasinstituted. and that the defendant had not taken steps recommendedby the French authorities to make it seaworthy. who suggested that a principal benefit to accrue from widespread applicationof the doctrineof forum non convenienswould be relief of "calendar congestion by partially diverting at its source the flood of litigation by which our courts are being overwhelmed". cit. Ioc."l31 127Jackson & Sons v. both supra note 41. Co. The Scottish court dismissed on a plea of forum non conveniens and the House of Lords affirmed. cit. that it was a ship of French design notoriously unseaworthy.35 was reflectedin the decisions in other states'27and approvedby Blair. 44. loc. R. there is here another Court of competent jurisdiction in which . Ins. W.. Sielcken v. Washington Nat. L. supra note 33... The ship sank. (H. 857. supra note 35."'29 In that case a French manufacturing firm sued French shipownersin a Scottish court (basing jurisdiction on the arrest of a vessel owned by the defendants and found in Scotland) for the breach of a contract on a charter party executed in France for delivery of goods from England to France. Lumbermen's Mut."'30 to be foughtout in the moreappropriate Lord Dunedin said: of the casemaybe triedmoresuitablyforthe interests all the parties and for the endsof justice. The plaintiffs contended that it was improperlyloaded.

They appear to limit it to cases "in which the Court should. Williams. 136 [1908] 1 Ch..and I think that in all the reported casesthatelement a ground refusal. exercise its inherent power to prevent its procedure from being abused for the purpose of oppressionand with the result of working injustice". Bank of Scotland'-4 application was made to the court to stay all further proceedingsin the action on the groundthat it was vexatious and an abuse of process of the court.. 22. at 482.Thus in Logan v. supranote 37."'1r re Norton'sSettlement. said: to of in "Now. .. and that the only reason for bringingthe action in England was to coerce a settlement because the amount in suit was quite out of proportionto the cost of defending. at 479.abusesuggests one'smindan element wrong-doing the so party attempting to abuse.that it will be very or for for difficult. at 485. at 210." L. said:'38 it to of "Inmy opinion mustbeproved thesatisfaction the Courtthat eitherthe expenseor the difficulties trial in this countryare so of greatthat injusticewill be done--in this sense. In In re Norton's Settlement. in its discretion.m'3 emphasis is on abuse of the court's proThe cess and apparently both serious injustice to the defendant and an impropermotive on the part of the plaintiffare necessary to call forth the applicationof the doctrine. 133 Kennedy. The obis ject underthe words'forumnon conveniens' to find that forum whichis the moresuitablefor the ends of justice. its distastefortryingactionswhichinin for volvetakingevidence French.L.and is preferable in of because pursuit the litigation thatforumis morelikelyto secure thoseends. 135 Supranote 37.. is notnecessary us to determine It for whetherthe merequestionof inconvenience wouldof itself be sufficientwithoutthat element. J. In Egbert v. practically impossible. And. Short'35 court the relied on the "inherentjurisdiction of the Court to prevent an abuse of its process". the or amountof its ownbusiness. J. 132 Ibid. the litigantwhois applying the stay to get justicein this country.19471 FORUM NON CONVENIENS 407 Lord Sumnersaid: or "Obviouslythe Court cannot allege its own convenience. L.. 134Supranote 37."'132 The English courts have a slightly narrower conception of the doctrine.. J. in In 137Ibid. A showingwas made that a serious burdenwas placed on defendant.Farwell. at 21.

expeditiousand inexpensive. 189 Supra note 6. 11 A. R. v. It is often said that the plaintiff may not.and experiencehas not shown a judicial tendency to renounce one's own jurisdictionso strong as to result in many abuses. it has not been attempted to catalogue the circumstances which will justify or require either grant or denial of remedy. too.a The tendency in recent American cases applying the doctrine of forum non conveniens has been to hold that both convenience to the parties and convenience to the court are to be considered. Midland Bank." Universal Adjustment Corp. L. Important considerations are the relative ease of access to sourcesof proof.The courtwill weighrelative advantagesand obstacles to fair trial. if view would be appropriateto the action. Kantakevich v. But unless the balance is strongly in favor of the defendant. both supra note 41. D. There is a local interest in having localized controversiesdecided at home. Gilbert:139 "Wisely. R. Co. 'vex. and in law foreign to itself. availability of compulsoryprocess for attendance of unwilling. & W. R. Co. in having the trial of a diversity case in a forum that is at home with the state law that must govern the case.' 'harass. D.and the one likely to be most pressed. There may also be questions as to the enforceabilityof a judgment if one is obtained.. and all other practical problems that make trial of a case easy. the plaintiff's choice of forum should rarely be disturbed.. "If the combination and weight of factors requisite to given results are difficultto forecastor state. Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation. rather than having a court in some other forum untangle problems in conflict of laws. Misc. J.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."3 This approach is best illustrated by the statement of the United States Supreme Court in Gulf Oil Corp. There is an appropriateness. (2d) 607. those to be consideredare not difficult to name. 153.. An interest to be considered. 138 . The doctrine leaves much to the discretion of the court to which plaintiff resorts. Anderson v. possibility of view of premises. (1940) 18 N.' or 'oppress'the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy. v. In cases which touch the affairsof many persons. &W. Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. at 508. "Factors of public interest also have place in applying the doctrine. R. is the private interest of the litigant.408 CALIFORNIA LAW REVIEW 3 [Vol. and the cost of obtaining attendance of willing. L. by choice of an inconvenient forum. witnesses.

. at 527. or of solving the conflict of laws problemspresented?'41 Or would the Court sustain a district court in dismissing a suit between nonresidentsin an otherwiseconvenientand appropriateforum simply because of the crowdedconditionof the local dockets? Or does the Court mean that convenience to the court is to be weighed in the balance with convenience to the parties. Lumbermens Mutual Co. . 413. 44 couldapplyits ownlaw to eventsoccurring the federalcourtby reasonof diversityof citizenship. in The course adjudication NewYorkfederal of courtmightbe beset all with conflictof laws problems avoidedif the case is litigatedin whereit arose. In the Gilbert case. L. Reynolds v. "[The] ultimate inquiry is where trial will best serve the convenience of the parties and the ends of justice. if any. Mattone v. and that a plaintiff must make a stronger showing to justify his choice of a forum where the calendarsof the court are congested or the foreign law would be difficult to apply? It is submitted that convenienceto the court is considered only to give added weight to a decision based on convenienceto -4 the parties and that it should have no independent significance. Meredith v. actually is given to the convenience of the court in applying the doctrine. Gartner. Cofrode v."•43 140 Ibid. supra note 1. supra note 77. 142 See Foster. cit. at 511. Day. Note (1946) 46 CoL. courtwould applythe law of its ownstate in whichit is likelyto be experienced. supra note 41. both supra note 40. Winter Haven. 141 The Court has given a negative answer to that question. Convenience to the court has been specifically rejected by some courts. the Court examined the facts and concludedthat a heavy burdenwould be placed on the defendant by trial in New York and that the plaintiff had shown no legitimate advantage accruing to him from the choice of the 58. Then the Court added: that the task of the "The courtlikewisecouldwell have concluded If trial courtwouldbe simplified trial in Virginia. for example-the district court would be upheld in dismissing the suit simply because of the difficultyof deciding Virginia law.If in statecourt. 143 Koster v. op. REV. REV. 415. n. supra note 42."'14 Virginia Does the Court mean by this statement that even had the plaintiff shown legitimate reasons for bringing suit in New York-important witnesses residing there. trialwas in a by there. L. for example. Argentina.1947] FORUMNON CONVENIENS 409 It is difficult to ascertain from these cases what weight.

saying the fact that most of the witnesses lived in New York and that it would be a financial hardship to produce them in 144 See cases cited in notes 125. Supp. Where both parties are nonresidents. Aly v. Y. which will hear contract actions regardless of the residence of the parties or the inconvenience to the defendant. 145The conventional statement of the rule in the New York cases is: "It is the wellsettled rule of this state that. Y. supra note 36. 1." Ferguson v. unless special reasons are shown to exist which make it necessary or proper to do so. The differingattitudes of the courts as to whose interests are to be served by the doctrine of forum non convenienshave resulted in similar differencesas to the standardsby which the trial court's discretion is to be judged. 267. Butcher. 237 N. Two eyewitnesses lived in Pennsylvania. indeed jurisdiction may be refused even though New York is the most convenient place for the trial.410 CALIFORNIA LAW REVIEW [Vol. (2d) 949. 35 B. Collard v. Factors Justifying the Exercise of Discretion to Decline Jurisdiction. Alexandria Navigation Co.'? for example. (1943) 43 N. The plaintiff was hospitalized in New York and New York citizens took pictures and made measurementsat the scene of the crash. Beach. Brandao v.Other of courts have established more flexible standards having the primary objective of doing justice between the parties. the courts will not retain jurisdiction of and determine actions between parties residing in another state for personal injuries received in that state.'" will refuse to assume jurisdiction in tort actions for personal injuries on a showing that both parties are nonresidents and that the cause of action arose outside the state. (1944) 50 N. In Reep v. The New York courts. S. Courts which are concernedprincipally with the burden on the local courts and taxpayershave establishedrules governing the application of the doctrine which bear little relation to the convenience of the parties or to the appropriateness the tribunal. 165. Escobar (1929) 135 Misc. In states where convenience to the court is emphasized the basic considerationsbecomethe residenceof the parties and the place where the cause of action arose. supra note 124. supra. Neilson. Accord: Wertheim v. a personal injury suit between Pennsylvania residents was brought in New York courts as a result of an automobile accident which took place in Pennsylvania but just across the New York state line. but the plaintiff alleged their willingness to come to New York to testify. The court refused to accept jurisdiction of the case. Banco De La Lacuna v. 146Supra note 123. 126. S. . United Fruit Co. supra note 37.'45No inconvenience or injustice to the defendant need be shown. Clergue. (2d) 886. at 524.Y.

supra note 41. See also Murnan v.") . at 371. 93 A. at 315. Green Bay & W. 190 N."•50Courts have jurisdiction of suits between nonresidentsbased on transitory causes of action regardlessof where they arose. v. v. S. S. 205 N. the case may be heard if the plaintiff would otherwisehave to travel a very great distance to sue the defendant at his domicile. . and where a Connecticut citizen was suing a foreign corporation which was doing business in New York on a cause of action arising in Oklahoma.. Supp. D. Wabash Railway Co. (1928) 131 Misc. 261. Div. 547. 556. Universal Adjustment Corp. 149 Jurisdiction was assumed when a New Jersey resident was suing a Kentucky corporation on a cause of action arising in California. supra note 145."51This atti147Ibid. 148In an action against an unsuccessful Mexican revolutionary who absconded with government funds. H. all supra note 41. 15oOverfield v. Palmer (1943) 43 N. 3rd. 828. Anderson v. L. Pennroad Corp. supra note 138. Y.. 219.'" And where the plaintiff is a resident of a nearby state in which the defendant cannot be served with process." State of Yucatan v. supra note 37. jurisdiction will be assumed. 1940) 113 F. Y. R. (1928) 222 App. (2d) 532. A. R.E. v. Viney. Supp. Hagen v. 393. Co. Bethlehem Fabricators v. "The rule is intended to promotejustice and not to furnish an avenue of escape for those who should answer somewhere for the wrongs charged against them. (C. Asbestos Ltd. In re Norton's Settlement. Mondy. Inecto.. saying: "Any other rule would make this state the haven of absconders. cf. But cf.19471] FORUM NON CONVENIENS 411 to of was the Pennsylvania "notsufficient warrant acceptance jurisdiction of litigated matters which belong solely in an adjoining state". 791. Banco De La Lacuna v. supra note 41. 686. or if the statute of limitationshas run where the parties resideor wherethe cause of action arose. Therefore. 226 N.•4 Only in unusual circumstanceswhere it is obvious that serious injustice to the plaintiff would result from refusal is the trial court upheld in assumingjurisdictionof such a suit. supra note 78. Y. E. D. cf. L. (2d) at 332. Argumedo (1915) 92 Misc. 833. at 159 ("The principle manifestly ought to be applied with caution. Richter v.The cases here emphasize that caution should be exercised in applying the doctrine. if the defendant is not subject to suit. Murnan v. Y. R. Hudson v. 10."' A quite differentapproachis taken by courts which reject or minimize their own convenienceas a basis of the doctrine. Von Hamm. Universal Adjustment Corp. 205 N. Supp. Y. Y. Escobar. (1923) 121 Misc. Tri-State Transit Co. Where the statute of limitations has run elsewhere so that the plaintiff will be deprived of his remedy if not allowed to sue in New York. 1124. the court recognized that the defendant would not be available for suit in Mexico and assumed jurisdiction. and this jurisdiction will be exercised unless compelling reasons exist for relegating the parties to another court. Supp. Midland Bank.jurisdiction will usually be assumed. (1934) 286 Mass. Southern Pacific Co. R. Randle v. see also Williams v. Buonanno v. 27 N. 226 N.. supra note 41. cf. Wabash Railway Co. Co.. Williamson v. (2d) 6. Y. 234. Midland Bank. v. Rock Island & Pacific Railway Co. 184 N. & W. 151 Quigley Co. Watts Co. Supp. 128. (1924) 123 Misc. Inc. Chicago. 99. C. 157 N. supra note 41.

.and. 391 at 395: "Thoseentitledto and seekingit [accessto the court'sprocess] shouldnot be compelledto resortto a species it. Lumbermens supranote 42. at 150. Conversely. supra note 138. . for example. Viney. or the witnesses are unavailable or the production of witnesses and records would seriously disrupt a business. Mass. 601. supranote 42. supra note 150. D."5 the plea will be rejected. L..'5" where it is So. Logan v. at 757.supra note 37. 154Hagenv. D.. Sorenson. v. R. Lumbermens Mutual Co.see clearlythat in stopping actionit does not do injustice. (1940) 128 N. Mutual Co. & W. 15 A." And mere inconvenienceto the defendant in proThe inconvenducing witnesses or records will not justify refusal. not clear that the defendant would be subject to the process of another court'" or that he has assets subject to levy in anotherjurisdiction. to .. D.'a an "TheCourtshould. supranote 41 . Eq. 156sOverfield PennroadCorp.supra note 37. v. (2d) 651.412 CALIFORNIA LAW REVIEW 35 [Vol. &W. supranote 41 (no showingwitnessescouldnot be broughtfrom Louisiana Mississippi) Kantakevichv. (2d) 258. 21 N. cken v. Pan American Petroleum& TransportCo. v. supra note 150. 158McRaniev.or to the practiceof the artsof Delilah. supranote 127. v. La Socitt supranote 35. La Societe du Gaz de Paris v.1942) 2 Fed. Bank of Scotland. jurisdictionwill be assumed. supranote 41.. 152Supranote 37. Co. 153Andersonv. Y. 169 So. RulesDec.I think the thereis suchvexationandoppresCourtoughtto interfere whenever who of sionthat the defendant objectsto the exercise the jurisdiction to wouldbe subjected suchinjusticethat he oughtnot to be suedin he the Courtin whichthe actionis brought. Bank of Scotland. at 537. Hunter Land Co. (1940) 174 Misc. 104. Palmer(D." competent If there is any doubt that the plaintiff will not be able to get complete relief in another forum. The case will also be heard if the forum state is the only one in which jurisdictionover all properparties can be obtained. tude was well summarizedby the English court in Logan v. supra note 41 (not too inconvenientto bring to witnessesfromPennsylvania New Jersey).supranote 41.'58 In re Norton's Settlement. S. Wenatchee v. CaravelIndustriesCorp.. Co. on the otherhand. whichinjustice would to if and in accessible not be subjected the actionwerebrought another Court. 157See dissentingopinion of Justice Reed in Koster v. StandardSurety & Cas. R.. R. Mondy. Anonymede Navigation"LesArmateurs franqais".on the one hand. J." catchas effectuate of incantation.. Co."'7 ience must be serious enough to suggest a failure of justice if the suit is heard. v. QuigleyCo. 155BethlehemFabricators H. see Blausteinv.the fact that part of the importantdefendants Sielare not subjectto suit in the forumstate may be a reasonfor decliningjurisdiction. AsbestosLtd. Kosterv. L.. R. 479 (not too inconvenient to to bringwitnessesfrom Connecticut Massachusetts) Tri-StateTransitCo.. where the cost of defending is out of proportion to the amount in litigation. Watts Co. cf.

op. therefore.. Erie Railroad (1932) 278 . 820. Hosmer (1931) 142 Misc. Butcher. Supp. 318.) 20. Cressey v. cf. 24. Robinson's Trustees [1930] Sess. C. -1 others treat the plaintiff's residence as such a strong factor in favor of exercisingjurisdictionthat it will usually be decisive. L. Is4 Gregonis v.""Another New York court in a substantially similar case ruled to the contrary. Y. S. Whereplaintiff or defendant is a resident. cit. Fine v. 635. 382. supra note 123. supra. Lurpbermens Mutual Co. Pa. Civ. Browne (1890) 59 Hun. supra note 28. trial therein will usually be convenient and most courts assume jurisdiction without question even though both parties are nonresident. Logan v. supra note 111. Civ. at 158. Co. 429."5However. supra note 41. & I. Western Union Tel.5 Western Union Tel. 1946) 67 Fed. 162Malak v. v.emphasizingthe burdenon the local courts and the supposed fact that it was just as convenient for the parties to sue in Pennsylvania. at 64. and Gulf Oil Corp. Courts which have emphasizedconvenienceto the court as a basis for the doctrine have usually held that the bona fide residence of either the plaintiff or the defendant in the forum state at the time the cause of action arose is enough to compel the trial court to assume jurisdiction. Cas. 3 N. Robinson v. 626. 225. Clark (1896) 14 Tex. See BowERs. 655. v. Gilbert. 13 N."'a' This conflict has yet to be resolvedby the New York appellate courts. supra note 123. Donner. infra. 563. 254 N. W. a New York court refused jurisdiction. 637.1947] FORUM NON CONVENIENS 413 Where the cause of action arises within a state. 161 Hunter v. (H. in a tort action between Pennsylvania residents where the accident occurred just across the state line in New York. App. See the discussion. 165The Saudades (E.'" 2. Reep v. 16o Gainer v. Wencke. App. 213. E. Philadelphia & R. 817. Upton (1938) 166 Misc. (2d) 248. 608.'" When the plaintiff is a resident the courts of some states indicatethe trial courthas no discretionto refusejurisdiction. Iron Cap Copper Co. Co. v. (1920) 119 Me. 1. governed by our laws. See authorities in note 72. 20 N. Supp. Phillips (1893) 2 Tex. v. Midland Bank. at 314. 638. Wilson v.. Martin-Wilson Fire Alarm Co. Supp. 21 S. (1889) 149 Mass. Y. supra note 6. Co. D. The United States Supreme Court was divided over the strength of the showing of inconvenience which must be made by defendant in Koster v. 184 N. Winchester v. 163 In cases involving the internal affairs of foreign corporations most courts have declined jurisdiction even though the plaintiff is a resident. supra note 37 (cost of defending out of proportion to the amount in suit). W. saying: "On principlewe think the courts of this State should be open to determinecauses of action in tort arising within the State and. v. 110 Atl. cf. E. cf. supra note 42. supra note 40. Universal Adjustment Corp."5Here argu(New York to New Jersey). 38 S. 383. Bank of Scotland. Arizona Commercial Mining Co.Y.

'v And when the plea is presented by a nonresidentdefendant. supra note 41 (a Massachusetts corporation was formed for the sole purpose of taking an assignment of a claim of a Russian corporation against an English bank for suit in Massachusetts). 160. E. v. S. supra note 165. S. 180 N. 484. R. Ins.'•6Othercases have suggested that when the defendant is a foreign corporationdoing a substantial amount of business in the state jurisdiction should be assumed. R. N. 1933) 65 F. 184 N. R. & F. (2d) 94. Universal Adjustment Corp. D. 284. Lincoln (1929) 225 App.414 CALIFORNIA LAW REVIEW 35 [Vol. v. the basisof inquiry be to whether jurisdiction justicecan be as welldonehereas in another whichpartiesmay have access.Y. supra note 41. Co. Y. Cressey v. Power Corp. op. Ins.Y. cf. at 64. & W. (2d) 93. New York. Co. Cayuga Constr. Co. Ames (1946) 64 N. Og A."'72 Mass. Lumbermens Mutual Co. 166 See dissenting opinion of Justice Reed.. A. 120. supra note 41. . A/S Den Norske A... Washington Nat... A recent New York case said that the plea can never be presented by a resident of the forum. & S. supra note 35. Green Mt.'67 if the plaintiff is the local administratorof a nonresident'sestate whose appointmenthas been obtained for the sole purpose of bringing suit in the state. 675. 2d. (1945) 60 N. 1936) 200 N. Corp. R. L. E. cf. & S. Pietraroia v.'" jurisdiction will be refused. H.. 530.but . at 535. Div. Y. But cf. & 168Hoes v. 233 N.. supra note 42. Berwind-White Coal Mining Co. see United States M.. Universal Adjustment Corp. J.166 But if the plaintiff is not suing in his or own right and a nonresidentis the real party to be benefited. Mowat v. Co. at 315. supra note 167. Asbestos Ltd. v. United Fruit Co. 91 N. domestic will of to assumejurisdiction a cause. Co. R. (2d) 400. (1942) 37 N. Kantakevich v. Erie Railroad. supra note 41. 117. 434. Armor Clad Co. v. 54 N. Koster v. La Soci6te du Gaz de Paris v. (1910) 197 N. Midland Bank. v. Og. La Soci6te Anonyme de Navigation "Les Armateurs franqais". E. cit. supra note 48. 170Quigley Co. Line (C. Ins. & H. Line. A/S Den Norske A. These courts also reject the plea of forum non conveniens when the defendant is a resident of the state of suit.. 1•7 United States M. S.Y. A. v. 169 Vigil v.. supra note 111. Y.'"Other courts in which the emphasis is placed on the convenience of the parties accord no such controllingsignificanceto the residence of the parties. BowERS. (2d) 392 (an American underwriter paid the claim of a Dutch shipper and sued a Norwegian shipowner). C. supra note 41. Supp. v. Hamilton v. Trojan Engineering Corp. (Mass. N. Co. E. the fact that a codefendant is a resident has been held sufficientto justify a court in hearing the case. The SupremeJudicial Courtof Massachusettshas said: courts of residence partiesis not decisivein requiring ". ments of convenience to the court are said to be counterbalancedby the court's duty to citizens of the state who pay taxes and contribute to the upkeep of the courts. Grovey v. (2d) 561. H. Midland Bank. 1T'2 at 159. v. (1945) 185 Misc. R. S. 171 Consumers Lumber Co.

T73the United States SupremeCourt held that the plaintiff'sresidencein the forum did not compel the assumption of jurisdictionwhere the action was a derivative one in which the plaintiffhad only a small financialstake and was not himself a witness and in which no other witnesses or records needed in the trial of the case could be found in the forum state. 175Vigil v. 176330 U."' If. 174330 U.19471 FORUM NON CONVENIENS 415 Thus in Koster v.Placeof corporate of underthe doctrine stancesmightbe entitledto little consideration and whichresistsformalization looks to the forumnon conveniens.He shouldnot be deprived the presumed advantages a clear showingof facts which his home jurisdiction except upon and suchoppressiveness vexationto a defendant either(1) establish whichmaybe to as to be out of all proportion plaintiff's convenience."'176 173Supra note 42. or shownto be slight or nonexistent. S. S. That the technical domicile of the defendant in Delaware might be disregardedin such a case was suggested by the Court in the Koster case: often obtaintheir charters "Undermodernconditions corporations an fromstates wherethey no morethan maintain agentto comply far with local requirements. at 527. any balancingof conwho of a by veniences. realshowing convenience a plaintiff hassuedin the his home forumwill normallyoutweighthe inconvenience defendantmay have shown.. at 524. supra note 169."174 Cases may also arise when the defendant is a resident in which the plea of forum non conveniens should be allowed to avoid serious injustice. Corp.thereis goodreason "Where homeforumif that has been why it shouldbe triedin the plaintiff's of of his choice. (2) maketrial in the chosen becauseof considerations foruminappropriate affectingthe court's In and own administrative legal problems. may have been such a case. Lumbermens Mutual Co. a California resident brings suit in Delaware against a Delaware corporationwhich has its principalofficeand business in California on a cause of action arising in California. whileeveryotheractivityis conducted in fromthe chartering domicile suchcircumstate. The factors to be considered by a trial court in applying the doctrine of forum non convenienswhen the plaintiffis a residentwere well formulated by the Court: thereare only two partiesto a dispute. Cayuga Constr. for example. . Cuban citizens were suing a New York corporation in New York on wage claims arising out of work done for the corporation in Cuba. the plea should be available to the defendant as though suit had been brought in New York.. realitiesthat makefordoingjustice.

. 1942) 129 F. supra note 124. see Blair. Brereton v. United Fruit Co. ProceduralRules GoverningApplicationof Forum Non Conveniens. C. at 344. Canadian Pacific R. cit. shouldnot be allowed to to nal that the case submitted it for decision who must "allegeweightyreasons lies upon the defender" proceed And shouldnot be exercised". the determining as courts'decisions havedepended theirconclusions to whoseconon venienceis to be servedby the doctrine. Clergue. La Societk Anonyme de Navigation "Les Armateurs francais". 1T9La Soci6t6 du Gaz de Paris v.g. again. See also opinion of Lord Sumner in ibid. W. Burden of proof. Ferguson v. supra. supra note 37. 1. In re Norton's Settlement. supra note 123.) at 21..178 the otherhand. supra note 33. at 33. in of Courtsseldom discusstheproblem termsof burden proofbut the clearinference the New Yorkcases. [1925] Sess. (2d) 39. [19261 Sess. C. supra note 36. Scottish on doctrine cases. Rep. Here. 57.416 CALIFORNIA LAWREVIEW 35 [Vol. apparently. (1898) 29 Ont. supra note 35. Brandao v. supra note 145. Cas. Gainer v. Donner. in The placingof the burdenof proofis of majorimportance the of administration the doctrine.the burdenis on the plaintiffto show "special reasons" shouldbe assumed. questions of tion has beengivento the problems fixingthe burden proofand of when the objectionmust be raised.. Neilson. Wertheim v. 178 Cases cited in note 177. Co. placethegreater of havebeenclearthat the "burden satisfyingthe tribufor example. op.1" least.'" a numjurisdiction whyan admitted 177E. Melvin (App. cf. On why jurisdiction of courtswhichlook to the convenience the partiesin applyingthe The burden thedefendant. Melvin v.Must the plaintiffwho has practical established jurisdiction the courtoverthe partiesandthe subthe of of ject matterof the actiongo furtherand proveto the satisfaction the courtthatthe forumis an appropriate for trialof the case?Or one should the defendanthave the burdenof establishingthe factors necessaryto persuadethe judge to exercisehis discretionto refuse Courtswhichemphasize convenience the courtas a to jurisdiction? basisfor the doctrine on tendto placethe greater burden the that the defendant's of of burdendoes not extend beyond showingthe nonresidence the partiesandthe fact that the causeof actionaroseoutsidethe state-matterswhich usually will appearon the face of the complaint. D. L. While most forum non convenienscases have ignoredthe prosomeattencedural of involvedin application the doctrine. . (H. Cas.

Co. With this. 181 Supra note 42. the dissenters disagreed. Mere inconvenience is not enough. while not so explicit. Co. & W. Standard Surety & Cas. 28 A.. v. supra note 41.but indicates suchdisadvantage to support inference the forum as the that he chooseswouldnot ordinarily thoughta suitableone to decide be the controversy.especiallyin view of the failureof plaintiff's answeringaffidavitto advance any reasonof convenienceto the plaintiff. We hold only that a district court. supra note 155. 443. Laughlin (1942) 132 N." . But cf."1x The United States SupremeCourt had difficultywith the problem In of burdenof proof in Koster v.1947] FORUM NON CONVENIENS 417 ber of Americancases."'13 It is submitted. Eq. Caravel Industries Corp. appearto assume that the burden is on the defendant.Y8s support of its plea of forum non conveniens. that the problempresented to the Court was not one of burdenof proof but. v. The dissenters also said that it "requires strong and clear proof to overcome the presumption that the place of trial is controlled by the venue statute. saying: "ThisCourtcannotsay that the DistrictCourtabusedits discretion in givingweightto the undenied of swornstatements fact in defendant'smotionpapers. The majority of the Court upheld the district court in dismissingthe action. the defendant in that case submitted affidavits showing that all the witnesses and records which would be requiredin the trial of the case were in Illinois and that tremendousexpensewouldbe involved in transportingthem to the forum state of New York. Quigley Co. Carnegie v. S. as the majority. R. Kantakevich v. Asbestos Ltd. 183Ibid. however.appearedto real180 Universal Adjustment Corp. did not deny the allegations of these affidavits nor allege any special convenience which would accrue to him throughtrial in New York but merely submitted a memorandumof law in which he argued that the trial court had no discretionin any event to refuse to hear the case.. J. may refuse to exercise its jurisdiction when a defendant shows much harassmentand plaintiff'sresponsenot only disclosesso little counter- vailingbenefitto himselfin the choiceof forumas it doeshere. R. saying: "It is the defendant's burden to convince the court that the forum is both inconvenient to it and not convenient to the plaintiff. D. at 531. in a derivative action. 182 330 U. v. The plaintiff.. (2d) 506. at 535.a residentof New York."'182 The dissenting justices construed this portion of the opinion as holding that the defendant need only show inconvenienceto himself and that then the plaintiffmust show that it is to his legitimate advantage to bring suit in the particular forum. LumbermensMutual Co. L.. Midland Bank. both supra note 41.

Pierce v. Brandao v. Rothstein v. (2d) 305. The cases to date have given little attention to the problem of waiving the plea of forum non conveniens.185To allow the plea and dismiss the case after the plaintiff has gone to the expense of preparing for trial would work an unnecessary hardship on him. supra note 37. Y. Co. Sup. supra note 41 (same). Larrive v. & I. On the first . 186Waisikoski v. Supp. supra note 53. supra note 36. Stressing the obvious and legitimate advantages which would accrue the dissenters contended that the defendant's bare allegations that witnesses and documentswould have to be brought from Illinois were to theplaintiff fromsuitin his homestateas opposed suitin Illinois. Beach. The complete disregard by the New York courts of convenience to the parties as a factor in applying the doctrine is illustrated by Collard v.. (1947) 68 N. Prince Line (1928) 224 App.The dissenters held it was not. supra. The question was whether the showing made by the defendant in his undenied affidavits as to the relative convenience of the parties was so slight that it was an abuse of discretion for the trial court to dismiss the suit. rev-'d. Emphasis on convenienceto the court. Co. 33 S. cf. 764. S. Ct. Philadelphia & Reading C. Y.418 CALIFORNIA LAW REVIEW [Vol. Miller. the court held the plea was interposed too late when the defendant waited until the close of the trial. Russell (1895) 12 Tex. 949. Great Western Ry. v. supra note 145. 708 (cannot raise for first time on appeal). United Fruit Co. Canadian Pacific Railway Co. Civ.The defendant apparently may interpose the plea even after the case has gone to trial'86 and the court may raise the objection on its own motion at any time. 35 ize. and the discussion of burden of proof served only to obscure that issue. Equitable Life Assurance Society. to not sufficient justify dismissalwithouta detailedshowingof the to hardship involved. App. v. one of appellate review.l'4 The majority held that the defendant'sshowingwas sufficient.. & I.On principle it would seem that a defendant seeking dismissal of an action on the ground that trial in the forum will work an injustice should be compelled to raise the issue at least by the time of his answer. Philadelphia & Reading C. The basic dispute between the majority and the minority concerned the extent to which the Supreme Court should substitute its discretion for that of the district court. Freeman (1890) 120 N. 185A few cases support this view. Rothstein (N. 82.. supra note 53. even on appeal. When the objections must be raised. 230 N Y. 187Waisikoski v. supra. 217. supra note 36 (waived by general appearance).'s7 184 See notes 113-115. E. Y. has led the New York courts to treat the plea of forum non conveniens almost as jurisdictional. Collard v. Co. 1946) 66 N. 420. cf. Co. In Burdick v. (2d) 884. Western Union Tel. Y. W.. Div. Beach. S. Morisette v. 24 N. however. 2.

A floor amendmentto H.No.. v. is clearly not an obstacle today. loc. And the broad approval recently given by the soon be removed. Gilbert. Gulf Oil Corp.See also H. Coffey.loc. The plaintiff may be denied the right to sue in the state where he resided at the time the cause of action arose only in the rare cases when his suit is so obviously vexatious and oppressive to the defendant as to far outweigh the convenience of suit at home. 9360. It is clear that it would be held an abuse of discretion for a trial court to refuse to hear a suit brought in the state where the facts giving rise to the cause of action occurred or where the defendant has his actual domicile. R.18s United States Supreme Court to use of the doctrine in the federal courts'89should have the effect of encouragingits more general application by the state courts. PatersonCo.v. supra note 36. see supra note 29. 188Congressional action is possible. . giving courts discretion to refuse to hear transitory causes of action whenever trial in the forum would be inappropriate. 189Koster v.'90 and that experience has been for the most part ignored in the application of the doctrine in other types of cases. cit. R. cit.and ordered new trial. at 421. (1947). supranote 36. Lumbermens Mutual Co. REC. 1639.1947] FORUMNON CONVENIENS 419 Widespread adoption of the doctrine of forum non conveniens is now possible. The casesare reviewedin ROBINSON.On the secondappeal. 1st Sess. which was intendedto changethat bill from one limitingvenue to one making was recentlyrejectedby the House of applicablethe doctrineof forum non conveniens. Representatives.the lower court a denieddefendant's motion to dismisson the groundthat his failureto raisethe question on the first trial had causedthe plaintiffto incurlarge expenses. supra note 42.Only in admiraltycases has there been any considerable body of experience with a rule giving trial courts discretionto refuse to assume jurisdictionof causes. 80th Cong. 422. at 4. The relative immaturity of the doctrine of forum non conveniens in America makes impossible a precise cataloguing of the factors which govern trial court discretion. (July 17. And all cases hold that jurisdiction and appeal. the court held this was a "clearlyinsufficient" reasonfor hearingthe case and reversed. The current uncertainty as to the availability of the doctrine under the special venue provisions of the Federal Employers' Liability Act will. supra note 6. The privileges and immunitiesclause. On the retrial. 613. No other federal constitutional objections are seriously suggested.the court raisedthe objectionthat the partieswere nonresidents the causeof action foreignon its own motion. which once was thought to bar applicationof the doctrinewhen the plaintiffwas an individualcitizen of another state. supranote 70.. it is hoped. REP. Part 2. courts are formulating rules governing trial court discretion. 1947) 93 CONG.9366. However. 190 Many of the casesare citedin Canada MaltingCo.

Yet the doctrinehas proved a poor device for this purpose in New York where it is applied with emphasis on alleviating the burden on the local courts and taxpayers. "Convenience" and "justice" are relative terms and trial courts can intelligently apply the doctrine only if they know whose interests are to be protected. particularlyin per191 Cases cited in notes 126. 145.35 must be assumed if the defendant is not subject to process. or the statute of limitations has run. Furtherexperiencein the applicationof the doctrinewill doubtless give rise to precedents applicable to many situations but."a" other cases jurisdiction is assumed even though the burden imposed on the defendant by trial in New York is severe and the compensatingbenefit to the plaintiff slight. . on the whole. if one state shuts its courts to residents of another state.192 Even in applying the doctrine with the objective of doing justice between the parties. And some uncertainty is to be preferred to a system of rigid venue rules which. Here the decision to assume or refuse jurisdiction must be based on a careful weighingof the facts in each case if justice is to be done. In the long run there will probably be no gain but a loss and it would seem more desirable. supra. inevitably work injustice in many cases." GoODRICH. supra. supra. The New York cases perhaps justify the following criticism of the doctrine of forum non conveniens: "It may be argued that some courts are crowded. The importance of agreement on objectives is easily illustrated. there may be retaliation by the other state. courts should be able to agree on the general objectives to be attained by application of the doctrine. Uncertainty as to the scope of trial court discretion arises when the defendant is subject to suit at the residence of the parties or the place where the cause of action arose. as we have seen. in the state that he claims is more appropriate. of necessity. Delay. 192 Cases cited in note 126. to allow free flow of litigation. However. 146. cf. and the plaintiff brings suit in yet another state. cases cited in note 187. and that foreign suits are burdensome while the fees paid do not cover the cost of the suit.CONFLICTOF LAWS (1938) 15. definite rules for all cases can never be expressed. courts must take care to see that the effort to minimize hardship to the defendant does not result in imposing new and unreasonableburdenson the plaintiff. In that state a nonresidentplaintiff will frequently be denied the right to sue on a transitorycause of action even though the New York courts are those In most appropriatefor the trial of the action.420 CALIFORNIA LAW REVIEW [Vol. In this article the doctrine has been suggested as a device to limit the plaintiff's choice of forums in order to prevent undue hardship to the defendant without at the same time permittingthe defendantto evade or minimizehis obligations. However.

R. even though the venue is proper".'"9 Furthermore. Mere general allegations that witnesses and documentsmust be transported from a distant state should not suffice.And in some cases the court may find it desirableto stay the action instead of dismissing. cit. Gilbert. thereby reserving power to protect the plaintiff if the defendant repudiates his stipulations in the foreign court. cit. See GIBB. ibid. No cases imposing conditions on a.'"5 193 Foster. H. at A132.And the addedexpense of suit statemaybe sufanddifficulties commencing anewin another ficient to wipe out a plaintiff's claim. 194 An even more desirable alternative to dismissal of the suit may be available in the federal courts if the revision of the Judicial Code now pending in Congress is passed. For a fuller discussion of this idea see Foster. lst'Sess. No. Often these factors will make outright dismissal of the suit improper. v.To avoid unnecessary hardship to the plaintiff resulting from the delay consequent to starting a new suit the defendant might even be requiredto take any steps necessary to secure an expeditious trial in the other state. (1947) ? 1404 (a) provides: "For the convenience of parties and witnesses." Thus the dismissal might be made conditional upon the defendant's stipulating to admit service and waive all objections to suit in the state that he considers more appropriate. a district court may transfer any civil action to any other district or division where it might have been brought. permitting transfer to a more convenient forum. REv. at 228. (Italics supplied. the basic considerationshould be "whether and the ends of justicemightbetterbe servedby trialelsewhere. the English and Scottish courts sometimes stay actions rather than dismiss them. the burden in every case should be placed squarely on the defendant to make a detailed factual showing that the inconvenienceto him of trial in the forum far outweighs the convenience to the plaintiff. (1947). REP. supra note 35. however. at 515: "For any individual or corporate defendant who does part of his business in states other than the one in which he is sued will almost invariably be put to some inconvenience to defend himself. 308. R. the dissenting opinion of Justice Black in Gulf Oil Corp. op.favors the defendant.since individuals and corporations who choose to do business in many states will probably be put to such inconveniencewherever suit is brought and that fact should not permit them to minimize their obligations. op. 2055.19471 FORUM NON CONVENIENS 421 sonal injuryactions." The committee report states that this was drafted "in accordance with the doctrine of forum non conveniens. 80th Cong. on what terms". Still other conditions might be appropriate. dismissal under the doctrine of forum non conveniens have been found. 1st Sess. at 50.) L. 80th Cong. As Foster has suggested. 195 Cf.To affordrelief to the defendant in such situations courts must be able to issue conditionaldecrees. H. supra note 1. 44 HARV. It will be a poorly represented multistate defendant who cannot produce substantial evidence and good reasons fitting the rule now adopted . supra note 6. in the interest of justice.

"See also dissentingopinionof Justice Reed in Koster v. by this Court tendingto establishthat the forum of action againsthim is most inconMutual venient. Caution must be exercised in every case if the plea of forum non conveniens is not to become a powerful weapon in the hands of the defendant who is seeking to avoid his obligations.supranote 42.422 CALIFORNIA LAWREVIEW [Vol. .35 The modernrules of venue and jurisdictionhave been designed to give a plaintiffevery reasonableopportunityto recoverfor his wrongs. Lumbermens Co.. He should be denied the right to sue on a transitory cause of action in a court with jurisdiction over the parties only on a clear showing that he is abusing those rules for the purpose of vexing and harassing the defendant. at 536.

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