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William C. Altreuter
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Friday, November 14, 2014

Fridays are Law Days (sometimes) here at Outside Counsel. Today, recent developments in the law of forum non conveniens. At various times forum non conveniens has been a valuable tool to have on our belt. Our hospitality practice frequently involves case in which the plaintiff was injured while on vacation, and until Daimler AG v. Bauman New York's liberal long arm statute meant that suing, for example, a Mexican resort in Nassau County didn't require much of a jurisdictional showing with regard to the contacts the resort had with the Empire State. Daimler is going to be a big mess, but until that all gets sorted out it is still more or less true that New York courts can't do much on their own about  actions that have nothing to do with New York State if the parties want to litigate here. The rule has been that a party must bring a forum non conveniens motion for the court to consider whether it maybe makes sense for a matter to be litigated elsewhere. (As the kids say, See, e.g. VSL v. Dunes Hotels & Casinos.)

Comes now Mashreqbank PSC v. Ahmed Hamad A1 Gosaibi & Bros in which the Court of Appeals holds that although nobody asked to have the case in chief dismissed on forum non conveniens grounds, the fact that a third party defendant so moved was sufficient to allow the court to consider the matter globally, and dismiss the whole shootin' match. Even more interesting, the court found that even though the decision to dismiss on forum non conveniens grounds is usually discretionary, in this instance the case was "one of the relatively uncommon ones in which dismissal on forum non conveniens grounds is required as a matter of law." There is a lot there to chew on. For one thing, as a general rule a motion for a forum non conveniens dismissal is nearly always best brought in the early going. It gets a lot more conveniens for everybody if there's been some discovery had, for example. New York makes a big deal about what a swell forum it is for international dispute resolution, and it would be interesting to know the extent to which being a favored forum for that sort of thing contributes to the economy. It's not a sneeze would be my guess, but Mashregbank seems like it injects an element which will muddy the waters somewhat. (On the other hand, seeGeneral Obligations Law §5-1402(1).)

As a rule it has been our experience that the best practice is to first remove to federal court cases that we want bounced on forum non conveniens grounds. For one thing, the rules are a bit more straightforward, and for another, since federal courts are courts of limited jurisdiction anyway they tend to be less bashful about dismissing stuff. That's still going to be the way we'll go when we can.



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