Estate of I.E.H. Plaintiff Ahmad Hersh, individually v. CKE Restaurants, Holdings, Inc.

United States Court of Appeals
For the Eighth Circuit
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No. 19-2794
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Estate of I.E.H.
lllllllllllllllllllllPlaintiff
Ahmad Hersh, individually and as surviving parents of I.E.H., deceased; Muna
Omer, individually and as surviving parents of I.E.H., deceased
lllllllllllllllllllllPlaintiffs - Appellants
v.
CKE Restaurants, Holdings, Inc.
lllllllllllllllllllllDefendant - Appellee
Hardee’s Food Systems, Inc.
lllllllllllllllllllllDefendant
Hardee’s Restaurants, LLC
lllllllllllllllllllllDefendant - Appellee
Amman Hardee’s Branch; John Doe, jointly and severally
lllllllllllllllllllllDefendants
Hardee’s Food Systems, LLC
lllllllllllllllllllllDefendant - Appellee
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: December 16, 2020
Filed: April 28, 2021
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Before SMITH, Chief Judge, LOKEN and MELLOY, Circuit Judges.
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SMITH, Chief Judge.
At a Hardee’s restaurant in Amman, Jordan, I.E. Hersh, a six-year-old boy,
touched an exposed, electrified wire. I.E. was electrocuted and died. His parents sued
the defendants (collectively, “Hardee’s”) in the District Court for the Eastern District
of Missouri. After 18 months of litigation, Hardee’s moved for dismissal based on the
doctrine of forum non conveniens. The district court granted the motion, dismissing
the case. I.E.’s parents appealed. We reverse the district court’s dismissal and remand
for further proceedings.
I. Background
In July 2015, I.E. and his parents, Ahmad Hersh and Muna Omer, entered a
Hardee’s restaurant in Amman, Jordan. During their visit, I.E. played on the
restaurant’s indoor playground. While playing, he touched an exposed, electrified
wire. The electrocution killed I.E. Jordanian officials brought criminal charges
against two employees of the Amman restaurant and its owner, Tourist Projects and
International Restaurants Company (“Tourist Projects”). No criminal charges were
brought against the defendants in this case.
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Tourist Projects is a Hardee’s franchisee. Unlike Tourist Projects, the
defendants in this federal lawsuit are all American entities. CKE Restaurants
Holdings, Inc., is the parent holding company for the Hardee’s franchise and other
franchised restaurant brands. Hardee’s Food Systems, LLC, is the licensor for
Hardee’s franchise restaurants and provides financial and management services to
Hardee’s franchisees. And Hardee’s Restaurants, LLC, is the franchisor for Hardee’s
restaurants.
On July 20, 2017, Hersh and Omer filed suit against Hardee’s in the Eastern
District of Missouri, its home district at the time. The complaint notified Hardee’s
that I.E.’s death had occurred in Jordan and that Jordanian officials had pressed
criminal charges against some employees of the Amman restaurant and the owner of
the Amman restaurant. The case proceeded to discovery. Near the end of the
discovery period, the plaintiffs filed a motion to compel discovery, which the district
court never ruled on. Discovery ended on January 1, 2019.
On January 18, 2019—18 months after the case had begun—Hardee’s moved
for the case to be dismissed based on the doctrine of forum non conveniens. It argued
that Jordan was a more appropriate forum. The district court granted the motion and
dismissed the case in July, agreeing that Jordanian courts would be more suitable.
Hersh and Omer now appeal the dismissal order.
II. Discussion
On appeal, Hersh and Omer make three arguments. First, they argue that the
district court erred by dismissing the case based on the doctrine of forum non
conveniens because the motion Hardee’s filed was untimely. Second, they contend
that the district court erred when it granted the motion because Hardee’s relied on an
affidavit regarding Jordanian law by someone it did not disclose as an expert. Third,
they assert that the district court erred by not ruling on their motion to compel
discovery before dismissing the case.
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We review the district court’s dismissal based on the doctrine of forum non
conveniens for an abuse of discretion. EFCO Corp. v. Aluma Sys. USA, Inc., 268 F.3d
601, 603 (8th Cir. 2001). This circuit has not addressed the timeliness requirement
for motions to dismiss based on forum non conveniens. We have, however,
previously explained that application of the doctrine involves a two-part analysis. de
Melo v. Lederle Labs., Div. of Am. Cyanamid Corp., 801 F.2d 1058, 1060 (8th Cir.
1986). Courts first determine whether an adequate alternative forum exists and then
weigh private- and public-interest factors to determine whether dismissal is
appropriate. Id. The “balance [of factors] reflects the central purpose of the forum non
conveniens inquiry: to ensure that the trial is held at a convenient situs.” Id. at 1062
(emphasis omitted).
The private-interest factors include:
the relative ease of access to sources of proof; availability of compulsory
process for attendance of unwilling, and the cost of obtaining attendance
of willing, witnesses; possibility of view of premises, if view would be
appropriate to the action; and all other practical problems that make trial
of a case easy, expeditious and inexpensive. There may also be
questions as to the enforcibility [sic] of a judgment if one is
obtained. . . .
K-V Pharm. Co. v. J. Uriach & CIA, S.A., 648 F.3d 588, 597 (8th Cir. 2011)
(alterations in original) (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947)).
The public-interest factors include consideration of the following:
Administrative difficulties follow for courts when litigation is piled up
in congested centers instead of being handled at its origin. Jury duty is
a burden that ought not to be imposed upon the people of a community
which has no relation to the litigation. In cases which touch the affairs
of many persons, there is reason for holding the trial in their view and
reach rather than in remote parts of the country where they can learn of
it by report only. There is a local interest in having localized
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controversies decided at home. There is an appropriateness, too, in
having the trial of a diversity case in a forum that is at home with the
state law that must govern the case, rather than having a court in some
other forum untangle problems in conflict of laws, and in law foreign to
itself.
Id. (quoting Gilbert, 330 U.S. at 508–09).
Even though we review for an abuse of discretion, the “[e]mphasis on the
district court’s discretion . . . must not overshadow the central principle of [Supreme
Court precedent] that ‘unless the balance [of these factors] is strongly in favor of the
defendant, the plaintiff’s choice of forum should rarely be disturbed.’” Reid-Walen
v. Hansen, 933 F.2d 1390, 1394 (8th Cir. 1991) (first and second alterations in
original) (quoting Lehman v. Humphrey Cayman, Ltd., 713 F.2d 339, 342 (8th Cir.
1983)). Even so, “a foreign plaintiff’s choice deserves less deference” than a resident
plaintiff’s choice because the assumption that the foreign plaintiff’s forum choice is
convenient “is much less reasonable.” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 256
(1981). But resident plaintiffs are given only “somewhat more deference than foreign
plaintiffs.” Id. at 256 n.23 (emphasis added).
This two-part analysis does not explicitly address timeliness. Our sister circuits
take varying approaches to timeliness. For example, the Fifth Circuit analyzes
timeliness as a private-interest factor. Trivelloni-Lorenzi v. Pan Am. World Airways
(In re Air Crash Disaster Near New Orleans, La. on July 9, 1982), 821 F.2d 1147,
1165 (5th Cir. 1987), vacated on other grounds, 490 U.S. 1032 (1989); see also
Brokerwood Int’l (U.S.), Inc. v. Cuisine Crotone, Inc., 104 F. App’x 376, 384–85 (5th
Cir. 2004) (addressing timeliness as a private-interest factor). And the Third Circuit
categorizes timeliness as both a private- and public-interest factor. Lony v. E.I. Du
Pont de Nemours & Co., 935 F.2d 604, 613 (3d Cir. 1991) (explaining that the
timeliness “consideration goes to both private concerns . . . and public ones”).
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On the other hand, the Sixth Circuit seems to analyze timeliness as an
independent hurdle, requiring a motion to dismiss based on forum non conveniens to
be made within a reasonable time after the party learned the facts that give rise to the
motion. Rustal Trading US, Inc. v. Makki, 17 F. App’x 331, 337–38 (6th Cir. 2001)
(analyzing timeliness separately from the private- and public-interest factors).
We do not decide today which of these approaches to adopt. Under either,
Hardee’s filed a motion that was sufficiently untimely to warrant reversal. For 18
months, Hardee’s knew the essential facts supporting its motion to dismiss. In its
motion to dismiss, Hardee’s argued that Jordan was the proper forum because I.E.
died in Jordan, the Amman restaurant was in Jordan, the relevant documents and
witnesses were in Jordan, many of the documents were in Arabic, many of the
witnesses spoke only Arabic, the district court could not compel witnesses to attend
trial, Hardee’s could not implead third parties, there was local Jordanian interest in
the lawsuit, Jordanian law would likely apply to the case, and a Missouri jury would
be unnecessarily burdened by the case. These arguments essentially stem from one
essential fact: I.E. died from events and allegedly negligent actions in Jordan.
But Hardee’s learned that I.E. died in Jordan when Hersh and Omer filed their
complaint. Discovery did not raise new facts relevant to its motion. See Lony, 935
F.2d at 614 (holding “that whenever discovery in a case has proceeded substantially
. . . , the presumption against dismissal on the grounds of forum non conveniens
greatly increases” (emphasis omitted)). Thus, if Missouri were truly an inconvenient
forum for Hardee’s to defend against a lawsuit from Jordanian plaintiffs, Hardee’s
should have moved to dismiss within a reasonable time. We rest our decision on the
principal purpose of the forum non conveniens doctrine: “ensur[ing] that the trial[’s]
[location] is convenient.” Reid-Walen, 933 F.2d at 1395 (quoting Piper Aircraft, 454
U.S. at 256); see also Forum Non Conveniens, Black’s Law Dictionary (10th ed.
2014) (explaining that a court with jurisdiction “may divest itself of jurisdiction if,
for the convenience of the litigants and the witnesses, it appears that the action should
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proceed in another [competent] forum”).1 This purpose is served by at least three
considerations.
First, encouraging parties to file motions to dismiss based on forum non
conveniens at an earlier stage of litigation promotes judicial economy. Parties will
spend less time, costs, and efforts in front of a court that will ultimately dismiss the
case. Cf. Sinochem, 549 U.S. at 435 (explaining that “[j]udicial economy is disserved
by continuing litigation” when a district court would “inevitably . . . dismiss the case
[based on] . . . forum non conveniens” (emphasis omitted)).
Second, when a party spends substantial time in a forum before moving to
dismiss based on forum non conveniens, it belies the claim that the forum is truly
inconvenient. As the District of Columbia Circuit has said, “[T]he longer litigation
continues in a U.S. court and the parties incur expenses before the defendant moves
to dismiss on forum non conveniens grounds, the less the defendant can legitimately
claim that litigation in a U.S. forum is so inconvenient as to be oppressive or
harassing.” Shi v. New Mighty U.S. Tr., 918 F.3d 944, 948 (D.C. Cir. 2019) (emphasis
omitted). In short, “a defendant’s dilatoriness [would] promote[] and allow[] the very
incurrence of costs and inconvenience the doctrine is meant to relieve.” Id. (quoting
In re Air Crash, 821 F.2d at 1165).
1See also Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422,
425 (2007) (explaining that “the doctrine of forum non conveniens” allows federal
courts to “dismiss an action on the ground that a court abroad is the more appropriate
and convenient forum for adjudicating the controversy” (emphasis omitted)); Otto
Candies, LLC v. Citigroup, Inc., 963 F.3d 1331, 1340 (11th Cir. 2020) (calling
convenience the “central purpose” of the forum non conveniens doctrine); Yavuz v.
61 MM, Ltd, 576 F.3d 1166, 1172 (10th Cir. 2009) (same); U.S.O Corp. v. Mizuho
Holding Co., 547 F.3d 749, 753 (7th Cir. 2008) (same); Norex Petroleum Ltd. v.
Access Indus., Inc., 416 F.3d 146, 154 (2d Cir. 2005) (same).
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Third, considering the timeliness of a motion to dismiss based on forum non
conveniens prevents defendants from engaging in impermissible gamesmanship.
Otherwise, defendants could keep an ace up their sleeve by adopting a wait-and-see
approach, asserting forum non conveniens only after they have determined that
litigation in a U.S. court is going poorly. Cf. Gonzalez v. Thaler, 565 U.S. 134, 148
(2012) (explaining that there is gamesmanship when a “party could sit on the fence,
await the outcome, and opt to participate [in the case] only if it was favorable [to the
party]”).
Here, the assertion that Missouri is an inconvenient forum for Hardee’s rings
hollow because of its long delay in filing its motion to dismiss based on forum non
conveniens. Under these facts, the motion should have been filed earlier than 18
months after Hersh and Omer filed their complaint and earlier than the end of the
discovery period prior to trial. Hardee’s knew the facts providing the basis for its
motion to dismiss from the outset of the case. This is true whether we view timeliness
as an independent inquiry or as an interest factor.
III. Conclusion
Because we find that the motion Hardee’s filed was untimely, we need not
decide the other issues presented. Instead, we reverse the district court’s dismissal
based on the doctrine of forum non conveniens and remand for further proceedings
consistent with this opinion.
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