This is a forum non conveniens case but it doesn’t add anything to the law and depends on its specific facts. Had it affirmed rather than reversed, surely the opinion would not have been published.

The failure of a Continental tire allegedly caused a rollover that killed two people and injured four others. The people involved were from San Luis, Arizona (some citizens, some resident aliens), the tire had been sold and mounted in Arizona, but the accident happened in Sonora, Mexico. Plaintiffs sued Continental and its dealer in Maricopa county; Defendants moved to dismiss on grounds of forum non conveniens, arguing that the case should be heard in Mexico. Incredibly, the trial court dismissed.

The Court of Appeals reversed.

Under forum non conveniens, the defendant must show that the case can be brought elsewhere. The parties argued about whether the Mexican statute of limitations would permit suit there but the court assumed that it would, basing its decision on the conveniens part rather than the forum part.

Defendant must show that the foreign forum is the more convenient place to litigate. This includes the convenience both of the parties and of the court (or, as the court put it, “private interest factors” and “public interest factors,” using the pretentiousness typical of courts doing what they please to call deep legal thinking). These Defendants argued that some witnesses were in Mexico and couldn’t be brought here to testify. The Plaintiffs argued, and the court agreed, that the Mexican witnesses were relatively unimportant compared to the many American witnesses who would be called and that testimony could be taken from Mexican witnesses under the Hague convention. (While that may theoretically be true, it can take a long time; more likely, folks will arrange some depositions in San Luis.)

As for “public interest factors,” Arizona obviously has an interest in a case concerning damages to residents caused by a product sold here. The court treated Mexico’s interest as minor; if the opinion is to be believed, Defendants apparently argued for Mexico’s interest by presenting articles about the crash from Sonoran newspapers. (Actually, to our understanding Mexican courts would insist that they had a great interest in an accident on Mexican roads but Defendants don’t seem to have done much to explore or argue that.) Defendants also argued that the docket is crowded in Maricopa County; the question, said the court, is whether the docket is less crowded in Mexico, i.e., whether Plaintiffs could get a speedier trial there, and Defendants had presented no evidence on that.

The court awarded Plaintiffs their costs on appeal, and properly so. There was no slightest possibility that on these facts Arizona would send the case to Mexico; Defendants did well to sell the idea to one level of the judiciary.

Forum non conveniens can work but you need pretty strong facts. When the facts are weak and the smell factor strong – obviously, nobody here was really concerned about anybody’s convenience or anything other than whether Mexican or American law would apply to the claim – the court is not going to have much sympathy. Defense counsel made a lot of money doing this but this is a house-counsel sort of idea so we’ll assume that’s where it came from.