Federal Court Doctrine Article Published


Published in the Louisiana Association for Justice, “Louisiana Advocates”
by Richard M. Martin, Jr.
Lamothe Law Firm, LLC

With respect to defining the doctrine of forum non conveniens, the Fifth Circuit has explained:

“Although the plaintiff’s choice of forum should not ordinarily be disturbed, the doctrine of forum non conveniens permits a court to resist imposition upon its jurisdiction even when subject matter jurisdiction is conferred by statute or personal jurisdiction is conferred by minimum contacts or consent.”1

In determining whether a particular forum is appropriate, the court is required to balance the private interests of the litigants as well as the public interest of the chosen forum.2  The private interests to be considered include:

(i) Relative ease of access to sources of proof;

(ii) Availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses;

(iii) Possibility of view of premises, if a view would be appropriate to the action;

(iv) All other practical problems that make trial of a case easy, expeditious and inexpensive; and

(v) Enforceability of a judgment if one is obtained.3


The public interest factors include:

(i) The administrative difficulties flowing from court congestion;

(ii) The local interest in having localized controversies resolved at home;

(iii) The interest in having the trial of a case in a forum that is familiar with the law that governs the action;

(iv) The avoidance of unnecessary problems and conflicts of law, or an application of foreign law; and

(v) The unfairness of burdening citizens in an unrelated forum with jury duty.4

Defendants continue to argue that “In assessing forum non conveniens, the court must first decide whether U.S. law or foreign law applies.”5  That’s because the Fifth Circuit previously applied a “‘two-prong admiralty forum non conveniens analysis’ which required that the district court determine the choice of law before addressing the issue of forum non conveniens.”6  “However, this is no longer binding law within the Fifth Circuit as Vaz Borralho was expressly overruled on this very issue.”7

“Courts no longer use a modified forum non conveniens analysis in any cases, including those arising under the Jones Act and involving general maritime law.  Now, choice of law is just one of the many considerations in the forum non conveniens analysis and alone is not determinative.”8  The Fifth Circuit has explained that “[i]n deciding whether to dismiss a case for forum non conveniens, the district court must first determine whether an adequate alternative forum is available.”9 (underscore emphasis added)  “If an alternative forum is both adequate and available, the district court must then weigh the various private and public factors to determine whether dismissal is warranted.”10  “Ultimately, the inquiry is where the trial will best serve the convenience of the parties and the interests of justice.”11

“A plaintiff’s choice of forum is not conclusive, and ‘a foreign plaintiff’s selection of an American forum deserves less deference than an American citizen’s selection of his home forum.'”12  “The Defendant has the burden of proof on all elements.”13  The Fifth Circuit has explained that this burden of persuasion runs to all the elements of the forum non conveniens analysis.  Therefore, the moving defendant must establish that an adequate and available forum exists as to all defendants (if there are several).  If the moving defendant carries this initial burden, it must also establish that the private and public interests weigh heavily on the side of trial in the foreign forum.  The Supreme Court had held that a moving defendant need not submit overly detailed affidavits to carry its burden, but it “must provide enough information to enable the district court to balance the parties interests.”14

1 Gonzalez v. Naviera Neptuno A.A., 832 F.2d 876, 878 (5th Cir. 1987) (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947)).
2 Id.
3 Id. (citing Gilbert, 330 U.S. at 508).
4 Id. (citing Gilbert, 330 U.S. at 510; In re Air Crash Disaster Near New Orleans, La. On July 9, 1982, 821 F.2d 1147, 1162-63 (5th Cir. 1987)).
5 See, e.g., Volyrakis v. M/V ISABELLE, 668 F.2d 863 (5th Cir. 1982).
6 Layson v. Baffin Investments, Ltd., 2015 WL 5559886, at *3 (M.D. La. Sept. 18, 2015) (quoting Vaz Borralho, et al. v. Keydril Co., et al., 696 F.2d 379 (5th Cir. 1983)).
7 Id. (citing In re: Air Crash, 821 F.2d at 1163).
8 Id.
9 O’Keefe v. Noble Drilling Corp., 347 F. App’x 27, 31 (5th Cir. 2009) (citing In re: Air Crash, 821 F.2d at 1165)).
10 Id. (citing In re: Air Crash, 821 F.2d at 1165).
11 Id. (citing DTEX, LLC, v. BBVA Bancomer, S.A., 508 F.3d 785, 794 (5th Cir. 2007)).
12 Id. (citing In re: Air Crash, 821 F.2d at 1164).
13 Id. (citing DTEX, LLC, 508 F.3d at 794).
14 In re: Air Crash, 821 F.2d at 1164-65 (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 258 (1981)).

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