The doctrine of forum non conveniens (FNC) permits a federal district court to dismiss an action on the ground that another court, even one in a foreign jurisdiction, “is the more appropriate and convenient forum for adjudicating the controversy.” Sinochem Int’l Co. v. Malaysia Int’l Shipping, 549 U.S. 422, 425 (2007). Among other factors relevant to the FNC analysis, courts must consider the adequacy of an alternate forum to hear the plaintiff’s claims. See, e.g., Pollux Holding Ltd. v. Chase Manhattan Bank, 329 F.3d 64, 75 (2d Cir. 2003); Bank of Credit & Com. Int’l (Overseas) Ltd. v. State Bank of Pakistan, 273 F.3d 241, 246 (2d Cir. 2001). Other considerations include the degree of deference due to the plaintiff’s forum choice and whether the dismissal is just upon balancing private and public interest factors. See Iragorri v. United Techs., 274 F.3d 65, 72 (2d Cir. 2001); Piper Aircraft Co. v. Reyno, 454 U.S. 235, 256 (1981). Imposing conditions on an FNC dismissal can, in some cases, permit dismissal even if a court is unsure that an alternate forum is adequate, although “[c]onditions cannot transform an inadequate forum into an adequate one.” Id. at 247-48; see also Norex Petroleum Ltd. v. Access Indus., 416 F.3d 146, 159-60 (2d Cir. 2005). A recent decision from the Third Circuit limiting the extent to which district courts may condition FNC dismissals raises the question of whether the Second Circuit would impose similar limits.
How Far Can a District Court Go in Fashioning Conditions?
Many motions to dismiss on FNC grounds are granted conditionally. See Thomas Orin Main, Toward a Law of “Lovely Parting Gifts”: Conditioning Forum Non Conveniens Dismissals, 18 Sw. J. Int’l L. 475, 480–85 (2012) (collecting the subjects of conditions). Imposing conditions can ensure the case will be heard on the merits in the alternate forum. See Blanco v. Banco Indus. de Venezuela, S.A., 997 F.2d 974, 984 (2d Cir. 1993) (“forum non conveniens dismissals are often appropriately conditioned to protect the party opposing dismissal”). In a seminal case, the U.S. Supreme Court explained that flexibility must be afforded to a court in fashioning its FNC dismissal. Piper Aircraft Co., 454 U.S. at 249-50 (“[i]f central emphasis were placed on any one factor, the forum non conveniens doctrine would lose much of the very flexibility that makes it so valuable”). The court suggested a district court may condition dismissal upon a defendant’s agreeing to provide all relevant records. Id. at 257 n. 25 (noting “in the future, where similar problems are presented, district courts might dismiss subject to the condition that defendant corporations agree to provide the records relevant to the plaintiff’s claims”). Other common conditions include the defendants’ agreements to waive any statute-of-limitations defenses, accept service or consent to payment of judgment. See Owens v. Turkiye Halk Bankasi A.S., No. 20CV02648 (DLC), 2021 WL 638975 (S.D.N.Y. Feb. 16, 2021), appeal docketed, No. 21-610 (2d Cir. March 17, 2021); Calavo Growers of California v. Generali Belgium, 632 F.2d 963, 968 (2d Cir. 1980); Farmanfarmaian v. Gulf Oil, 588 F.2d 880, 881 (2d Cir. 1978). If plaintiffs refuse to agree to the conditions imposed, a district court may remove the conditions and dismiss the case outright. Order, Aenergy, S.A. v. Republic of Angola, No. 20-cv-03569 (S.D.N.Y. June 19, 2021), ECF No. 136. And a reviewing court can add conditions even if the district court did not. See USHA (India), Ltd. v. Honeywell Int’l, 421 F.3d 129 (2d Cir. 2005) (modifying dismissal to provide that plaintiffs could seek reinstatement of litigation and making dismissal contingent on the defendants’ waivers of statute-of-limitations defenses).