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The Franchise Memorandum

Eighth Circuit Holds Forum Non Conveniens Argument Is Untimely

The Eighth Circuit Court of Appeals reversed a district court’s dismissal of a lawsuit against a franchisor based on the doctrine of forum non conveniens. Estate of I.E.H. v. CKE Rests. Holdings, Inc., 2021 WL 1653036 (8th Cir. Apr. 28, 2021). A child playing on an indoor playground at a Hardee’s restaurant franchise in Amman, Jordan died after being electrocuted from touching an exposed wire. The child’s parents sued the franchisor and related entities in Missouri, Hardee’s home forum at the time. After the close of discovery and 18 months after the case began, Hardee’s moved for dismissal based on the doctrine of forum non conveniens, arguing that Jordan was a more suitable forum. The district court
agreed and dismissed the lawsuit. The child’s parents appealed. The Eighth Circuit determined that Hardee’s motion was untimely, reversed the dismissal, and remanded for further proceedings. 

In reaching its holding, the Eighth Circuit concluded that Hardee’s motion was untimely regardless of whether the court considered timeliness among the many private- and public-interest factors assessed in a forum non conveniens decision, or as an independent hurdle to prevailing on such a motion. The court reasoned that Hardee’s knew the relevant facts that supported its motion from the date the complaint was filed yet waited 18 months and until discovery closed to file the motion. The court declined to adopt a specific approach to evaluating the timeliness of motions to dismiss based on forum non conveniens, but focused its ruling on three considerations: (1) parties should file these motions at an early stage to promote judicial economy; (2) a party that spends substantial time in a forum betrays its argument that the forum is inconvenient; and, (3) defendants should be discouraged from raising forum non conveniens only after they determine that litigation is not proceeding in their favor.

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The Franchise Memorandum is a collection of postings on summaries of recent legal developments of interest to franchisors brought to you by Lathrop GPM LLP. 

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