Virginia Lawyers Weekly VA Lawyers Weekly
Where a Virginia resident whose vehicle struck a motorcycle and killed a 19-year old in the United Kingdom refused to be subject to the service of subpoenas or to the taking of depositions in the United Kingdom, and refused to return for trial, she failed to demonstrate the UK was an “adequate” alternative forum and failed to demonstrate the Eastern District of Virginia was an inconvenient forum.
Background
Defendant Anne Sacoolas, a citizen of the United States and a resident of Virginia, collided with a motorcycle in the United Kingdom operated by 19-year-old Harry Dunn. Dunn was taken in an ambulance to a hospital, where he died.
On Sept. 9, 2020, plaintiffs brought the instant action against defendants in the Eastern District of Virginia, defendants’ home forum. The action alleges negligence, breach of duty and wrongful death. On Oct. 30, 2020, defendants filed the instant motion to dismiss, moving for dismissal of the case under the doctrine of forum non conveniens.
Alternative forum
First, it is necessary to determine whether the alternative forum—in this case the United Kingdom—is “available to the plaintiff [and whether] the alternative forum is adequate.” The availability requirement is arguably satisfied here because defendants are amenable to the service of process in the United Kingdom.
But defendants have not agreed to be subject to the service of subpoenas or to the taking of depositions in the United Kingdom, so in this respect the availability of the United Kingdom forum is somewhat limited. There is no precedent for the proposition that an alternative forum is “adequate” in a forum non conveniens analysis where, as here, the movants have declared that the movants themselves will not return to the alternative forum.
Although a trial of the civil claims in this case could conceivably take place in the United Kingdom without the presence of defendants, that trial would be a mere bare-bones trial given that evidence from defendants necessary for determining vicarious liability and damages would have to be taken through deposition or video testimony in the United States to be presented in the United Kingdom. Such a bare-bones trial is far less preferable than live testimony presented to a jury, and certainly does not serve the ends of justice or the convenience of the parties, the jury and the court.
Remaining interests
Even assuming that the United Kingdom forum is fully available and adequate, the next step in the two-part forum non conveniens analysis is to determine whether “the alternative forum is more convenient in light of the public and private interests involved.”
The private factors identified by the Supreme Court include “(1) the relative ease of access to sources of proof; (2) availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; (3) possibility of view of premises, if view would be appropriate to the action; and (4) all other practical problems that make trial of a case easy, expeditious and inexpensive.”
The Supreme Court has also identified several public interest factors to consider, including: “(1) [a]dministrative difficulties flowing from court congestion; (2) local interest in having localized controversies decided at home; and (3) the interest in having the trial of a diversity case in a forum that is at home with the law that must govern the action; (4) the avoidance of unnecessary problems in conflict of laws or in application of foreign law; (5) and the unfairness of burdening citizens in an unrelated forum with jury duty.” Applied here, these principles and factors persuasively support the conclusion that the relevant private and public interests favor the Eastern District of Virginia retaining jurisdiction over this case.
Defendants argue that this is a damages-only case that could be resolved in the United Kingdom without defendants’ presence—or, indeed, without a trial at all. Defendants’ position is unsupported by the facts in this case. First, it is not clear that this case is damages-only. Moreover, Anne Sacoolas was the first person to witness the pain and suffering of Dunn in the aftermath of the accident and before Dunn’s death, and therefore she might be a necessary witness on the question of damages relating to Dunn’s pain and suffering before his death.
Defendant’s motion to dismiss on forum non conveniens grounds denied.
Charles v. Sacoolas, Case No. 1:20-cv-1052, Feb. 16, 2021. EDVA at Alexandria (Ellis). VLW 021-3-066. 12 pp.
