In Hersh v. CKE Restaurants Holdings, Inc., No. 19-2794 (8th Cir. Apr. 28, 2021), the Eighth Circuit holds that under any standard of timeliness, the defendants waited too long to raise their forum non conveniens defense – 18 months after the case commenced.
The case involved a wrongful death, an electrocution at an indoor playground at a Hardee’s franchise in Amman Jordan. The parents sued the franchisors CKE Restaurants Holdings, Inc., Hardee’s Food Systems, LLC, and Hardee’s Restaurants, LLC – all based in Missouri – in the U.S. District Court for the Eastern District of Missouri. The defendants engaged in discovery and then, 18 months into the case, “moved for the case to be dismissed based on the doctrine of forum non conveniens. It argued that Jordan was a more appropriate forum.” The district court granted the motion and the plaintiffs appealed.
The Eighth Circuit reverses. “This circuit has not addressed the timeliness requirement for motions to dismiss based on forum non conveniens . . . . Our sister circuits take varying approaches to timeliness. For example, the Fifth Circuit analyzes timeliness as a private-interest factor” that is weighed as part of an overall analysis of whether the case ought to be pursued elsewhere. “On the other hand, the Sixth Circuit seems to analyze timeliness as an independent hurdle, requiring a motion to dismiss based on forum non conveniens to be made within a reasonable time after the party learned the facts that give rise to the motion.”
The Eighth Circuit declines to take sides on the intercircuit split, holding that regardless of the standard applied, “Hardee’s filed a motion that was sufficiently untimely to warrant reversal. For 18 months, Hardee’s knew the essential facts supporting its motion to dismiss,” all stemming from the fact that the death occurred in Jordan. “But Hardee’s learned that I.E. died in Jordan when Hersh and Omer filed their complaint. Discovery did not raise new facts relevant to its motion . . . . Thus, if Missouri were truly an inconvenient forum for Hardee’s to defend against a lawsuit from Jordanian plaintiffs, Hardee’s should have moved to dismiss within a reasonable time.”
It also notes that some outer limit on the time to file for forum non conveniens has salutary effects, specifically “promot[ing] judicial economy” and minimizing the time spent litigating in a less-convenient forum. Also, “considering the timeliness of a motion to dismiss based on forum non conveniens prevents defendants from engaging in impermissible gamesmanship. Otherwise, defendants could keep an ace up their sleeve by adopting a wait-and-see approach, asserting forum non conveniens only after they have determined that litigation in a U.S. court is going poorly.”
“Here, the assertion that Missouri is an inconvenient forum for Hardee’s rings hollow because of its long delay in filing its motion to dismiss based on forum non conveniens. Under these facts, the motion should have been filed earlier than 18 months after Hersh and Omer filed their complaint and earlier than the end of the discovery period prior to trial. Hardee’s knew the facts providing the basis for its motion to dismiss from the outset of the case. This is true whether we view timeliness as an independent inquiry or as an interest factor.”