Auxer v. Alcoa, Inc., Slip Copy, 2010 WL 1337725 (W.D.Pa., Mar. 29, 2010) (No. 2:09cv995).
The District Court for the Western District of Pennsylvania held that plaintiffs seeking damages after their exposure to emissions from an Australian refinery should take their case to the land of Nicole Kidman and kangaroos. The court said “G’day mate” by granting the defendants’ motion for dismissal on the grounds of forum non conveniens before even reaching other jurisdictional matters.
In several different actions that the court ordered be consolidated, the plaintiffs sought damages for injuries allegedly caused by their exposure to the emissions from several alumina refineries in Western Australia and owned by Alcoa, an Australian corporation. The plaintiffs alleged that the atmospheric conditions in the area trap the emissions from the refinery near the ground, resulting in high concentrations of toxic compounds in the communities near the refineries, which affected the plaintiffs (and the koalas) who lived near or worked at the refineries. The plaintiffs asserted that the toxic emissions caused them to speak funny. Okay, we made the last allegation up.
The plaintiffs asked to “give the state court a go,” instead of federal court, while the defendants sought the action be dismissed for forum non conveniens, under a Supreme Court case that allows for considerations of convenience, fairness and judicial economy to be taken up in a forum non conveniens dismissal before subject-matter and personal jurisdiction questions are addressed. The plaintiffs also asserted, in the alternative, that the action be maintained in the federal district court under CAFA’s “mass action” provisions.
The defendants argued that the plaintiffs structured the action specifically to try to avoid federal jurisdiction under CAFA. The court found that the circuits split on how to deal with such actions. (For one discussion of the cases cited, see the CAFA Law Blog analysis of Tanoh v. Dow Chemical Co. posted August 13, 2009.)
Ultimately, this court burrowed away from the issue like a scared wombat and addressed the forum non conveniens dismissal instead.
While a dismissal on the grounds of forum non conveniens is usually the exception and not the rule and plaintiffs are generally given deference by the courts, when foreign plaintiffs request United States’ forums, the courts are more likely to treat the plaintiffs like a boomerang… and send them back from where they came. The court here considered a “sliding scale” articulated by the Second Circuit in which various factors dealing with convenience and expense (such as the lawsuit’s connection to the United States and the forum chosen, the convenience of the United States forum as compared to the plaintiff’s home forum, and the location of key witnesses and evidence) are used to determine the amount of deference the plaintiff’s forum choice should receive. Here, all but one of the 244 plaintiffs resided in Oz, and the one who resided in Pennsylvania had been exposed to the emissions in the outback.
The court found that since trying the case here was not at all convenient and since the action had few Pennsylvania connections, the plaintiffs’ forum choice would receive little deference.
The court applied a two-step analysis in determining whether the forum non conveniens motion should be granted. First, the defendant must establish there is an adequate alternative forum, and then, the court must balance public and private factors. The court found that defendant was amenable to a court in Australia and that the plaintiffs could receive appropriate redress in Australia. Although the statute of limitations had run on some of the plaintiffs’ claims in Australia, under Pennsylvania law, the court was to apply Australia’s statute of limitations anyway. Therefore, their claims would have been barred in Pennsylvania as well, and Australia was an adequate alternative forum.
Finally, the court considered private interest factors, which affected the convenience of the litigants, and the public interest factors affecting the convenience of the forum. Since nearly all of the plaintiffs, all of the non-party witnesses, and the majority of the evidence about the interaction between emissions and the environment were located in Hugh Jackman’s homeland, the court found that private interest factors strongly favored dismissal. Additionally, while Australia had significant interest in the outcome of this case, Pennsylvania had very little connection to the case, other than one of the Aussies decided to move there. Under Pennsylvania’s conflict of law provisions, it is likely that Australian law would be applied to the case as well; the court found that it would be easier for those who actually eat Vegemite to “make a good fist” (do a good job) at applying Aussie law.
The Pennsylvania court granted the defendant’s motion for dismissal on the grounds of forum non conveniens. The plaintiffs from Oz were ordered to surf back to the bush.
By: Ashley Barbier