Dismissal without Prejudice Appealable if Entered on Forum Non Conveniens Grounds
The Seventh Circuit held in Lopez de Manez v. Bridgestone Firestone N. Am. Tire, LLC, 2008 U.S. App. LEXIS 14802 (7th Cir. July 11, 2008), that an order dismissing a case on forum non conveniens grounds is appealable because it terminates the action and is denominated “without prejudice” simply to make it clear that the plaintiff may proceed in an alternate forum:
The fact that the dismissal was without prejudice raises the question whether the judgment before us is final for purposes of 28 U.S.C. § 1291. We conclude that it was, given the nature of a dismissal based on forum non conveniens. First, we note the obvious difference between dismissing a case on this ground and refusing to dismiss and thereby permitting the litigation to continue. The latter kind of order is nonfinal and does not fall within the narrow confines of the collateral order doctrine.... A dismissal, in contrast, ends the case before the court. The premise of a dismissal under the forum non conveniens doctrine ... is that there is an alternative forum that is better suited to hear the case. Had the dismissal here been one "with prejudice," there would have been some question about plaintiffs' right to resort to that alternative forum; by stipulating that it was "without prejudice," the district court properly signaled that it intended no such limitation. See In re Joint E. & S. Dists. Asbestos Litig., 22 F.3d 755, 762 n.13 (7th Cir. 1994) (stating that "[t]he grant of a motion to dismiss on the common law grounds of forum non conveniens is appealable," despite being without prejudice). Compare Peters v. Welsh Dev. Agency, 920 F.2d 438, 439 (7th Cir. 1990) (holding that the district court's order, which dismissed a complaint without prejudice for failure to prosecute but indicated that the case would be reinstated in that same court if plaintiff were to meet certain conditions, was not final and therefore not appealable).
In this context, therefore, the phrase "without prejudice" means that although the dismissal is "final" in the sense that plaintiffs are finished before the U.S. courts, they still are free to refile the case in another, appropriate forum, and (at least to the extent that a U.S. court is in a position to assure such a thing) such a refiling would not be subject to a defense based on former adjudication.
The Seventh Circuit observed that the same rationale applies to “a dismissal for lack of personal or federal subject-matter jurisdiction, which, while foreclosing future litigation of the matter in the court issuing the order, does not preclude a plaintiff from refiling and litigating in a proper forum.” Accordingly, those, too, would be appealable.
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