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Time is not on your side: timeliness of forum non conveniens motions in the Eighth Circuit

By Tyler Schwettman, Sandberg Phoenix & von Gontard

Earlier this year, the US Court of Appeals for the Eighth Circuit issued an opinion in the case of Hersh v. CKE Restaurants Holdings, Inc., 995 F.3d 659 (8th Cir. 2021), in which it held that the defendants’ motion to dismiss on forum non conveniens grounds was untimely. As further explained below, this decision serves as a warning to litigants and advocates who may choose to hold off on filing a motion to dismiss based on such grounds. In short, sooner is better than later, and later may very well be too late.


This case involved the death of a six-year-old boy, I.E. Hersh, who died when he touched an exposed electrical wire at a Hardee’s restaurant in Amman, Jordan. I.E.’s parents sued the defendants in the US District Court for the Eastern District of Missouri, and after 18 months of litigation, the defendants moved to dismiss the case on forum non conveniens grounds.

The court’s analysis

The Eighth Circuit, without adopting any formal rule, and in the absence of a specific rule mandating the timeline for filing a motion to dismiss on forum non conveniens grounds, found that the defendants’ motion was untimely. The Eighth Circuit surveyed its sister circuits’ approaches in determining whether this type of motion had been timely filed. When analysing this type of motion, a court generally considers certain private and public interest factors to determine whether the motion should be granted or denied. The Fifth Circuit views timeliness of filing as a private interest factor to consider. The Third Circuit views timeliness of filing as a private and public interest factor. The Sixth Circuit views timeliness as an independent hurdle a movant must conquer. As for how the Eighth Circuit views timeliness, that is yet to be known. Here, in summary fashion, the Eighth Circuit stated that “Hardee’s knew the facts providing the basis for its motion to dismiss from the outset of the case. This is true whether we view timeliness as an independent inquiry or as an interest factor.” Hersh, 995 F.3d at 665.

The takeaway

Because the Eighth Circuit declined to adopt a specific approach to addressing the timeliness of a motion to dismiss on forum non conveniens grounds, this issue is surely to present itself at the court again. Regardless, parties should file this type of motion early in a case.

Tyler Schwettman

Tyler Schwettman

GGI member firm
Sandberg Phoenix & von Gontard
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Saint Louis (MO), USA
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With more than 110 attorneys across seven offices, Sandberg Phoenix's work is concentrated in the areas of business, business litigation, health law and products liability. They stand behind their promise to provide superior client service with a rare client service guarantee, reflecting their commitment to quality and broad depth of legal expertise.

Tyler Schwettman is an attorney at Sandberg Phoenix & von Gontard P.C. in St. Louis, Missouri. Tyler is a member of the Products Liability Practice Group and focuses his practice in the areas of toxic torts and appellate/complex litigation. Tyler obtained his law degree from Washington University at the St. Louis School of Law and a bachelor’s degree in psychology from Southeast Missouri State University.

Published: Litigation & Dispute Resolution Newsletter, No. 15, Autumn 2021 l Photo: Gowtham -

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