Forum non conveniens is an equitable doctrine that allows a court to decline jurisdiction where it would otherwise be proper when the court deems, in its discretion, that the action could be more appropriately tried in another forum. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 504 (1947). Courts must first determine whether an alternative forum is adequate and available, and then must weigh the private interests of the litigants and the public interest in having the case heard in each forum. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 n.6 (1981). The Supreme Court recently clarified that a modified forum non conveniens analysis, balancing only public interest factors, is also relevant when evaluating forum selection clauses pointing to nonfederal forums. Atl. Marine Const. Co. v. U.S. Dist. Ct. for W. Dist. of Tex., 134 S. Ct. 568, 580 (2013).
January 06, 2017 Articles
Recent Developments in Aviation Litigation: Forum Non Conveniens
By Erika Maurice and Vincent Lesch
Petersen v. Boeing Co.
The complexities of applying the forum non conveniens test when a forum selection clause is involved were taken up recently on remand by the District of Arizona in Petersen v. Boeing Co. (Petersen II), 108 F. Supp. 3d 726 (D. Ariz. 2015). The case stemmed from a dispute between Boeing and a former employee, Robin Petersen, who had been hired as a flight instructor at one of Boeing’s subsidiaries in Saudi Arabia. Id. at 727; see also Petersen v. Boeing Co. (Petersen I), 715 F.3d 276, 278–79 (9th Cir. 2013). After a disastrous stint in Saudi Arabia, the plaintiff brought suit against Boeing alleging numerous contractual, statutory, and common–law claims based on shockingly bad living conditions and forced confinement in Saudi Arabia after his employer confiscated his passport. Petersen II, 108 F. Supp. 3d at 727; see also Petersen I, 715 F.3d at 278–79.
The plaintiff’s claims were complicated by the fact that he had signed an employment agreement that included a forum selection clause requiring any disputes arising under the contract to be resolved in the labor courts of Saudi Arabia. Petersen II, 108 F. Supp. 3d at 727; see also Petersen I, 715 F.3d at 278–79. The plaintiff’s complaint was initially dismissed with prejudice for improper venue due to this issue. Petersen I, 715 F.3d at 279. This ruling, however, was reversed and remanded by the Ninth Circuit for an evidentiary hearing (1) to determine whether the forum selection clause at issue was enforceable and (2) to conduct a separate analysis of whether the forum selection clause, if enforceable, required dismissal of Petersen’s noncontract claims. Id. at 283.
After remand to the district court, all the plaintiff’s claims were dismissed, except his claims of fraud and false imprisonment. Petersen II, 108 F. Supp. 3d at 727. The plaintiff then filed a motion for partial summary judgment that the forum selection clause in his employment documents was unenforceable. Id. The district court initially denied this motion, on the ground that material facts remained in dispute, and then held an evidentiary hearing to address whether the Saudi forum selection clause was valid and enforceable. Id.
The district court began its analysis of the forum selection clause by cutting straight to what it decided was the critical prong of the required forum non conveniens analysis—whether the specified labor courts of Saudi Arabia were an adequate and available forum. Id. at 729 (citing Atl. Marine, 134 S. Ct. at 581–82; M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15 (1972)). The court did not get into the disputed facts regarding the validity of the clause itself, such as whether the plaintiff had been forced to sign the employment agreement document containing the clause upon his arrival in Saudi Arabia or whether he was given time to read or understand it before doing so. Id. at 728. Instead, the court addressed the significance of a fact the parties’ experts agreed on: The Saudi labor court would only credit testimony corroborated by two male Muslim witnesses. Id. at 729, 731.
Based on this undisputed fact, the court held that the Saudi labor courts were not an adequate forum for the plaintiff’s claims, and it did so in a scathing rebuke of the Saudi justice system. According to the court, the Saudi law requiring two male Muslim witnesses was “not merely a ‘procedural difference[]’ but one that offends the notion of equality before the law on which the American system of justice is premised.” Id. at 732. The court distinguished its ruling from those of other district and circuit courts that previously found Saudi Arabia to be an adequate forum, reasoning that in none of those cases was it brought to the court’s attention that the plaintiff would be treated unfairly or wholly denied a remedy as Petersen would be. Id. at 732–33 (citing Spradlin v. Lear Siegler Mgmt. Servs. Co., 926 F.2d 865, 869 (9th Cir. 1991); Forsythe v. Saudi Arabian Airlines Corp., 885 F.2d 285, 290 (5th Cir. 1989)). While this evidentiary requirement would not foreclose Saudi Arabia as a forum in all cases, it was undisputed that Petersen’s claims were largely based on evidence not memorialized in writing or recorded, turning instead on testimony and circumstantial evidence from non-Muslims. Id. Therefore, in this case, the Saudi forum was not adequate or available for his claims and the forum selection clause could not be enforced.
Keywords: litigation, mass torts, forum non conveniens, forum selection
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