The Mall of Litigation: The Dangers and Benefits of Forum Shopping in American Jurisprudence

Photo by Viktor Bystrov on Unsplash

Patrick Mullinger, Associate Member, University of Cincinnati Law Review

The mall. An American staple almost every citizen is familiar with. However, less citizens are aware of the legal mall—forum shopping. In American litigation, both the federal courts and various state courts may be proper forums for a legal action to be brought. These various courts, with their divergent and occasionally contradictory precedent, make up the metaphorical “mall” in which attorneys are free to shop.

This article will focus on the negative process of forum shopping in modern litigation. Part I will investigate the history and reasoning for forum shopping in litigation. Part II will analyze the advantages and disadvantages of forum shopping. Lastly, Part III will provide the practical implementation of forum shopping and possible ways for a defendant to prevent—or defend against—a forum shopped jurisdiction. While forum shopping is an understandable strategy in plaintiff litigation, it subverts the fairness of the judiciary.

I. The History of Forum Shopping in Litigation

Forum shopping is not a new phenomenon. The jurisprudential roots of forum shopping extend nearly two-hundred years to Swift v. Tyson, 41 U.S. 1 (1842), when Mr. Swift decided to sue Mr. Tyson in federal court instead of New York State court in order to gain a strategic advantage.[1]Many cases since Swift have highlighted the evolution of forum shopping.[2] However, Swift and countless cases since have been faced with the daunting challenge of uniformly interpreting and applying state law.[3] In Erie R.R. v. Tompkins, the Supreme Court granted some clarity on interpreting and applying state law, holding that federal courts sitting in diversity jurisdiction must apply the substantive law of the forum state.[4]

The most accurate definition of forum shopping is the act of seeking the most favorable jurisdiction or court in which a claim might be heard.[5] Most courts adhere to this definition.[6] Some courts have classified forum shopping as when a plaintiff causes “inconvenience and expense.”[7] Because of this classification, courts may label an attorney’s actions as unsavory forum shopping when the court believes that the practice “thwart[s] public policy and achieve[s] an unmerited goal.”[8] This classification promotes the negative connotation that is implied with forum shopping.[9] However, other courts who favor the practice avoid the label of forum shopping in an attempt to avoid this negative undertone.[10]

The difficulty in forum shopping involves a fundamental tenant of American jurisprudence—a  state’s ability to make and define its own laws.[11] In constructing their legal code, states often model their laws off the best practices of other states. However, laws across state lines can differ drastically, as there is no requirement for states to comply with any set of model rules.[12] Since each state implements different laws, and courts apply these different laws in constructing their legal frameworks, each forum inherently has different precedent that can create a strategic advantage for a savvy plaintiff. Plaintiffs seek varying forums where their claim may be viable, and then apply those forums’ substantive laws to their case to determine if they can be considered a forum citizen.[13] Plaintiffs with various forums able to hear the claim may wish to “shop” these forums to get a venue where a favorable outcome is likely.[14] Some jurisdictions are considered more plaintiff friendly, and thus award greater damages in a jury trial versus other forums.[15]

The “Erie” doctrine created hurdles for plaintiff attorneys who wish to forum shop. This doctrine dictates that a court sitting in diversity should apply federal procedure rules and the state’s substantive laws.[16] A plaintiff will look to these laws because a defendant may remove the case to a federal court, but the state’s substantive law will still apply. Thus, if the case is removed to federal court—where diversity jurisdiction likely applies—the “Erie” doctrine forces the federal court to apply the state’s substantive law.[17] While decided long ago, current jurisprudence still relies on the Erie doctrine in cases adjudicated in federal courts.[18]

The outcome of a plaintiff’s claim may be determined on the choice of substantive law applied. For example, in Ferens v. John Deere Co., the court permitted a transfer to a different jurisdiction, dismissing the plaintiffs case based on Mississippi law instead of Pennsylvania law.[19] In doing so, the Court emphasized that an opportunity for forum shopping exists whenever a party has a choice of forums that will apply different laws.[20] However, in their opinion, the Court addressed the idea that a plaintiff should pay the price for choosing inconvenient forums,[21] warning plaintiffs to be mindful of where their action is being brought.

Interestingly, forum shopping is not limited to individual litigants.[22] Corporations will move or choose the location of their official headquarter in an attempt to avail themselves of particularly favorable jurisdictional discrepancies.[23] In Passantino v. Johnson & Johnson Consumer Prd., Inc., the Ninth Circuit held that a corporation engaged in forum shopping when it moved its corporate headquarters to avoid certain jurisdictional rules.[24] Additionally, class action suits sometimes force courts to consider forum shopping issues.[25] Class actions, like in Bristol-Myers Squibb Co. v. Superior Court, may be considered impermissible forum shopping when the majority of the members in a class party are not located near the court, and thus lead to repercussions such as dismissal of the claim.[26]

While courts generally exhibit a healthy skepticism of forum shopping, the practice is permissible in some instances.[27] In Bristol-Myers, the Court limited, but did not eliminate, forum shopping in class action claims.[28] The Court explicitly stated that there were not “sufficient contacts” between California and the out-of-state plaintiffs.[29] In contrast, a case where the defendant has sufficient connections with various forums grants those forums personal jurisdiction over a claim.[30] Because of this permissibility, plaintiff attorneys are still likely to forum shop if the defendant’s contacts are affiliated with the forum state.[31]

Further, in Keeton v. Hustler Magazine, Inc., the Supreme Court allowed forum shopping when a complaint was filed in a jurisdiction whose statute of limitations[32] is longer than other potential jurisdictions.[33] Additionally, courts have permitted personal injury plaintiffs to forum shop, especially when factors of convenience and economy are at stake.[34] One key factor in determining if the court will allow for such shopping is whether evidence and witnesses are present in a foreign state.[35] If many witnesses are located in a jurisdiction, forum shopping may help alleviate those costs through a venue choice most convenient for all parties.

Case law is not the only limiting guideline on forum shopping. Many statutes specifically determine what laws should be applied to an underlying fact pattern.[36] For instance, the Federal Tort Claim Act (“FTCA”) provides that the “whole law” of the state where the act or omission occurred should be applied.[37] The FTCA and other statutes are in place to limit and clarify the issues of application of law in forum shopped cases.[38]

The principal of forum non-conveniens plays an important role as a defense to forum shopping.[39]  Forum non-conveniens allows a federal court to dismiss an action when an alternative forum has jurisdiction to hear the case.[40] The court may apply forum non-convenins when either the current jurisdiction would be wholly inconvenient for the defendant out of proportion with the plaintiff’s convenience, or the chosen forum otherwise is inappropriate.[41] For example, in Gulf Oil Corp. v. Gilbert, the Supreme Court held that a trial court did not abuse its discretion when it held that the action brought in New York against a Pennsylvania corporation was inconvenient, and thus dismissal was proper.[42] If the party which shopped for the forum brings an action far from the opposing party and possible witnesses, then the court may divest their own interest in the suit and require it to be brought in a more convenient jurisdiction.[43] When a court permits a transfer under 28 U.S.C. § 1406(a), the laws of the court where the action is being transferred to are applied to the case.[44]

If the initial forum-shopped court lacks jurisdiction, then the proper venue’s substantive law will apply, potentially harming a plaintiff’s claim.[45] In Piper Aircraft Co. v. Reyno,[46] the Supreme Court recognized that plaintiffs often choose a forum where the law favors them, and so, the court typically favors a defendant’s convenience when analyzing a removal issue.[47] This rule changed forum shopping, forcing the parties to understand that an ancillary court selection may lead to a removal where the substantive law disfavors their position.

II. The Mechanisms of Forum Shopping for Plaintiffs and Defendants.

The decision to shop for a beneficial jurisdiction should not be made lightly. The substantive law of a selected forum may affect the outcome of the case. One advantage for plaintiffs is the freedom to find a court where the substantive law will help their action. In personal injury cases—where the state court’s prior decisions and statutes may be more plaintiff-friendly—a favorable forum can solidify even a weak case. Within this favorable law, plaintiffs may be granted more in damages or have motions granted that they otherwise would not have elsewhere.[48] For example, in expert witness testimony, many states follow either a Frye standard[49] or a Daubert standard.[50] In states that follow Frye, an expert opinion is admissible if the scientific technique is “generally accepted” in the scientific community.[51] However, Daubert jurisdictions consider factors such as: (1) testability; (2) the theory has been subject to peer review; (3) known or potential error rates; (4) standards and controls; and (5) general acceptance in the scientific community.[52] When a plaintiff chooses a forum, the less stringent standard in Frye may lead to admissible expert testimony supporting their claim, while a Daubert jurisdiction may limit or exclude important testimony from their expert.

Conversely, a defendant can remove a civil case to federal court when it satisfies 28 U.S.C. § 1441.[53] This mechanism allows defendants to have some say in the applicable jurisdiction and attempt to prevent bias in favor of local parties.[54] The inherent bias of state jurors can be extremely unfavorable for defendants in civil actions, and thus removal to federal courts is common.[55] This local bias strikes fear in many civil defendants, encouraging removal to a federal court.[56] Additionally, out-of-state litigants have a higher probability of receiving favorable procedural and substantive outcomes in federal courts than in-state litigants.[57] Because federal judges are insulated from local election, they are more likely to sit without local bias, which an out-of-state defendant may find favorable.[58]

III. The Practical Implementation of Forum Shopping

The plaintiff is considered the “master of the complaint.”[59] When analyzing a possible forum, initial investigation should focus on finding a forum with the most favorable substantive law that has jurisdiction over the claims.[60] Once a favorable jurisdiction has been found, the plaintiff must look at the defendants they wish to sue, as to avoid the issue of removal.[61] Most importantly, a plaintiff will want to evaluate the jury-awarded damage amounts for similar claims in order to compare potential positive outcomes against other jurisdictions.[62]

The defense, however, can fight this unfair practice through removing a case to a federal district court. To do so, the defendants investigate subject matter jurisdiction,[63] personal jurisdiction,[64] or the venue location to see if there is a forum non conveniens argument. If there is a jurisdictional issue in the initial court, then the case can easily be removed.[65] Without full diversity jurisdiction or federal question jurisdiction, a federal court does not have the authority to decide a case.[66] Making a forum non conveniens argument may also allow for a dismissal of the case without prejudice.[67] While these extra steps may be burdensome initially, they may potentially lead to a forum where the substantive law denies the plaintiff’s claim altogether, saving a clients’ time and money.

IV. Conclusion

Although the strategic maneuver of forum shopping may be disfavored, it is common in the landscape of modern litigation and, unlike malls, forum shopping appears to be growing even more popular in recent years. Plaintiff counsel must be diligent in their forum selection as to avoid removal by the defense counsel. However, this strategic decision goes against the fundamental fairness of a court by trivializing it. The practice can make jurisdictional difference paramount over even the merits of the case. Because of the gamesmanship forum shopping creates, defense counsel must be diligent in analyzing the claim, looking through all aspects of the complaint to determine if the jurisdiction is proper. It is imperative for counselors to focus on the proper venue, and not get lost wandering around the mall of forums. In this way, forum shopping can best be limited by the checks and balances that already exist within the adversarial structure of American litigation.

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[1] Richard Maloy, Forum Shopping? What’s Wrong With That?, 24 Quinnipiac L. Rev. 25, 29 (2005-2006); see also Erie R.R. v. Tompkins, 304 U.S. 64 (1938).

[2] See Hanna v. Plumer, 380 U.S. 460, 467 (1965) (Chief Justice Warren Burger stating that the forum selection was a direct link to the Tyson v. Swift ruling, and that was disfavored).

[3] Mary Garvey Algero, In Defense of Forum Shopping: A Realistic Look at Selecting a Venue, 78 Neb. L. Rev. 79, 84-85 (1999) (discussing the difficulty in the origins of Forum Shopping after Swift was decided, especially in the preservation of state autonomy versus federal court autonomy); see also Erie R.R. v. Tompkins, 304 U.S. 64 at 74; see also id. at 69 n.1 & 74 n.5 for a listing of several cases and articles that had questioned the decision in Swift.

[4] See Erie R.R. v. Tompkins, 304 U.S. 64 at 74-78, 92 (1938) (essentially overruling Swift, denying the existence of federal “general common law” and granting federal power over procedural claims).

[5] See Forum-Shopping Definition, Black’s Law Dictionary (9th Ed. 2011) available at Westlaw.

[6] See Algero, supra note 3, at 79; see also Lynn M. LoPucki & William C. Whitford, Venue Choice and Forum Shopping in the Bankruptcy Reorganization of Large, Publicly Held Companies, 1991 Wis. L Rev. 11, 14.

[7] Id. (stating the Second Circuit describe forum shopping as the plaintiff attempting to use forum-shopping to defeat the “expectations of the defendant or will upset the policies of the state in which the defendant acted.” citing Iragorri v. United Techs. Corp., 274 F.3d 65, 75 (2d Cir. 2001); See also In re Monegasque De Reassurances, 311 F.3d 488, 498 (2d Cir. 2002). 

[8] Id. citing Note: Forum Shopping Reconsidered, 103 Harv. L. Rev. 1677, 1677 (1990).

[9] Maloy, supra note 1, at 25 n.2.

[10] See Forum Shopping Reconsidered, supra note 8, at 1683.

[11] U.S. Const. art. VI § 2.

[12] U.S. Const. art. IV, § 1.

[13] Many plaintiffs will claim citizenship if the underlying incident occurs in a state, if the potential defendant is located in the state, or if the defendant would have “minimum contacts” with the state.     

[14] See Forum Shopping Reconsidered, supra note 8, at 1683.

[15] See Jimmy Lewis, The Best and Worst States for Lawsuits, American Legal Exchange Council (Oct. 25, 2017), https://www.alec.org/article/the-best-and-worst-states-for-lawsuits/ [https://perma.cc/2ZT2-VF5D].

[16] See Erie Doctrine Definition, Black’s Law Dictionary (11th ed. 2019) available at Westlaw.  

[17] A court may also use Federal Question under 28 U.S.C. §1331, which grants federal district courts original jurisdiction.

[18] See Lloyd N. Cutler, The Demise of Swift v. Tyson, 47 Yale L. J. 1336, 1337 (1937-1938)(prior to Erie, courts would often use Swift to apply federal substantive law to state issues. However, Erie overruled this issue, thus leading to the uniformity of federal and state issues).

[19] Id. at 533 (determining that forum shopping plaintiff could not transfer his action to a different jurisdiction because the statute of limitations had run).

[20] See Ferens v. John Deere Co., 494 U.S. at 527.

[21] Id.

[22] Cutler, supra note 20,at 48.

[23] Id.; see also Passantino v. Johnson & Johnson Consumer Prd., Inc., 212 F.3d 493, 505 (9th Cir. 2000).

[24] Cutler, supra note 20; see also Passantino v. Johnson & Johnson Consumer Prd., Inc., 212 F.3d 493, 505 (9th Cir. 2000).

[25] Cutler, supra note 20; see also Marcel Kahan & Linda Silberman, The Inadequate Search for “Adequacy” in Class Actions: A Critique of Epstein v. MCA, Inc., 73 N.Y.U. L. Rev. 765, 776 (1998).

[26] Maloy, supra note 1, at 49; see also Dudash v. Vernell Struck & Assoc., Inc., No. CO4-2748 MHP, 2004 U.S. Dist. LEXIS 24872, at 14-15 (N.D. Cal. Nov. 16, 2004); Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1772, 2 (2017).

[27] See Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985); see also Ferens v. John Deere Co., 494 U.S. 516 (1990); Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487 (1941).

[28] See Bristol-Meyers, supra note 28.

[29] Id. at 8.

[30] See International Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154 (1945); see also Walden v. Fiore, 571 U.S. 277, 291 (2014) (stating that the defendant, and not the plaintiff or third parties, must create contacts with the forum state).

[31] See Rich Samp, Forum-Shopping Plaintiffs Take a Major Hit in US Supreme Court, Forbes (Jun 29, 2017, 01:09 pm), https://www.forbes.com/sites/wlf/2017/06/29/forum-shopping-plaintiffs-take-a-major-hit-in-us-supreme-court/?sh=5d15827a6de4 [https://perma.cc/E6R5-WYJE].

[32] See Statute of Limitations Definition, Black’s Law Dictionary (9th Ed. 2011) available at Westlaw (a law that bars a claim after a specific period of time).

[33] Maloy, supra note 1, at 39; see also Curry v. States Marine Corp. of Del., 118 F.Supp. 234, 235 (S.D.N.Y. 1954); Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 779 (1984) (stating that although the statute of limitations had run in other jurisdictions, they had not yet run in New Hampshire, and thus the plaintiff was allowed to commence the action).

[34] Maloy, supra note 1, at 39-40.

[35] Id. at 40. (The court must have proper jurisdiction to hear the claim before considering if this venue was proper).

[36] Id. at 50.

[37] 28 U.S.C. 1346(b)(1). This statute only applies to private actors suffering damage caused by the actions of governmental employees.

[38] Maloy, supra note 1, at 50-51.

[39] See Forum Non-ConveniensDefinition, Black’s Law Dictionary (11th Ed. 2019) available at Westlaw (the doctrine that an appropriate forum–even though competent under the law–may divest itself of jurisdiction if, for the convenience of the litigants and witnesses, it appears that the action should proceed in another forum in which the action might also have been properly brought in the first place).

[40] Id.

[41] See Sinochem Int’l Co. v. Malay. Int’l Shipping Corp., 549 U.S. 422, at 429 (2007); see also, American Dredging Co. v. Miller, 510 U.S. 443, 447-448 (1994) (quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 (1981)).

[42] See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 511-12 (1947) (The court allowed the plaintiff to bring the action in the proper district in Virginia).

[43] Maloy, supra note 1, at 50-51.

[44] See Trierweiler v. Croton & Trench Holding Corp., 90 F.3d 1523, 1532 (10th Cir. 1996).

[45] Id.

[46] See Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981).

[47] Id. at 250.

[48] See Seyfarth Shaw LLP, The 2019-2020 Judicial Hellholes Report on the Worst Jurisdictions for Defendants, Lexology (Dec. 10, 2019), https://www.lexology.com/library/detail.aspx?g=91214872-2237-412f-9858-6a50cacdccf6 [https://perma.cc/9TW6-3L72]. 

[49] See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

[50] See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

[51] See Anjelica Cappellino, Daubert vs. Frye: Navigating the Standards of Admissibility for Expert Testimony, Expert Institute, (Updated Sep. 7, 2021), https://www.expertinstitute.com/resources/insights/daubert-vs-frye-navigating-the-standards-of-admissibility-for-expert-testimony/ [https://perma.cc/E9FP-UGZD].

[52] Id.

[53] See 28 U.S.C. §1441(a) (a defendant may remove from State to the United States district court in which the action is pending, so long as the district court has original jurisdiction).

[54] See Howard M. Wasserman, The Forum-Defendant Rule, The Mischief Rule, and Snap Removal, 62 Wm. & Mary L. Rev. 51, 57 (Feb. 2021); see also Scott Dodson, Beyond Bias in Diversity Jurisdiction, 69 Duke L.J. 267, 283-84, 287 (2019); Howard M. Wasserman, A Jurisdictional Prospective on New York Times v. Sullivan, 107 Nw. U. L. Rev. 901, 906 (2013); Hertz Corp. v. Friend, 559 U.S. 77, 85 (2010); Bank of United States v. Deveaux, 9 U.S. 61, 87 (1809); Gibbons v. Bristol-Myers Squibb Co., 919 F.3d 699, 706 (2d Cir. 2019).

[55] See Mark Moller, The Checks and Balances of Forum Shopping, vol 1 Stan. J. of Complex Litigation 171, (2013); see also Kevin M. Clermont & Theodore Eisenberg. Do Case Outcomes Really Reveal Anything About the Legal System? Win Rates and Removal Jurisdiction, 83 Cornell L. Rev. 581, 604 (1998) (noting corporate defendants heavily populate removal proceedings).

[56] See Victor E. Flango, Litigant Choice Between State and Federal Courts, 46 S.C. L. Rev. 961 (1995) (reviewing empirical evidence suggesting out of state corporate parties have stronger preferences for federal court, although also noting that for many corporate litigants, federal forum selection is driven by fear of local bias than fear of bias based on party’s corporate status); see also Neal Miller, An Empirical Study of Forum Choices in Removal Cases under Diversity and Federal Question Jurisdiction, 41 Am. U. L. Rev. 369, 414, 424 (1992) (collecting data showing perceive bias against corporate attorney clients).

[57] See Willy E. Rice, Allegedly “Biased”, “Intimidating” and “Incompetent” State Court Judges and the Questionable Removal of State Law Class Actions to Purportedly “Impartial” and “Competent” Federal Courts – A Historical Analysis of Class Action Dispositions in Federal and State Courts, 1925-2011, 3 William & Mary B. L. Rev. 419,444; see also Kevin M Clermont & Theodore Eisenberg, Commentary, Xenophilia in American Courts, 109 Harv. L. Rev. 1120, 1142 (1996).

[58] U.S. Const. Art. III Section I; see also Richard W. Garnett & David A Strauss, Common Interpretation: Article III, Section One, National Constitution Center, (last visited Oct. 22, 2021), https://constitutioncenter.org/interactive-constitution/interpretation/article-iii/clauses/45 [https://perma.cc/BM5K-4VWC].

[59] See Note, The Harvard Law Review Association, supra note 8, at 1678.

[60] See State JurisdictionDefinition, Black’s Law Dictionary (11th ed. 2019) available at Westlaw. Since state courts have general jurisdiction, they will likely be able to hear almost every claim, so long as it occurs in the forum states boundaries.

[61] See Diversity Jurisdiction Definition, Black’s Law Dictionary (11th ed. 2019) available at Westlaw (the defendant’s must be from a different state and the amount in controversy must be over $75,000).

[62] This can be done a number of ways. Lexis and Westlaw both offer services to search terms for verdict amounts, thus granting clarity in the possible amount at trial.

[63] See Subject Matter Jurisdiction Definition, Black’s Law Dictionary (11th ed. 2019) available at Westlaw. Jurisdiction over the nature of the case and they type of relief sought; the extent to which a court can rule on the conduct of persons or the status of things.

[64] See Personal Jurisdiction Definition, Black’s Law Dictionary (11th ed. 2019) available at Westlaw. A court’s power to bring a person into its adjudicative process; jurisdiction over a defendant’s personal rights, rather than merely over property interests.

[65] While it may be removed, additional steps will need to be taken to find out which federal court would have jurisdiction. For example, if the plaintiff sues in their home state, but the accident happened in a third state, and the domicile of the defendant is in the third state, then removal would likely be in the federal district where the actual suit arose.

[66] See 28 U.S.C. § 1332. Essentially, this rule forces both parties to be from separate jurisdictions. There cannot be a similarly situated party on either side of the “v” for diversity jurisdiction.

[67] See Dismissal without PrejudiceDefinition, Black’s Law Dictionary (11th ed. 2019) available at Westlaw (Dismissal without prejudice allows for a plaintiff to refile in a proper court); see also Nix v. Office of the Comm’r of Baseball, D/B/A Major League Baseball, S.D. NY. No. 17-cv-1241, 2017 U.S. Dist. LEXIS 104413, 7 (S.D. NY. July 6, 2017). (Stating that courts have uniformly held that defendants are not prejudiced under Rule 41(a)(2) by having to face trial in state court). While a dismissal with prejudice may be more beneficial to a defendant, it is unlikely that courts will grant a dismissal with prejudice for forum shopping because of Rule 41(a)(2).