1. What were the court’s reasons for refusing to apply forum non-conveniens to this case and requiring refiling of the litigation in Colombia? 

2. Does the court’s opinion reward forum shopping to the extent the plaintiffs were likely to receive a larger damages award in the United States than in Colombia? Why or why not? 

3. The court cited concern regarding the unstable political situation in Colombia as a reason for refusing to apply forum non conveniens. Given the changes that have occurred in the country in the past decade, would the court reach the same conclusion today?

Iragorri and his family had been residents of Florida since 1981, and naturalized citizens of the United States since 1989. In 1993, while visiting his mother in Cali, Colombia, Iragorri fell to his death through an open elevator shaft. Iragorri’s children had been attending school there as exchange students from their Florida high school. His surviving wife and children brought this action in U.S. District Court in Connecticut for damages against two American companies, Otis Elevator and its parent corporation, United Technologies. They alleged that employees of International Elevator had negligently wedged a door open with a screwdriver during repairs, leaving the shaft open. International Elevator was a Maine corporation doing business in South America. Both Otis and United had their principal place of business in Connecticut. The complaint alleged that Otis and United were liable because (1) International had acted as their agent in negligently repairing the elevator, and (2) Otis and United were liable under Connecticut’s products liability statute for the defective design and manufacture of the elevator that had been sold and installed by their affiliate, Otis of Brazil. Otis and United moved to dismiss the case on the basis of forum non-conveniens, arguing that it should be heard in the Colombian courts. The U.S. District Court dismissed the case, and the plaintiffs brought this appeal. 

We regard the Supreme Court’s instructions that (1) a plaintiff’s choice of her home forum should be given great deference, while (2) a foreign resident’s choice of a U.S. forum should receive less consideration, as representing consistent applications of a broader principle under which the degree of deference to be given to a plaintiff’s choice of forum moves on a sliding scale depending on several relevant considerations. 

The Supreme Court explained in Piper Aircraft Co. v. Reyno, [citation omitted] that the reason we give deference to a plaintiff’s choice of her home forum is because it is presumed to be convenient. (“When the home forum has been chosen, it is reasonable to assume that this choice is convenient.”) In contrast, when a foreign plaintiff chooses a U.S. forum, it “is much less reasonable” to presume that the choice was made for convenience. In such circumstances, a plausible likelihood exists that the selection was made for forum-shopping reasons, such as the perception that United States courts award higher damages than are common in other countries. Even if the U.S. district was not chosen for such forum-shopping reasons, there is nonetheless little reason to assume that it is convenient for a foreign plaintiff. 

Based on the Supreme Court’s guidance, our understanding of how courts should address the degree of deference to be given to a plaintiff’s choice of a U.S. forum is essentially as follows: The more it appears that a domestic or foreign plaintiff’s choice of forum has been dictated by reasons that the law recognizes as valid, the greater the deference that will be given to the plaintiff’s forum choice. Stated differently, the greater the plaintiff’s or the lawsuit’s bona fide connection to the United States and to the forum of choice and the more it appears that considerations of convenience favor the conduct of the lawsuit in the United States, the more difficult it will be for the defendant to gain dismissal for forum non conveniens. Thus, factors that argue against forum non conveniens dismissal include the convenience of the plaintiff’s residence in relation to the chosen forum, the availability of witnesses or evidence to the forum district, the defendant’s amenability to suit in the forum district, the availability of appropriate legal assistance, and other reasons relating to convenience or expense. On the other hand, the more it appears that the plaintiff’s choice of a U.S. forum was motivated by forumshopping reasons—such as attempts to win a tactical advantage resulting from local laws that favor the plaintiff’s case, the habitual generosity of juries in the United States or in the forum district, the plaintiff’s popularity or the defendant’s unpopularity in the region, or the inconvenience and expense to the defendant resulting from litigation in that forum—the less deference the plaintiff’s choice commands and, consequently, the easier it becomes for the defendant to succeed on a forum non conveniens motion by showing that convenience would be better served by litigating in another country’s courts.We believe that the District Court in the case before us, lacking the benefit of our most recent opinions concerning forum non conveniens, did not accord appropriate deference to the plaintiff’s chosen forum. Although the plaintiffs had resided temporarily in Bogota at the time of Mauricio Iragorri’s accident, it appears that they had returned to their permanent, long-time domicile in Florida by the time the suit was filed. The fact that the children and their mother had spent a few school terms in Colombia on a foreign exchange program seems to us to present little reason for discrediting the bona fides of their choice of the Connecticut forum. Heightened deference to the plaintiffs’ chosen forum usually applies even where a plaintiff has temporarily or intermittently resided in the foreign jurisdiction. So far as the record reveals, there is little indication that the plaintiffs chose the defendants’ principal place of business for forum-shopping reasons. Plaintiffs were apparently unable to obtain jurisdiction in Florida over the original third defendant, International, but could obtain jurisdiction overall three in Connecticut. It appears furthermore that witnesses and documentary evidence relevant to plaintiffs’ defective design theory are to be found at the defendants’ installations in Connecticut. As we have explained, “live testimony of key witnesses is necessary so that the trier of fact can assess the witnesses’ demeanor.” Alfadda v. Fenn, 159 F.3d 41, 48 (2d Cir. 1998). Also, in assessing where the greater convenience lies, the District Court must of course consider how great would be the inconvenience and difficulty imposed on the plaintiffs were they forced to litigate in Cali. Among other factors, plaintiffs claim that they fear for their safety in Cali and that various witnesses on both sides may be unwilling to travel to Cali; if these concerns are warranted, they appear highly relevant to the balancing inquiry that the District Court must conduct. 

Decision. Remanded to the U.S. District Court for a determination in accordance with this opinion. In deciding whether to hear the case, the district court should consider the degree of deference to which plaintiffs’ choice is entitled, the hardships of litigating in Colombia versus the United States, and the public interest factors involved.