Aviation cases tend to involve more jurisdictional and choice-of-law litigation than their terrestrial counterparts. Often the most important and critical motions in an aviation case are right at the outset. Decisions on jurisdiction, forum non conveniens, choice of law (as well as the application of maritime law), and preemption will shape the rest of the case, or terminate it before it ever really starts.
Jurisdiction is the “power to act” by a court. Without jurisdiction, a court has no power over a dispute. Recent decisions by the United States Supreme Court continue to shape the landscape of personal jurisdiction, and any attorney practicing international law should be abreast of the changes. Attorneys at Krutch Lindell have written and lectured on issues of personal jurisdiction, and have fought for the rights of their clients in both trial courts and courts of appeal to make sure that the right court has the “power to act.”
Forum Non Conveniens
Forum non conveniens is a procedural mechanism that allows a defendant sued in the U.S. to seek to remove a case to a foreign jurisdiction because the foreign jurisdiction is a more convenient forum to hear the case. The defense is often abbreviated FNC.
From a procedural standpoint, FNC analysis usually precedes choice of law analysis. A court granting a FNC motion would not make a choice-of-law determination, as the foreign court will assume jurisdiction and determine the applicable law.
The doctrine of forum non conveniens presupposes that there are at least two forums in which the defendant is amenable to process. Therefore, in ruling on a FNC motion to dismiss, a trial court must first determine whether the defendant has identified an adequate alternative forum. If the alternative forum proposed is adequate, the Court must then balance the convenience factors set forth in Johnson v. Spider Staging Corp., Supra (adopting the Gulf Oil v. Gilbert, 330 U.S. 501 (1947) factors, verbatim):
Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforcibility [spelling original] of a judgment if one is obtained. The court will weigh relative advantages and obstacles to fair trial. It is often said that the plaintiff may not, by choice of an inconvenient forum, ‘vex,’ ‘harass,’ or ‘oppress’ the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy. But unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed.
Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S. Ct. 839, 843, 91 L. Ed. 1055 (1947)
In most circumstances, plaintiffs fare best in United States courts, applying United States law. However, exceptions can, and do occur. Defendants do not always research foreign law as well as they should, and a thorough analysis of foreign law sometimes reveals advantages for the plaintiff. Defendants can sometimes end up in a “briar patch” of their own making. If a FNC motion is granted and the case is pursued abroad, the litigation may still result in a substantial award. When that occurs, collection efforts may often be resumed in the United States. If the award is significant, the defendant may experience what one commentator has called “Forum Shopper’s Remorse”. Such a defendant may wish, in hindsight, that they had the benefit of the body of law and appellate rights afforded in the courts of the United States.
Choice of Law
Attorneys at Krutch Lindell evaluate each forum’s law with relation to each issue in the case before selecting a forum. Properly analyzing these issues can make a significant impact on the case. For example, attorneys at Krutch Lindell have argued for (and won) the application of punitive damages against defendants where those damages were available in the defendants’ home states, but not in the state where the case had to be brought.