Hersh v. CKE Restaurants Holdings, Inc., No. 19-2794 (8th Cir. 2021)
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Plaintiffs filed suit against Hardee's after their six-year-old son was electrocuted by an exposed, electrified wire at one of defendant's restaurants and died. Hardee's moved for dismissal based on the doctrine of forum non conveniens, which the district court granted.
The Eighth Circuit reversed the district court's dismissal, concluding that, although its sister circuits take varying approaches to timeliness, under either approach, Hardee's filed a motion that was sufficiently untimely to warrant reversal. In this case, for 18 months, Hardee's knew the essential facts supporting its motion to dismiss. The court explained that the assertion that Missouri is an inconvenient forum for Hardee's rings hollow because of its long delay in filing its motion to dismiss based on forum non conveniens. The court concluded that, under these facts, the motion should have been filed earlier than 18 months after plaintiffs filed their complaint and earlier than the end of the discovery period prior to trial. Accordingly, the court remanded for further proceedings.
Court Description: [Smith, Author, Loken and Melloy, Circuit Judges] Civil case - Civil Procedures. In this case plaintiffs' six-year-old child was electrocuted when he touched a live wire at a Hardee's restaurant in Amman, Jordan, and Hardee's moved to dismiss on the doctrine of forum non conveniens, asserting Jordan was the appropriate forum. The district court dismissed on that basis, and plaintiffs appeal, arguing the motion was untimely. The circuits take different approaches in determining whether a motion to dismiss for forum non conveniens is timely, but under either approach, this motion, coming 18 months after the case was commenced, came too late, and the district court erred in dismissing the case; reversed and remanded for further proceedings.
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