11. Is the court likely to dismiss the action for forum non conveniens?

The employer filed a motion to dismiss the action for insufficient service of process, which the court denied. The employer then moved to dismiss the action for forum non conveniens.

Under the employment laws of the foreign country, if the woman succeeds in her action, her damages would be limited to two years' salary. If the woman succeeds in her action under State A employment law, her damages could be much greater and could include emotional distress and punitive damage.

A woman domiciled in a foreign country brought a wrongful discharge action in federal court in State A against her former employer. The employer is incorporated in State A and headquartered in State B. The woman had worked at the employer's office in the foreign country. Her on-site manager, who had sole discretion over personnel matters, had made the decision to discharge her. The manager has now retired and continues to live in the foreign country.

No, because the employer waived its right to challenge the forum by failing to include that challenge in its first motion to dismiss
No, because the remedies available to the woman under the foreign country's laws are less favorable than those available under State A law
Yes, because the foreign country is the more appropriate forum given that the discharge occurred there and the evidence is located there
Yes, because the woman is a foreign citizen and therefore her choice of forum is not entitled to deference

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C is correct. In deciding whether to dismiss an action for forum non conveniens, a court must weigh the private and public interests in keeping the action or dismissing it. Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981). Here, the foreign country has an interest in the resolution of the dispute because the plaintiff is one of its citizens and the conduct underlying the wrongful discharge claim took place there. Additionally, all the evidence and witnesses, including the plaintiff and the retired manager, are located in the foreign country, making it the most convenient place to try the action.

A is incorrect. Forum non conveniens is not one of the defenses considered waived if omitted from an earlier pretrial motion. See Fed. R. Civ. P. 12(b)(2)-(5). The employer's motion is not a motion to dismiss for improper venue under Rule 12(b)(3) because a motion to dismiss on forum non conveniens grounds presumes that the original venue is proper but argues that there is a more convenient foreign forum in which the action should be tried. Thus, no waiver occurred.

B is incorrect. When deciding a forum non conveniens motion, a court may consider the fact that the alternative forum is in a foreign country whose law is not as favorable to the plaintiff as the law of the forum where the action was filed. Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981). That fact alone, however, is not determinative and must be weighed against other factors suggesting why dismissal might or might not be appropriate.

D is incorrect. The Supreme Court has held that the typical deference given to a plaintiff's forum choice is not present when the plaintiff is a foreign citizen. Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981). However, the plaintiff's citizenship is not the only factor determining whether the action should be dismissed. Rather, the court must weigh the convenience of the parties and witnesses, as well as the public interest in maintaining the action in the selected forum, before deciding whether to dismiss an action for forum non conveniens.

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11. Is the court likely to dismiss the action for forum non conveniens?

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