FORUM SHOPPING? WHAT'S WRONG WITH THAT?
Richard Maloy*
1.
INTRODUCTION
I was a trial lawyer before joining academia, fighting every inch of
the way to prevail for my client. Shopping for the best forum available
was simply the first step in achieving that objective.' Hence, I was
appalled to read time and time again in the cases I assigned to my
students that forum shopping was something that a respectful,
responsible lawyer was not to do. Compelled to find out the reason for
that prohibition, I was initially confronted with a good amount of
rhetoric. This rhetoric simply proclaimed, almost ipse dixit,2 that forum
shopping was wrong, without the slightest explanation as to why.
Pursuing beyond these undocumented declarations, I learned that, like
cholesterol and trolls, forum shopping can be good, and forum shopping
can be bad. This article is an attempt to distinguish between the two.
Initially, this article will attempt to define forum shopping and
explore its origins.
Examples of permissible and impermissible
methods of forum shopping are reviewed. Additionally, the numerous
attempts to curb forum shopping in the form of statutes, court rules,
treaties, and principles of law will be discussed. The final comments of
Visiting Professor of Law, St. Thomas University of Law, Miami, Florida. The author
would like to thank Jennifer Wioncek, St. Thomas 3L, for her help in the preparation of this
article.
1. I felt like U.S. District Judge Hall when he wrote, "[i]n reality, every litigant who
files a lawsuit engages in forum shopping when he chooses a place to file suit." Texas
Instruments, Inc. v. Micron Semiconductors, Inc., 815 F. Supp. 994, 996 (E.D. Tex. 1993).
2. See Southland Corp. v. Keating, 465 U.S. 1, 15 (1984); Sommer v. Davis, 317 F.3d
686, 695 (6th Cir. 2003); Vasquez v. Bridgestone/Firestone, Inc., 325 F.3d 665, 679-80 (5th
Cir. 2003); Roman v. Ashcroft, 340 F.3d 314, 322 (6th Cir. 2003); St. Paul Mercury Ins. Co.
v. Williamson, 332 F.3d 304, 307 (5th Cir. 2003); Armentero v. Imm. & Nat. Serv., 340 F.3d
1058 (9th Cir. 2003); Klehr v. Crafts, No. 02-2967, U.S. App. LEXIS 14314 (8th Cir. July
15, 2003); Esposito v. Piatrowski, 223 F.3d 497, 501 (7th Cir. 2002) (comparing forum
shopping to "vexatious litigation"); Garcia v. Wal-Mart Stores, Inc., 209 F.3d 1170, 1177-78
(10th Cir. 2000); Lops v. Lops, 140 F.3d 927, 966 n.50 (11 th Cir. 1998); N. Shore Gas Co. v.
Salomon, Inc., 152 F.3d 642, 647 (7th Cir.1998) (referring to forum shopping as "blatant");
N.Y. Life Distrib. v. Adherence Group, Inc., 72 F.3d 371, 382 (3d Cir. 1995); Caffyn v.
Caffyn, 806 N.E.2d 415,424 (Mass. 2004); Nevill v. Nevill, No. 2001-CA-002628-MR, 2004
WL 1047413, at *1 (Ky. Ct. App. May 7, 2004).
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the article attempt to resolve an apparent conflict between the American
Bar Association's ("A.B.A.") Model Rules of Professional Conduct
("Model Rules"), which require a lawyer to represent his or her client
with diligence, and the admonition against forum shopping.
II.
WHAT IS FORUM SHOPPING?
Though it is an important common law concept in this country, 3 no
court, so far as I can discern, has given a crystal-clear definition of the
term "forum shopping."' The following examples illustrate how the
courts, both federal and state, have defined it. Some federal courts have
said that a plaintiff who causes "inconvenience and expense" to a
defendant is forum shopping,5 while a plaintiff seeking convenience and
the saving of expenses is not.6 The U.S. Second Circuit Court of
Appeals has described forum shopping in these words:
The concern surrounding forum shopping stems from the fear that a
plaintiff will be able to determine the outcome of a case simply by
choosing the forum in which to bring the suit ...raising the fear that
applying the law sought by a forum-shopping plaintiff will defeat the
expectations of the defendant or will upset the policies of the 7state in
which the defendant acted (or from which the defendant hails).
3. See O'Connell v. Corcoran, 802 N.E.2d 1071, 1074 (N.Y. 2003), in which the court
said that the public policy of both Vermont and New York frown upon forum shopping. A
Minnesota appellate court has recognized an Iowa public policy against forum shopping. See
Schumacher v. Schumacher, 676 N.W.2d 685, 691 (Minn. Ct. App. 2004). It has also been
stated that there is a "federal policy" against forum shopping. See Lorentzen v. Levolor
Corp., 754 F. Supp. 987, 994 (S.D.N.Y. 1990). Federal courts in diversity cases, when
attempting to determine whether a state's highest court would rule in a certain manner, have
taken forum shopping into consideration. See Wade v. Danek Med., Inc., 182 F.3d 281, 287
(4th Cir. 1999).
4. At least one jurist has referred to forum shopping as "judge shopping." Morris v.
Mullis, 590 S.E.2d 823, 832 (Ga. Ct. App. 2003). Often the courts use the term in a mere
conclusory manner. See St. Paul Mercury Ins. Co., 332 F.3d at 307 (referring to it as
"palpable forum shopping"); Myles Lumber Co. v. CNA Fin. Corp., 233 F.3d 821, 825 (4th
Cir. 2000).
5. In re Monegasque De Reassurances, 311 F.3d 488, 498 (2d Cir. 2002).
6. See Pollux Holding, Ltd. v. Chase Manhattan Bank, 329 F.3d 64, 71 (2d Cir. 2004).
7. Sheldon v. PHH Corp., 135 F.3d 848, 855 (2d Cir. 1998) (citing Olmstead v.
Anderson, 400 N.W.2d 292, 303 (Mich. 1987)).
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FORUM SHOPPING? WHAT'S WRONG WITH THAT?
State courts have also attempted to define "forum shopping." The
California Supreme Court has stated that forum shopping is the
"'practice of choosing the most favorable jurisdiction... in which a
claim might be heard.' 8 A Minnesota court went even further and
defined forum shopping as the frustration of the "maintenance of
interstate order." 9
Forum shopping, however, is more complex than these
Among the considerations that may
characterizations suggest.' 0
motivate forum shopping are: the convenience or expense of litigating
in the forum; the inconvenience and expense to one's adversary; the
probable or expected sympathies of a potential jury pool; the nature and
availability of appellate review; judicial calendars and backlogs; local
rules; permissibility of fee-splitting arrangements; and virtually any
other inter-jurisdictional difference."
Furthermore, just as courts characterize only some forum selection
practices as "forum shopping," their application of that distinction
varies with the context. A court will call a practice "forum shopping"
when it wishes to paint it as an unsavory machination designed to thwart
public policy and achieve an unmerited goal. By contrast, some courts
will avoid the label when it considers the reasons behind the forum
selection to be reasonable or justified.' 2 Sometimes, policies against
forum shopping depend on the tenuous process of calculating a litigant's
motives. 13 Thus, the policies against forum shopping are not a
principled distinction between legitimate and illegitimate actions, but
rather discretionary tools by which a court may constrain actions based
on motives it finds distasteful. 14 The courts have also discussed other
elements of forum shopping, thus furthering the notion that "forum
shopping" cannot be precisely defined.
Usually, there is only one party accused of forum shopping, though
both the plaintiff and defendant in a case may be found guilty of
"forum shopping" separately. 15 For example, even a disinterested
8. California v. Posey, 82 P.3d 755, 774 n.12 (Cal. 2004) (quoting BLACK'S LAW
DICTIONARY 666 (7th ed. 1999)).
9. Schumacher, 676 N.W.2d at 690. In Schumacher, a personal injury occurred in
Iowa that statutorily relieved the tort-feasor from liability. See id. at 691. The Minnesota
court applied Iowa law in order not to encourage forum shopping. See id.
10. Note, ForumShopping Reconsidered, 103 HARV. L. REv. 1677, 1677 (1990).
Id.at 1678.
11.
12. Id. at 1683.
13. Id.
14. Note, supra note 10, at 1684.
15. See Iragorri v. United Techs. Corp., 274 F.3d 65, 75 (2d Cir. 2001). Thus, Judge
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stakeholder in an impleader action may be guilty of "procedural
fencing, forum shopping or games-manship ....
,,16 Forum shopping
entails the bringing of the same or a substantially similar action1 7 in two
different jurisdictions where the methods of resolving the actions are not
the same. t 8 However, where the methods of handling a matter in the
two jurisdictions are the same, the courts usually find no forum
shopping. 19 Finally, when the cause of action directly arises in a
particular jurisdiction, the jurisdiction where the action occurred is the
most appropriate place to investigate any allegations of forum
shopping.2 °
From the cases and scholarly writings referenced above, I submit
that forum shopping is the taking of an unfair advantage of a party in
litigation. It would seem that the Model Rules both allow and require a
litigant to take an advantage of his or her adversary.2' It is the
unfairness of the advantage that is condemned. Unfortunately, the
courts do not dwell on that aspect of the matter; often, they do not
require proof of unfairness.
Irving R. Kaufman, the jurist who first used the phrase "forum shopping" in a reported
decision, (see infra text accompanying note 49), held that where the holder of a patent sued a
manufacturer and a dealer in New York for patent infringement, and another dealer sued in
Maryland for patent infringement, there could be no claim of forum shopping, because there
were two different parties in the two actions. See Int'l Nickel Co. v. Ford Motor Co., 108 F.
Supp. 833,837 (S.D. N.Y. 1952).
16. N.Y. Life Distrib. v. Adherence Group, Inc., 72 F.3d 371, 383 (3d Cir. 1995).
17. Surprisingly, there are many people in the United States who have no constitutional
rights to enforce. See Annie M. Chan, Community and the Constituion: A Re-Assessment of
the Roots of Immigration Law, 21 VT. L. REV. 491,492 (1996).
18. See generally La Societe Metro Cash & Carry France v. Time Warner Cable, No.
CV-03-0197400S, 2003 WL 22962857, at *3 (Conn. Super. Ct. Dec. 2, 2003). The different
courts need not be in the same judicial system. Thus, forum shopping can arise between a
U.S. District Court and a Tax Court, see Omohundro v. United States, 300 F.3d 1065, 1067
(9th Cir. 2002); or between a U.S. District Court and a Bankruptcy Court, see In re Canter,
299 F.3d 1150, 1154 (9th Cir. 2002); Dionne v. Simmons (In re Simmons), 200 F.3d 738,
742 (Bankr. 11th Cir. 2000); In re ATG Catalytics, No. C-04-1450, 2004 WL 2713071, at *1
(Bankr. N.D. Cal. Nov. 24, 2004); or between a U.S. District Court and a state court, see
Garcia v. Wal-Mart Stores, Inc., 209 F.3d 1170, 1177-78 (10th Cir. 2000) (holding that
diverse parties in federal court may not be treated differently than non-diverse parties in state
court).
19. See Mattison v. Dallas Carrier Corp., 947 F.2d 95, 109 (4th Cir. 1991). This
situation is no different from the situation in which the court finds that the laws of two
different jurisdictions are similar and the law of either jurisdiction is applicable; there is no
"conflict-of-laws" problem. See Robinson v. Mayo, 849 A.2d 351, 358 (R.I. 2004).
20. See In re D.R.P., 862 So. 2d 1073, 1077 (La. Ct. App. 2003).
21.
See infra text accompanying notes 304-10.
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A.
FORUM SHOPPING? WHAT'S WRONG WITH THAT?
The Role of Erie R.R. v. Tompkins and its Progeny
It is often said that the origin of forum shopping can be traced to
Erie R.R. v. Tompkins ("Erie").2 2 I disagree with that position as do
other writers on the subject. 23 Erie was a personal injury case filed by a
pedestrian who was injured by one of the defendant's trains in
Pennsylvania. 24
The railroad argued that the statutory law of
Pennsylvania applied because, under Pennsylvania law, the duty owed
to the plaintiff was that owed to a trespasser.25 The plaintiff, having
chosen the Southern District of New York as his forum, wanted New
York law to apply, as New York law imposed a higher standard of care
upon the defendant than did Pennsylvania law .26
In deciding the case, the U.S. Supreme Court recognized its 1842
decision, Swift v. Tyson, 27 which held that federal common law must
supply the substantive law governing the case in federal diversity
suits. 28 The Court noted that the reason for the Swift decision was to
assure uniformity of decisions throughout the federal system. 29 The
Swift rationale, however, resulted in a lack of uniformity in the
administration of laws within the states. 30 For example, a non-resident
plaintiff could affect not only diversity of citizenship by choosing a
federal court as his forum (and hence being governed by federal law),
but he could also create a diversity of decisions within the state. 31 An
intolerable condition could exist in which one law was applied in federal
court while across the street in state court, an entirely different law was
being applied.
In Erie, the Supreme Court was compelled to abandon the Swift
rationale despite its precedent.3 3 In doing so, the Court made clear the
22. Erie R.R. v. Tompkins, 304 U.S. 64 (1938). See infra the cases cited in note 47
which say that the origin of forum shopping can be traced to Erie.
23. See Harold W. Horowitz, Erie R.R. v. Tompkins - A Test to Determine Those Rules
of State Law to Which its Doctrine Applies, 23 S. CAL. L. REV. 204, 219 (1950), in which
Professor Horowitz said that forum shopping was not the "compelling reason" for Erie, but
rather "uniformity of result within a state."
24. Erie R.R., 304 U.S. at 69.
25. ld. at 70.
26. Id.
27. Swift v. Tyson, 41 U.S. 1 (1842).
28. Erie R.R., 304 U.S. at 71.
29.
Id. at 75.
30.
31.
32.
Id.
Id.
See Erie R.R., 304 U.S. at 76-77.
33.
Id. at 78.
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defects of Swift:
Experience in applying the doctrine of Swift v. Tyson, had revealed its
defects, political and social; and the benefits expected to flow from the
rule did not accrue. Persistence of state courts in their own opinions
on questions of common law prevented uniformity; and the
impossibility of discovering a satisfactory line of demarcation
between the province of general law and that of local law developed a
new well of uncertainties... It made rights enjoyed under the
unwritten "general law" vary according to whether enforcement was
sought in the state or in the federal court; and the privilege of selecting
the court in which the right should be determined was conferred upon
the non-citizen.
Thus, the doctrine rendered impossible equal
protection of the law. In attempting to promote uniformity of law
throughout the United States, the doctrine had prevented uniformity
in the administration of the law of the state. 34
Next, while not explicitly stating, the Supreme Court opted for
uniformity within the state rather than uniformity throughout the federal
system.35 The Court based its position primarily on the Federal Rules of
Decision Act, first placed in the Judicial Code by the Judiciary Act of
1789.36 The uniformity concept was further advanced when the Court
held which law was to be applied in federal diversity cases. The Court
made it clear that there was no federal common law:
Except in matters governed by the Federal constitution or by Acts of
Congress, the law to be applied in any case is the law of the State.
And whether the law of the state shall be declared by its Legislature in
a statute or by its highest court in a decision is not a matter of federal
37
concern. There is no federal general common law.
34.
Id. at 74-75.
35.
36.
See id. at 78.
Erie R.R., 304 U.S. at 71. The Federal Rules of Decision Act provided, at the time
the majority wrote its opinion: "The laws of the several States, except where the Constitution,
treaties, or statutes of the United States otherwise require or provide, shall be regarded as
rules of decision in trials at common law, in the courts of the United States, in cases where
they apply." Id.
37.
Id. at 78. This appears to conflict with the Third Circuit Court of Appeal's opinion
in Eichenholhz v. Brennan, 52 F.3d 478, 486 (3d Cir. 1995) to the effect that there was a
federal common law settlement contribution bar rule to protect parties who settle claims for
contribution; otherwise, forum shopping would be encouraged. The Eleventh Circuit Court
of Appeals has also said that there is a federal common law rule approving of contracts
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FORUM SHOPPING? WHAT'S WRONG WITH THAT?
Although the Court did not use the term "forum shopping," the
opinion clearly indicates that the rationale behind its holding was the
desire to create a uniformity of decisions throughout the United States
instead of having a variety of decisions within the states under Swift.
Henceforth, within each state there would be a uniformity of decisions
regardless of whether the case was filed in state or federal court.
Without coining the term "forum shopping," the Court did condemn the
practice of seeking a better forum, but only where the choice of a
favorable forum 38 disrupted the desired uniformity in the administration
of the law of the state:
In part the discrimination resulted from the wide range of persons held
entitled to avail themselves of the federal rule by resort to the diversity
of citizenship jurisdiction. Through this jurisdiction individual
citizens willing to remove from their own State and become citizens
of another might avail themselves of the federal rule. And, without
even change of residence, a corporate citizen of the State could avail
itself of the federal rule by re-incorporating under the laws of another
State...."
It was not until 1965 that the Supreme Court, in Hanna v.
Plumer,4° described Erie's rationale as "forum shopping. ' '41 Hanna, a
citizen of Ohio, used the Federal Rules of Civil Procedure for the
service of her complaint in a diversity negligence action filed in federal
court.42 The defendant was successful in having the action dismissed on
agreeing to personal jurisdiction. See generally Lops v. Lops, 140 F.3d 927, 966 n.50 (11 th
Cir. 1998) (following "federal policy") (citing Lorentzen v. Levolor Corp., 754 F. Supp. 987,
993 (S.D.N.Y. 1990)).
38. The Court referred to this as "injustice and confusion." Erie R.R., 304 U.S. at 77.
Ten years prior thereto, Judge Learned Hand, writing a concurring opinion in Young v.
Southern Pacific. Co., 25 F.2d 630, 632 (2d Cir. 1928), said:
Ordinarily the mere fact that a plaintiff prefers the state courts ought not to
prevent his discontinuing his suit; one court is as good as another. But the
situation changes when there is substantial doubt whether the courts will not
apply different rules, and when the plaintiffs purpose is so to maneuver the
litigation that the defendant will lose his existing advantage. The loss of the
federal forum then becomes a grave prejudice, quite as much as, and indeed
more than, the expense and delay in trying the suit up to decree, or even the
failure of a cross-bill.
39. Erie R.R., 304 U.S. at 76-77.
40. Hanna v. Plumer, 380 U.S. 460 (1965).
41. See id. at 467-68.
42. Id. at461.
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the ground that the state civil procedure rules should have been
applied.43 The U.S. Supreme Court reversed, holding that service of
process was correctly made under the Federal Rules.44 Chief Justice
Warren Burger, writing for the majority, said that Erie was "in part a
reaction to the practice of 'forum shopping' which had grown up in
'
response to the rule of Swift v. Tyson. A
Hence, Erie and Hanna have become the Supreme Court' s46 and
other courts' 47 authority for condemning forum shopping. This is true
even though forum shopping was never specifically mentioned in Erie,
and at most was only indirectly involved in that decision. 48 In fact, the
term "forum shopping" first appeared in 1952 when retired U.S. District
Judge, Irving R. Kaufman, sitting as Special Master in a major patent
case, used the term. 49 The "inequitable administration of the law"
which developed from Swift was the wrong that Erie sought to correct.5 0
43. Id. at 462.
44. Hanna, 380 U.S. at 474.
45. Id. at 467 (citations omitted).
46. See Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427 (1996).
47. See Caiola v. Berkshire Med. Ctr., Inc., No.04-CV-623, 2004 WL 2607805, at *3
(N.D.N.Y. Nov. 17, 2004); Houben v. Telular Corp., 309 F.3d 1028, 1034 (7th Cir. 2002);
Esfeld v. Costa Crociere, 289 F.3d 1300, 1314 (11 th Cir. 2002); Snead v. Metro. Prop. & Cas.
Ins. Co., 237 F.3d 1080, 1091 (9th Cir. 2001); Chamberlain v. Giampapa, 210 F.3d 154, 161
(3d Cir. 2000); Garcia v. Wal-Mart Stores, Inc., 209 F.3d 1170, 1177-78 (10th Cir. 2000);
Trierweiler v. Croxton & Trench Holding Corp., 90 F.3d 1523, 1540 (10th Cir. 1996); Atl.
Richfield Co. v. Monarch Leasing Co., 84 F.3d 204, 207 (6th Cir. 1996); Commercial Union
Ins. Co v. Wailbrook Ins. Co., 41 F.3d 764, 773 (1st Cir. 1994) (using forum shopping as a
make-weight reason for the court's decision). Some courts, however, recognize the dual
objective of Erie and Hanna, which is to prevent forum shopping and have an equitable
administration of the laws. See Vasquez v. Bridgestone/Firestone, Inc., 325 F.3d 665, 679-80
(5th Cir. 2003).
48. The Eleventh Circuit Court of Appeals has observed that even without forum
shopping the inequitable administration of the law is wrong. See Alexander Proudfoot Co. v.
Thayer, 877 F. 2d 912, 919 (11th Cir. 1989).
49. See Helene Curtis Indus., Inc. v. Sales Affiliates, Inc., 105 F. Supp. 886, 902
(S.D.N.Y. 1952), aff'd, 199 F.2d 732 (2d Cir. 1952); see infra notes 146-50 and
accompanying text. Curiously, West Publishing Company, five years before Judge
Kaufman's use of the term, used it in a headnote to one of its reported decisions in Koster v.
(Am.) Lumbermens Mut. Cas. Co., 330 U.S. 518 (1947), and in later cases prior to 1952. The
first Supreme Court Justice to use the term in a reported decision was Justice Felix
Frankfurter in Ass'n of Westinghouse Salaried Employees v. Westinghouse Elec. Corp., 348
U.S. 437, 456 (1955). The first state case to use the term was in Vargas v. A.H. Bull S.S. Co.,
131 A.2d 39, 43 (N.J. Super. Ct. Law Div. 1957).
50. See Walker v. Armco Steel Corp., 446 U.S. 740, 753 (1980); Burke v. Smith, 252
F.3d 1260, 1265 (11th Cir. 2001); Alexander Proudfoot Co., 877 F.2d at 919. The Seventh
Circuit Court of Appeals, in discussing the reasons for Erie, has said that it was not simply
the product of a search for a salutary rule of judicial administration, but a holding that the
Supreme Court said was compelled. See Allstate Ins. Co. v. Menards, Inc., 285 F.3d 630, 635
20051
FORUM SHOPPING? WHAT'S WRONG WITH THAT?
In 2001, the Supreme Court extended the primacy of state law for
forum shopping reasons in Semtek International, Inc. v. Lockheed
Martin Corp. 51 There, a Maryland state court dismissed a complaint on
res judicata grounds because a federal district court had dismissed an
almost identical complaint on California statute of limitations grounds.5 2
The U.S. Supreme Court held that the Maryland state court was not
required to dismiss: When a federal dismissal is based on state grounds,
it is not uniformly applicable throughout the nation.53 The Court further
noted that any other rule would encourage forum shopping.54
I.
WHAT IS PERMISSIBLE FORUM SHOPPING?
As stated earlier in this article,55 the courts have permitted a certain
amount of forum shopping. What the courts find unfair is advantageseeking activity by parties, even though such activity is usually not
labeled "forum shopping."
A.
U.S. Supreme Court Cases
In Phillips Petroleum Co. v. Shutt,56 the Supreme Court modified
the right of a plaintiff to choose the forum and applicable law.5 7 Shutts
(7th Cir. 2002). The Eleventh Circuit Court of Appeals has given us the following
description of the two prongs of ErielHanna:(1) If the federal law is statutory or rule and is
sufficiently broad to cover the issue before the court and it conflicts with state law, federal
law applies. If federal law does not specifically conflict with state law then (2) does the
failure to apply state law lead to different outcomes in state and federal courts and result in
inequitable administration of the laws or forum shopping? Burke, 252 F.3d at 1265. Even if
failure to apply state law does not induce forum shopping, it might result in inequitable
administration of the laws. Id. at 1266.
51. Semtek Int'l, Inc. v. Lockheed Martin Corp., 531 U.S. 497 (2001).
52. Id. at 499.
53. Id. at 509.
54. Id. at 508. Justice Scalia said that the issue involved was "whether the claimpreclusive effect of a federal judgment dismissing a diversity action on statute-of-limitations
grounds is determined by the law of the State in which the federal court sits." Semtek, 531
U.S. at 499. This is not quite accurate as a state court, not a federal court, made the ruling in
Maryland, and there was no question but that the federal court's ruling in California was
based on a California statute of limitations. A more accurate phrased issue of the case was:
Whether a dismissal under a federal rule which incorporates a state law of claim preclusion
requires another state to dismiss an identical claim on resjudicata grounds. See generally id.
at 509. The Court answered that question in the negative.
55. See supra text accompanying notes 13, 14.
56. Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985).
57. See infra notes 108-113 in which it was pointed out that filing in one's county of
residence is not always determinative of what law applies.
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involved a class action with 33,000 class members. 58 The Court found
that even though 97% of the class members had no connection with the
forum state, the forum state had not infringed upon their due process
rights as they were treated in a proper manner by the trial court. 59 As to
the question of what law to apply, the Court used the conflict-of-laws
principle of depecage, without specifying it by name, and remanded the
case to the trial court for a determination of that issue based on the
respective interests of the various states involved.6 °
Perhaps the highpoint of leniency in permitting forum shopping
occurred in 1990 when the Supreme Court decided Ferens v. John
Deere Co. 61 In Ferens, a farmer lost his right hand in a combine
harvester, manufactured by the John Deere Company, while working on
his farm in Pennsylvania.62 For unknown reasons, the farmer let the
Pennsylvania two-year statute of limitations run but filed negligence and
products-liability claims in a Mississippi federal district court because
Mississippi had a six-year statute of limitations.6 3 Under Klaxon Co. v.
Stentor ElectricManufacturingCo.,64 the federal district court in Ferens
was required to use the Mississippi state statute of limitations.6 5 The
district court was further required not to use Mississippi's borrowing
666
statute. 6 6 Instead, the court had to apply Pennsylvania substantive law.67
Rather than merely having Pennsylvania substantive law apply, the
farmer wanted the case transferred to Pennsylvania on forum non
58. Phillips Petroleum, 472 U.S. at 801.
59. Id. at 814-15.
60. See id. at 823. Depecage is the principle of the discipline of conflict-of-laws in
which different choice-of-laws rules apply to different issues in a case.
61. Ferens v. John Deere Co., 494 U.S. 516 (1990).
62.
Id. at 519.
63. Id. The federal court had jurisdiction based on diversity because the farmer was a
resident of Pennsylvania, and the defendant was a Delaware corporation with its principal
place of business in Illinois. See id.
64. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487 (1941). In Klaxon, the Court
held that in diversity cases the federal court of a state applies the state's "conflict of laws"
(i.e., choice-of-law) rule, which in Klaxon was a rule concerning pre-judgment interest. See
id. at 494. In Ferens, the Court did not explicitly conclude that Mississippi's statute of
limitations was a "conflict of laws" (choice-of-law) rule. See Ferens, 494 U.S. at 527.
65. See id. at 519.
66. The Mississippi Supreme Court had ruled that the Mississippi borrowing statute
was to be used only if a non-resident of Mississippi in whose favor the statute of limitations
had run, moves into Mississippi and is made a defendant there. Id. at 520. In Ferens, the
parties had agreed that the defendant had been a corporate resident of Mississippi before the
cause of action accrued. Id.
67. See Ferens, 494 U.S. at 519 (stating that Pennsylvania is where the tort occurred).
FORUM SHOPPING? WHATS WRONG WITH THAT?
2005]
conveniens grounds 68 pursuant to 28 U.S.C. § 1404(a). 69 Despite
recognizing that the plaintiff was forum shopping, 70 the district court
permitted the case to be transferred to Pennsylvania pursuant to section
1404(a).
In the U.S. Supreme Court's analysis, the Court recognized its
previous holding in Van Dusen v. Barrack7' where, following a section
1404(a) transfer initiated by a defendant, the choice-of-law rules of the
transferor jurisdiction applied.72 Thus, the issue in Ferens became what
choice-of-law rule would apply where the section 1404(a) transfer was
initiated by the plaintiff rather than the defendant. 73 The Court sought
its answer by analyzing Van Dusen. It explained that Van Dusen sought
to fashion a rule that would not create opportunities for forum
shopping.74 It also explained that some commentators have seen this
policy as the most important rationale of Van Dusen, even though none
have attempted to explain the harm that is done when the plaintiff
initiates the transfer.75
The Court further explained that "[a]n
opportunity for forum shopping exists whenever a party has a choice of
forums [sic] that will apply different laws. 76 The Court then
established that all Van Dusen did was to require the courts to interpret
section 1404(a) "in a way that does not create an opportunity for
obtaining a more favorable law by selecting a forum through a transfer
of venue. 77
No interpretation of § 1404(a). .. will create comparable
opportunities for forum shopping by a plaintiff because, even without
§ 1404(a) a plaintiff already has the option of shopping for a forum
with the most favorable law... Applying the transferor law would
not give a plaintiff an opportunity to use a transfer to obtain a law that
he would not obtain through his initial forum selection. If it does make
selection of the most favorable law more convenient, it does no more
68.
69.
70.
71.
280.
72.
73.
74.
75.
76.
77.
Id.at 520. See also infra text accompanying notes 253-69.
See 28 U.S.C. § 1404(a) (2005).
See Ferens, 494 U.S. at 516, 520.
Van Dusen v. Barrack, 376 U.S. 612 (1964). See infra text accompanying note
Ferens, 494 U.S. at 519.
Id.
Id. at 527.
Id.
Ferens, 494 U.S. at 527.
Id.
QLR
[Vol. 24:25
78
than recognize a forum shopping choice that already exists.
In essence, the Supreme Court's ruling was that when a transfer
initiated by a plaintiff occurs, the transferor court's choice-of-law rules
apply. 79 Hence, the U.S. District Court in Pennsylvania, using the
Pennsylvania statute of limitations instead of the Mississippi statute of
limitations, incorrectly dismissed the action. 80 The Court's rationale
was that if one is permitted to forum shop by choosing to file its action
in Forum A, section 1404(a) affords the plaintiff no greater opportunity
to forum shop by permitting it to transfer to Forum A from Forum B. It
would seem that the major premise of the Court's rationale is flawed,
however, when one considers that in the Ferens case, the plaintiff was
not permitted to file his action
in Forum A (Pennsylvania) because the
81
statute of limitations had run.
In Ferens, Justice Scalia, joined by Justices Brennan, Marshall, and
82
Blackmun, dissented. Justice Scalia thought the Court had incorrectly
concluded that the case involved an interpretation of section 1404(a)
84
83
and whether Klaxon's holding "stands in the way" of that statute.
The rationale for Justice Scalia would have involved an interpretation of
the Rules of Decision Act 85 and whether section 1404(a) alters the
principles of uniformity within a state, which Klaxon says are embodied
within the Rules of Decision Act.86
78. Id. at 527-28. The Court went on to find that a rule which would apply transferee
law would indirectly foster forum shopping. Id. at 528.
79. Ferens,494 U.S. at 531.
80. See id. at 532.
81.
Of course one might argue that Mr. Ferens could have filed in Pennsylvania, hoping
that the running of the statute would go un-noticed. However, such an argument smacks of
sophistry.
82.
Ferens, 494 U.S. at 533.
83. See supra notes 64-65 and accompanying text.
84. Ferens, 494 U.S. at 539.
85. The Rules of Decision Act was a substantial reason for the decision in Erie. See
supra text accompanying note 36.
86.
Ferens, 494 U.S. at 539. The reasons why Justice Scalia prefers his position are
twofold. First, the Rules of Decision Act addresses the issue of what law is to apply and
section 1404(a) does not. Id. Second, the majority acknowledged that under our
jurisprudence the Rules of Decision Act "is 'a vital expression of the federal system and the
concomitant integrity of the separate States."' Id.
20051
FORUM SHOPPING? WHAT'S WRONG WITH THAT?
The decision in Ferens did not go unnoticed. Commentators have
both lauded87 and criticized the decision,88 leaving an impression for
future forum shopping cases.
87. One commentator has said that Ferens "in no way contravenes the Van Dusen
policy against forum shopping." Christopher C. Osborne, The Applicable Law In Federal
Court After Transfer of Venue By Plaintiff: Ferens v. John Deere Co., 24 CREIGHTON L.
REv. 397, 412 (1990). The Supreme Court correctly concluded that transferor law should
apply regardless of which party moves for the § 1404(a) transfer. Additionally, applying the
state law of the original (transferor) forum complies with the policies in the leading cases
addressing the 1404(a) transfer. Congress enacted section 1404 (a) to provide a convenient
forum for the parties and not to change the substantive law that is applied. When plaintiffs
initially choose a forum they accrue state law advantages which should not be lost on
transfer. If plaintiffs are subsequently allowed to transfer the law of the original forum to a
more convenient forum, their use of the statute promotes judicial convenience, yet awards
them no additional benefit which would unduly prejudice their adversary. The Supreme
Court's holding in Ferens, therefore, correctly clarifies the Van Dusen decision and correctly
extends it to plaintiff-initiated transfers. Ferens, 494 U.S. at 412-13.
88. Professor Kimberly Jade Norwood asks: "[W]hy should Pennsylvania be forever
plagued with Mississippi law simply by virtue of a party's ability to transfer?" Kimberly
Jade Norwood, Double Forum Shopping and the Extension of Ferens to FederalClaims that
Borrow State Limitation Periods, 44 EMORY L.J. 501, 545 (1995). Professor Norwood
further added:
Forum shopping is a given in our judicial system, despite the fact that neither
the Supreme Court nor commentators have been able to decide whether forum
shopping is good or bad. But, even if there is nothing inherently wrong with
forum shopping, double forum shopping cannot be sanctioned. Ferens allows
plaintiffs to file a lawsuit in one jurisdiction, solely to obtain the procedural
advantages of that jurisdiction, and then transport those advantages to another,
not necessarily receptive, jurisdiction. This type of manipulation is 'an evil per
se', whether the case is based on diversity or federal question jurisdiction. It
manipulates the judicial system. It has the appearance of impropriety. It allows
a plaintiff to maintain litigation otherwise barred under the applicable laws of
the transferee. It administratively drains the transferee jurisdiction by forcing it
to further congest its dockets and entertain litigation determined to be stale
under the laws of its forum. It will increase, overall, the filings of transfer
motions by plaintiffs. And it may also increase malpractice actions against
attorneys who are not aware of the Ferens manipulation tactic or who refuse to
engage in it. The file-and-transfer ploy of Ferens is deceitful and foreign to a
system of fair play and substantial justice. It attacks the integrity of the legal
system, whether widely known by the public or not.
Id at 545-46. Additionally, Professor David E. Seidelson said that even though Justice
Kennedy, the author of the Ferens opinion, stated "'§ 1404(a) should not create or multiply
opportunities for forum shopping,"' that is exactly what the Court did. David E. Seidelson, 1
(Wortman)+ 1 (Ferens) = 6 (Years): That Can't Be Right - Can it? Statutes of Limitations
and Supreme Court Inconsistency, 57 BROOK. L. REV. 787, 797 (1991) ("By imposing
Mississippi's six-year statute on the diversity court in Pennsylvania, the Court made it
possible for the plaintiffs, by selecting a diversity court in Mississippi and then utilizing
1404(a) to circumvent Pennsylvania's two-year statute. That's the epitome of forum
shopping.").
QLR
[Vol. 24:25
In Allstate Insurance Co. v. Hague,89 the Supreme Court dealt with
another conflict-of-laws problem which prompted a strong dissent from
Justice Powell. In Hague, a Wisconsin resident was killed in Wisconsin
when an automobile rear-ended a motorcycle upon which he was a
passenger. 90
Another Wisconsin resident was operating the
motorcycle. 9 1
Subsequently, the decedent's widow moved to
Minnesota, married a Minnesota resident, became a Minnesota resident
herself, and was appointed as personal representative of the decedent's
estate by a Minnesota probate court.9 2 The widow filed an action in
Minnesota against the negligent motorist's insurance carrier seeking a
declaration that, pursuant to Minnesota law, she would be allowed to
stack the decedent's three uninsured motorist insurance policies. 93 The
defendant's insurance carrier tried to argue that Wisconsin did not
permit "stacking" of uninsured motorist policies.94
In Hague, the Supreme Court resolved the conflict-of-laws
problem by declaring that Minnesota law96 applied. 95 The Court
maintained that Minnesota had three contacts with the parties and that
there were "state interests" sufficient to override any Due Process or
Full Faith and Credit objection to application of Minnesota's "stacking"
law.97 However, Justice Powell, joined by Chief Justice Burger and
Justice Rehnquist, dissented: "If a plaintiff could choose the substantive
rules to be applied to an action by moving to a hospitable forum, the
invitation to forum shopping would be irresistible." 98 Justice Brennan
rebutted this objection in the majority opinion: "[T]he fact that [the
widow's] change of residences was bona fide and not motivated by
litigation considerations," 99 leaving without elucidation the significance
of the timing of the change of residence.
89.
Allstate Ins. Co. v. Hague, 449 U.S. 302 (1981).
90.
91.
92.
Id. at 305.
Id.
Id.
93.
Allstate, 449 U.S. at 305.
94.
Id. at 305-06.
95.
Id. at 313.
96. First, the decedent was a member of the Minnesota work force, commuting to work
in that state every day from his home in Wisconsin. Id. Second, the defendant carrier was at
all times present and doing business in Minnesota. Allstate, 449 U.S. at 317.
widow was a Minnesota resident prior to institution of the litigation. Id. at 318.
97. Id. at 313, 320.
98.
Id. at 337.
99.
Allstate, 449 U.S. at 319 n.28.
Third, the
2005]
FORUM SHOPPING? WHAT'S WRONG WITH THAT?
Finally, a plaintiff may generally file a complaint in a jurisdiction
whose statute of limitations is longer than other potential jurisdictions
even though such a practice may be looked upon as "forum
shopping."' 10 0 In Keeton v. Hustler Magazine, Inc.,10 1 the Supreme
Court permitted the filing of a defamation action in New Hampshire
because New Hampshire was the
only state in which the applicable
10 2
statute of limitations had not run.
B.
Other Examples
Generally speaking, a plaintiff has the right to choose the
jurisdiction in which to file the complaint. 0 3 However, this rule is not
without qualification. 104 For example, when one files the complaint in
the state of their residence, it may be assumed that the choice is dictated
by such factors as convenience and economy.'0 5 This assumption
disappears, however, when the plaintiff is foreign or not a resident of
the forum state. ° 6 In these cases, courts have used a sliding scale
approach to forum shopping, finding that the motivating factor
for the
10 7
plaintiff's choice of forum is to gain a "litigation advantage."'
Personal injury actions have also sparked issues concerning forum
shopping. Although filing a complaint in one's state of residence
implies that the decision is dictated by factors of convenience and
100. See Curry v. States Marine Corp. of Del., 118 F. Supp. 234, 235 (S.D.N.Y. 1954).
101. 465 U.S. 770, 779 (1984).
102. See id. at 779.
103. See Esfeld v. Costa Crociere, 289 F.3d 1300, 1304 n.6, 1312, 1315 (1 1th Cir. 2002)
(saying that there is a "strong presumption against disturbing plaintiffs initial forum
choice.").
104. In addition to the cases discussed in this paragraph, see infra text accompanying
notes 162-73.
105. See Botello v. 11. Cent. R.R., 809 N.E.2d 197, 207 (I. App. Ct. 2004). It should
be noted, however, that the U.S. Supreme Court has said that a plaintiffs residence means
very little in what law will be applied. See Phillips Petroleum Co. v. Shutts, 472 U.S. 797,
820 (1985) (referring to John Hancock Mut. Life Ins. Co. v. Yates, 299 U.S. 178, 182 (1936)
and Home Ins. Co. v. Dick, 281 U.S. 397, 408 (1930)).
106. See Botello, 809 N.E.2d at 207; see also Pollux Holding, Ltd. v. Chase Manhattan
Bank, 329 F.3d 64, 71 (2d Cir. 2003).
107. Id. at 71. In Pollux, the court stated:
[W]hen a foreign plaintiff sues in a United States forum it is more likely that
forum-shopping for a [sic] higher damages award or for some other litigation
advantage ....
Absent proof that the plaintiffs choice of a U.S. forum was
motivated by forum-shopping reasons, factors relating to convenience or
expense generally weigh heavily in favor of the plaintiff's choice. Id.
QLR
[Vol. 24:25
economy, 10 8 filing a personal injury action in one's state of residence
does not imply forum shopping. 1 9 This rule has even been extended to
a plaintiff who returns to his former state of residence.11 ° It has also
been tentatively authorized for a plaintiff to file a personal injury action
in a state other than the plaintiffs state of residence when service was
obtainable in another state, and the witnesses and documentary evidence
were present there."' Furthermore, a plaintiff who files an action in the
defendant's state of citizenship because service of process on the
defendant could not be obtained in the plaintiffs resident state is not
guilty of forum shopping.' 1 2 It has been opined that "[t]he parties have
rights to choice of forum [and] [e]xercising that right should carry no
pejorative cost of 'forum shopping.""' 13
There are other reasons why a plaintiff filing a personal injury
action in a certain state has not been found to be forum shopping. For
example, a fear of personal injury may be offered as a reason for filing
in a forum in which the plaintiff does not reside. 1 4 Also, where a
patient was transferred from a hospital located in her suburban county of
residence to a hospital in a large metropolitan county where most of her
treating physicians and records were located, the filing of a malpractice
15
action against the hospital in the metropolitan county was approved.
Finally, a Tennessee resident injured in Tennessee found that if he
brought a products liability suit against a manufacturer in Tennessee, it
would be barred by that state's statute of repose. 16 Instead, the plaintiff
brought suit in Louisiana federal court because, under Louisiana's tenyear law of prescription, the suit would be timely." 7 The Fifth Circuit
Court of Appeals went on to hold that Tennessee's substantive law and
Louisiana's procedural law would apply. 1 8
The court further
maintained that there was no forum shopping on the part of the plaintiff
because Louisiana was the defendant's state of incorporation, principal
place of business, and location of the design and manufacturer of the
108.
109.
110.
111.
112.
113.
114.
115.
See supra note 105 and accompanying text.
See La Plante v. Am. Honda Motor Co., 27 F.3d 731, 741 (1st Cir. 1994).
See Iragorri v. United Techs. Corp., 274 F.3d 65, 75 (2d Cir. 2001).
See id.
Olmstead v. Anderson, 400 N.W.2d 292, 304 (Mich. 1987).
Howery v. Allstate Ins. Co., 243 F.3d 912, 919 (5th Cir. 2001).
See Iragorri, 274 F.3d at 75.
See Prouty v. Advocate Health & Hospitals Corp., 810 N.E.2d 179 (111.App. Ct.
2004).
116.
117.
118.
Marchesani v. Pellerin-Milnor Corp., 269 F.3d 481, 492-93 (5th Cir. 2001).
Id. at484.
Id.
20051
FORUM SHOPPING? WHAT'S WRONG WITH THAT?
19
machine which allegedly caused the injury.'
As discussed earlier, both sides to a lawsuit have the potential to
forum shop.12 However, it is not considered forum shopping for a
defendant to try his
counterclaim in a forum that dismisses the
12
plaintiff's complaint. '
Some courts have found that a party is not forum shopping when
his counsel has been the cause for filing in a different forum. For
instance, it has been held that new counsel is at liberty to file a
completely new action for the same party in a different court where the
previous counsel had filed the wrong action in the wrong court. 2 2 Also,
where a prosecutor was required to dismiss a criminal case due to her
honest inability to locate her file, no accusation of forum shopping was
established where the re-filed case was assigned to a different judge,
even though the state's Supreme Court had established
a rule requiring
123
cases.
re-filed
over
preside
to
magistrate
same
the
Courts have also held that removal can be a permissible form of
forum shopping. A motion to remove a state court action to federal
court is not forum shopping.124 It is also not forum shopping for a
defendant, who has been sued in state court on state and federal claims,
to remove the case to federal court, and then to move for summary
judgment on the state claims before seeking judgment on the federal
119. Id. at 492-93.
120. See supra note 15 and accompanying text.
121.
See generally Smith v. Lenches, 263 F.3d 972, 977-78 (9th Cir. 2001). The court
would not allow the defendant to continue with its counterclaim, however, based on
duplicitiveness and the fact that the defendant was unable to show that the prohibition against
continuing with its counterclaim caused it any hardship. See id.
122. See Morris v. Mullis, 590 S.E.2d 823, 826 (Ga. Ct. App. 2003). In Morris, property
owners filed a petition in superior court alleging under oath that their use of defendants'
property was permissive and not prescriptive. Id. at 824. The superior court judge issued an
ex parte temporary restraining order. Id. New counsel for the plaintiffs then attempted to
circumvent the plaintiffs' admission of fact before the superior court by voluntarily
dismissing their complaint, rather than amending it. Id. The plaintiff filed a complaint in
probate court, alleging that it had a prescriptive easement and asked the probate court to
enjoin the defendants from obstructing its use of that easement. Morris, 590 S.E.2d at 824.
The plaintiff did not reveal the superior court case. Id. The majority in Morris permitted the
second action to proceed, despite a concurring judge's position that "[s]uch judge shopping is
unjust, unfair and cannot be condoned by this court." Id. at 832.
123. State v. Atencio, 89 P..3d 191, 195-196 & n.5 (Utah Ct. App. 2004) (stating that
"[florum shopping occurs when a criminal prosecution [is] shuffled from one magistrate to
another simply because a county attorney is not satisfied with the action of the magistrate in
the precinct whose jurisdiction was first invoked.").
124. See generally Myles Lumber Co. v. CNA Fin. Corp., 233 F.3d 821, 825 (4th Cir.
2000).
QLR
[Vol. 24:25
claims. 25 The Ninth Circuit Court of Appeals also held that an insurer
did not engage in forum shopping when, following an action brought
against it by one of its insureds in state court and2 7removed to federal
26
court, it filed a protective action in federal court.1
Forum shopping has also been discussed in the context of
declaratory actions. While a case was pending in a state trial court by a
lessor who sought a declaratory judgment that the lease was canceled,
the lessee filed a declaratory action in a federal district court asking that
the lease remain in effect. 28 While the federal district court took into
consideration forum shopping by the lessee, the Fifth Circuit Court of
Appeals concluded that the lessee's case was permissible in federal
court because: (1) the federal courthouse was within 90 miles of the
state courthouse; (2) the federal case was ready for resolution, while the
state proceedings "were not yet near resolution"; and (3) the District
Judge had an opportunity to examine the testimony of witnesses. 29 In
another case, the Fifth Circuit opined that "[m]erely filing a declaratory
judgment action in a federal court with jurisdiction to hear it, in
anticipation of state court litigation is not in itself improper litigation or
This reasoning was also
otherwise abusive forum shopping.' ' 130
followed in an action where a herbicide manufacturer sued in federal
court seeking declaratory relief to interpret a federal statute. 131 The
manufacturer's suit preempted a group of peanut farmers' state law
claims against the manufacturer. 3 2 Even though the manufacturer
"engaged in at least some degree of forum shopping" by filing for
declaratory relief in anticipation of being sued in state court, the Fifth
33
Circuit affirmed the manufacturer's motion for summary judgment. 1
125. See Ullmo v. Gilmour Acad., 273 F.3d 671, 680 (6th Cir. 2001) (specifying that
Rule 11 of the Federal Rules of Civil Procedure does not prevent a defendant in such case
from obtaining a federal judgment on a state claim before it obtains a federal judgment on a
federal claim).
126. The court did not define the term "protective action" although it could have defined
it as: one seeking injunctive relief.
127. See Cont'l Ins. Co. v. N.A.D., Inc., 16 Fed. Appx. 659, 662 (9th Cir. 2001).
Great Atl. & Pac. Tea Co. v. Gillis, 78 Fed. Appx. 329, 329 (5th Cir. 2003).
128.
129. Id. at 331.
130. Sherwin Williams Co. v. Holmes County, 343 F.3d 383, 391 (5th Cir. 2003). When
a manufacturer anticipated having to defend several single-issue cases in different state
courts, it filed a declaratory judgment action in federal court. Id. at 401. See an analysis of
Sherwin Williams in Mill Creek Press, Inc. v. Thomas Kincade Co., No. CIVA. 3:04-CV1213-G, 2004 WL 2607987, at *7 (N.D. Tex. Nov. 16,2004).
131.
Dow Agrosciences v. Bates, 332 F.3d 323, 325 (5th Cir. 2003).
132. Id.
133.
Id. at 327.
2005]
FORUM SHOPPING? WHAT'S WRONG WITH THAT?
Finally, an insurer's declaratory judgment action to determine
a
coverage while simultaneously avoiding exposure to the expense of
134
substantial bad faith claim has been found not to be forum shopping.
Civil cases are not the only types of cases in which parties to a
suit may engage in forum shopping. A federal prosecutor's decision to
pursue a federal crime in federal court rather than a state crime in state
court is not considered forum shopping. 135 Moreover, a prosecutor's
presentation of additional evidence to the same grand jury in the hope
for additional crimes has been held not
that it will indict the defendant
36
to be forum shopping. 1
Finally, forum shopping has been permitted in some unusual
For example, an injured motorist settled with an
circumstances.
underinsured motorist for less than the underinsured motorist's policy
limits. 137 The underinsured motorist was successful in recovering a
judgment from his insurer after the insurer denied his claim. 38 The
underinsured motorist then subsequently filed a bad faith action in
another state. 139 Even though the Seventh Circuit Court of Appeals'
to be forum shopping," it
opinion stated that the action "seemed clearly
40
permitted the bad faith suit to continue.
In another case, a Louisiana state court permitted the filing of an
action for a deficiency judgment five years after the claim for deficiency
arose, even though an action involving the same transaction was already
pending. 14' The claim for deficiency arose prior to the entry of a
judgment of foreclosure in that action. 142 As expected, a strong dissent
said that the outcome of the case fostered forum shopping. 143 Another
court has held that filing an action for overpayment of taxes in a U.S.
district court that had rendered a decision favorable to the taxpayer's
134. Prudential Ins. Co. of Am. v. Doe, 140 F.3d 785, 790 (8th Cir. 1998) (holding that
insurers commonly use declaratory judgment actions to determine coverage questions, while
also contemporaneously trying to avoid a bad faith claim).
135. See United States v. McKissick, 204 F.3d 1282, 1295 (10th Cir. 2000).
136. State v. Garson, 775 N.Y.S. 2d 827, 837 (N.Y. App. Div. 2004); see infra note 159
and accompanying text.
137. See Estate of Lake Geneva Sugar Shack, Inc. v. General Star Indemnity Co., 200
F.3d 479, 483 (7th Cir. 2000) (discussing Davis v. Am. Family Mutual Ins. Co., 569 N.W.2d
64 (Wis. Ct. App. 1997)).
138. See id. at 483.
139. See id.
140. See id. at 484.
141. See Tower Partners v. Wade, 869 So. 2d 126, 131 (La. Ct. App. 2004).
142. See id. at 132.
143. See id. at 132.
QLR
[Vol. 24:25
position is not forum shopping. '44
IV.
WHAT IS IMPERMISSIBLE FORUM SHOPPING?
Even though it is generally permissible to have two cases pending
in different courts simultaneously, 145 this rule is not always uniformly
followed. 46 After a declaratory action seeking the validity of a patent
had been pending in a New York district court, the defendant filed six
patent infringement actions against ten defendants in various parts of the
country.147 Having dismissed four of the patent infringement actions,
two were pending in Texas when the district court of New York
enjoined the Texas actions: the defendant was guilty of "forum
shopping with a vengeance."'148 The Second Circuit Court of Appeals
affirmed, stating that normally when two simple cases are pending in
different courts, they are allowed to go forward until a final judgment is
reached in one of them. 49 The Second Circuit, however, applied a
different rule in that case. It held that an injunction was proper where a
major industry had been left in "turmoil for some years"; the
defendant's headquarters were in New York; most of the technical and
important witnesses (including the alleged inventor) lived in New York;
all the alleged infringers had been permitted to intervene in the New
York action; the U.S. District Judge in Texas had transferred the Texas
actions to New York 15under
28 U.S.C. 1404(a); and there was evidence
' 0
of "forum shopping."
In another patent case, a patent holder sued a retailer in the federal
district court of North Carolina.1 5 ' Three months later, the retailer and
the manufacturer of the product brought an action against the holder of
the patent in the federal district court of New York. 52 They sought a
declaration that the patent was invalid and a restraint of the North
144. See generally S. Md. Agric. Ass'n v. United States, 16 F.R.D. 100, 101 (D. Md.
1954). See infra text accompanying note 160, concerning a similar, but different, situation.
145. See infra note 271 and accompanying text.
146. See Helene Curtis Indus., Inc. v. Sales Affiliates, Inc., 105 F. Supp. 886, 902
(S.D.N.Y. 1952), affd, 199 F.2d 732 (2d Cir. 1952).
147. See Helene Curtis Indus., 199 F.2d at 733.
148. See Helene Curtis Indus., 105 F. Supp. at 902.
149. Helene Curtis Indus., 199 F.2d at 733.
150. See id.
151. See Marshall Metal Prod., Inc. v. Aghnides, 126 F. Supp. 849, 850 (S.D.N.Y.
1953).
152. Id.
2005]
FORUM SHOPPING? WHAT'S WRONG WITH THAT?
Carolina actions. 53 The district court judge in New York found the
retailer's and the manufacturer's
actions to be forum shopping and
154
stay.
a
for
motion
the
granted
After a plaintiff received an adverse judgment in a territory court
155
(Puerto Rico), he filed the same action in federal court in Puerto Rico.
After determining that the territory law of resjudicatawould not bar the
action, the First Circuit Court of Appeals reversed the lower court's
dismissal but stayed further proceedings until the highest court of the
territory ruled. 156 The
court did, however, criticize the plaintiffs' actions
15 7
as forum shopping.
As discussed earlier, criminal cases may also involve issues of
forum shopping.158 Where a prosecutor withdraws a criminal case from
a grand jury to present it to another grand jury with additional evidence,
it is forum shopping if one of the prosecutor's reasons for the
withdrawal is to reach a more compliant jury. 159
Usually it is not forum shopping to file for a tax refund in the same
U.S. district court which ruled in favor of the taxpayer. 60 After the
favorable ruling has been reversed, however, seeking to dismiss the tax
refund case without prejudice so that the taxpayer might seek a
favorable 16
ruling
in another U.S. district court has been held to be forum
1
shopping.
Generally, a plaintiff is free to choose as his forum a jurisdiction in
which an applicable statute of limitations has not run. 162 On the other
hand, where a plaintiff has made his choice, at least one court has
considered it forum shopping if the plaintiff seeks to transfer the case
153. Id.
154. Id.
155. Cruz v. Melecio, 204 F.3d 14, 24 (1st Cir. 2000).
156. Id. at 24-25.
157, Id. at 24. The court opined that the Appellants' "timing raises the discomforting
specter of forum shopping - and we are free to factor this circumstance into the decisional
calculus ....
From the standpoint of federalism and comity, there is something particularly
offensive about hijacking a case that is pending on the docket of a state's highest tribunal."
Id. ("Considerations of... sound judicial administration require abstention when a state
court decision is on appeal to that state's supreme court and a second action is filed in federal
court.") (quoting Am. Benefit Life Ins. Co. v. United Founders Life Ins. Co., 515 F. Supp.
800, 803 (W.D. Okla. 1980)).
158. See supra note 136 and accompanying text.
159. N.Y. v. Garson, 775 N.Y.S. 2d 827, 837 (N.Y. App. Div. 2004) (dictum); see supra
text accompanying note 136.
160. See supra text accompanying note 144.
161. See S. Md. Agric. Ass'n v. United States, 16 F.R.D. 100, 102 (D. Md. 1954).
162. See supra text accompanying note 100.
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from one federal district court to another pursuant to 28 U.S.C.
§ 1406(a). 163 The court's rationale involved the plaintiff's "failure to
pursue its claim diligently and to research New York's statute of
limitations .... "'64 The court pointed out that section 1406 may be
used even if venue in the first forum was proper, but the transfer is
permitted only if it is made in "the interest of justice." 165 The court
further commented that "[o]nce a plaintiff has commenced its
action.... its opportunity to search for a more conducive forum
ordinarily is concluded ....
Here, we believe that plaintiff's failure to
shop diligently before the action's inception is no reason to allow it [to]
'bargain hunt."'' 166
A dissenting judge thought that "[t]he panel
decision... needlessly punishes the plaintiffs for their lawyer's
mistake ...
,,167
In Doctor's Assoc., Inc. v. Distajo,168 the contract between a fastfood franchisor and its franchisees required that any controversy be
arbitrated in Connecticut under Connecticut law. 169 When controversies
arose, the franchisor brought eviction proceedings in several state courts
instead of reverting to arbitration.170 As a result, the franchisees
"scrambled" to obtain favorable judgments in other local state courts. 17'
Finally, the franchisor asked a federal district court to compel the
franchisees to abide by the arbitration clause. 172 On appeal from the
federal district court order requiring arbitration, the Second Circuit
Court of Appeals
opined that the case was about forum shopping on
73
sides.
both
New Jersey has a statute which provides that in a malpractice case,
the plaintiff must file an affidavit, executed by a person skilled in the
same field as the defendant, stating that the defendant's acts fell outside
the scope of acceptable practice. 74 In a federal case in New Jersey, the
163. See Spar, Inc. v. Info. Res., Inc., 956 F.2d 392, 393 (2d Cir. 1992).
164. Id.
165. Id.
166. Id. at 395.
167. Spar, 956 F.2d at 395. The dissenting judge thought that transferee law would
apply under section 1406. See id. at 397. A suggestion to relieve criminal defendants from
the mistakes of their counsel was rejected in Presnell v. Kemp, 835 F. 2d 1567, 1579 (11 th
Cir. 1988) on the ground that it would encourage forum shopping.
168. 66 F.3d 438 (2d Cir 1995).
169. See id. at 441.
170. Id.
171. Id.
172. Doctor'sAssoc., 66 F.3d at 441.
173. Id.
174. See Chamberlain v. Giampapa, 210 F.3d 154, 160 (3d Cir. 2000).
2005]
FORUM SHOPPING? WHAT'S WRONG WITH THAT?
Third Circuit Court of Appeals held that this statute must be followed
not only due to Erie but also because failure to do so would promote
forum shopping.175 The Fifth Circuit Court of Appeals rendered a
similar holding. 176 In both cases, the temptation to file in federal court
would be considerable where compliance with the state statute was not
required.
177
In general, a party may seek removal from one court to another.
However, naming a defendant solely to prevent removal to federal court
under diversity jurisdiction is forum shopping. 178
In addition, once a judge has spent a considerable amount of time
considering a motion for attorney's fees, it has been found to be a
"blatant attempt at forum shopping" when the moving attorney seeks to
withdraw his or her motion without prejudice so that it might be re179
submitted to a judge who would subject the motion to less scrutiny.
Some courts have allowed a litigant to preemptively strike by
seeking declaratory relief before an action is brought against it.' 8 ° Other
courts have said that "declaratory judgments actions are not to be used
defensively to deny a prospective plaintiff s choice of forum[].'' 8 1 Case
82
law has also established that using the Declaratory Judgment Statute
to prevent a court of a foreign country from entering a judgment that
83
could have been enforced in the United States is forum shopping.
Likewise, filing a declaratory judgment action in state court which
would defeat removal to federal court because no money damages were
sought has been found to be forum shopping.184
175. See id. at 161.
176. See Woods v. Holy Cross Hosp., 591 F.2d 1164, 1168 (5th Cir. 1979) (holding that
if the statutory scheme was not given effect in the federal court then non-resident plaintiffs
would have a substantial advantage over resident ones).
177. See supra notes 124-27 and accompanying text.
178. See generally PaineWebber, Inc. v. Cohen, 276 F.3d 197, 203-04 (6th Cir. 2001).
179. Reed v. Rhodes, 179 F.3d 453, 471 (6th Cir. 1999).
180. See supra note 134 and accompanying text.
181. Verizon Commun., Inc. v. Inverizon Int'l, Inc., 295 F.3d 870, 874 (8th Cir. 2002)
(holding no forum shopping was found on the part of the party bringing the declaratory
action. The fact that it had been first to file, while not dispositive, was a relevant factor).
Even though a proponent of the declaratory action may not be guilty of forum shopping, there
might be other reasons to enjoin it. See generally W. Heritage Ins. Co. v. Sunset Sec., Inc.,
63 Fed. Appx. 965, 966-67 (8th Cir. 2003).
182. 28 U.S.C. § 2201(a) (2005).
183.
See generally Basic v. Fitzroy Eng'g., Ltd., No. 97-1052, 1997 U.S. App. LEXIS
34171 (7th Cir. 1997).
184. See United Nat'l Ins. Co. v. R & D Latex Corp., 242 F.3d 1102, 1114 (9th Cir.
2001) (referring to the practice as "artful pleading").
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[Vol. 24:25
Under 28 U.S.C. § 1406(a), a case filed in a federal district in
which venue is improper may be transferred to a federal district in
which venue is proper.1 85 If a transfer is made under such statute, the
substantive law of the transferee court applies. 86 If the rule were
otherwise, one could purposely file an action in a district with improper
venue simply to take advantage of the forum's longer statute of
limitations and have that limitations period apply after the transfer was
made. 187 88 If the rule were otherwise, forum shopping would be
obvious.1
In dictum, the court in Scheuerman v. Hauk 89 described how
allowing support payments to slip into arrearage and then moving to a
state where they had not expired was "forum shopping of the most
obvious sort."' 190 And, permitting a person to bring a claim in Georgia
after a Florida court, whose law governed the matter, determined that
the claim lacked merit would "encourage the worst sort of forum
shopping and unnecessarily clog Georgia's courts."' 19 1
A litigant's actions outside the courtroom may also be found to be
forum shopping. For example, one court has found that a corporation
92
engaged in forum shopping by changing its corporate headquarters.
Another court said that a "limited type of 'forum shopping"' occurs
when a spouse attempts to change her marital domicile by changing her
driver's license and voter registration without evidence of a
corresponding intent on the part of the other spouse to do likewise. 193
After a married woman filed for a divorce in Kentucky, her
husband, an army officer stationed in Belgium, filed and obtained a
divorce in a Belgium court. 94 Without any explanation, the Kentucky
court found that the Belgium court had no jurisdiction, and that its
judgment of divorce was the product of forum shopping. 195
185. See 28 U.S.C. § 1406(a) (2005); Wisland v. Admiral Beverage Corp., 119 F.3d 733,
736 (8th Cir. 1997).
186. See id. at 736 (referring to Ferens v. John Deere Co., 494 U.S. 516, 531 (1990)).
187. See id. Compare Chrysler Credit Corp. v. Country Chrysler, Inc., 928 F.2d 1509,
1515-16 (10th Cir. 1991) (discussing transfer under 28 U.S.C. § 1404(a)).
188. See id. at 735-36.
189. 11 Cal. Rptr. 3d 125, (Cal. Ct. App. 2004) (dictum).
190. Id. at 127.
191. Harper v. Harper, 600 S.E.2d 659, 663 (Ga. Ct. App. 2004).
192. See Passantino v. Johnson & Johnson Consumer Prod., Inc., 212 F.3d 493, 505 (9th
Cir. 2000) (describing the procedure as "fanciful").
193. Weiler v. Weiler, 861 So. 2d 472,477 (Fla. Dist. Ct. App. 2003).
194. Nevill v. Nevill, No. 2001-CA-002628-MR, 2004 WL 1047413, at *1 (Ky. Ct.
App. May 7, 2004).
195. See id.
20051
FORUM SHOPPING? WHAT'S WRONG WITH THAT?
In another case, the court rejected a defendant's argument that the
withdrawal of several counts of a complaint in order to re-file those
196
counts in federal court was "a classic example of forum shopping."'
Class action suits, too, have forced some courts to apply forum
shopping principles. It has been said that a class action that will "rubber
stamp" any settlement is forum shopping. 197 The location of the class
members' residences has played a role in forum shopping analysis. For
example, bringing an action in one federal district court of a state when
the majority of class members reside closer to another 9 district
court
8
within the same state has been held to be forum shopping.1
The widely accepted rule that two similar actions may pend in
separate jurisdictions until a final judgment is reached in one' 99 is not
unanimously followed. The Seventh Circuit Court of Appeals has
suggested that the federal courts should "defer" to the state courts where
a case is filed in state court first.200 A Texas appellate court has found
that a defendant who files a suit while a similar suit is pending is guilty
of forum shopping. 20 1 Finally, a Tennessee appellate court held that,
pursuant to its "former suit pending" doctrine, it was forum shopping
for a defendant to file a chancery action in one county while a chancery
action involving the same parties and the same subject matter was
pending in another county.20 2
Though not mentioning the term "forum shopping," the Seventh
Circuit prevented a Bankruptcy Court from entering an order preferring
certain creditors over other creditors where there was no evidence as to
the reason for such preference.20 3 One can readily discern that this
196. Conn. Auto. Coverage, Inc v. Am. Int'l Group, Inc., No. X01CV020172539S, 2004
WL 1052770, at *3 (Conn. Super. Ct. Mar. 12,2004).
197. Marcel Kahan & Linda Silberman, The Inadequate Search for "Adequacy" in
Class Actions: A Critique of Epstein v. MCA, Inc., 73 N.Y.U. L. REv. 765, 776 (1998). See
infra text immediately following note 211, concerning pending Congressional legislation
dealing with class actions.
198.
See Dudash v. Varnell Struck & Assoc., Inc., No.C04-2748 MHP, 2004 U.S. Dist.
LEXIS 24872, at *14-15 (N.D. Cal. Nov. 16, 2004).
199. See infra text accompanying note 271.
200. See Hart v. Wal-Mart Stores, Inc., 360 F.3d 674, 680 n.2 (7th Cir. 2004). But cf
AXA Corporate Solutions v. Underwriters Reinsurance Corp., 347 F.3d 272, 280 (7th Cir.
2003) (holding that plaintiff properly filed its case in federal court and is "entitled to its
federal forum").
201.
See Cap Rock Elec. Coop., Inc. v. Rayburn County Elec. Coop., Inc., No. 08-0100347-CV, 2004 WL 241538, at *3 (Tex. App. Feb. 10, 2004) (stating that "in a race to the
courthouse, the winner's suit should have dominant jurisdiction.").
202.
See Metro. Dev. & Housing Agency v. Brown Stove Works, Inc., 637 S.W.2d 876,
882 (Tenn. Ct. App. 1982).
203.
See In re Kmart Corp., 359 F.3d 866, 872, 874 (7th Cir. 2004).
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[Vol. 24:25
practice could lead to forum shopping among creditors: They may force
a debtor into bankruptcy by filing Involuntary Petitions in certain
Bankruptcy Courts in order to get the benefit of such largess.2 °4
V.
EFFORTS TO GOVERN FORUM SHOPPING
A number of statutes, court rules, 20 5 treaties, procedures, and
principles have been created to govern forum shopping.
A.
Statutes
Some statutes specifically determine what law is to apply. For
instance, the Federal Tort Claim Act ("FrCA") .06 applies the "whole
law" of the state in which the act or omission occurred.20 7
In bankruptcy cases, federal bankruptcy laws permit a U.S. district
court to withdraw a bankruptcy case from the Bankruptcy Court despite
its previous reference of that case to the Bankruptcy Court.20 8 Though
not specifying "forum shopping" as a reason for such withdrawal, the
statute has been so interpreted.20 9 In addition, provisions of the Federal
Arbitration Act ("FAA") 210 must be honored211by both state and federal
courts in order to discourage forum shopping.
House Bill 1115 and Senate Bills 274 and 1751 are presently
pending before Congress. If enacted, these laws would move large
multi-state class action lawsuits into federal court in order to prevent
"venue shopping" by trial lawyers who are looking for more
sympathetic state courts.
Federal law has also established the guidelines as to when a U.S.
district court is permitted to transfer a case due to inconvenience and
204. See id.; see also the preferential transfer section of the Bankruptcy Code - 11
U.S.C. § 547.
205. Court rules can at times be found to encourage forum shopping. Thus, in
shareholder derivative class actions, a rule where attorneys' fees would be awarded if a fund
is created and rejected upon a common benefit, would encourage forum shopping. In re
Wachovia S'holder Litig., No.01 CVS 4486, 2003 WL 22996328, at *11-12 (N.C. Super. Ct.
Dec. 19, 2003).
206. 28 U.S.C. § 1346(b) (2005).
207. Gould Elec., Inc. v. United States, 220 F.3d 169, 179 (3d Cir. 2000).
208. See 28 U.S.C. § 157(d) (2005).
209. See In re Canter, 299 F.3d 1150, 1154 (9th Cir.2002); see also In re Orion Pictures
Corp., 4 F.3d 1095, 1101 (2d Cir. 1993).
210. 9 U.S.C. § 2 (2005).
211. See generally Roadway Package Sys., Inc. v. Kayser, 257 F.3d 287, 288 (3d Cir.
2001).
FORUM SHOPPING? WHAT'S WRONG WITH THAT?
2005]
212
economy, and when a U.S. district court is permitted to transfer a case
due to that case being filed in the wrong venue.213 When the transfer is
made under 28 U.S.C. § 1404(a), the substantive and choice-of-law
rules of the transferor court are used in the transferee court.214 When the
transfer is made under 28 U.S.C. § 1406(a), the substantive and choice215
of-law rules of the transferee court are used in the transferee court.
However, if the transfer was made because the transferor court lacked
jurisdiction, it is the law of the transferee court that is used even if the
transfer was made under section 1404(a).2 16 The purpose of this rule is
to defeat forum shopping.217
Borrowing statutes also implicate concerns over forum shopping.
The purpose of these statutes is "[t]o discourage forum shopping by
plaintiffs looking for the longest limitations periods .... ,,2 8
[B]orrowing statutes generally provide that, when an action is brought
by a non-resident of the state on a cause of action that accrues outside
the state, the forum state will apply either the limitations period of the
state in which the action accrued or that of the forum state, whichever
is shorter.219
Traditionally, courts applied their own statutes of limitations. 220 As a
result, "[tlhis created opportunities for forum shopping by allowing
citizens of states with shorter limitations periods to sue in states with
longer periods. In response to this and other concerns, many states have
passed 'borrowing statutes' that instruct their courts to apply foreign
statutes of limitations in certain cases."2 2'
Multiple filings by an employer which have to be defended by the
employee under the Black Lung Benefits Act222 might appear to be
212.
213.
214.
1996).
215.
216.
217.
218.
TMI, 89
2004).
219.
220.
221.
222.
See 28 U.S.C. § 1404(a) (2005).
See 28 U.S.C. § 1406(a) (2005).
Trierweiler v. Croxton & Trench Holding Corp., 90 F.3d 1523, 1532 (10th Cir.
Id.
Id.
Id.
Manning v. Util. Mut. Ins. Co., 254 F.3d 387, 396 (2d Cir. 2001); see also In re
F.3d 1106, 1116 (3d Cir. 1996); Combs v. Int'l Ins. Co., 354 F.3d 568, 589 (6th Cir.
Manning, 254 F.3d at 396.
Flowers v. Carville, 310 F.3d 1118, 1123 (9th Cir. 2002).
Id.
30 U.S.C. § 901 (2005).
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[Vol. 24:25
forum shopping by wearing down the employee, but some statutes, as
this one, due to their nature, place less importance on finality than
would apply to others, and compliance with the statute does not consist
of forum shopping.223
Courts that grant custody awards22 4 usually retain jurisdiction to
modify those awards because the best interest of the child may change
with the facts.225 This general rule applies unless a state restricted its
courts from modifying an out-of-state custody award.226 As a result, a
forum state historically assumed it had jurisdiction to modify an out-ofstate custody award.227 In 1968, in an effort to curb the resulting forum
shopping, Congress promulgated the Uniform Child Custody
Jurisdiction Act ("UCCJA"). 22 8 Under the UCCJA, every child has a
"home state" which possesses the preeminent authority for determining
custody, and such authority should be respected elsewhere.229 In 2001,
Congress passed the Uniform Child Custody Jurisdiction and
Enforcement Act ("UCCJEA") to clarify some uncertainties of the
UCCJA by creating clearer standards for original jurisdiction and by
providing a remedial process to enforce interstate child custody
determinations.2 3 In 1981, Congress enacted the Parental Kidnapping
Prevention Act ("PKPA") 231 to further curb forum shopping 232 and to
correct some of the inadequacies of the UCCJA.233 The PKPA, among
other things, limits the "significant connection" jurisdiction to cases in
which there is no state with "home-state" jurisdiction.23 4 Under the
PKPA, the state making the original custody determination remains the
"home" of the child, and all other states must recognize this fact.2 35
223. See generally Old Ben Coal Co. v. Dir., 292 F.3d 533, 540-41 (7th Cir. 2002).
224. The courts that grant custody awards are usually the courts that dissolve the
parents' marriage. It has been opined that to sever the two procedures would promote forum
shopping. See Slaughter v. Slaughter, 869 So. 2d 386, 388 (Miss. 2004).
225. See Thompson v. Thompson, 484 U.S. 174, 180 (1988).
226. This is the case in Indiana where the statute permits modification of an out-of-state
award only if Indiana has sufficient contacts with the case. See Sudvary v. Mussard, 804
N.E.2d 854, 857-58 (Ind. Ct. App. 2004).
227. See id.
228. See Poluhovich v. Pellerano, 2004 WL 2712552, at *23 (N.J. Super. Ct. App. Div.
Nov. 30, 2004); In re Wesley S., No. A-03-766, 2004 WL 1092037 (Neb. Ct. App. May 18,
2004); NMC v. JLW ex rel., 90 P.3d 93, 97 (Wyo. 2004).
229. See 28 U.S.C. § 1738(c)(2)(A)(ii) (2005); NMC, 90 P.3d at 97.
230. See Fish v. Fish, 596 S.E.2d 654, 654 (Ga. Ct. App. 2004).
231. 28 U.S.C. § 1738A (2005).
232. Paslov v. Cox, 104 P.3d 1025, 1029 (Mont. 2004); NMC, 90 P.3d at 97.
233. See Vanatta v. Boulds, 81 P.3d 480,482 (Mont. 2003).
234. NMC, 90 P.3d at 97-98,
235. See id.
20051
FORUM SHOPPING? WHAT'S WRONG WITH THAT?
Lastly, the federal diversity statute is a deterrent to forum shopping
in actions involving estate matters 236 between citizens of one state and
citizens or subjects of a foreign state. 237 And, probably as a means of
preventing forum shopping by habeas corpus petitioners, 238 federal
district courts are limited to granting habeas corpus relief "within their
respective jurisdictions."239
In 1982, the Court of Appeals for the Federal Circuit was created
as a specialized court focusing on patent jurisdiction because
"widespread forum-shopping was particularly acute" in the realm of
patent litigation. 240
B.
Rules of Civil ProcedureandJudge-Made Rules
Some of the Federal Rules of Civil Procedure serve to prevent a
litigant from forum shopping. Under Rule 41(a)(1), for example, a
plaintiff is allowed to dismiss a complaint without prejudice in the face
of a Rule 12(b)(6) motion. Hence, such a dismissal is not forum
shopping. 241 The purpose of Rule 24(a) is the "prevention of a
multiplicity of suits where common questions of law or fact are
involved .... ,,242 This rule was the rationale for the Tenth Circuit Court
of Appeals' observation that a party who could have sought to intervene
in a pending litigation in one state but instead
filed a new action in
243
another state, was guilty of forum shopping.
Pennsylvania's Rules of Civil Procedure provide that venue is
proper where a "transaction or occurrence took place out of which the
cause of action arose.",244 A Pennsylvania appellate court has held that
such a rule must refer to the entire transaction, not just a part of it, as
any other interpretation would lead to confusion and forum shopping.245
236. See 28 U.S.C. § 1332(c)(2) (2005).
237. See Tank v. Chronister, 160 F.3d 597, 601 (10th Cir. 1998).
238. See generally Bellomo v. United States, 344 F. Supp. 2d 429, 437 (S.D.N.Y. 2004).
239. 28 U.S.C. § 2241(a) (2005).
240. Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Say. Bank, 527 U.S. 627,
652 (1999); H.R. REP. No. 97-312, pp. 20-21(1981); S. REP. No. 97-275, p. 5 (1981).
241. Swedberg v. Marotzke, 339 F.3d 1139, 1145 (9th Cir. 2003) (observing that even if
such a voluntary dismissal were forum shopping it would be a matter to be handled by the
Federal Rules Committee, not the courts).
242. Coalition v. Dept. of the Interior, 100 F.3d 837, 844 (10th Cir. 1996).
243.
See id.
244. Harris v. Brill, 844 A.2d 567, 570 (Pa. Super. Ct. 2004).
245. See id. at 571; see also Shaffer v. Commonwealth Dept. of Transp., 842 A.2d 989,
994 (Pa. Commw. Ct. 2004).
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[Vol. 24:25
Judge made rules have also developed in order to combat forum
shopping. For example, U.S. Supreme Court Rule 43.4 provides that
one-judge motions are to be addressed to "the Justice allotted to the
Circuit within which the case arises . ,246 The Second Circuit Court
of Appeals, however, does not have such a Rule.247 The Second Circuit
has ruled that a motion for a writ of mandamus, or, alternatively, a writ
of habeas corpus, should have been addressed to the junior judge of the
panel then sitting.24 8 Judge Jon 0. Newman of the Second Circuit has
written: "I believe that under normal circumstances the usual referral
procedures should be followed. Forum shopping is to be discouraged,
and litigants generally ought not to have the option of selecting a
particular judge to adjudicate one-judge motions. 249
The Utah Supreme Court has established a rule that where a second
action is brought against a suspect, it should be heard by the same judge
who presided over the prior hearing whenever possible.250 There is no
doubt that the purpose of this rule is to curb forum shopping. Another
court has established a rule to the effect that one trial judge may not
reconsider and overrule an order entered by another trial judge no matter
how well intended. This too seeks to discourage forum shopping. 1
Furthermore, it has been opined that a rule of law that would create a
right to file an action in federal court for a violation of a state statute
would foster forum shopping.25 2
C.
ForumNon Conveniens
253
The doctrine of forum non conveniens and its codification
provides a method of establishing a more suitable place in which to try a
case than that initially chosen by the plaintiff.25 4 It has been opined that
246.
247.
248.
249.
250.
Rios v. Wigen, 863 F.2d 196, 199 n.1 (2d Cir. 1988).
See id. at 198.
See id. at 199.
Id.
See State v. Atencio, 89 P.3d 191, 196 n.5 (Utah Ct. App. 2004).
251. See Alvarez v. Superior Court of L.A. County, 12 Cal. Rptr. 3d 252, 255 (Cal. Ct.
App. 2004).
252. See Yale Auto Parts, Inc. v. Johnson, 758 F.2d 54, 59 (2d Cir. 1985).
253. 28 U.S.C. § 1404(a) (2005) ("For the convenience of the parties and witnesses, in
the interest of justice, a district court may transfer any civil action to any other district or
division where it might have been brought.").
254. For example, in an admiralty case where plaintiff brought suit in New York, the
court granted the defendant's motion to transfer, under section 1404(a), to Puerto Rico
because the convenience of the parties would be served as Puerto Rico was where the cause
of action arose, where the witnesses lived, and was a port to which the ship would sail. See
20051
FORUM SHOPPING? WHAT'S WRONG WITH THAT?
"forum non conveniens jurisprudence is the curtailment of forum
shopping by plaintiffs. 255 In PiperAircraft Co. v. Reyno,256 the U.S.
Supreme Court recognized that ordinarily plaintiffs will select the forum
whose choice-of-law rules are most advantageous. 25 In this context,
inconvenience to the defendant usually trumps a plaintiff s disadvantage
due to an alternate forum's less favorable law.258 However, where "the
remedy provided by the alternative forum is so clearly inadequate or
unsatisfactory that it is no remedy at all, the unfavorable change in the
law may be given substantial weight... .,,259 The Piper court held that
when considering a defendant's or a plaintiffs motion to dismiss or
transfer on forum non conveniens grounds, the trial court should not
take into account the possibility that the law in the new forum would be
less favorable to the non-moving party.26 °
Prior to Piper Aircraft Co., the U.S. Supreme Court had made
several rulings regarding the relative merits of a plaintiffs choice of a
forum and inconvenience to a defendant. In Koster v. Lumbermens
Mutual Casualty. Co., 26 1 it was opined that a court may consider
changing fora if there is another court that has jurisdiction to hear the
case and: (1) a trial in the chosen forum would "establish oppressiveness
and vexation to a defendant... out of all proportion to plaintiffs
convenience"; or (2) the "chosen forum [is] inappropriate because of
considerations affecting the court's own administrative and legal
problems. 262 In Koster's companion case, Gulf Oil Corp. v. Gilbert
Storage & Transfer Co.,263 the Court developed a balancing test for
forum non conveniens.264 In both of these cases, the Court said that a
plaintiff s choice of forum should rarely be disturbed.265
Torres v. S.S. Rosario, 125 F. Supp. 496, 496-97 (S.D.N.Y. 1954).
255. Botello v. Ill.
Cent. R.R. Co., 809 N.E.2d 197, 208 (111.App. Ct. 2004) (citing First
Am. Bank v. Guerine, 764 N.E.2d 54, 60 (1ll. 2002)).
256. Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981).
257. See id. at 250. The court stressed that less deference is given to foreign realparties-in-interest, Id. at 256.
258. See id. at 250.
259.
260.
261.
262.
263.
264.
trial.").
265.
PiperAircraft, 454 U.S. at 254.
See id. at 264 n.19.
Koster v. Lumbermens Mut. Cas. Co., 330 U.S. 518 (1947).
Id. at 524.
Gulf Oil Corp. v. Gilbert Storage & Transfer Co., 330 U.S. 501 (1947).
See id. at 508 ("The Court will weigh relative advantages and obstacles to fair
See id.; Koster, 330 U.S. at 524.
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Generally, courts use a sliding scale when ruling on a forum non
conveniens motion. 266 The more it appears that the plaintiffs choice of
forum is based on forum-shopping factors (e.g., causing the defendant
inconvenience and expense), the less deference the plaintiff's choice of
forum commands.26 7 Moreover, when presented with a motion to
dismiss on forum non conveniens grounds, the court may consider a set
of private factors 268 and a set of public factors. 269
D.
Cases Pending in ParallelJurisdictions
There is a rule in this country that even though litigation is pending
in one jurisdiction, a litigant may commence the same litigation in a
second court so long as the second court has jurisdiction over the parties
and subject matter.270 This rule has been expressed in the following
words: "[G]enerally speaking, a simple case pending in diverse courts
may be allowed to go forward simultaneously in each tribunal until one
reaches final judgment, and prior judicial control or direction is
unnecessary if not undesirable. 27'
The aforementioned rule, however, is not without exceptions. In
Colorado River Water Conservation District v. United States
("Colorado River"), 272 the U.S. Supreme Court established a narrow
basis for either dismissing or staying a case in deference to a parallel
state proceeding.2 73 In certain "exceptional" circumstances, a federal
court may decline jurisdiction based on considerations of wise judicial
administration. 274 The Court further articulated four factors to be
266. In re Monegasque De Reassurances, 311 F.3d 488, 498 (2d Cir. 2002).
267. See id. (quoting Iragorri v. United Tech. Corp., 274 F.3d 65, 71 (2d Cir. 2001)).
268. The private factors being: (1) the relative ease of access to sources of proof; (2) the
availability of compulsory process for attendance of unwilling witnesses, and the cost of
obtaining attendance of willing witnesses; (3) the possibility of view of the premises if a view
would be appropriate to the action; and (4) all other practical problems that make trial of a
case easy, expeditious, and inexpensive. Gulf Oil Corp., 330 U.S. at 508.
269. The public factors considered are: (1) the administrative difficulties flowing from
court congestion; (2) the local interest in having localized controversies decided at home; (3)
the interest in having the trial of a diversity case in a forum that is at home with the law that
must govern the action; (4) the avoidance of unnecessary problems in conflict-of-laws or in
the application of foreign law; and (5) the unfairness of burdening citizens in an unrelated
forum with jury duty. Id. at 508-09.
270. See Helene Curtis Indust. v. Sales Afilliates, Inc., 199 F.2d 732, 733 (2d Cir. 1952);
see supra text accompanying notes 145-50, for an exception to this rule.
271.
Helene Curtis Indust., 199 F.2d at 733.
272.
Colorado River Water Conser. Dist. v. United States, 424 U.S. 800 (1976).
273.
274.
Seeid. at 813.
See id. at 813, 817.
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FORUM SHOPPING? WHAT'S WRONG WITH THAT?
considered: (1) whether either court has assumed jurisdiction over a res;
(2) whether there would be inconvenience to the federal court were it to
continue with the case; (3) the desirability of avoiding "piecemeal"
litigation; and (4) the order in which the state and federal fora obtained
jurisdiction. 275 Later, in Moses H. Cone Memorial Hospital v. Mercury
Construction Corp,276 the Court added two more factors: (1) whether
federal or state law controls the adjudication of the case; and (2) the
adequacy of the state forum to protect the parties' rights.277
Defendants are sometimes found guilty of "reverse forum
shopping,"2 78 usually resulting from their activities in trying to alter the
plaintiffs initial choice of forum. 2 79 In 1964, as a guard against
defendants' forum shopping, the U.S. Supreme Court in Van Dusen v.
Barrack280 held that when a diversity case is transferred from one
federal district to another federal district pursuant to 28 U.S.C 1404 (a),
the substantive law of the transferor court rather than the substantive
law of the transferee court applies to the transferred case. 28' Justice
Arthur Goldberg, writing for a unanimous Court, recognized that a
plaintiff has certain advantages in initially choosing a forum. 282 Not
willing to give the defendant that power, the Court made it clear that
henceforth the defendant would not be able to change the law applicable
to the case by causing a change of courts. Justice Goldberg said that if
the rule were otherwise "the parties might well
regard [section 1404(a)]
283
primarily as a forum-shopping instrument.,
275. See id. at 818; see also Preston v. Ericksen, 106 F.3d 401 (6th Cir. 1997), available
at No. 95-3751, 1997 U.S. App. LEXIS 784, at *4-5, 13 n.3 (where the state proceeding
pended for eleven years before the complaint in federal court was filed).
276. 460 U.S. 1 (1983).
277. See id. at 24-26.
278. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 252 n.19 (1981).
279. See id.
280. Van Dusen v. Barrack 376 U.S. 612 (1964).
281. See id. at 637, 639, 642.
282. See id. at 633.
There is nothing .. in the language or policy of §1404 (a) to justify its use by
the defendants to defeat the advantages accruing to plaintiffs who have chosen a
forum which, although it was inconvenient, was a proper venue .... These
statutes are drawn with a necessary generality and usually give a plaintiff a
choice of courts, so that he may be quite sure of some place in which to pursue
his remedy.... [L]egislative background supports the view that § 1404 (a) was
not designed to narrow the plaintiffs venue privilege or to defeat the state-law
advantages that might accrue from the exercise of this venue privilege ....
Id. at 633-35.
283.
Van Dusen, 376 U.S. at 636 & n.34 (stating that injecting such power in the
defendant would morph the trial of a case into "a game of chess, with Section 1404 (a)
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Where state law on forum non conveniens is more restrictive than
federal law, federal law has been held to apply because there are federal
interests other than restricting access to the federal docket.2 84 These
interests include: (1) assuring that U.S. citizens generally have access to
the courts of this country for the resolution of their disputes; (2) the
federal government's interest in foreign relations; and (3) the concern
over maintaining a national, unified set of venue rules among the
several circuits. 285 These federal interests trump outcome-determinative
state law on forum non conveniens.286
E.
Issue Preclusion & Res Judicata
Res judicata, or to use its more modern terminology, "issue
preclusion," is a another principle of law which protects against forum
shopping.8 7
The broader principle of "claim preclusion," while
protecting against forum shopping, primarily serves to conserve judicial
services. 288 Issue preclusion has been described in the following words:
"Issue preclusion is designed 'to conserve judicial resources,' and
'relieve litigants from the cost and vexation of multiple law suits.' The
doctrine bars the same parties and their privies from relitigating in the
second289suit issues that were actually raised and determined in an earlier
case."
Six years after her marriage was dissolved in Vermont, the former
wife obtained a New York state court's determination that she owned
certain former marital property. 290 The New York Court of Appeals
reversed on res judicata grounds, observing that the public policy of
291
both New York and Vermont frown upon forum shopping.
authorizing a knight's move; and nothing would be certain except that the parties would land
on a square of a different color.") (citing Currie, Change of Venue and the Conflict of Laws,
22 U. CHI. L. REv. 405,441 (1955)).
284. Esfeld v. Costa Crociere, S.P.A., 289 F.3d 1300, 1315 (11th Cir. 2002).
285. Id. at 1315.
286. Id.
287. See Plomer v. AT&T Corp., 224 F.3d 1161, 1168 (10th Cir. 2000).
288. See generally Paramount Aviation Corp. v. Agusta, 178 F.3d 132, 145 (3d Cir.
1999) (holding that federal preclusion principles, rather than state "entire controversy"
doctrine, governs the preclusive effect of prior federal actions).
289. Sentinel Trust Co. v. Universal Bonding Ins. Co., 316 F.3d 213, 221 (3d Cir. 2003).
290. See O'Connell v. Corcoran, 802 N.E. 2d 1071 (N.Y. 2003).
291.
See id. at 1074. See generallyPlotner,224 F.3d at 1169.
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FORUM SHOPPING? WHAT'S WRONG WITH THAT?
In Sentinel Trust, a state court judge made certain findings of fact
and entered a judgment adverse to the plaintiff.2 92 Because the case was
settled, the judgment was vacated.293 The plaintiff then filed a virtually
identical action in the federal court of its state.294 The Third Circuit
Court of Appeals said that this was the type of "flagrant" forum
shopping that the doctrine of "forum shopping" was designed to
prevent.295
F.
Treaties and U.N. Conventions
The purpose of the Hague Convention 296 is to "protect children
internationally from the harmful effects of their wrongful removal or
retention and to establish procedures to ensure their prompt return to the
State of their habitual residence, as well as to secure protection for
rights of access. 297 The Eighth Circuit Court of Appeals held that a
married woman violated the Hague Convention when she contacted an
attorney in Israel about her marital problems, moved to the United
States without obtaining an Israeli divorce, and promptly obtained a
divorce and the award of custody of her child.29 8
The U.N. Convention on the Recognition & Enforcement of
Foreign Arbitration Awards 299 also permits forum shopping when
choosing where to enforce an award.3 °°
G.
ContractProvisions
Forum selection and choice-of-law clauses will often be honored
despite "transparent forum shopping antics.",30 The California Supreme
Court interpreted a California statute as requiring judicial consideration
292. See Sentinel Trust Co., 316 F.3d at 216.
293.
See id.
294. See id.
295.
See id. at 223.
296. Convention on the Civil Aspects of International Child Abduction, Oct. 24, 1980,
19 I.L.M. 1501 (1980) (implemented by the United States in the International Child
Abduction Remedies Act, 42 U.S.C. §§ 11601-11610 (2005)).
297. Id. (Preamble).
298. See Silverman v. Silverman, 338 F.3d 886, 899, 901 (8th Cir. 2003); see also
Mozes v. Mozes, 239 F.3d 1067, 1069-70 (9th Cir. 2001).
299. See Convention for the Recognition & Enforcement of Foreign Arbitral Awards,
June 10, 1958, 1970 U.S.T. LEXIS 115.
300. See Karaha Bodas Co. v. Perusahaan, 335 F.3d 357, 374 n.63 (5th Cir. 2003).
301. See Jordan Int'l. Trading, Inc. v. Yang, No. 03-2830, 2004 WL 829438, at *2
(N.Y. Sup. Ct. Apr. 6, 2004).
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of claims brought under it, and, accordingly, refused to enforce a
contract to arbitrate entered into by the parties.3 °2 The U.S. Supreme
Court reversed, however, without elucidation, holding that such
30 3
interpretation would "encourage and reward forum shopping.,
VI. CONCLUSION
Every lawyer practices under some set of ethical rules similar to
the Model Rules established by the American Bar Association. As an
advocate, a lawyer "zealously asserts the client's position under the
rules of the adversary system. '' 304 As a negotiator, "a lawyer seeks a
result advantageous to the client but consistent with requirements of
honest dealings with others., 30 5 "A lawyer should use the law's
procedures only for legitimate purposes and not to harass or intimidate
others." 30 6 "A lawyer should strive to attain the highest level of
skill. 30 7 Although "[m]any of a lawyer's professional responsibilities
are prescribed in the Rules of Professional Conduct, as well as
substantive and procedural law ...a lawyer is also guided by personal
conscience and the approbation of professional peers., 30 8 "[W]hen an
opposing party is well represented, a lawyer can be a zealous advocate
on behalf of a client and at the same time assume that justice is being
9
done.
, 30
The Model Rules recognize the often difficult task of resolving
what might appear to be a conflict between representing a client and
being a responsible member of the legal system with these words:
In the nature of law practice... conflicting responsibilities are
encountered. Virtually all difficult ethical problems arise from
conflict between a lawyer's responsibilities to clients, to the legal
system and to the lawyer's own interest in remaining an ethical person
while earning a satisfactory living. The Rules of Professional
Conduct often prescribe terms for resolving such conflicts. Within the
framework of these Rules, however, many difficult issues of
302.
303.
See Keating v. Superior Court of Alameda County, 645 P.2d 1192 (Cal. 1982).
Southland Corp. v. Keating, 465 U.S. 1, 15 (1984).
304.
MODEL RULES OF PROF'L CONDUCT Preamble (2005).
305.
306.
307.
Id.
Id.
Id.
308.
MODEL RULES OF PROF'L CONDUCT Preamble
309.
Id.
(2005).
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FORUM SHOPPING? WHAT'S WRONG WITH THAT?
professional discretion can arise. Such issues must be resolved
through the exercise of sensitive professional and moral judgment
guided by the basic principles underlying the Rules. These principles
include the lawyer's obligation zealously to protect and pursue a
client's legitimate interests, within the bounds of the law, while
and civil attitude toward all
maintaining a professional, courteous
310
system.
legal
the
in
involved
persons
It is apparent that the Model Rules recognize that conflicts between
zealously representing a client and being a responsible member of the
legal system abound in the life of any competent lawyer.311 The Model
Rules can do little more than recognize the problem and suggest that
one's conscience and the approbation of one's peers should be used to
resolve it. Therefore, we are left with the courts as the final arbiters.
As can be discerned from the cases discussed in this article, the rules the
courts have fashioned out of the crucible of litigation are only partially
satisfactory. Courts such as the Second Circuit Court of Appeals in
Iragorriv. United Technologies Corp312 actually do a disservice to the
practicing bar. The Iragorricourt articulated certain objectives (which
it thought evinced forum shopping) that motivate a lawyer to commence
an action in a certain forum: (1) "attempts to win a tactical advantage
resulting from local laws that favor the plaintiffs case"; (2) "the
habitual generosity of juries in [the chosen forum]"; (3) the plaintiffs
popularity or the defendant's unpopularity in the region"; and (4) "the
inconvenience or expense to the defendant resulting from litigation in
that forum., 313 It is patent that only the last of these objectives should
be condemned. One should not file an action in order to inconvenience
a defendant or cause it expense. However, if the lawyer did not
consider the first three supposed improper considerations, he or she
would not be properly representing the client.31 4
310. Id.
311. See Quincy Mall, Inc. v. Parisian, Inc., 27 Fed. Appx. 631, 637 n.8 (7th Cir. 2001),
in which during oral argument an attorney admitted to filing in state court "in order to get the
best result for his client" when the rulings of the judge in his prior-filed federal case were not
to his liking. He was admonished by the court, which stated that "[t]his blatant forum
shopping.., will not be condoned." Id. at 640.
312. Iragorri v. United Techs. Corp., 274 F.3d 65, 72 (2d Cir. 2001).
313. Id.
314. Though I think choosing a forum generous to one's client is simply being a
responsible practitioner, I must admit that a persuasive argument against such "forum
shopping" was made by the New Jersey Supreme Court in Gore v. U.S. Steel Corp., 104 A.2d
670, 676-77 (N.J. 1954), when it said:
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May I offer a suggestion to my fellow members of the Bar? When
a course of action comes to mind that appears to be in the client's best
interest, perhaps it would be wise to discuss it with colleagues and the
client before plunging into its execution. Reversing roles might be
helpful: If one's opponent were to take the same action, would it be an
obviously unfair maneuver? 31 5 It should never be forgotten that an
advocate is an officer of the court. Often, one's conscience must be
called upon before the final decision is made. Even that guide,
however, will not always be foolproof.
It may well be that plaintiffs' verdicts in metropolitan areas where average
income and living costs exceed those elsewhere will generally be greater. But
decent judicial administration could not tolerate that as a persuasive or even
legitimate reason for burdening metropolitan communities with litigious
controversies which arose elsewhere and should in all justice be tried there.
Any opposing view would open our courts to extensive litigation which would
deal exclusively with foreign issues and would necessarily retard the
expeditious determination of local issues.
315. The Tenth Circuit Court of Appeals has spoken of forum shopping in terms of what
is "just," as well as equity and good conscience, see Lenon v. St. Paul Mercury Ins. Co., 136
F.3d 1365, 1371 (10th Cir. 1998), and refers to it as "this most disfavored practice," see
Coalition v. Dept. of the Interior, 100 F.3d 837, 844 (10th Cir. 1996).