United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
L. WHITE UNITED STATES DISTRICT JUDGE.
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
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
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. 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).
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.
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
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. CNNews.com, 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. CNNews.com, 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.
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
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.
Adequate Alternative Forum
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 ...