BALMER, C.J.
This case arises from a helicopter crash in a remote part of Peru, which resulted in the deaths of everyone on board. Plaintiffs brought wrongful death actions in Oregon against Evergreen Helicopters, Inc. (Evergreen), an Oregon corporation that provided the helicopter and the pilot. Evergreen filed motions to dismiss plaintiffs' actions on the ground that, under the doctrine of forum non conveniens, Peru was the appropriate forum in which to litigate those cases. The trial court consolidated the cases and granted Evergreen's motions.
We state the facts based on the allegations in the pleadings, supplemented by additional facts in the record. Plaintiffs are the appointed personal representatives of the families and estates of eight passengers who died in a helicopter crash in Peru. Defendant Evergreen, an Oregon corporation with its principal place of business in Oregon, owns and leases aircraft, including the helicopter that crashed in this case, and provides related services worldwide.
Plaintiffs filed civil actions against Evergreen and the pilot's estate in Multnomah County Circuit Court for the wrongful deaths of the deceased passengers, based on theories of direct and vicarious liability in negligence.
Invoking the doctrine of forum non conveniens, Evergreen moved to dismiss plaintiffs' actions on the grounds that an adequate alternative forum was available in Peru and that the balance of private and public interests favored dismissal. Evergreen asserted that a Peruvian court would be better-situated to hear the cases for several reasons. Evergreen argued that litigating the actions in Oregon would be seriously inconvenient because "the overwhelming evidence relating to [plaintiffs'] claims for negligence" is in Peru and because crucial third-party witnesses are also located there. Evergreen noted that a view of the premises was unavailable in Oregon and asserted that litigating plaintiffs' actions here was likely to result in practical difficulties, due, for example, to the fact that translators would be required for many witnesses. Evergreen further asserted that it would be unable to implead Helinka as a third-party defendant in Oregon and that Peru had the strongest interest in the controversy, particularly since that is where the crash occurred, plaintiffs are Peruvian nationals and Peruvian law will most likely apply to their claims.
In response, plaintiffs argued first that the doctrine of forum non conveniens never has been expressly recognized in Oregon and that a court may not dismiss an action on that ground because under Oregon law, a court must exercise jurisdiction over a case that has been properly conferred. In the alternative, plaintiffs argued that even if that doctrine were available in Oregon, dismissal was not appropriate in their cases because the balance of private- and public-interest factors actually weighed strongly in favor of retaining jurisdiction here. Plaintiffs asserted that a substantial amount of the evidence relevant to the litigation of their claims is located in the United States, and particularly in Oregon, where Evergreen is headquartered and has its principal place of business. Plaintiffs argued that even if their actions were litigated in Peru, a view of the premises was unlikely given its remote location, and that wherever the trial was held, the parties would be relying on demonstrative evidence and expert testimony to convey information about the crash site to the jury. Noting that their complaints alleged both vicarious and direct liability claims against Evergreen, including that Evergreen had been negligent in installing, maintaining and testing mechanical systems on the helicopter, plaintiffs asserted that a substantial factor in the cause of the crash may have been defects in avionics installed by Evergreen in Oregon. As a result, plaintiffs asserted, Oregon has a strong interest in this litigation.
The trial court concluded that the doctrine of forum non conveniens is available and that Oregon trial courts have the "discretion to dismiss an otherwise properly filed case if the court determines that an adequate alternative forum exists and that trying the action elsewhere would best serve the convenience of the parties and the ends of justice." Applying that standard, the court dismissed plaintiffs' actions. The trial court issued a letter opinion setting out its conclusions. First, the court considered whether Peru provided an adequate alternative forum. Noting that plaintiffs had initially conceded that point in their briefing, before later arguing that the statute of limitations had run in Peru and that it therefore was not an adequate forum, the trial court determined that Evergreen's offer to waive its statute of limitations defenses in Peru was sufficient to address that concern. The trial court then proceeded to "the weighing of a number of private- and public-interest factors to determine whether trying the action in Peru would best serve the convenience of the parties and the ends of justice." The trial court recognized that its analysis would "depend[] in large part on how one views the dispute between the parties." However, it did not make any express factual findings to support its conclusions or state how those findings would shape its analysis. Rather, the court summarily concluded:
Plaintiffs appealed and the Court of Appeals reversed in part. The Court of Appeals agreed with the trial court that forum non conveniens is available in Oregon. To articulate the standard that trial courts should apply in deciding whether to dismiss a case on that ground, the Court of Appeals drew from Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), and subsequent federal cases. Reviewing the trial court decision for abuse of discretion, the Court of Appeals held that the court did not err in concluding that Peru offered an adequate alternative forum,
Second, Evergreen disputes the Court of Appeals' statement that the trial court erred in making factual determinations that relate too closely to the "merits" of plaintiffs' underlying claims. Noting that the trial court never expressly stated that it was disregarding any evidence or that it had decided what that evidence might show, Evergreen asserts that the trial court did not improperly disregard those direct negligence claims that could have required discovery of witnesses and documents in Oregon. Evergreen further contends that even if the trial court did conclude that plaintiffs' direct negligence claims lacked merit and relied on that conclusion in weighing the relative advantages and obstacles to a fair trial, it did not err in doing so. Rather, Evergreen asserts, resolving a motion to dismiss for forum non conveniens may require consideration of at least some aspects of the merits of a plaintiff's claims, and, as a practical matter, any preliminary view expressed by a trial court in disposing of a case on forum non conveniens grounds could not possibly interfere with a party's right to trial of disputed issues of fact in the underlying dispute.
In response, plaintiffs urge us to reject the doctrine of forum non conveniens. Noting that this court need not rely on federal precedents in deciding that common-law issue, they contend that its origin is dubious and that it "is a parochial, xenophobic and outcome-determinative doctrine that permits reverse forum shopping by powerful corporations seeking to altogether avoid accountability in their home forum for transnational torts." Plaintiffs also argue that we should not recognize the doctrine because, under Oregon law, "there is no inherent discretionary authority to decline jurisdiction in damages actions over a local defendant in favor of another venue for the sake of convenience." Finally, plaintiffs contend that even if such authority does exist, significant policy reasons weigh against allowing courts to exercise it, and that, for that reason, whether courts should be allowed to stay or dismiss an action for forum non conveniens should be left to the legislature to decide.
In the alternative, plaintiffs urge us to affirm the Court of Appeals' articulation of how the doctrine of forum non conveniens should be applied under Oregon law. Plaintiffs assert that the degree of deference given to their choice to litigate in Oregon should not depend on their status as foreigners or their assumed motive in making that choice. To the extent that the court makes any presumption about the convenience of Oregon as the forum, plaintiffs contend, the court should presume that it is convenient, since defendant is located and operates its business here. Noting that Oregon courts are hardly overrun by plaintiffs from other countries and that advances in modern technology have reduced the burden of litigating transnational cases, plaintiffs argue that an action
Finally, plaintiffs argue that the trial court erred in analyzing the public- and private-interest factors set out in Gulf Oil and that, as a result, it struck an unreasonable balance in weighing those factors. Plaintiffs contend that the procedural posture of defendant's motion, as a motion to dismiss, required the trial court to assume the truth of all well-pleaded allegations and to construe disputed facts liberally in their favor. Pointing to the trial court's statement in its letter opinion that the substance of the case is "dependent on circumstances in Peru," plaintiffs argue that this shows that the trial court relied on factual conclusions going to the merits of their claims that are contrary to the well-pleaded allegations in their complaints, and that in the process, the trial court erred by "picking and choosing" which allegations and theories to consider when assessing the ease of access to relevant witnesses and documents in each forum.
Plaintiffs acknowledge that assessing the materiality of witness testimony and other evidence requires a degree of "entanglement with the merits," but they distinguish those kinds of determinations from judging whether a particular claim or theory of liability is likely to succeed. Plaintiffs argue that a trial court deciding a motion to dismiss for forum non conveniens may ascertain certain facts, such as where particular evidence is located, but that a trial court may not shape its assessment of the relative inconvenience of litigating an action in a particular forum according to its assessment of the strength of the various claims asserted. Plaintiffs argue that treating all claims and theories of recovery the same for purposes of weighing the materiality of the available evidence and the relative ease of access to the sources of that proof in each forum is particularly appropriate where, as here, the parties have yet to conduct merits discovery.
A brief discussion of the origins and elements of the doctrine of forum non conveniens will provide context for our consideration of the issues on review. Generally, rules of personal jurisdiction and venue ensure that actions are litigated in an appropriate forum. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980) (jurisdictional due process requirement of "minimum contacts" is intended to protect defendant from burden of litigating in "distant or inconvenient forum"); Kohring v. Ballard, 355 Or. 297, 312, 325 P.3d 717 (2014) ("Jurisdiction refers to the authority of the court to hale a defendant into court, while venue concerns the particular location where it is appropriate for the court to exercise that authority."). In rare cases, however, jurisdiction and venue for an action are proper in a forum where litigating the action would be seriously inconvenient to the parties, witnesses, or the court. The doctrine of forum non conveniens — Latin for "inconvenient forum" — provides that, in such cases, "a court having jurisdiction may decline to exercise it on considerations of convenience, efficiency, and justice." Kedy v. A.W. Chesterton Co., 946 A.2d 1171, 1178 (R.I.2008) (citing AT & T Corp. v. Sigala, 274 Ga. 137, 138, 549 S.E.2d 373, 375 (2001)); see also Restatement (Second) of Conflict of Laws § 84, comment a (1971) ("The rule has been developed that a court, even though it has jurisdiction, will not entertain the suit if it believes itself to be a seriously inconvenient forum provided that a more appropriate forum is available to the plaintiff.").
The importance of forum non conveniens and the frequency with which courts have invoked that doctrine in dismissing certain actions have varied over time. Historically, restrictive jurisdictional rules tended to prevent more than one forum from being competent to adjudicate a dispute, and as a result, the rule that a court with jurisdiction might nonetheless decline to hear a case in favor of
Nonetheless, the basic principles from which forum non conveniens originates are deeply rooted in the common law. It has long been an established rule that a court may sometimes refuse to consider a case on the merits, despite having jurisdiction over the parties and subject matter. See David Shapiro, Jurisdiction and Discretion, 60 NYU L. Rev. 543, 546-60, 547-60, 571-74 (1985) (describing a court's "traditional equitable discretion not to proceed"). Indeed, although the doctrine's Latin name was not commonly used in this country until the twentieth century, a court's authority to decline to hear a case involving foreign litigants or subject matter for prudential reasons has been recognized in the United States and Great Britain for nearly two hundred years. See Gulf Oil, 330 U.S. at 504, 67 S.Ct. 839 (describing history of doctrine noting that "courts of equity and of law also occasionally decline, in the interest of justice, to exercise jurisdiction, where the suit is between aliens or nonresidents, or where for kindred reasons the litigation can more appropriately be conducted in a foreign tribunal" (internal citations and quotation marks omitted)); Robert Braucher, The Inconvenient Federal Forum, 60 Harv. L. Rev. 908, 909-18 (1947) (discussing history of forum non conveniens doctrine). As one United States district court in Maine noted in 1836:
The Bee, 3 F.Cas. 41, 43, 1 Ware 332, 336 (D.Me.1836) (internal citations omitted); see also, e.g., Tulloch v. Williams, 8 Dunlop, 657 (Scot. Sess. 1846) (notwithstanding court's jurisdiction over matter, it would decline to hear case; forum was not convenient because evidence and witnesses were in Jamaica, Jamaican law was likely to apply, and defendant had agreed to answer any process served on him there).
By the latter half of the nineteenth century, as the development of modern jurisdictional rules allowed courts to expand their extraterritorial reach, the risk of jurisdictional competition between forums increased. Accordingly, so too did the importance of forum non conveniens as a mechanism for addressing cases where jurisdiction and venue were proper but the forum unsuitable. Rutledge, Apologies at 1067; see also Paxton Blair, The Doctrine of Forum Non Conveniens in Anglo-American Law, 29 Colum. L. Rev. 1, 20-30 (1929) (describing examples of doctrine's use and evolution). Thus, as the basic contours of the doctrine crystallized, it was invoked with greater frequency by courts in a variety of jurisdictions. See, e.g., Western Railway Co. v. Miller, 19 Mich. 305, 315-16, 1869 WL 3643, *6-7 (1869) (articulating version of rule similar to modern doctrine of forum non conveniens); Pierce v. Equitable Life Assur. Soc., 145 Mass. 56, 62-63, 12 N.E. 858, 863-64 (1887) (recognizing that court may decline to exercise jurisdiction over action against defendant foreign corporation
Today, forum non conveniens is an ingrained feature of the common law, having been adopted throughout the federal courts and in nearly every state, either by judicial decision or legislative mandate. See Kedy, 946 A.2d at 1179-80 (noting recognition of doctrine in jurisdictions throughout United States). The defendant, as the moving party, bears the "heavy burden" to establish that an action should be dismissed, or stayed, on forum non conveniens grounds. Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 430, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007). As an equitable doctrine reserved to the sound discretion of the trial court, however, there is no bright line rule for when a court should grant such a motion. See Piper Aircraft, 454 U.S. at 249-50, 102 S.Ct. 252 (declining to lay down a "rigid rule" to govern forum non conveniens because "each case turns on its facts" and "[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." (Internal citations and quotation marks omitted.)); see also Sinochem, 549 U.S. at 429, 127 S.Ct. 1184 ("Dismissal for forum non conveniens reflects a court's assessment of a `range of considerations, most notably the convenience to the parties and the practical difficulties that can attend the adjudication of a dispute in a certain locality.'" (Citing Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 723, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996))).
A court's exercise of discretion in granting or denying a motion to dismiss for forum non conveniens in most jurisdictions today is guided by the two-stage, multi-factor test set out by the United States Supreme Court in Gulf Oil, discussed below, which identifies a number of private and public considerations intended to help determine the relative advantages and costs of the available forums. Restatement § 84 comment c; see, e.g., Stangvik v. Shiley Inc., 54 Cal.3d 744, 751, 1 Cal.Rptr.2d 556, 819 P.2d 14, 17 (1991) (noting adoption of Gulf Oil test); Lesser v. Boughey, 88 Haw. 260, 263-64, 965 P.2d 802, 805-06 (1998) (same); Myers v. Boeing Co., 115 Wn.2d 123, 128, 794 P.2d 1272, 1275 (1990) (same); see also, e.g., State ex rel. Ford Motor Co. v. Nibert, 235 W.Va. 235, 239-40, 773 S.E.2d 1, 5-6 (2015) (describing West Virginia forum non conveniens statute, which adopts test similar to that in Gulf Oil).
At the first stage of the Gulf Oil test, the court considers whether there is an alternative forum in which the action may be tried. At that stage, the moving party is usually required to establish, as a threshold issue, that an alternative forum is available and capable of providing relief. See Gulf Oil, 330 U.S. at 506-07, 67 S.Ct. 839 ("In all cases in which the doctrine of forum non conveniens comes into play, it presupposes at least two forums in which the defendant is amenable to process; the doctrine furnishes criteria for choice between them." (Emphasis added.)); see also Carijano v. Occidental Petroleum Corp., 643 F.3d 1216, 1225 (9th Cir. 2011), reh'g den., 686 F.3d 1027 (9th Cir. 2012), cert. den., ___ U.S. ___, 133 S.Ct. 1996, 185 L.Ed.2d 865 (2013) (under Gulf Oil, to prevail on motion to dismiss based on forum non conveniens, defendant must demonstrate existence of adequate alternative forum, meaning forum where defendant is amenable to process and that "offers a satisfactory remedy"); but see, e.g., Islamic Republic of Iran v. Pahlavi, 62 N.Y.2d 474, 484, 478 N.Y.S.2d 597, 467 N.E.2d 245, 249 (1984) (although availability of another suitable forum is important consideration, it is not prerequisite to application of forum non conveniens doctrine).
Id. In addition, the court may consider public-interest factors that are relevant to whether litigating in the plaintiff's chosen forum would serve the ends of justice. Public-interest factors identified in Gulf Oil include: the administrative difficulties and burden on the court in the plaintiff's chosen forum; the unfairness of imposing the expense of trial and the burden of jury duty on residents of a community with little or no connection to the controversy; the interest in "having localized controversies decided at home"; and choice of law issues, including whether the court will be required to apply its own law, or that of another jurisdiction. Id. at 508-09, 67 S.Ct. 839. When, on balance, the relevant private and public interests "strongly favor" litigating the action in the alternative forum, the court may dismiss the complaint, or alternatively, in some jurisdictions, stay the action. Id. at 508, 67 S.Ct. 839; see Stangvik, 54 Cal.3d at 749-51, 1 Cal.Rptr.2d 556, 819 P.2d 14 (under California law, court may either dismiss or stay action for forum non conveniens).
We next consider the threshold question presented: whether the doctrine of forum non conveniens is available in Oregon. Under the Oregon Constitution, rules of the common law that existed when the constitution took effect in 1859 are incorporated into the laws of this state. See Or. Const. Art. XVIII, § 7 ("All laws in force in the Territory of Oregon when this Constitution takes effect, and consistent therewith, shall continue in force until altered, or repealed."); Laws of Oregon 1843-49, Act of June 27, 1844, Art. III, § 1, p. 100 (1853) ("[T]he Common Law of England and principles of equity, not modified by the statutes of Iowa or of this government, not incompatible with its principles, shall constitute a part of the law of this land."); see also Fulmer v. Timber Inn. Restaurant and Lounge, Inc., 330 Or. 413, 424, 9 P.3d 710 (2000) (unless modified or abrogated, applicable common-law rules are binding on Oregon courts). As discussed, the doctrine that courts may decline to hear cases involving foreign subject matter or litigants for reasons of convenience and justice was well-established in 1859. Indeed, by that time, courts throughout the United States and Great Britain already were articulating the key elements of forum non conveniens and employing it with increasing regularity. See, e.g., McIvor v. McCabe, 26 How. Pr. 257, 16 Abb.Pr. 319, 1863 WL 3736, *2 (N.Y.Super.1863) ("Every court is primarily the judge of its own jurisdictional powers, and may assume them or decline them * * *. Whether, therefore, the court will afford jurisdiction in cases of trespass occurring out of the State may be said to rest in discretion merely, and may be denied whenever substantial justice may require it * * *.").
Recognizing those common-law roots, this court has noted the existence of forum non conveniens and its relevance as a mechanism for addressing the question of where a particular action ought to be litigated. See, e.g., Myers v. Brickwedel, 259 Or. 457, 464-65, 486 P.2d 1286 (1971) (acknowledging doctrine); Reeves v. Chem Industrial Co., 262 Or. 95, 100, 495 P.2d 729 (1972) (noting that "[c]ourts often refuse to hear a case because of forum non conveniens considerations" (internal citation and quotation marks omitted) (emphasis added)). Thus, although this court has never expressly held that forum non conveniens is part of Oregon law or reached the issue of whether a court may decline to hear a case on that ground, it has suggested as much. See State ex rel. Hydraulic Servocontrols Corp. v. Dale, 294 Or. 381,
Notwithstanding that history, plaintiffs argue that we are now prevented from formally adopting the doctrine of forum non conveniens, because the dismissal or stay of an action on that ground is inconsistent with Oregon law. Plaintiffs first contend that our precedents require courts to proceed with actions where jurisdiction and venue are proper. That characterization of our case law is incorrect. We never have held that an Oregon court is required to adjudicate any case. Cf. Couey v. Atkins, 357 Or. 460, 522, 355 P.3d 866 (2015) (although trial courts have constitutional authority to consider certain moot cases, they are not required to adjudicate such actions, merely because there is jurisdiction). Rather, we have repeatedly recognized that for a variety of reasons, "a court is not always required to exercise such jurisdiction as it may possess." Reeves, 262 Or. at 100, 495 P.2d 729. Under appropriate circumstances, a court may sometimes dismiss or stay an action for entirely prudential reasons, regardless of the type of relief sought.
This court addressed the authority of a trial court to dismiss an action for prudential reasons in Reed v. First Nat. Bank of Gardiner, 194 Or. 45, 241 P.2d 109 (1952), an action to recover money damages stemming from an alleged fraud. There, the trial court dismissed the action for want of prosecution. Id. at 49, 241 P.2d 109. On appeal, the plaintiff argued that the trial court had acted without authority because it did not comply with a statute requiring notice prior to such a dismissal. Id. at 53-54, 241 P.2d 109. This court disagreed. Noting that the efficient and diligent litigation of disputes is an essential public policy interest, we held that "[t]he power of a court to dismiss an action for want of prosecution is an inherent power, and it exists independently of statute or rule of court." Id. at 55, 241 P.2d 109. Because the trial court's dismissal of the plaintiff's complaint was "fully justified" and therefore reasonable and appropriate under the circumstances, this court held that the trial court had not abused its discretion and affirmed the dismissal. Id. at 57, 241 P.2d 109.
Since Reed, we have confirmed that courts may dismiss or stay an action, without reaching the merits, for prudential reasons in a variety of situations. See, e.g., League of Oregon Cities v. State of Oregon, 334 Or. 645, 652, 56 P.3d 892 (2002) (stating rule that even when a court has jurisdiction over an action pursuant to Uniform Declaratory Judgments Act, it may decline to exercise that jurisdiction on equitable grounds if it determines that another more appropriate remedy exists); Oregon Medical Assn. v. Rawls, 276 Or. 1101, 1106, 557 P.2d 664 (1976) (when constitutionality of statute is challenged, court may decline to entertain suit and leave issue for another day when issue is better presented in order "to most efficiently ration scarce judicial resources"); Reeves, 262 Or. at 100-01, 495 P.2d 729 (upholding trial court's dismissal of action for breach of contract based on its conclusion that forum-selection clause was not unfair or unreasonable).
Plaintiffs argue that the doctrine of forum non conveniens is contrary to the principle of comity, which, they argue, requires Oregon courts to enforce legal obligations arising under foreign law and prohibits them from treating an action differently because the litigants or subject matter originate outside the forum. Plaintiffs contend that our cases on the role of comity oblige trial courts to proceed with damages actions brought by foreign suitors.
Although the concept of comity is consistent with the view that courts ought generally to recognize and enforce rights arising under foreign law or out of conduct in other jurisdictions, we have never considered that obligation to be absolute. See State ex rel. Kahn v. Tazwell, 125 Or. 528, 544, 266 P. 238, motion to recall mandate den., 126 Or. 585, 270 P. 486 (1928), overruled on other grounds by Reeves, 262 Or. 95, 495 P.2d 729 (1972) ("Under principles of comity the courts of one state will enforce rights arising in other states, unless contrary to the laws or public policy of the state in which such enforcement is sought, and will entertain suits brought by citizens of other states." (Emphasis added.)); see also Reeves, 262 Or. at 100-01, 495 P.2d 729 (court may decline to enforce a contractual provision pointing to law of another jurisdiction if it would be "unfair or unreasonable"); McGirl v. Brewer, 132 Or. 422, 445-46, 285 P. 208 (1930) (on rehearing) (noting that the extent of comity afforded to courts in other jurisdictions is a matter of judicial policy and discretion).
Moreover, the principle of comity suggests that courts should treat their foreign counterparts with respect and not presume that the justice they offer is inherently inferior or inadequate, directly contrary to plaintiffs' position that the Peruvian courts are inadequate to decide this dispute. Rather, the respect that comity requires is consistent with the dismissal or staying of an action so that it may be litigated more conveniently and effectively in a forum abroad, particularly when that forum has a stronger interest in the underlying controversy. See Blair, Doctrine at 6 n. 34 ("To apply the doctrine of forum non conveniens to a particular case consequently does not involve ignoring the requirements of comity; on the contrary in some cases only by doing so can the requirements of comity be met."). See, e.g., Kotera, 179 Or.App. at 273-75, 40 P.3d 506 (upholding trial court's exercise of discretion in declining, for reasons of comity and convenience, to hear case more appropriately suited to Japanese tribunal). In sum, there is no rule of decision by this court that prevents us from recognizing the doctrine of forum non conveniens as part of the common law of Oregon.
Plaintiffs next contend that forum non conveniens is inconsistent with the legal framework that the Oregon legislature has provided to address where certain actions may be litigated and when trial courts may change the place of trial. Because the legislature has the power to alter or repeal common-law rules by statutory enactment, plaintiffs are correct that we must consider whether the doctrine of forum non conveniens is inconsistent with other applicable laws. See Fulmer, 330 Or. at 424, 9 P.3d 710.
Plaintiffs and amicus argue that Oregon's venue statutes are inconsistent with the doctrine of forum non conveniens. Oregon's venue statutes do establish where certain actions may be litigated and allow a court to transfer an action to another venue within the state for a variety of reasons, including the convenience of the parties, but those statutes are silent as to whether, in the interest of justice and convenience, a court may dismiss or stay an action in favor of allowing
Plaintiffs and amicus argue that Oregon's venue statutes nonetheless prohibit forum non conveniens by negative implication. In support of that view, they cite Elliott v. Wallowa County, 57 Or. 236, 239, 109 P. 130 (1910), abrogated by State ex rel. Douglas Cty. v. Sanders, 294 Or. 195, 655 P.2d 175 (1982), where this court noted that "there is no authority given a circuit court to change the venue of a case except for the causes specified in the [venue] statute," and argue that because Oregon's statute provides only that a court may transfer venue on inconvenience grounds, a court may not dismiss or stay an action for the same reason. They contrast Oregon law with other states where legislatures have enacted statutes expressly providing that courts may dismiss or stay actions for forum non conveniens. Cf. La. Code Civ. Proc. art. 123 (providing that upon motion a court may dismiss certain actions predicated on acts or omissions originating outside the state for forum non conveniens and setting out standard for application of doctrine); W. Va. Code § 56-1-1a (same).
However, the enactment of a statute concerning a particular subject does not necessarily eliminate related common-law rules. See, e.g., Holien v. Sears, Roebuck and Co., 298 Or. 76, 90-97, 689 P.2d 1292 (1984) (enactment of statutory remedy for employment discrimination did not abrogate common-law action for wrongful discharge);
Although the venue statutes set out certain procedural parameters for addressing the appropriateness of a particular forum, plaintiffs have offered nothing to suggest that those statutes were intended to eliminate the common-law doctrine of forum non conveniens, either expressly, or by necessary implication. To the contrary, plaintiffs' contention is belied by the text of those statutes, which neither require a court to adjudicate every case that is properly before it, nor prohibit a court from taking other measures in response to concerns about whether a dispute may be fairly and effectively adjudicated in that forum. The general venue rule is permissive; it provides, "When the court has jurisdiction of the parties, it may exercise it in respect to any cause of action or suit wherever arising, except for the specific recovery of real property situated without this state, or for an injury thereto." ORS 14.030 (emphasis added); but see Kohring, 355 Or. at 301, 325 P.3d 717 (notwithstanding permissive wording of venue statute, defendants have "right" to insist that action be tried in proper, rather than improper forum). As noted, although ORS 14.110 sets out conditions for when a court may change the place of trial, it does not prohibit the stay or dismissal of an action for similar reasons. See ORS 14.110 (providing grounds for change of venue). Except for specific and limited categories of cases, the venue statutes do not mandate the adjudication of an action in any particular venue. Compare
Further, the law of venue is not the only source of judicial authority for addressing the appropriateness of a particular forum. Even if forum non conveniens were not a well-developed common-law doctrine, courts would have authority to stay or dismiss an action for prudential reasons as an exercise of their inherent power to administer justice. See Couey, 357 Or. at 491-93, 502, 355 P.3d 866 (courts have inherent judicial power, which is plenary and vested in them by Article VII (amended) of the Oregon Constitution).
The dismissal or stay of an action according to the doctrine of forum non conveniens is consistent with those principles, for, as an equitable doctrine, forum non conveniens is concerned at its core with "considerations of fundamental fairness and sensible and effective judicial administration." Kedy, 946 A.2d at 1179 (citing Adkins v. Chicago, R.I. & P.R. Co., 54 Ill.2d 511, 514, 301 N.E.2d 729, 730 (1973)); see also id. at 1180 (stating well-established principle that "[t]he inherent power of courts includes the authority to dismiss on the basis of forum non conveniens" and noting cases recognizing that power).
This court has confirmed that, under appropriate circumstances, courts have inherent authority to change the place where a case will be tried even when the venue statutes do not expressly provide for it. In State v. Nagel, 185 Or. 486, 202 P.2d 640, cert. den., 338 U.S. 818, 70 S.Ct. 60, 94 L.Ed. 495 (1949), the defendant appealed his criminal conviction, assigning error to the trial judge's refusal to move his trial to another county. Id. at 497-98, 202 P.2d 640. The defendant asserted that a change of venue was necessary in his case because the alleged victim was the daughter of a prominent county judge, making it impossible for him to receive a fair trial in that same county. Id. at 500-01, 202 P.2d 640. This court disagreed and affirmed the judgment of the trial court.
Finally, plaintiffs cite a number of scholarly articles that articulate various policy grounds for rejecting the doctrine of forum non conveniens and argue that we should refuse to recognize it in Oregon for those reasons.
Other scholars criticize the doctrine on the grounds that it is difficult to articulate a coherent standard for when it should be applied. As a result, its critics argue, forum non conveniens tends, at a minimum, to be applied inconsistently and, at worst, applied too often and for illegitimate and even discriminatory reasons. See, e.g., Pamela Bookman, Litigation Isolationism, 67 Stan. L. Rev. 1081, 1095 (2015) (criticizing frequency with which federal courts dismiss actions and arguing that doctrine has become a "most-suitable-forum" rule, where dismissal is based on a judge's belief, for virtually any reason, that trial elsewhere would be more appropriate); Grossi, Jurisdictional Doctrine at 23-31 (criticizing indeterminacy and arbitrariness of doctrine); Petsche, Critique at 559-72 (criticizing inconsistent application of doctrine and impermissible motivations behind dismissals). As a practical consequence, some argue, forum non conveniens has become a mechanism for "reverse forum-shopping":
Walter Heiser, Forum Non Conveniens and Choice of Law: The Impact of Applying Foreign Law in Transnational Tort Actions, 51 Wayne L. Rev. 1161, 1167 (2005).
Although criticisms of the doctrine, as applied, may well have merit, there is nothing inherent in the forum non conveniens doctrine that makes it more prone to misuse than any other common-law doctrine that requires the consideration and weighing of multiple factors. Rather, like any discretionary power, the decision to dismiss or stay an action for forum non conveniens is guided by legal principles that provide a range of permissible options. The narrowness with which those options are prescribed is a question of striking the right balance between uniformity and flexibility in the law — for, although we appropriately seek to avoid inconsistency, strict rules rigidly applied also can lead to unjust results in particular cases. The doctrine of forum non conveniens provides a means of striking an appropriate balance between the court's obligation to decide cases properly before it and its authority to dismiss or stay certain actions in order to protect the interests of fundamental fairness and effective judicial administration. To the extent that a trial court might dismiss actions for forum non conveniens too freely, that issue bears more on how we articulate the legal principles that guide its application than on whether we should recognize the doctrine at all.
In conclusion, nothing in our cases or any applicable statute suggests that the doctrine of forum non conveniens is unavailable in Oregon. Although there may be legitimate reasons to restrict its application as a matter of policy, we do not find any of those considerations to be so weighty as to cause us to reject the doctrine entirely. Therefore, because forum non conveniens is a long-established part of the common law and no legislative enactment or decision of this court has altered or repealed that doctrine or the power of a court to dismiss or stay an action on that ground, we now recognize it as part of Oregon law and hold that, consistent with the standards announced in this opinion, courts in this state may dismiss or stay an action for that reason.
We next consider the contours of the doctrine of forum non conveniens under Oregon law. As noted, most jurisdictions that have adopted the doctrine rely on the two-step framework described by the United States Supreme Court in Gulf Oil and subsequent cases to articulate the standards that should guide its application. Because the approach articulated in Gulf Oil offers a helpful way of categorizing and weighing the considerations pertinent to whether a dismissal or stay is appropriate in a particular case, we follow the majority of other jurisdictions in adopting the two-step analysis and non-exclusive list of factors set out in that opinion.
Federal precedent, however, does not control our interpretation of forum non conveniens. See Am. Dredging Co. v. Miller, 510 U.S. 443, 453, 456 114 S.Ct. 981, 127 L.Ed.2d 285 (1994) (forum non conveniens is "procedural rather than substantive"; adoption of doctrine is matter of local policy for states); Hust v. Moore-McCormack Lines, Inc., 180 Or. 409, 415, 177 P.2d 429 (1947) (where question is procedural, federal precedent is not controlling and Oregon courts may apply Oregon law). Cf. PSU Association of University Professors v. PSU, 352 Or. 697,
A defendant that moves to dismiss or stay an action for forum non conveniens must demonstrate that the legal standards for a dismissal or stay on that ground have been met. See Sinochem, 549 U.S. at 430, 127 S.Ct. 1184 ("A defendant invoking forum non conveniens ordinarily bears a heavy burden in opposing the plaintiff's chosen forum."). Thus the burden rests on the defendant, as the moving party, to demonstrate that an alternative forum is available and adequate, and that the interests of convenience and justice weigh so heavily in favor of litigating the action in that forum that it is appropriate for the court to dismiss or stay the action. See Kedy, 946 A.2d at 1183 ("It is well settled that the defendant carries the burden of persuasion at each stage of the forum non conveniens inquiry.").
Consistently with the standard for motions to dismiss under ORCP 21 generally, in considering a motion to dismiss for forum non conveniens, the trial court must "assume the truth of all well-pleaded facts alleged in the complaint and give plaintiff, as the non-moving party, the benefit of all favorable inferences that may be drawn from those facts."
In order to resolve the motion, the trial court may find it necessary to make preliminary factual findings as to issues out-side the pleadings. For example, the trial court may find it necessary to make findings pertaining to the adequacy of the proposed alternative forum, or to the availability and location of potentially relevant evidence. To do so, the trial court may consider facts asserted by the parties and resolve contested facts based on record evidence submitted by the parties. Cf. Black v. Arizala, 337 Or. 250, 265, 95 P.3d 1109 (2004) (in determining, on motion to dismiss, whether to exercise jurisdiction pursuant to venue agreement, court may consider both facts alleged in complaint and "matters outside the pleading, including affidavits, declarations and other evidence"). That is not to say, however, that the court necessarily must engage in extensive fact-finding and conduct hearings to resolve disputed factual issues. As noted by the Delaware Chancery Court, "[t]he entire purpose of the forum non conveniens doctrine is to relieve defendants from the undue burdens of litigating in an especially inconvenient forum. That purpose would be subverted if a defendant had to endure costly, protracted proceedings in order to avail itself of the doctrine in the first place." Aveta, Inc. v. Colon, 942 A.2d 603, 609 (Del.Ch. 2008). In many cases, it may be sufficient for the parties to present their factual assertions to the court through affidavits.
Plaintiffs argue that a trial court deciding a motion to dismiss for forum non conveniens should be prohibited from making any factual finding that "goes to the merits" of a plaintiff's claims. However, in the ordinary forum non conveniens case, evaluating the
In any case, the factual issues that the trial court actually resolves to decide a forum non conveniens motion will tend to be qualitatively different from those that determine the outcome on the merits. For the most part, the factual issues that go directly to the merits — for example, in a tort action sounding in negligence, the parties' relationship, the defendant's actions, and whether those actions were the cause of the plaintiff's injury — will be alleged in the complaint. Because the trial court must accept all of the plaintiff's well-pleaded allegations as true, it need not, and should not, decide those facts, even if they are disputed. On the other hand, the factual issues outside of the pleadings that the trial court may resolve to decide a forum non conveniens motion ordinarily will concern, for example, the condition of the judiciary in the proposed alternative forum, the enforceability of a judgment from that forum, and the ease or difficulty of obtaining evidence there, as compared to the forum where the plaintiff filed its action.
Finally, even when a factual issue does bear directly on the merits, making factual findings as to issues outside of the pleadings for purposes of deciding a forum non conveniens motion does not violate "a party's right to trial on disputed questions of material fact." See Black, 337 Or. at 265, 95 P.3d 1109. Simply put, determining whether to stay or dismiss an action for forum non conveniens "does not entail any assumption by the court of substantive law-declaring power." Sinochem, 549 U.S. at 433, 127 S.Ct. 1184 (internal citations and quotation marks omitted). For that reason, a trial court's factual findings made for the purpose of deciding a forum non conveniens motion are distinct from any finding on the merits. As in other circumstances where the trial court makes such preliminary findings, those findings do not constitute a valid and final determination as to any issue, and therefore cannot have any preclusive effect on a plaintiff's underlying claims. See Nelson v. Emerald People's Utility Dist., 318 Or. 99, 103, 862 P.2d 1293 (1993) ("Issue preclusion arises in a subsequent proceeding when an issue of ultimate fact has been determined by a valid and final determination in a prior proceeding." (Emphasis added.)); see also Vasquez v. YII Shipping Co., Ltd., 692 F.3d 1192, 1198-99 (11th Cir.2012) (concluding that factual determinations made by Florida court in dismissing action for forum non conveniens had no preclusive effect; dismissal on that ground did not bar plaintiff from litigating same claims and legal theories in federal court). Therefore, although a trial court is required to accept the plaintiff's well-pleaded allegations, there is no rule barring the court from making any additional preliminary findings, as necessary, for purposes of deciding a forum non conveniens motion.
As noted, at the first step of the Gulf Oil test, the court must determine, drawing on the facts alleged in the complaint and on other findings as necessary, whether there is an adequate alternative forum in which to try the action. See 330 U.S. at 506-07, 67 S.Ct. 839 (forum non conveniens "presupposes at least two forums in which the defendant is amenable to process" and "furnishes criteria for choice between them"); Piper Aircraft, 454 U.S. at 254 n. 22, 102 S.Ct. 252 ("At the outset of any forum non conveniens inquiry, the court must determine whether there exists an alternative forum."). At this first step, most jurisdictions require the moving party to establish that an alternative forum is available and capable of providing the plaintiff with relief. See Restatement § 84 comment c (one of most important factors in determining whether to dismiss action for
We agree with the majority of jurisdictions that establishing the adequacy of the proposed alternative forum is a threshold requirement. In our view, it would be contrary to the ends of justice to force a plaintiff into another forum if the result would be to deprive the plaintiff of a remedy entirely. See Mace v. Mylan Pharm., Inc., 227 W.Va. 666, 676, 714 S.E.2d 223, 233 (2011) ("Undeniably, the interest of justice would not be served, nor would a plaintiff be convenienced, if an action over which a court in this state had proper jurisdiction was dismissed in favor of an alternate jurisdiction in which the remedy provided is so clearly inadequate or unsatisfactory that it is no remedy at all.").
In considering the adequacy of the proposed alternative forum, the focus of the court's inquiry is on the sufficiency of the proposed alternative forum from the plaintiff's perspective. To be adequate, the alternative forum must be one in which the defendant is amenable to service of process, where the courts would have jurisdiction, and where the law and the judicial system are capable of providing the plaintiff with meaningful redress. Piper Aircraft, 454 U.S. at 250, 254-55 & n. 22, 102 S.Ct. 252.
One way that an alternative forum may be inadequate is if a judgment obtained in that forum would be unenforceable.
Notwithstanding the defendant's burden, the mere possibility that the alternative forum may be less favorable to the plaintiff is not alone sufficient to render that forum inadequate for forum non conveniens purposes. Once the defendant makes a showing that the alternative forum is adequate, the plaintiff must offer some evidence that would substantiate the claim that it is not. See Leon v. Millon Air, Inc., 251 F.3d 1305, 1312-13 (11th Cir.2001) (although defendant has ultimate burden to establish adequacy of alternative forum, plaintiff asserting that forum is inadequate due to corruption or delay must substantiate those allegations); RIGroup LLC v. Trefonisco Mgmt. Ltd., 949 F.Supp.2d 546, 554 (S.D.N.Y.2013), aff'd, 559 Fed.Appx. 58 (2d Cir.2014) (notwithstanding defendant's burden of persuasion, plaintiff must produce evidence of corruption, delay or lack of due process in alternative forum; "conclusory submissions," "bare denunciations" and "sweeping generalizations" about forum's legal system insufficient to overcome defendant's showing of adequacy (internal citations and quotation marks omitted)). Once evidence is presented that calls the adequacy of the proposed alternative forum into doubt, however, it is the defendant's burden to persuade the court that the facts are otherwise. Leon, 251 F.3d at 1312. See also, e.g., Bridgestone/Firestone N. Am. Tire, LLC v. Garcia, 991 So.2d 912, 917 (Fla.Dist. Ct.App.2008), rev. den., 8 So.3d 1133 (Fla. 2009) (where evidence was in conflict as to whether alternative forum was available and adequate, trial court did not err in concluding that defendant failed to carry burden to as to first step of forum non conveniens test).
At the second step of the Gulf Oil test, the court considers and balances the relevant private and public interests to determine whether, on the whole, those interests justify granting the defendant's motion. Gulf Oil, 330 U.S. at 508, 67 S.Ct. 839. As noted, although the doctrine of forum non conveniens "leaves much to the discretion of the court," the exercise of that discretion is not unlimited. Id. Rather, "unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed." Id.; see also Carijano, 643 F.3d at 1224 (noting that forum non conveniens is "an exceptional tool to be employed sparingly" (internal citations and quotation marks omitted)). What it means for the balance of interests to be "strongly in favor of the defendant," however, varies across jurisdictions and, indeed, is difficult to articulate with precision.
For the reasons set out below, we conclude that in Oregon, a trial court may dismiss or stay an action for forum non conveniens only when the moving party demonstrates that there is an adequate alternative forum available, and that the relevant private- and public-interest considerations weigh so heavily in favor of litigating in that alternative forum that it would be contrary to the ends of justice to allow the action to proceed in the plaintiff's chosen forum.
In other jurisdictions, the moving defendant must demonstrate that litigating in the plaintiff's chosen forum would be so "unduly inconvenient, expensive or otherwise inappropriate" that it would cause "overwhelming hardship" or would effectively deprive one party "a meaningful day in court." See, e.g., Aveta, 942 A.2d at 608 ("[T]o achieve a stay or dismissal for forum non conveniens, a defendant must demonstrate that litigating in the plaintiff's chosen forum would present an overwhelming hardship."); Christian v. Smith, 276 Neb. 867, 876, 759 N.W.2d 447, 457 (2008) ("[A] forum is seriously inconvenient only if one party would be effectively deprived of a meaningful day in court.").
Still other courts have stated that a defendant need only demonstrate that the alternative forum is more convenient and that the balance of circumstances otherwise "strongly favors" that forum. See, e.g., First Am. Bank v. Guerine, 198 Ill.2d 511, 518, 261 Ill.Dec. 763, 764 N.E.2d 54, 59 (2002) (An action may be dismissed for forum non conveniens if defendant demonstrates "that the plaintiff's chosen forum is inconvenient to the defendant and another forum is more convenient to all parties" and that "the balance of factors strongly favors transfer.").
Considering those variations, we conclude that an action should be stayed or dismissed for forum non conveniens only when the ends of justice require it. It is an established rule that a plaintiff has the right to seek redress in any forum where subject matter and personal jurisdiction can be established and where venue is proper, and that if multiple forums are available, the plaintiff may choose from those forums available to it. See Cortez v. Palace Resorts, Inc., 123 So.3d 1085, 1094 (Fla.2013) ("[I]t is axiomatic that the plaintiff has the right to choose the forum."); Sales v. Weyerhaeuser Co., 163 Wn.2d 14, 19, 177 P.3d 1122, 1124 (2008) ("A plaintiff has the original choice to file his or her complaint in any court of competent jurisdiction."); see also Van Dusen v. Barrack, 376 U.S. 612, 633-37, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964) (recognizing and discussing plaintiff's venue privilege in federal context). In light of those principles, the role of forum non conveniens is limited. It is "not a `doctrine that compels plaintiffs to choose the optimal forum for their claim.'" Carijano, 643 F.3d at 1224 (quoting Dole Food Co., Inc. v. Watts., 303 F.3d 1104, 1118 (9th Cir.2002)). Likewise, as the Connecticut Supreme Court has noted, forum non conveniens may not be used by defendants to circumvent the plaintiff's venue right in order to obtain a more favorable forum generally:
Picketts v. Int'l Playtex, Inc., 215 Conn. 490, 501, 576 A.2d 518, 524 (1990) (internal citations and quotation marks omitted). See also Restatement § 84 comment c ("[S]ince it is for the plaintiff to choose the place of suit, his choice of a forum should not be disturbed except for weighty reasons."). Rather, forum non conveniens serves as a corrective mechanism to be employed only when allowing an action to proceed in the chosen forum would jeopardize the interests of "fundamental fairness" and "sensible and effective judicial administration." Kedy, 946 A.2d at 1179.
Evergreen argues that we should afford less deference to a plaintiff's choice of forum when the plaintiff, or the real party in interest, resides outside that forum. Such a rule is appropriate, Evergreen contends, because the purpose of forum non conveniens is to ensure that actions are tried where they are convenient and when a plaintiff is foreign to the forum where it files suit, it is less reasonable to presume that it is convenient for the plaintiff to litigate there. See Piper Aircraft, 454 U.S. at 255-56, 102 S.Ct. 252 (holding that the "ordinarily strong" presumption in favor of the plaintiff's choice of forum "applies with less force" when the plaintiff has not chosen its home forum and that in that circumstance, "the plaintiff's choice deserves less deference"). We recognize that a majority of jurisdictions do adhere to such a rule. However, the Washington Supreme Court, considering the doctrine of forum non conveniens under its own state law, has rejected that approach entirely. See, e.g., Myers, 794 P.2d at 1280-81 (expressly declining to adopt Piper Aircraft "lesser deference" rule because it lacks well-reasoned support and is unnecessary to ensure equitable result). And courts in other states have rejected it in part. See, e.g., Cortez, 123 So.3d at 1094 (rejecting Piper "lesser deference" rule with respect to plaintiffs who are residents of other states); Kennecott Holdings Corp. v. Liberty Mut. Ins. Co., 578 N.W.2d 358, 361 (Minn.1998) (rejecting Piper "lesser deference" rule for United States citizen plaintiffs because "[t]o accord less deference to the choice of forum of a United States citizen because the plaintiff is not a resident of Minnesota simply defies fairness and logic.").
We agree with the Washington Supreme Court that there is no principled reason to vary the degree of deference afforded to the plaintiff's choice of forum based on where the plaintiff, or real party in interest, resides. As noted, we defer to a plaintiff's choice not because it is assumed to be convenient, but because it is the plaintiff's right to choose from those forums that are available to it. Moreover, under the standard that we have articulated, whether an action should be dismissed or stayed for forum non conveniens turns not on whether that forum is convenient for the plaintiff, but on whether litigating there would be so inconvenient generally — for litigants, third parties, and the court — that the court ought to override the plaintiff's choice. Cf. First Am. Bank, 198 Ill.2d at 518, 261 Ill.Dec. 763, 764 N.E.2d 54 (defendant cannot meet its burden under forum non conveniens doctrine by "assert[ing] that the plaintiff's chosen forum is inconvenient to the plaintiff"); Ison v. E.I. DuPont de Nemours & Co., 729 A.2d 832, 846 (Del.1999) (overarching factor that court must consider in forum non conveniens analysis is substantial hardship to defendant). The answer to that question, and whether a plaintiff's place of residency is even relevant, is fact-specific and will vary from case to case.
In sum, considering the nature of forum non conveniens as an extraordinary equitable remedy and the deference owed to every plaintiff's forum choice, we hold that a trial court may dismiss or stay an action for forum non conveniens only when the moving party demonstrates that there is an adequate alternative forum available, and that the relevant private- and public-interest considerations weigh so heavily in favor of litigating in that alternative forum that it would be contrary to the ends of justice to allow the action to proceed in the plaintiff's chosen forum. See Aveta, 942 A.2d at 608 (grant of forum non conveniens motion permitted only when hardship to defendant is "overwhelming"); Adkins v. Hontz, 280 S.W.3d 672, 676 (Mo.Ct.App.2009) ("The doctrine [of forum non conveniens] is to be
Having established the general substantive standard that should guide courts in determining whether the balance of interests sufficiently favors granting a defendant's forum non conveniens motion, we turn to an examination of the specific private-interest factors to be considered in reaching that decision. In Gulf Oil, the Supreme Court stated that in considering those interests, the trial court should "weigh the relative advantages and obstacles to fair trial." Gulf Oil, 330 U.S. at 508, 67 S.Ct. 839. Keeping that in mind, trial courts should consider not only the relative convenience of one forum compared to another, but the consequences that litigating in each forum might have on the plaintiff's access to effective redress, and on both parties' ability to prosecute, or defend, the claims asserted.
The first factor, and often the most important, is "the relative ease of access to sources of proof," including the time, expense and difficulty of obtaining the evidence that the parties will need to litigate the action, and in particular, whether certain evidence is likely to be unavailable. Id. When examining the accessibility of witnesses and evidence for trial, the court should not only determine where evidence is located, but consider the actual and practical burden it would create to try the case in the plaintiff's chosen forum, as compared to the proposed alternative forum. For example, although access to a view of the premises where a tort arose is sometimes helpful to a jury, it may be less so in some cases. Where the site is remote and the parties are likely to rely instead on photographs, videos and expert testimony, an inability to visit that location in person, whether the case proceeds in one forum or another, may be of marginal importance. See, e.g., Reid-Walen v. Hansen, 933 F.2d 1390, 1398 (8th Cir.1991) (inability to view premises of accident unimportant where defendant failed to establish that view was necessary and where testimony regarding site and demonstrative evidence were adequate).
Similarly, a trial court should not assume or speculate that it will necessarily be burdensome to obtain evidence located in other states or overseas. Consistent with its burden of establishing that the relevant private and public interests weigh so heavily in favor of the alternative forum that the ends of justice require the court to dismiss or stay the action, the moving party must identify specific evidence located in other places that is material to the case and demonstrate that accessing it for purposes of litigating in the plaintiff's chosen forum will be extraordinarily difficult. See Aveta, 942 A.2d at 609-10 (to prevail on motion to dismiss for forum non conveniens, moving party must identify particular, specific evidence necessary to case that it cannot produce in plaintiff's chosen forum); Pierce v. Albertson's Inc., 121 N.M. 369, 372, 911 P.2d 877, 880 (1996) ("The moving party, therefore, has the heavy burden of an early showing of inaccessibility of concrete sources of proof essential to a fair adjudication * * *. Showings of expense and delay and of public interest likewise must be concrete and not speculative.").
When considering whether obtaining evidence located outside the plaintiff's chosen forum is likely to impose an undue burden, the court should consider what means are available for obtaining that evidence. For example, although a substantial amount of the evidence relevant to the claims and defenses asserted in this case may be found in Peru, and even held by third parties there, mechanisms exist for obtaining that
The trial court also must take into consideration the fact that litigating the action in the proposed alternative forum will not necessarily alleviate the burden of discovering relevant evidence and presenting it at trial. Transnational actions, in particular, often involve evidence in multiple locations, and therefore pose some degree of difficulty regardless of where they are tried. When that is the case, the inaccessibility of some evidence in the plaintiff's chosen forum may be counterbalanced by the inaccessibility of other evidence in the alternative forum, such that this factor weighs little in the court's overall analysis. See Ison, 729 A.2d at 843 (burden of obtaining evidence was neutral in forum non conveniens analysis where evidence was located in multiple countries, including in both alternative forum and plaintiff's chosen forum).
The second private-interest factor encompasses "all other practical problems that make trial of a case easy, expeditious and inexpensive." Gulf Oil, 330 U.S. at 508, 67 S.Ct. 839. One such practical problem might include, for example, language barriers. If much of the key documentary and testimonial evidence is in a foreign language, the expense and difficulty of translation to English could pose a significant obstacle to litigating in the plaintiff's chosen forum. See, e.g., Aveta, 942 A.2d at 614 (concluding that language barrier was significant factor in forum non conveniens analysis where translators would be needed not only for witness testimony but to allow defendant to communicate with counsel). The need for translation, of course, may cut both ways, and some amount of translation may be required regardless of where the action is litigated. Similarly, another practical consideration could be the parties' location and whether they would be required to travel far from home. See id. at 1187 (noting location of Puerto Rican defendant in evaluating whether litigation in Rhode Island would cause hardship); cf. Stangvik, 54 Cal.3d at 755, 1 Cal.Rptr.2d 556, 819 P.2d 14 (forum presumptively convenient for corporate defendant incorporated and with its principal place of business in that forum).
Also relevant under this factor is the practical burden that forcing the plaintiff to bring its action anew in the alternative forum will create. See Reid-Walen, 933 F.2d at 1398 ("As part of the Gilbert private interest analysis, courts must be sensitive to the practical problems likely to be encountered by plaintiffs in litigating their claim, especially when the alternative forum is in a foreign country."); Energy Claims, 2014 UT 13 at ¶ 37, 325 P.3d 70 (in weighing private interests, "courts must take into account the practical burden plaintiffs will face in filing a
Another private-interest factor is the extent to which the defendant may seek to implead or join third parties and the jurisdictional and logistical ease with which that can be done in the alternative forum compared to plaintiff's chosen forum. See Piper Aircraft, 454 U.S. at 259, 102 S.Ct. 252 (recognizing that "the problems posed by the inability to implead potential third-party defendants" in plaintiff's chosen forum supported holding trial in alternative forum). The importance of this factor will depend on the context. If the court finds that there is an indispensible party that cannot be made a part of the action in the plaintiff's chosen forum, that factor may weigh heavily in favor of dismissal.
Finally, an additional private interest that sometimes is relevant is the potential difficulty of enforcing a judgment obtained in the alternative forum. Gulf Oil, 330 U.S. at 508, 67 S.Ct. 839. As noted, when a judgment obtained in the alternative forum is likely to be unenforceable, that forum is inadequate and the defendant's motion will fail at the first step. Even when that is not the case, however, and the judgment will be merely difficult to enforce, the burden of doing so may still weigh against compelling the plaintiff to try its action in the alternative forum. See Carijano, 643 F.3d at 1231-32 (concluding that where defendant had not agreed to accept enforcement of Peruvian judgment, potential difficulty of doing so was relevant private-interest factor weighing against dismissal so that action may be tried in Peru).
In addition to the private interests of the parties, Gulf Oil provides that the
Often, a forum's interest in a particular case will be strongest when the events that gave rise to that action took place within the forum, or when a large number of affected persons are located there. In Gulf Oil, the Court noted that "[i]n cases which touch the affairs of many persons, there is reason for holding the trial in their view and reach rather than in remote parts of the country where they can learn of it by report only. There is a local interest in having localized controversies decided at home." 330 U.S. at 508-09, 67 S.Ct. 839. A forum also may have a strong interest in providing redress to its own residents, regardless of where the activity giving rise to the action occurred or who else is affected. See Stangvik, 54 Cal.3d at 754-55 (noting that a "state has a strong interest in assuring its own residents an adequate forum for the redress of grievances "and that until recent statutory enactment, dismissal for forum non conveniens was not permitted if plaintiff was California resident).
On the other hand, a forum's interest in a particular controversy is not contingent on whether the plaintiff is a forum resident or on whether the events that gave rise to liability occurred there. The fact that the defendant is a forum resident can be a relevant consideration also in determining the forum's connection to an action. See Stangvik, 54 Cal.3d at 760, 1 Cal.Rptr.2d 556, 819 P.2d 14 (court may consider defendant corporation's connection to forum, given that it was incorporated in and had its principal place of business there, in determining forum's interest in action and deciding forum non conveniens motion). For example, regardless of whether any of the alleged wrongful conduct occurred there, a forum may have some interest in providing a place where claims against its own corporate residents may be heard. See Picketts, 215 Conn. at 502, 576 A.2d 518 ("Connecticut continues to have a responsibility to those foreign plaintiffs who properly invoke the jurisdiction of this forum; especially in the somewhat unusual situation where it is the forum resident who seeks dismissal." (Internal quotation marks and brackets omitted.)); see also Margaret Stewart, Forum Non Conveniens: A Doctrine in Search of A Role, 74 Cal. L. Rev. 1259, 1282 (1986) (discussing sovereign's interest in providing forum for obtaining redress from its own corporate residents, especially when jurisdiction elsewhere is uncertain).
Another public-interest factor that is sometimes considered is whether litigating the action in the plaintiff's chosen forum is likely to involve significant administrative difficulties, or impose a particularly great burden on the court system. Gulf Oil, 330 U.S. at 508-09, 67 S.Ct. 839. For example, when an action with minimal connection to a forum is likely to undermine the administration of justice generally by consuming substantial resources that would otherwise be available to other litigants, that factor may weigh in favor of dismissing or staying the action. See, e.g., Stangvik, 54 Cal.3d at 763, 1 Cal.Rptr.2d 556, 819 P.2d 14 (upholding stay of action for forum non conveniens where forum had minimal interest in action and it would unduly burden California court system). However, the doctrine of forum non conveniens is not a mechanism for courts to control their dockets, and the resolution of disputes is in fact the courts' raison d'etre. While impacts on the judicial system may be relevant to whether a dismissal or stay would promote the ends of justice overall, such considerations ordinarily will not take precedence over the private interests of the litigants or the interest of the forum itself in the underlying dispute. See First
A final public-interest factor that some courts have identified is whether litigating the action in the plaintiff's chosen forum implicates conflicts-of-laws issues that pose practical difficulties for the court. As the United States Supreme Court noted in Gulf Oil:
330 U.S. at 509, 67 S.Ct. 839. When the court in the plaintiff's chosen forum will be required to apply the law of another country, and when doing so will be difficult for the court, that too may weigh in favor of requiring the plaintiff to litigate its action in the alternative forum. See, e.g., Archangel Diamond Corp. Liquidating Trust v. Lukoil, 812 F.3d 799, 808 (10th Cir.2016) (trial court did not abuse discretion in dismissing action for forum non conveniens where it concluded that interpreting and applying Russian law would impose significant administrative burden on court in plaintiff's chosen forum).
As noted, however, what law will apply to an action may not be clear at the early stage of litigation at which the issue of forum non conveniens is typically raised. That is particularly so for transnational tort actions involving parties domiciled in different jurisdictions and stemming from conduct in multiple locations. In cases such as those, the trial court may be unable to determine which law applies without resolving factual issues that go directly to the merits, such as whose conduct caused the injury, and where that conduct occurred. See, e.g., ORS 15.440 (setting out general rules for choice of law determinations for tort claims); cf. D'Agostino, 115 N.J. at 496-97, 559 A.2d 420 (trial court unable to resolve motion to dismiss for forum non conveniens based on choice-of-law considerations when, in absence of discovery, there were insufficient facts to perform that analysis).
Moreover, even when the court can determine with some degree of certainty that foreign law will apply to the action, it is not necessarily the case that applying that law will impose an unreasonable burden. See Picketts, 215 Conn. at 512, 576 A.2d 518 ("Connecticut courts are quite capable of applying foreign law when required to do so and it would be improper to invoke the doctrine of forum non conveniens solely to avoid a choice of law analysis."); cf. DiRienzo v. Philip Servs. Corp., 294 F.3d 21, 31 (2d Cir.2002) (on motion to dismiss for forum non conveniens, factor of avoiding application of foreign law was neutral, since both foreign and United States law would apply in part). Oregon courts are competent to apply the law of other jurisdictions, including other countries, and sometimes do so, particularly when the foreign law is relatively simple, similar to that in the United States, and in the same language. See, e.g., Fisher v. Huck, 50 Or.App. 635, 642-43 624 P.2d 177, rev. dismissed, 291 Or. 566, 632 P.2d 1260 (1981) (concluding that British Columbia law applied to tort action arising from automobile accident in British Columbia; remanding to trial court to apply correct law). Thus, while choice-of-law considerations may be relevant, a trial court need not always give them significant weight in its forum non conveniens analysis.
To summarize, in Oregon, courts considering a motion to dismiss or stay an action for forum non conveniens should apply a two-step analysis to determine whether to grant such a motion. At the first step, the court must consider whether there is an adequate alternative forum in which to try the action. If the alternative forum is inadequate, the defendant's motion should be denied. If the alternative forum is adequate, the court proceeds to the second step, where it considers the relevant private and public interests to determine whether, on the whole, those interests weigh so heavily in favor of the alternative forum that that it would be contrary to the ends of justice to allow the action to proceed in the plaintiff's chosen forum. At each stage of the forum non
We turn now to the application of forum non conveniens in this case. We begin with the appropriate standard of review. It is well-settled law in other jurisdictions that whether to dismiss or stay an action for forum non conveniens is committed to the sound discretion of the trial court. See Piper Aircraft, 454 U.S. at 238, 102 S.Ct. 252 (stating standard of review); Stangvik, 54 Cal.3d at 751, 1 Cal.Rptr.2d 556, 819 P.2d 14 (same). That standard is consistent with the manner in which we review similar trial court rulings. See, e.g., Bremner v. Charles, 312 Or. 274, 278-80, 821 P.2d 1080 (1991)
In considering that standard, it is helpful to understand what we mean by "discretion." When a trial court exercises discretion, it acts within certain legal boundaries to choose from several permissible out-comes:
State v. Harrell/Wilson, 353 Or. 247, 254, 297 P.3d 461 (2013) (internal citations and quotation marks omitted); see also State v. Rogers, 330 Or. 282, 312, 4 P.3d 1261 (2000) ("[D]iscretion, as this court has used that term, refers to the authority of a trial court to choose among several legally correct out-comes."). In deciding a forum non conveniens motion, the trial court exercises discretion in several respects: by determining what private- and public-interest factors to consider, whether evidence in the record demonstrates that those factors weigh in favor of the dismissal or stay of the action, and ultimately, whether the ends of justice require stay or dismissal of the action.
In making those determinations, a trial court can exceed the bounds of its permitted discretion in several ways. First, a trial court's decision may be legally impermissible because it was guided by the wrong substantive standard. See State v. Sarich, 352 Or. 601, 615, 291 P.3d 647 (2012) (as prerequisite to exercise of discretion, court must apply correct legal standard for determining scope of that discretion). Because whether a trial court applied the correct substantive standard to guide its decision is a question of law, we review that issue for legal error. See id. at 615-17, 291 P.3d 647 (reviewing for legal error whether trial court applied correct standard for determining competency of witness).
Second, a trial court may abuse its discretion if its decision is based on predicate legal conclusions that are erroneous or predicate factual determinations that lack sufficient evidentiary support. For example, in order to weigh the private interests at stake, a trial court deciding a forum non conveniens motion must make factual findings about the availability of relevant evidence
Finally, even when the correct law is applied and there is sufficient evidentiary support for underlying factual findings, a trial court abuses its discretion if its decision is clearly against all reason and evidence. See Port of Umatilla v. Richmond, 212 Or. 596, 625, 321 P.2d 338 (1958) ("`abuse of discretion' is `a clearly erroneous conclusion and judgment — one that is clearly against the logic and effect of such facts as are presented in support of the application, or against the reasonable and probable deductions to be drawn from the facts disclosed upon the hearing'" (citing State v. Draper, 83 UT 115, 27 P.2d 39, 49-50 (1933)).
Here, plaintiffs contend that the trial court abused its discretion in several respects. They take issue with the substantive standard that the trial court applied to guide its decision, arguing that the trial court failed to give sufficient deference to their choice of Oregon as the forum in which to litigate their claims. Plaintiffs also argue that the trial court abused its discretion by failing to accept as true the well-pleaded allegations in their complaints. Pointing to the court's statements at oral argument and in its letter opinion, plaintiffs assert that the trial court made factual determinations that went to the underlying merits of their claims and that it based its decision at least in part on those determinations and on its own view of the relative strength of the claims asserted, all without the benefit of merits discovery. As a result, plaintiffs argue, the trial court failed to give sufficient credit to all of their claims and struck an unreasonable balance in weighing the relevant private- and public-interest factors, leading to an outcome — dismissal of the action — that was an abuse of the trial court's discretion. For the reasons stated below, we conclude that the trial court erred as a matter of law by applying the wrong substantive standard to guide its decision and by failing to accept as true plaintiffs' well-pleaded allegations.
As described above, the first step in the forum non conveniens analysis is whether there is an adequate alternative forum in which the action may be tried. Consistently with that standard, the trial court first considered, as a threshold issue, whether Evergreen demonstrated that there was an adequate alternative forum available. The trial court concluded that Evergreen had met its burden, because Peruvian courts were available to try the action and plaintiffs had conceded in their briefing before that court that Peru offered an adequate alternative forum. The court did note that plaintiffs later contended that Peruvian courts were inadequate, on the ground that the relevant statutes of limitations had run in Peru. However, because Evergreen agreed to waive any statute-of-limitations defenses it might have otherwise raised in Peru, the trial court concluded that nothing would prevent plaintiffs from pursuing their claims in that forum.
Evergreen did present evidence to the trial court that Peru offered comparable legal remedies for wrongful death and that plaintiffs
At the second step in its forum non conveniens analysis, however, the trial court erred by applying the wrong substantive standard for when a dismissal or stay on that ground is appropriate. As noted, when considering whether an action should be dismissed or stayed for forum non conveniens, a trial court's discretion is limited. It cannot grant a defendant's forum non conveniens motion "`simply because another forum, in the court's view, may be superior to that chosen by the plaintiff.'" Picketts, 215 Conn. at 501, 576 A.2d 518 (citing Pain, 637 F.2d at 783). Rather, under the standard we have articulated, the moving party must affirmatively establish that the relevant private- and public-interest factors weigh so heavily in favor of dismissing or staying the action that allowing it to proceed would be contrary to the ends of justice.
In this case, the trial court appears to have applied a less stringent standard. In its letter opinion, the trial court stated that dismissal is permitted if, after determining that there is an adequate alternative forum, the court concludes "that trying the action elsewhere would best serve the convenience of the parties and the ends of justice." (Emphasis added.) Concluding that "trial of this lawsuit will largely center on, and depend upon, witnesses and documents regarding circumstances in Peru at the time of the crash, rather than circumstances in Oregon or the United States" such that "the private and public interest factors weigh in favor of dismissal," the trial court appears to have granted Evergreen's motion primarily, if not exclusively, on the ground that litigating the actions in Peru would be simply more convenient. (Emphasis added.) The trial court stated that the ends of justice would be "best served" by trial in Peru, but not that trial in Oregon would be so inconvenient as to be contrary to the ends of justice. Because the trial court therefore applied the wrong substantive standard to guide its decision, it abused its discretion in granting Evergreen's motions to dismiss.
The trial court also applied the wrong substantive standard to guide its decision by failing to "assume the truth of all well-pleaded facts alleged in the complaint and give plaintiff[s], as the nonmoving part[ies], the benefit of all favorable inferences that may be drawn from those facts." Bradbury, 328 Or. at 393, 977 P.2d 1153. Although it is entirely appropriate for a trial court to resolve factual issues related to the ease with which the parties might prove, or disprove, facts material to the merits of their dispute, by deciding, for example, where certain evidence is located, a trial court may not rely on factual findings that contradict — implicitly or expressly — the well-pleaded allegations in the plaintiff's complaint.
Here, plaintiffs' complaints contained factual allegations that would support both direct negligence and vicarious liability claims against Evergreen. In particular, plaintiffs alleged that Evergreen "fail[ed] to properly maintain, inspect, test and/or repair the subject helicopter and ensure that the subject helicopter was kept in a safe condition" and that those failures were "[a] substantial factor in causing the crash and [decedents'] injuries." There is no dispute that Evergreen performed work on the helicopter's mechanical systems in the months just prior to the crash, or that the helicopter had been in use for only a matter of weeks when the crash occurred.
That the trial court made factual findings that contradicted the well-pleaded allegations in plaintiffs' complaint is supported further by the parties' arguments before that court. When arguing in favor of its motion, Evergreen relied heavily on the contention that, because there was little evidence to support plaintiffs' theory that a mechanical failure was the cause of the crash, the trial court should give that claim, and the evidence in Oregon pertinent to it, little weight in assessing which forum has a greater connection to the litigation and in which location most of the relevant evidence was likely located. Further, at the hearing on Evergreen's motion, the parties discussed the evidentiary support for plaintiffs' mechanical failure theory, and, as part of that exchange, the trial court specifically asked plaintiffs' counsel what evidence they had that a mechanical failure was the cause of the crash:
(Emphasis added.)
Rather than assuming the truth of plaintiffs' well-pleaded allegations and limiting its factual findings to those issues outside the pleadings that the trial court needed to resolve to dispose of Evergreen's motion, the trial court instead looked to plaintiffs to identify evidence in the record to support those allegations. When it found such evidence lacking, the trial court appears to have made its own, contrary, finding as to the probable cause of the crash. Insofar as it based its decision, at least in part, on that determination, the trial court failed to accept as true the well-pleaded factual allegations supporting plaintiffs' direct negligence claims, erred as a matter of law, and abused its discretion in granting Evergreen's motions. Cf., Koss Corp. v. Sachdeva, 363 Ill.Dec. 434, 446-44, 975 N.E.2d 236, 248-49 (Ill.Ct.App.), rev. den., 367 Ill.Dec. 270, 981 N.E.2d 998 (Ill. 2012) (trial court abused discretion when it disregarded some of plaintiff's allegations as lacking support in record, and as a result, failed to consider all of plaintiffs claims in determining whether dismissal for forum non conveniens was appropriate).
Evergreen argues that we should not require trial courts to accept all well-pleaded allegations as true, because that standard makes it possible for a plaintiff to avoid dismissal for forum non conveniens by asserting meritless theories and claims to link its action to the forum it has chosen. Evergreen's argument is not well-taken. Although styled as a motion to dismiss when raised by a defendant, the purpose and function of forum non conveniens is not to test the sufficiency of a plaintiff's complaint. Rather, forum non conveniens allows the
Considering the purpose and function of the doctrine of forum non conveniens, we see no reason to depart from the well-established standard for deciding motions to dismiss of accepting as true the well-pleaded allegations in the complaint. As noted by another appellate court faced with the same issue, "[i]t is unreasonable to require a plaintiff to prove up its entire case on a motion to dismiss for forum non conveniens where a defendant, with its greater evidentiary burden, has no such obligation." Koss, 363 Ill. Dec. at 446, 975 N.E.2d 236. If a defendant truly believes that some of the plaintiff's claims are insufficiently pled or that they lack merit, nothing would bar it from filing a motion to dismiss for failure to state a claim, or even a motion for summary judgment. See id. at 446-47, 975 N.E.2d 236 (arguments that plaintiff's allegations are conclusory or that they fail to state a claim cannot be properly addressed through forum non conveniens motion; defendant should raise such issues by separate motion). Likewise, nothing would prevent a court from deciding, on an appropriate motion and under the correct legal standard, that a claim should be dismissed and thus not considered in determining whether the action should be dismissed or stayed on forum non conveniens grounds.
On this record, the cause of the crash is disputed, and while the trial court was undoubtedly and appropriately concerned that much of the evidence concerning the crash would be found in Peru, it appears as though the trial court did not consider the possibility that a significant amount of documentary and testimonial evidence pertinent to plaintiffs' direct negligence claims is likely to be found in Oregon. Plaintiffs' complaints contained sufficient factual allegations to state a claim upon which relief could be granted on that theory. To the extent that the trial court, having concluded that plaintiffs' direct negligence claims were speculative and weak, discounted the importance of evidence in Oregon that would have been relevant to those claims, it not only failed to give sufficient credit to the well-pleaded allegations in plaintiffs' complaints, it veered into the merits of the dispute at a stage in the litigation when it was poorly equipped to do so.
For the reasons discussed above, we hold that the doctrine of forum non conveniens is part of the common law of this state. When a party moves to dismiss or stay an action on that ground, the court may grant the motion if that party demonstrates that an alternative forum is available and adequate, and that the relevant private- and public-interest considerations weigh so heavily in favor of a dismissal or stay that allowing the litigation to proceed would be contrary to the ends of justice. Because the trial court failed to apply that standard in its dismissal of plaintiffs' claims, and likewise, consistent with the posture of a motion to dismiss, failed to accept plaintiffs' well-pleaded allegations as true, it erred as a matter of law and exceeded the bounds of its discretion.
The decision of the Court of Appeals is affirmed. The judgment of the circuit court is vacated, and the case is remanded to the circuit court for further proceedings.
Although Article VII (amended) refers to slightly different judicial bodies as being vested with the "judicial power" than Article VII (original), the operative phrase "judicial power" is the same in both versions. See Couey, 357 Or at 491-92, 355 P.3d 866 (discussing text and history of original and amended versions of Article VII and differences between them).
ORS 24.360(3)(g), (h). Further, an Oregon court is prohibited from recognizing any judgment from a foreign country where "the judgment was rendered under a judicial system that does not provide impartial tribunals or procedures compatible with the requirements of due process of law." ORS 24.360(2)(a).
