A motion to dismiss under the doctrine of forum non conveniens—a motion under which it is argued that there exists a more convenient forum for the litigation than the present one—can be a powerful weapon in a defendant’s arsenal. A successful motion rebukes the plaintiff for his initial choice of forum and can cause inconvenience to the plaintiff equal to or greater than that which the defendant would have suffered had the action not been dismissed. The courts that are faced with these motions must balance the convenience—to each of the parties—of keeping the litigation in the present forum. This chapter discusses the recent decision by the Second Circuit Court of Appeals in Murray v. British Broadcasting Corp., which affirmed the district court’s dismissal under this doctrine.

The Doctrine of Forum Non Conveniens

The doctrine of forum non conveniens, which “involves the dismissal of a case because the forum chosen by the plaintiff is so completely inappropriate and inconvenient that it is better to stop the litigation in the place where brought and let it start all over again somewhere else,” should be used to dismiss an action only when the defendants demonstrate that they will suffer “oppressiveness and vexation . . . out of all proportion to the plaintiff’s convenience.”

In Gulf Oil Corp. v. Gilbert, the Supreme Court set out a series of considerations to guide the district courts in applying the doctrine. Initially, the defendants must demonstrate that there exists an adequate alternative forum for the litigation. If they fail to make this showing, the court’s inquiry stops, and the case will not be dismissed under the doctrine. If the court determines that there is an adequate alternative forum, the court must then balance factors relating to the convenience of the litigants (the private interests) and factors relating to the convenience of the forum (the public interests) to determine which available forum is the most appropriate for trial and resolution of the issues. The burden of persuasion remains on the defendants for every factor. If the factors are at equipoise, or if they tip slightly toward the defendants, the court should not dismiss the plaintiff’s complaint under the doctrine.