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Hersh v. CKE Restaurant Holdings, Inc.

United States District Court, E.D. Missouri, Eastern Division

July 26, 2019

AHMAD HERSH, et al, Plaintiffs,



         This matter is before the Court on the Motion to Dismiss under the Doctrine of Forum Non Conveniens filed by Defendants CKE Restaurant Holdings, Inc., Hardee's Food Systems, LLC, and Hardee's Restaurants, LLC (collectively referred to as "Defendants"). (ECF No. 92) The motion is fully briefed. After careful consideration, the Court grants Defendants' motion and dismisses the case without prejudice.


         The facts of this case revolve around the July 20, 2015 death of a six-year-old boy, I.E. Hersh, after he allegedly touched something electrified in the ceiling above the playground in a Hardee's franchise restaurant located in Amman, Jordan. Jordanian officials investigated I.E. Hersh's death and brought criminal charges against the franchisee, Tourism Projects and International Restaurants Company, as well as the restaurant's manager and supervisor. No. criminal charges were pursued against the named Defendants in this case.

         The boy's parents, Ahmad Hersh and Muna Omer (referred to collectively as "Plaintiffs") filed this lawsuit in July 2017 against Defendants: the U.S.-based franchisor and its parent corporation.[1] Plaintiffs filed a First Amended Complaint on October 26, 2017, asserting three causes of actions against each Defendant: Wrongful Death - Negligence (Count I); Wrongful Death - Negligence - Apparent Agency (Count II); and Wrongful Death - Strict Liability for Breach of Warranty (Count III).

         The parties engaged in some motion practice, which included Defendants filing then withdrawing their Motion to Dismiss Plaintiffs' First Amended Complaint (ECF No. 27) without prejudice (ECF No. 42). After engaging new counsel, Defendants filed the instant Motion to Dismiss under the Doctrine of Forum Non Conveniens (ECF No. 92) in which they ask the Court to dismiss this case without prejudice and argue the Hashemite Kingdom of Jordan is the proper forum for Plaintiffs to pursue their claims. Plaintiffs oppose dismissal and contend the Court should not disturb their choice of forum.


         "Under the doctrine of forum non conveniens, federal district courts have inherent power to resist the imposition of jurisdiction even where authorized by statute if 'the litigation can more appropriately be conducted in a foreign tribunal.'" de Melo v. Lederle Labs., Div. of Am. Cyanamid Corp., 801 F.2d 1058, 1060 (8th Cir. 1986) (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 504 (1947)). A court must first determine whether an adequate alternative forum exists for the litigation. Id. "[T]he court must then balance factors relative to the convenience of the litigants, referred to as the private interests, and factors relative to the convenience of the forum, referred to as the public interests, to determine which available forum is most appropriate for trial and resolution." Id. An appellate court will only review a district court's decision to dismiss a case based on the doctrine of forum non conveniens for a "clear abuse of discretion." Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257 (1981) ("The forum non conveniens determination is committed to the sound discretion of the trial court."). "[W]here the court has considered all relevant public and private interest factors, and where its balancing of these factors is reasonable, its decision deserves substantial deference." Id.


         As an initial matter, the Court must decide whether the timeliness of this motion affects the resolution. Plaintiffs argue a motion to dismiss based on the doctrine of forum non conveniens must be asserted "within a reasonable time after the facts or circumstances which serve as the basis for the motion have developed and become known or reasonably knowable to the [party]." See Cable News Network L.P., L.L.L.P. v., 177 F.Supp.2d 506, 528 (E.D. Va. 2001), aff'd in part, vacated in part sub nom. Cable News Network, LP, LLLP v., 56 Fed.Appx. 599 (4th Cir. 2003) (alteration in original) (quoting Trivelloni-Lorenzi v. Pan Am. World Airways, Inc., 821 F.2d 1147, 1165 (5th Cir. 1987)). Plaintiffs assert Defendants have failed to seek this relief within a reasonable time as the motion was filed more than a year after the case commenced and could have been brought in lieu of an answer.

         Defendants argue that "[a] motion to dismiss on forum non conveniens grounds may be made at any time." Wave Studio, LLC v. Gen. Hotel Mgmt. Ltd., No. 13-CV-9239 (CS), 2017 WL 972117, at *5 (S.D.N.Y. Mar. 10, 2017), aff'd, 712 Fed.Appx. 88 (2d Cir. 2018) (quoting In re Hellas Telecomms. (Luxembourg) IISCA, 555 B.R. 323, 345 (Bankr. S.D.N.Y. 2016)). Even when relying on the treatise to which Plaintiffs cite, Defendants contend their motion was not untimely.

In modern litigation, there generally is no time limit on when a motion to dismiss for forum non conveniens must be made. ... On the other hand, it behooves the defendant to raise the forum non conveniens defense within a reasonable time of becoming aware of the circumstances supporting it. If the litigation has progressed significantly in the federal court, a defendant's belated assertion that the forum is not a convenient one is likely to be viewed dimly by the district judge.

Arthur R. Miller, § 3828 Forum Non Conveniens-In General, 14D Fed. Prac. & Proc. Juris. § 3828 (4th ed.) (emphasis added). Defendants assert this litigation has not progressed significantly as the parties have not engaged in extensive or costly discovery and no party, fact witness, or expert has been deposed. Further, each party has had a change of counsel over the course of litigation and Defendants' current counsel filed this motion just over a month after entering their appearance.

         Based on the relative lack of development and expenditures over the course of the litigation, the Court finds that this motion is timely. Cf Arthur v. Arthur, 452 A.2d 160, 162 (D.C. 1982) (holding that the trial court had not abused its discretion in denying a motion to motion to dismiss for forum non conveniens that was filed the day of trial and after the court previously denied a continuance). Having decided this motion is timely, the Court now addresses the forum non conveniens analysis.

         I. Adequate Alternative Forum

         "[A]t the outset of any forum non conveniens inquiry, the court must determine whether there exists an alternative forum. This requirement is satisfied, ordinarily, if the defendant is amenable to process in the alternative jurisdiction . ..." de Melo, 801 F.2d at 1061 (internal quotation marks omitted) (quoting Piper, 454 U.S. at 254 n.22) (citing Gilbert, 330 U.S. at 506-07). Specifically, courts have conditioned dismissal based on forum non conveniens on the movant's concession to jurisdiction and service in the alternative forum. See, e.g., id.; Corporacion ...

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