A Lesson on Forum Non Conveniens

Yousef v. General Dynamics Corp., 205 N.J. 543 (2011).  In deciding where a case can be brought, New Jersey courts normally honor the plaintiff’s choice of forum, especially where the plaintiff is a New Jersey citizen.  A defendant who seeks dismissal on the grounds that the chosen forum is inappropriate has the burden of showing that the plaintiff’s choice is “demonstrably inappropriate.”  Appellate review of a decision on such a motion proceeds under the “abuse of discretion” standard, which is deferential to the ruling of the trial level judge.  In this case, a unanimous Supreme Court upheld the decision of a judge in Bergen County that this case was appropriately venued in New Jersey.  Justice Albin wrote the opinion, which provides a useful review of the New Jersey law of forum non conveniens.

The case involved an auto accident in South Africa.  Plaintiffs, New Jersey citizens who were civilian employees of the United States Army, were in South Africa with personnel from defendant General Dynamics, for the purpose of testing and procuring certain munitions made in South Africa.  Plaintiffs were citizens of New Jersey.  The accident occurred when the driver of their vehicle, who was an employee of General Dynamics, ran a stop sign and their vehicle was hit by another vehicle whose driver was never identified.  General Dynamics does business in New Jersey though it is not a New Jersey citizen.  Both plaintiffs got some medical treatment in South Africa, but received far more extensive medical attention in the United States after returning here.  After the accident, the intersection where the event occurred was reconfigured.

Plaintiffs filed suit in Bergen County.  General Dynamics moved to dismiss the case on forum non conveniens grounds.  Defendant claimed that the case should have been filed in South Africa.  Both lower courts and, ultimately, the Supreme Court, disagreed.

The key to forum non conveniens analysis is the multi-factor test of Gulf Oil Co. v. Gilbert, 330 U.S. 501 (1947).  That test consists of “public interest factors” and “private interest factors.”  Justice Albin found that the private interest factors were, “at best, in equipoise.”  All of the people in the vehicle were available in the United States, evidence had been or could be brought to New Jersey from South Africa, and the accident site had been reconfigured, thereby precluding any benefit from a view of the scene.  The public interest factors were found to favor plaintiffs.  Given the standards cited at the beginning of this posting, the Law Division had not abused its discretion in permitting the case to proceed in New Jersey. 

The Court recognized, however, that there “practical problems with litigating this matter in New Jersey.”  Accordingly, Justice Albin made some suggestions for equitable procedures that the trial judge could use to overcome those difficulties short of shipping the case to South Africa.  First, the court might “consider relaxing the Rules of Evidence for the purpose of admitting relevant evidence that bears a strong indicia of reliability” (emphasis by the Court).  Second, the parties could use the de bene esse deposition procedure, potentially including videoconferencing, to depose South African witnesses.  Third, although there was no statutory authority to implead the South African municipality as a defendant, the court might consider, “as a matter of equity,” allowing the jury to apportion fault between defendants and the municipality.

The Court bent over backwards to allow these very sympathetic New Jersey plaintiffs to proceed with their case in New Jersey.  In doing so, the Justices invoked equitable procedures that would temper the effect on defendants of doing that.  As Justice Albin noted, forum non conveniens is an equitable doctrine.  The Court used “the Chancellor’s foot” to do equity here.