In a federal diversity suit where the majority of events and witnesses are located in a foreign country, which forum non conveniens factor is most likely to lead the court to dismiss or transfer the case to that country?

• A. The presence of a more convenient federal court in the plaintiff's home state.
• B. The convenience of witnesses and the location of evidence in the foreign country.
• C. The plaintiff's choice of forum as controlling.
• D. The location of witnesses and evidence in the foreign country.

Answer: (D)

Under forum non conveniens, the most compelling reason to dismiss or transfer is where the key proof and testimony reside. If the majority of events occurred abroad and the principal witnesses and documentary evidence are located in that foreign country, the private interest factors strongly favor the foreign forum. The court considers how inconvenient it would be to have trial here when essential sources of proof are overseas, and that makes the foreign forum a far more appropriate setting for the case.

The option that highlights the location of witnesses and evidence captures this core consideration: if most witnesses and the core sources of proof are in the foreign country, transfer or dismissal to that country is likely because trial in the current forum would be inefficient and burdensome. The notion of convenience of witnesses is related, but the decisive point is where those witnesses and the evidence actually are.

Plaintiff’s choice of forum is usually afforded some weight, but it is not controlling when private factors clearly point to the foreign forum. The idea of a more convenient federal court in the plaintiff’s home state does not override the practicalities of where the proof and witnesses are located.