Forum Non Conveniens

The Florida Supreme Court recently changed Florida law on forum non conveniens in its unanimous decision in Kinney System, Inc. v. Continental Insurance Co., 21 F.L.W. S43 (Fla. 1996). The Kinney decision overturned the longstanding landmark case of Houston v. Caldwell, 359 So.2d 858 (Fla. 1978), which held that the doctrine of forum non conveniens could not be used to dismiss a case whose facts arose in a foreign state or country unless all parties in the case were non-residents of Florida. In other words, if any party in the case was from Florida, then the forum non conveniens doctrine did not apply. Id. A motion to dismiss based on forum non conveniens is different than a motion to dismiss based on improper venue as set forth in Florida Rule of Civil Procedure 1.140. Whitehead v. National Crane Corp., 466 So.2d 412, 413 (Fla. 3d DCA 1985). A motion for change of venue based on forum non conveniens may be made any time before the case has been substantially discovered or set for trial. Kinney, 21 F.L.W. at S47. A Court is required to have a motion pending before it to dismiss a case based upon forum non conveniens and, accordingly, may not do so sua sponte. Government Employees Ins. Co. v. Burns, 21 F.L.W. D. 181 (Fla. 3d DCA 1/17/96). Under Kinney, the existence of a Florida party in a case no longer prevents the court from dismissing the case on the basis of forum non conveniens. Id. at S47. The court must now weigh factors that are discussed in this article.

Adequate Alternative Legal Remedy

Before a case may be removed or dismissed on forum non conveniens grounds, a Defendant must establish that there is an adequate alternative legal remedy available in another jurisdiction, and that after weighing all matters, including the parties’ and witnesses’ convenience and the applicable choice of law questions, that it would make more sense to try the case in a jurisdiction other than Florida. It is the moving party’s burden to establish that dismissal based upon forum non conveniens is appropriate. The Defendant must affirmatively establish that the Plaintiff may enjoy a satisfactory remedy in a more convenient forum. In many cases that arise in foreign countries, it will be difficult for the defendant to establish that there is an adequate legal forum that can replace Florida, since many foreign courts lack adequate legal remedies to protect the litigants.

Private Interest Test

Once the adequate alternative legal remedy requirement has been met, the Court must consider the parties’ private interests in deciding whether the alternative forum is appropriate. In weighing out the parties’ private interests, the Court will give serious weight to the plaintiff’s initial choice of forum. In examining whether the private interests of the parties favor litigation of these cases in Florida or in an alternative forum, the private interests to be considered are the following: “(a) access to source of proof; (b) availability of process to compel the attendance of witnesses unwilling to testify; (c) cost of obtaining the attendance and testimony of witnesses willing to testify; (d) possibility of a view of the premises, if appropriate; (e) ability of the court to enforce a judgment; (f) advantages and obstacles to a fair trial; and (g) all other practical problems that make trial easy, expeditious, and inexpensive.” Id. at S45 (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1946)). If the private interests weigh strongly in favor of the alternative forum and overcome the presumption that favors the Plaintiff’s choice of forum, then the trial court may dismiss the case so that it may be filed in the alternative forum. If the court decides that the advantages and disadvantages of an alternative forum are balanced and that they will not significantly undermine or favor the private interests of any particular party in the case, then the court may consider the next step in the Kinney analysis, which concerns public interests.

The Public Interest Test

The public interest factor is a balancing test based on the public policy of convenience and judicial economy. The test includes an analysis of the case’s nexus with Florida, the Court’s right to control its docket and right to encourage trial of cases in the jurisdiction where they arose, and the Court’s familiarity with foreign law. Using the public interest test, the trial court may dismiss a case when the private interests are at equipoise, if the court determines that retention of jurisdiction will be overburdensome, the community has little interest in the case, or that foreign law will predominate if jurisdiction is retained.

Defendant’s Required Stipulations

Before the Court may dismiss the case, it must first be satisfied that the plaintiff can reinstate their suit in the alternative forum without undue inconvenience or prejudice. In other words, the remedy potentially available in the alternative forum cannot be illusory. Id. at S46. To that end, the trial court must obtain a stipulation from the defendant that he will consider the case filed in the new forum as of the date it was first filed in Florida. The trial court must also obtain a stipulation from the defendant that if the plaintiff is unable to try his case in the alternative forum, that the case may be reopened in Florida without prejudice. Finally, the trial court may retain jurisdiction over the Defendant’s assets located within Florida if those assets are necessary to execute on a future judgment or to enforce a judicial ruling. Id.

Plaintiff Must Re-file Within 120 Days

If the plaintiff’s case is dismissed on the basis of forum non conveniens, then the case must be re-filed in the new forum within 120 days after the date of the Florida dismissal. Failure to re-file within 120 days will result in the loss of all stipulations previously discussed. Id.

The New Rule

The Supreme Court has called upon the Florida Bar Rules of Civil Procedure Committee to draft a new forum non conveniens rule consistent with its decision in the Kinney case. The relevant subcommittee is currently considering the new rule. The rule will appear as Fla. R. Civ. Pro. 1.061, Forum Non Conveniens. An emergency version of the Rule is included in the appendix to the Kinney case, Id. at S47-48.

Affected Cases

The Kinney case impacts on all cases, including those that are pending, unless they have been set for trial, or unless discovery has been substantially completed. Id. at 47. Nevertheless, the standard of review on a Court’s ruling on a forum non conveniens motion is whether the Court abused its discretion. Thus, the trial court has great leeway in deciding which cases to dismiss and which to keep.


Although Florida has now joined the majority of states in adopting a substantially similar version of the federal forum non conveniens dismissal rule, it will be interesting to see how long the rule stays in effect in light of the increased number of global transactions, communications, and relationships that exist. The ever-shrinking business world seems to require easier access to Florida’s courts. Nevertheless, Florida law regarding the forum non conveniens doctrine is now as stated in Kinney System, Inc. v. Continental Ins. Co.