Abad v. Bayer Corp.

• Decision Date: 01 May 2009
• Docket Number: No. 08-3101.,No. 08-2146.,No. 08-1504.,08-1504.,08-2146.,08-3101.
• Citation: 563 F.3d 663
• Parties: Carlos ABAD, et al., on their own behalf and that of others similarly situated, Plaintiffs-Appellants, v. BAYER CORPORATION, et al., Defendants-Appellees. Carlos Miguel Pastor, et al., Plaintiffs-Appellants, v. Bridgestone/Firestone North American Tire, LLC, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

563 F.3d 663

Carlos ABAD, et al., on their own behalf and that of others similarly situated, Plaintiffs-Appellants, v. BAYER CORPORATION, et al., Defendants-Appellees.

Carlos Miguel Pastor, et al., Plaintiffs-Appellants, v. Bridgestone/Firestone North American Tire, LLC, et al., Defendants-Appellees.

No. 08-1504.

No. 08-2146.

No. 08-3101.

United States Court of Appeals, Seventh Circuit.

Argued April 1, 2009.

Decided May 1, 2009.

Lynn A. Ellenberger (argued), Shefsky & Froelich, Chicago, IL, Michael T. Reagan, Herbolsheimer, Lannon, Henson, Duncan & Reagan, Ottawa, IL, Kent L. Klaudt, Lieff, Cabraser, Heimann & Bernstein, LLP, San Francisco, CA, Richard B. Rosenthal (argued), Miami, FL, for Plaintiffs-Appellants.

Sara J. Gourley, Sidley Austin, Chicago, IL, Richard D. Walk, Jr. (argued), Dechert, Philadelphia, PA, Duncan Barr, OCD&B A Law Corporation, San Francisco,

CA, Alina Alonso (argued), Carlton Fields, P.A., Miami, FL, Charles D. Knight, Holland & Knight, Chicago, IL, for Defendants-Appellees.

Before POSNER, EVANS, and TINDER, Circuit Judges.

POSNER, Circuit Judge.

We have consolidated for decision two appeals (Abad and Pastor) that present similar issues concerning the doctrine of forum non conveniens ("inappropriate forum"). The doctrine allows a court to dismiss a suit if there are strong reasons for believing it should be litigated in the courts of another, normally a foreign, jurisdiction. E.g., Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 429-30, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007); In re Factor VIII or IX Concentrate Blood Products Litigation, 484 F.3d 951, 954-56 (7th Cir.2007). In both our cases the plaintiffs are Argentine citizens, resident in Argentina, who filed products-liability suits in federal district courts against American manufacturers under the diversity (technically, the alienage, 28 U.S.C. § 1332(d)(2)(B)) jurisdiction for injuries sustained in Argentina. In each case the district judge, on the defendants' motion, after considerable pretrial discovery, invoked forum non conveniens and dismissed the case in favor of the courts of Argentina. In re Factor VIII or IX Concentrate Blood Products Litigation, 531 F.Supp.2d 957 (N.D.Ill.2008); In re Bridgestone/Firestone, Inc. Tires Products Liability Litigation, No. 04 C 5812 (S.D.Ind. Jan. 31, 2007). The plaintiffs have appealed; dismissal of a case on grounds of forum non conveniens is deemed a final judgment appealable under 28 U.S.C. § 1291 even though it does not end the litigation. Mañez v. Bridgestone Firestone North American Tire, LLC, 533 F.3d 578, 583-84 (7th Cir.2008).

The plaintiffs press on us language, from a leading case that deals with the related doctrine of abstention in favor of a parallel proceeding in another court, about the "virtually unflagging obligation of the federal courts to exercise the jurisdiction given them." Colorado River Conservation District v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). The defendants counterpunch with the well-supported assertion that a ruling granting a motion to dismiss on the basis of forum non conveniens can properly be reversed only if the judge in granting the motion was guilty of an abuse of discretion. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981); In re Factor VIII or IX Concentrate Blood Products Litigation, supra, 484 F.3d at 954, 956; Scottish Air Int'l, Inc. v. British Caledonian Group, PLC, 81 F.3d 1224, 1232 (2d Cir.1996). That is a deferential standard of appellate review, designed for cases in which the first-level decision-maker is asked to apply a general standard that requires him to balance a number of competing considerations. As long as the judge doesn't commit a demonstrable factual error, or an error of law, his decision is unlikely to be reversed. There are two reasons. It is difficult to pin error on a judgment based on a comparison of imponderables, as is the character of most standards. And the main responsibility of appellate courts—to declare and elaborate principles of law and police compliance with those principles by the first-level decision-makers—is not engaged in reviewing a decision that involves weighing the unique circumstances of a particular case rather than creating or articulating a legal rule or principle. These are "case-specific rulings, which, even if they do not compose a consistent pattern across similar cases (the possibility inherent in deferential appellate review—deference implying that the appellate court might well have affirmed an opposite ruling by the district court), do not unsettle the law because the rulings set forth no general propositions of law." Thomas v. General Motors Acceptance Corp., 288 F.3d 305, 308 (7th Cir.2002).

The plaintiffs do not deny that abuse of discretion is the applicable principle of appellate review in forum non conveniens cases but they say that the judge's thumb has to be on one side of the scale—that he must deny the motion to dismiss unless the balance of relevant factors inclines very steeply in favor of dismissal, because of the presumption that we mentioned (the "unflagging obligation") in favor of giving the plaintiff his choice of courts. This is provided of course that there is subject-matter and personal jurisdiction, and venue, in the court in which the plaintiff has sued, but these conditions are satisfied in this case. Indeed, the plaintiffs argue that an Argentine court would not exercise jurisdiction over a case that had initially been filed in a foreign country, but this appears not to be true, see, e.g., Satz v. McDonnell Douglas Corp., 244 F.3d 1279, 1282-83 (11th Cir.2001), and if, contrary to what we believe, it should turn out to be true, the plaintiffs could resume suit in the United States. The judge in Pastor explicitly conditioned dismissal on the right to resume the suit in her court if the Argentine courts refuse to exercise jurisdiction. The judge in Abad did not, but achieved the same result by stating that the dismissal was without prejudice and hence does not have res judicata effect.

The plaintiffs are right that there is a presumption in favor of allowing a plaintiff his choice of courts rather than insisting that he choose the optimal forum, as we explained in U.S.O. Corp. v. Mizuho Holding Co., 547 F.3d 749, 752-53 (7th Cir.2008), though it is not so powerful a presumption as they think. A case should not be lightly shifted from one court to another, forcing the plaintiff to start over, especially when the rules of personal jurisdiction often force a plaintiff to litigate on the defendant's home turf. Yet in the two cases before us the plaintiffs could have sued—all concede—in their own nation's courts, the courts of Argentina, where the defendants would have been in the uncomfortable position of being giant American corporations accused of killing and injuring citizens of Argentina. (Or so one might think; but of course the defendants want to be in the Argentine, not the American, courts.)

We are not saying that the plaintiffs should have sued in Argentina. They were entitled to sue these American corporations in American courts. They say they are entitled to all the litigation rights of an American citizen because of a treaty between the United States and Argentina which says just that. Treaty of Friendship, Commerce and Navigation Between Argentina and the United States, July 27, 1853, Art. VIII, 10 Stat. 1005. Even without the treaty, we would agree that a foreign plaintiff has the same rights in an American court as an American citizen has, see In re Factor VIII or IX Concentrate Blood Products Litigation, supra, 484 F.3d at 956—discrimination against foreign litigants should be unthinkable in this cosmopolitan age of commercial globalization. It should make no difference that the plaintiffs are Argentines rather than Alaskans. But a suit by our plaintiffs in Illinois or a suit in Florida (where the Pastor suit was originally filed) would be a case of a "plaintiff [who] is suing far from home," and in such a case "it is less reasonable to assume that the forum [chosen by the plaintiff] is a convenient one" and therefore the presumption in favor of allowing the plaintiff to stay in the court of his choice is weakened. Id.; see Piper Aircraft Co. v. Reyno, supra, 454 U.S. at 266, 102 S.Ct. 252; Iragorri v. United Technology Corp., 274 F.3d 65, 72 (2d Cir. 2001) (en banc).

The district judge in Pastor said that she was applying a "neutral" rule of forum non conveniens, implying, the plaintiffs argue, that she failed to apply the presumption in favor of their choice to sue in the United States. But when the judge's statement is read in context, it is apparent that all she meant was that since the plaintiffs were foreign, relegating them to litigate in the courts of their home country would not impose on them as great a hardship as when a ruling of forum non conveniens would eject the plaintiff from his home court and send him to the defendant's home court in another country. When the plaintiff wants to sue on the defendant's home turf, and the defendant wants to be sued on the plaintiff's home turf, all really that the court is left to weigh is the relative advantages and disadvantages of the alternative forums. In such a case there is no reason to place a thumb on the scale, since there is no prima facie reason to think a plaintiff discriminated against by being sent to his home court or a defendant discriminated against by being forced to stay and defend in his home court.

One can find strong language about the plaintiff's right to his chosen forum in many judicial opinions, such as Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), but they usually are referring to an American plaintiff wanting to litigate in an American rather than foreign court, that is, to a plaintiff who has sued in his home court and wants to stay...