No. 22	               April 14, 2016	63

          IN THE SUPREME COURT OF THE
                STATE OF OREGON

            Rosa Aurelia Palacios ESPINOZA,
         Personal Representative of the Estate of
        Victor Andres Espinoza Horna, Deceased,
       for her own benefit as the surviving spouse
      and for the benefit of Micaela Ariana Espinoza
              and Mariam Andrea Espinoza,
            surviving children of the deceased,
                    Plaintiff-Appellant,
                  Respondent on Review,
                              v.
          EVERGREEN HELICOPTERS, INC.,
                  an Oregon corporation,
                  Defendant-Respondent,
                   Defendant on Review,
                             and
                      Bobbi CRANN,
         Personal Representative of the Estate of
                  Alan Crann, Deceased,
                        Defendant.
           Erika Consuelo Machado MERINO,
         Personal Representative of the Estate of
         Juan Francisco Garcia Rubio, Deceased,
       for her own benefit as the surviving spouse
     and for the benefit of Macarena Garcia Machado
              and Mariono Garcia Santolalla,
            surviving children of the deceased,
          and Arturo Benjamin Garcia Pinillos,
             surviving father of the deceased,
                    Plaintiff-Appellant,
                  Respondent on Review,
                              v.
          EVERGREEN HELICOPTERS, INC.,
                  an Oregon corporation,
                  Defendant-Respondent,
                   Defendant on Review,
                            and
64	                  Espinoza v. Evergreen Helicopters, Inc.

                      Bobbi CRANN,
           Personal Representative of the Estate of
                   Alan Crann, Deceased,
                        Defendant.
             July Marlene Churata FERNANDEZ,
            Personal Representative of the Estate of
         Christian Martin Querevalu Quiroz, Deceased,
      for her own benefit as the surviving spouse and for
      the benefit of Camila Milagros Querevalu Churata,
                surviving child of the deceased,
           and Freddy Quiroz Dulanto De Querevalu
                and Rolandi Querevalu Suarez,
               surviving parents of the deceased,
                       Plaintiff-Appellant,
                     Respondent on Review,
                                 v.
             EVERGREEN HELICOPTERS, INC.,
                     an Oregon corporation,
                     Defendant-Respondent,
                      Defendant on Review,
                               and
                         Bobbi CRANN,
            Personal Representative of the Estate of
                     Alan Crann, Deceased,
                           Defendant.
             Flor De Maria Gamboa ALVAREZ,
          Personal Representative of the Estate of
  Fernando Cesar Nunez Del Prado Reynoso, Deceased,
  for her own benefit as the surviving spouse and for the
 benefit of Caroline Anthuanet Nunez Del Prado Gamboa
      and Fernando Junior Nunez Del Prado Gamboa,
             surviving children of the deceased,
         and Margarita Severiana Reynoso Quispe
       and Ricardo Cesar Nunez Del Prado Saavedra,
             surviving parents of the deceased,
                     Plaintiff-Appellant,
                   Respondent on Review,
                               v.
Cite as 359 Or 63 (2016)	65

       EVERGREEN HELICOPTERS, INC.,
              an Oregon corporation,
              Defendant-Respondent,
               Defendant on Review,
                       and
                  Bobbi CRANN,
      Personal Representative of the Estate of
              Alan Crann, Deceased,
                    Defendant.
             Flor Katherine Soto LICAN,
       Personal Representative of the Estate of
       Jose Luis Saldana Eustaquio, Deceased,
     for her own benefit as the surviving spouse
     and for the benefit of Joseph Saldana Soto,
  Luiggi Saldana Soto, Miguel Angel Saldana Soto,
         Maria Elizabeth Saldana Gutierrez,
     and Alexandra Himena Saldana Gutierrez,
          surviving children of the deceased,
             and Amadeo Saldana Narro,
           surviving father of the deceased,
                  Plaintiff-Appellant,
                Respondent on Review,
                            v.
        EVERGREEN HELICOPTERS, INC.,
                an Oregon corporation,
                Defendant-Respondent,
                 Defendant on Review,
                          and
                    Bobbi CRANN,
       Personal Representative of the Estate of
                Alan Crann, Deceased,
                      Defendant.
            Olga Paulina Chiba QUISPE,
      Personal Representative of the Estate of
        Peter Michael Liza Chiba, Deceased,
    for her own benefit as the surviving mother
  and for the benefit of Jose Armando Liza Nunton,
           surviving father of the deceased,
                  Plaintiff-Appellant,
                Respondent on Review,
66	                 Espinoza v. Evergreen Helicopters, Inc.

                           v.
          EVERGREEN HELICOPTERS, INC.,
                 an Oregon corporation,
                 Defendant-Respondent,
                  Defendant on Review,
                          and
                     Bobbi CRANN,
         Personal Representative of the Estate of
                 Alan Crann, Deceased,
                       Defendant.
           Brenda Vilma Hoyle DE CASTRO,
         Personal Representative of the Estate of
         Miguel Max Castro Gutierrez, Deceased,
                   Plaintiff-Appellant,
                 Respondent on Review,
                             v.
          EVERGREEN HELICOPTERS, INC.,
                 an Oregon corporation,
                 Defendant-Respondent,
                  Defendant on Review,
                           and
                     Bobbi CRANN,
         Personal Representative of the Estate of
                 Alan Crann, Deceased,
                       Defendant.
          Giovanna Patricia Otero DE VASQUEZ,
          Personal Representative of the Estate of
           Jhon Henry Vasquez Lopez, Deceased,
      for her own benefit as the surviving spouse and
      for the benefit of Angie Patricia Vasquez Otero,
              Henry Gianpierre Vasquez Otero,
               Karen Elizabeth Vasquez Otero,
               and Jhon Henry Vasquez Otero,
             surviving children of the deceased,
                Pablo Wilfredo Vasquez Meza,
               surviving father of the deceased,
               and Catalina Lopez De Vasquez,
              surviving mother of the deceased,
                      Plaintiff-Appellant,
                    Respondent on Review,
Cite as 359 Or 63 (2016)	67

                            v.
           EVERGREEN HELICOPTERS, INC.,
                  an Oregon corporation,
                  Defendant-Respondent,
                   Defendant on Review,
                           and
                      Bobbi CRANN,
          Personal Representative of the Estate of
                  Alan Crann, Deceased,
                        Defendant.
     (CC 090912350, 090912777, 090913294, 091015153,
       091015154, 091217035, 100202814, 100303637;
                CA A147028; SC S062903)

    On review from the Court of Appeals.*
    Argued and submitted September 15, 2015.
   Thomas W. Sondag, Lane Powell PC, Portland, argued
the cause and filed the brief for the petitioner. With him on
the brief was David G. Hosenpud and Peter D. Hawkes of
Lane Powell PC, Portland.
   Richard S. Yugler, Landye Bennett Blumstein LLP,
Portland, argued the cause and filed the brief for the
respondent. With him on the brief was Robert B. Hopkins
and Matthew K. Clarke, of Landye Bennett Blumstein LLP,
Portland, and Arthur C. Johnson of Johnson, Johnson and
Schaller PC, Eugene.
   Cody Hoesly, Larkins Vacura LLP, Portland, filed the
brief on behalf of amicus curiae Oregon Trial Lawyers
Association.
   Before Balmer, Chief Justice, and Kistler, Walters,
Landau, Baldwin, Justices, and Duncan, Judge of the Court
of Appeals, Justice pro tempore.**
______________
	**  Appealed from Multnomah County Circuit Court, Jerry B. Hodson, Judge.
266 Or App 24, 337 P3d 169 (2014).
	 ** Brewer and Nakamoto, JJ., did not participate in the consideration or
decision of this case. Linder, J., retired December 31, 2015, and did not partici-
pate in the decision of this case.
68	                         Espinoza v. Evergreen Helicopters, Inc.

    BALMER, C. J.
   The decision of the Court of Appeals is affirmed. The
judgment of the circuit court is vacated, and the case is
remanded to the circuit court for further proceedings.
     Case Summary: Plaintiffs, whose relatives were killed in a helicopter crash
in Peru, filed wrongful death actions against defendant, an Oregon aviation ser-
vices company that provided the helicopter and pilot. Defendant filed motions to
dismiss the actions for forum non conveniens, on the grounds that Peru provided
an adequate alternative forum, that trying plaintiffs’ claims in Oregon would be
seriously inconvenient, and that Peru had a stronger interest in the controversy.
The trial court granted defendant’s motions and dismissed plaintiffs’ claims
without prejudice so that plaintiffs could re-file their actions in Peru. Plaintiffs
appealed, arguing that the doctrine of forum non conveniens is not available in
Oregon, or, in the alternative, that if it was, dismissal on that ground was not
appropriate in their cases. The Court of Appeals reversed in part, concluding
that the doctrine of forum non conveniens is available in Oregon, but that the trial
court applied the wrong substantive law in determining whether to grant defen-
dant’s motion. Held: The doctrine of forum non conveniens is part of the common
law of Oregon and, under certain circumstances when the ends of justice require
it, permits a trial court to dismiss or stay an action.
    The decision of the Court of Appeals is affirmed. The judgment of the cir-
cuit court is vacated, and the case is remanded to the circuit court for further
proceedings.
Cite as 359 Or 63 (2016)	69

	          BALMER, C. J.
	        This case arises from a helicopter crash in a remote
part of Peru, which resulted in the deaths of everyone on
board. Plaintiffs brought wrongful death actions in Oregon
against Evergreen Helicopters, Inc. (Evergreen), an Oregon
corporation that provided the helicopter and the pilot.
Evergreen filed motions to dismiss plaintiffs’ actions on the
ground that, under the doctrine of forum non conveniens,
Peru was the appropriate forum in which to litigate those
cases. The trial court consolidated the cases and granted
Evergreen’s motions.1 Plaintiffs appealed and the Court of
Appeals reversed. Although it concluded that the doctrine
of forum non conveniens is available in Oregon, the Court
of Appeals held that the trial court erred as a matter of law
because it made factual determinations that went to the
underlying merits of plaintiffs’ claims and failed to assess
the materiality of the documentary and testimonial evi-
dence with respect to the different claims in the complaint.
Espinoza v. Evergreen Helicopters, Inc., 266 Or App 24, 49-51,
337 P3d 169 (2014). The Court of Appeals further held that
the trial court erred by failing to make the requisite find-
ings, expressly or implicitly, as to the availability of evidence
in Peru and failing to discuss what factors it considered in
reaching its decision. Id. at 50-51. On review, we consider
two issues: (1) whether the doctrine of forum non conveniens
is available under Oregon law, and (2) if so, what standards
guide its application. For the reasons discussed below, we
conclude that forum non conveniens is part of the common
law of Oregon and permits a trial court to dismiss or stay an
action under certain circumstances when the ends of justice
require it. We disagree in some respects with the Court of
Appeals as to the standards that govern the application of
forum non conveniens, but we agree with its decision vacat-
ing the trial court judgments and remanding the cases to
the trial court.
      I.  FACTUAL AND PROCEDURAL BACKGROUND
	       We state the facts based on the allegations in the
pleadings, supplemented by additional facts in the record.
	1
      As noted, plaintiffs originally filed eight separate complaints, which the
trial court consolidated. For purposes of appeal and review in this court, all eight
cases have been combined.
70	                         Espinoza v. Evergreen Helicopters, Inc.

Plaintiffs are the appointed personal representatives
of the families and estates of eight passengers who died
in a helicopter crash in Peru. Defendant Evergreen, an
Oregon corporation with its principal place of business in
Oregon, owns and leases aircraft, including the helicopter
that crashed in this case, and provides related services
worldwide.2 The crash occurred when the helicopter, which
was transporting employees and subcontractors of a min-
ing company to a remote Andean copper mining project,
flew into a mountainside. The helicopter was being flown
pursuant to a service contract between Rio Tinto Mining
Peru S.A.C., the Peruvian subsidiary of a global mining
and minerals company, and Helinka S.A.C., a Peruvian
commercial aviation services provider. Pursuant to that
contract, and other side agreements, Evergreen provided
the helicopter, as well as pilots, mechanics, parts, and an
on-site contract administrator to help coordinate the air
transport service to and from the mining camp. The pilot
in charge of the helicopter on the day of the crash was
an Evergreen employee who had been provided to Helinka
as a part of that arrangement. Although it is undisputed
the helicopter was operating in inclement weather at the
time of the crash, the parties disagree as to the cause of
the crash, and in particular whether pilot error was to
blame or whether mechanical problems might also have
contributed.3
	       Plaintiffs filed civil actions against Evergreen
and the pilot’s estate in Multnomah County Circuit
Court for the wrongful deaths of the deceased passen-
gers, based on theories of direct and vicarious liability in
	2
       In 2013, Evergreen International Aviation, the parent company of defen-
dant Evergreen Helicopters, Inc., sold that company to Erickson Air-Crane,
Inc., another aviation services provider based out of Portland, Oregon. The
sale of Evergreen Helicopters has no impact on the issues before this court on
review. However, the name of that company has since been changed to Erickson
Helicopters, Inc. For purposes of clarity and to be consistent with the decisions of
the courts below, we refer to defendant by its prior name.
	3
       The parties also disagree as to who exercised operational control over the
helicopter and supervisory authority over the pilot. Plaintiffs alleged in their
complaints that Evergreen was in control of the helicopter and that the pilot was
its employee and agent. Before the trial court, Evergreen disputed that charac-
terization, and argued that Helinka had both operational control of the helicopter
and supervisory authority over the pilot.
Cite as 359 Or 63 (2016)	71

negligence.4 Plaintiffs alleged that Evergreen, individually
and through its agents, was negligent or grossly negligent
in failing to “properly maintain, inspect, test and/or repair
the subject helicopter,” to properly train and supervise its
crew, to properly navigate and operate the helicopter on
the day of the crash, and to warn plaintiffs of the dangers
associated with flying in adverse weather. 5 In addition,
plaintiffs alleged, Evergreen had negligently entrusted the
helicopter. Plaintiffs alleged that Evergreen’s negligence, or
gross negligence, in those various ways was a substantial
factor in causing the helicopter crash and the deaths of their
relatives.
	         Invoking the doctrine of forum non conveniens,
Evergreen moved to dismiss plaintiffs’ actions on the
grounds that an adequate alternative forum was available
in Peru and that the balance of private and public inter-
ests favored dismissal. Evergreen asserted that a Peruvian
court would be better-situated to hear the cases for several
reasons. Evergreen argued that litigating the actions in
Oregon would be seriously inconvenient because “the over-
whelming evidence relating to [plaintiffs’] claims for negli-
gence” is in Peru and because crucial third-party witnesses
are also located there. Evergreen noted that a view of the
premises was unavailable in Oregon and asserted that liti-
gating plaintiffs’ actions here was likely to result in practi-
cal difficulties, due, for example, to the fact that translators
would be required for many witnesses. Evergreen further
asserted that it would be unable to implead Helinka as a
third-party defendant in Oregon and that Peru had the
strongest interest in the controversy, particularly since
that is where the crash occurred, plaintiffs are Peruvian
	4
       The trial court dismissed plaintiffs’ claims against the pilot’s estate for
insufficient service of process and lack of personal jurisdiction. Plaintiffs do not
challenge that decision on appeal.
	5
       Seven of the plaintiffs filed nearly identical complaints and alleged, as
noted, both that Evergreen was directly liable for its own negligence and that it
was vicariously liable for the negligence of individuals working under its author-
ity. The eighth plaintiff, de Castro, alleged only vicarious liability based on the
negligent operation of the helicopter in Peru. The trial court granted Evergreen’s
motions to dismiss as to all eight actions without distinguishing between them.
We express no opinion as to whether the differences between the allegations in
de Castro’s complaint and the others may be material to the trial court’s forum
non conveniens analysis on remand.
72	                  Espinoza v. Evergreen Helicopters, Inc.

nationals and Peruvian law will most likely apply to their
claims.
	        In response, plaintiffs argued first that the doctrine
of forum non conveniens never has been expressly recognized
in Oregon and that a court may not dismiss an action on that
ground because under Oregon law, a court must exercise
jurisdiction over a case that has been properly conferred.
In the alternative, plaintiffs argued that even if that doc-
trine were available in Oregon, dismissal was not appropri-
ate in their cases because the balance of private and public
interest factors actually weighed strongly in favor of retain-
ing jurisdiction here. Plaintiffs asserted that a substantial
amount of the evidence relevant to the litigation of their
claims is located in the United States, and particularly in
Oregon, where Evergreen is headquartered and has its prin-
cipal place of business. Plaintiffs argued that even if their
actions were litigated in Peru, a view of the premises was
unlikely given its remote location, and that wherever the
trial was held, the parties would be relying on demonstra-
tive evidence and expert testimony to convey information
about the crash site to the jury. Noting that their complaints
alleged both vicarious and direct liability claims against
Evergreen, including that Evergreen had been negligent in
installing, maintaining and testing mechanical systems on
the helicopter, plaintiffs asserted that a substantial factor
in the cause of the crash may have been defects in avion-
ics installed by Evergreen in Oregon. As a result, plaintiffs
asserted, Oregon has a strong interest in this litigation.
	         The trial court concluded that the doctrine of forum
non conveniens is available and that Oregon trial courts
have the “discretion to dismiss an otherwise properly filed
case if the court determines that an adequate alternative
forum exists and that trying the action elsewhere would
best serve the convenience of the parties and the ends of
justice.” Applying that standard, the court dismissed plain-
tiffs’ actions. The trial court issued a letter opinion setting
out its conclusions. First, the court considered whether
Peru provided an adequate alternative forum. Noting that
plaintiffs had initially conceded that point in their briefing,
before later arguing that the statute of limitations had run
in Peru and that it therefore was not an adequate forum,
Cite as 359 Or 63 (2016)	73

the trial court determined that Evergreen’s offer to waive
its statute of limitations defenses in Peru was sufficient to
address that concern. The trial court then proceeded to “the
weighing of a number of private and public interest factors
to determine whether trying the action in Peru would best
serve the convenience of the parties and the ends of justice.”
The trial court recognized that its analysis would “depend[ ]
in large part on how one views the dispute between the par-
ties.” However, it did not make any express factual findings
to support its conclusions or state how those findings would
shape its analysis. Rather, the court summarily concluded:
    “The materials submitted by the parties persuade me that
    trial of this lawsuit will largely center on, and depend
    upon, witnesses and documents regarding circumstances
    in Peru at the time of the crash, rather than circumstances
    in Oregon or the United States.”
The court did acknowledge that plaintiffs had pointed to evi-
dence of “squawks” in the helicopter’s navigational systems
near the time of the crash and that discovery might reveal
evidence of technical malfunctions attributable to Evergreen
that would support the direct negligence claims. However, it
declined “to base [its] decision on such possibilities, espe-
cially given the record that is before [the court].” The court
concluded, without further elaboration, that “the private and
public interest factors weigh in favor of dismissal,” granted
Evergreen’s motion, and entered general judgments of dis-
missal without prejudice for all of the actions.6
	6
      The trial court imposed certain conditions on the dismissal of plaintiffs’
claims. It required that Evergreen submit to the jurisdiction of a Peruvian court
and agree to be bound by any judgment entered there, that it waive certain stat-
ute of limitations defenses in Peru, and that it agree to make evidence in the
United States available in Peru. Further, for the dismissal to be effective, the
trial court required that the courts in Peru accept those conditions and that none
of the cases be rejected there for lack of subject matter or personal jurisdiction.
On review, neither party has asserted that the trial court erred in imposing con-
ditions on the dismissals of plaintiffs’ claims. In other jurisdictions, courts have
deemed conditions similar to those imposed here permissible, and sufficient to
address concerns about the adequacy of the proposed alternative forum. See, e.g.,
Paulownia Plantations de Panama Corp. v. Rajamannan, 793 NW2d 128, 134-35
(Minn 2009) (trial court may dismiss action on forum non conveniens grounds
even when adequacy of alternative forum is uncertain, if nonmoving party is
protected by conditions attached to dismissal and holding that alternative forum
was adequate in that case, where defendant agreed to submit to jurisdiction and
waive all jurisdictional defenses).
74	                         Espinoza v. Evergreen Helicopters, Inc.

	        Plaintiffs appealed and the Court of Appeals
reversed in part. The Court of Appeals agreed with the
trial court that forum non conveniens is available in Oregon.
To articulate the standard that trial courts should apply
in deciding whether to dismiss a case on that ground, the
Court of Appeals drew from Gulf Oil Corp. v. Gilbert, 330
US 501, 67 S Ct 839, 91 L Ed 1055 (1947), and subsequent
federal cases. Reviewing the trial court decision for abuse
of discretion, the Court of Appeals held that the court did
not err in concluding that Peru offered an adequate alter-
native forum,7 but that it did err in its analysis of whether
the relative inconvenience of trying plaintiffs’ actions in
Oregon warranted dismissal in favor of a Peruvian forum.
The Court of Appeals first concluded that, in arriving at
its decision, the trial court improperly made and relied on
factual determinations that went to the merits of plaintiffs’
claims. Id. at 48-49. Second, it determined that the trial
court disregarded the significance of witnesses and evidence
in Oregon that would relate to plaintiffs’ direct negligence
claims. Third, it faulted the trial court for failing to make
any findings, implicit or express, about the availability of,
or ease of access to, evidence in Peru. Id. at 50-51. Finally,
it held that the trial court erred in not considering factors
other than the availability of evidence, contrary to the test
set out in Gulf Oil. However, because it concluded that the
lack of explanation in the trial court’s letter opinion pre-
vented meaningful appellate review of that decision, the
Court of Appeals vacated the dismissals and remanded the
consolidated cases for reconsideration in light of its opinion.
Id. at 51. Evergreen sought review, which we granted.8
	7
       On appeal, plaintiffs argued that the Peruvian courts were inadequate due
to “institutional corruption, discrimination against indigenous and poor peo-
ple, and retaliation against plaintiffs who seek redress in Peru’s legal system.”
Because plaintiffs did not raise those issues before the trial court, the Court of
Appeals held that those issues were not preserved and declined to consider them.
See Espinoza, 266 Or App at 47-48.
	8
       Before the Court of Appeals, Evergreen challenged the exercise of appel-
late jurisdiction over all eight actions, because plaintiffs joined and filed a single
notice of appeal, with only one of the eight judgments attached to that notice.
That argument was rejected by the Appellate Commissioner of the Court of
Appeals, and the Chief Judge of that court denied reconsideration. Evergreen
again argues on review that ORAP 2.10(1), which provides that in consolidated
cases “a separate notice of appeal must be filed as to each judgment,” is a juris-
dictional requirement such that plaintiffs’ failure to file eight separate notices of
Cite as 359 Or 63 (2016)	75

	        On review, Evergreen focuses on two issues. First,
Evergreen argues that the Court of Appeals afforded too
much deference to plaintiffs’ choice of Oregon as the forum
in which to litigate their claims. Evergreen contends that
less deference is required in this case because plaintiffs
are all Peruvian residents, relying on Piper Aircraft Co. v.
Reyno, 454 US 235, 102 S Ct 252, 70 L Ed 2d 419 (1981),
where the United States Supreme Court held that on a
motion to dismiss for forum non conveniens, the ordinary
presumption in favor of the plaintiff’s forum choice applies
with less force where the plaintiff is not a resident of that
forum.9 Evergreen argues that such a rule is appropriate,
because there is no reason to presume that a forum is con-
venient to the plaintiff when the plaintiff is not a resident of
that forum. Evergreen suggests that under the appropriate
standard for non-resident plaintiffs, an action should be dis-
missed if it may be litigated more conveniently elsewhere.
Dismissal is especially appropriate here, Evergreen claims,
because Oregon’s connection to this dispute is objectively
weak.
	        Second, Evergreen disputes the Court of Appeals’
statement that the trial court erred in making factual deter-
minations that relate too closely to the “merits” of plaintiffs’
underlying claims. Noting that the trial court never expressly
stated that it was disregarding any evidence or that it had
decided what that evidence might show, Evergreen asserts
that the trial court did not improperly disregard those direct
negligence claims that could have required discovery of wit-
nesses and documents in Oregon. Evergreen further con-
tends that even if the trial court did conclude that plaintiffs’
direct negligence claims lacked merit and relied on that con-
clusion in weighing the relative advantages and obstacles

appeal deprives both the Court of Appeals and this court of jurisdiction. We agree
with the orders below that ORAP 2.10(1) is not a jurisdictional requirement and
that plaintiffs’ combined notice of appeal was sufficient in this case.
	9
      In both federal and state case law, plaintiffs that reside outside of the
forum where an action is brought are referred to as “foreign.” The plaintiffs in
the reported cases are often foreign nationals, that is, residents and citizens of
other countries. However, the term “foreign” can also apply to plaintiffs who are
simply residents of different states within the United States. Here, we use the
terms “non-resident” and “foreign” interchangeably to refer to all plaintiffs who
reside outside of the forum state.
76	                  Espinoza v. Evergreen Helicopters, Inc.

to a fair trial, it did not err in doing so. Rather, Evergreen
asserts, resolving a motion to dismiss for forum non conve-
niens may require consideration of at least some aspects of
the merits of a plaintiff’s claims, and, as a practical matter,
any preliminary view expressed by a trial court in disposing
of a case on forum non conveniens grounds could not possibly
interfere with a party’s right to trial of disputed issues of
fact in the underlying dispute.
	        In response, plaintiffs urge us to reject the doc-
trine of forum non conveniens. Noting that this court need
not rely on federal precedents in deciding that common
law issue, they contend that its origin is dubious and that
it “is a parochial, xenophobic and outcome-determinative
doctrine that permits reverse forum shopping by powerful
corporations seeking to altogether avoid accountability in
their home forum for transnational torts.” Plaintiffs also
argue that we should not recognize the doctrine because,
under Oregon law, “there is no inherent discretionary
authority to decline jurisdiction in damages actions over
a local defendant in favor of another venue for the sake
of convenience.” Finally, plaintiffs contend that even if
such authority does exist, significant policy reasons weigh
against allowing courts to exercise it, and that, for that
reason, whether courts should be allowed to stay or dismiss
an action for forum non conveniens should be left to the leg-
islature to decide.
	         In the alternative, plaintiffs urge us to affirm the
Court of Appeals’ articulation of how the doctrine of forum
non conveniens should be applied under Oregon law. Plaintiffs
assert that the degree of deference given to their choice to
litigate in Oregon should not depend on their status as for-
eigners or their assumed motive in making that choice. To
the extent that the court makes any presumption about the
convenience of Oregon as the forum, plaintiffs contend, the
court should presume that it is convenient, since defendant is
located and operates its business here. Noting that Oregon
courts are hardly overrun by plaintiffs from other countries
and that advances in modern technology have reduced the
burden of litigating transnational cases, plaintiffs argue
that an action should be dismissed on the grounds of forum
Cite as 359 Or 63 (2016)	77

non conveniens only in the rare circumstance where the
defendant sustains its heavy burden to show that the plain-
tiff’s choice of forum is “vexatious, harassing or oppressive
to the defendant.” Plaintiffs argue that the trial court failed
to adhere to that standard and erroneously imposed a much
less stringent burden on Evergreen.
	        Finally, plaintiffs argue that the trial court erred
in analyzing the public and private interest factors set out
in Gulf Oil and that, as a result, it struck an unreasonable
balance in weighing those factors. Plaintiffs contend that
the procedural posture of defendant’s motion, as a motion
to dismiss, required the trial court to assume the truth of
all well-pleaded allegations and to construe disputed facts
liberally in their favor. Pointing to the trial court’s state-
ment in its letter opinion that the substance of the case is
“dependent on circumstances in Peru,” plaintiffs argue that
this shows that the trial court relied on factual conclusions
going to the merits of their claims that are contrary to the
well-pleaded allegations in their complaints, and that in
the process, the trial court erred by “picking and choosing”
which allegations and theories to consider when assessing
the ease of access to relevant witnesses and documents in
each forum.
	        Plaintiffs acknowledge that assessing the mate-
riality of witness testimony and other evidence requires a
degree of “entanglement with the merits,” but they distin-
guish those kinds of determinations from judging whether
a particular claim or theory of liability is likely to succeed.
Plaintiffs argue that a trial court deciding a motion to dis-
miss for forum non conveniens may ascertain certain facts,
such as where particular evidence is located, but that a trial
court may not shape its assessment of the relative inconve-
nience of litigating an action in a particular forum accord-
ing to its assessment of the strength of the various claims
asserted. Plaintiffs argue that treating all claims and the-
ories of recovery the same for purposes of weighing the
materiality of the available evidence and the relative ease
of access to the sources of that proof in each forum is par-
ticularly appropriate where, as here, the parties have yet to
conduct merits discovery.
78	                        Espinoza v. Evergreen Helicopters, Inc.

                             II. ANALYSIS
A.  The Doctrine of Forum Non Conveniens
	         A brief discussion of the origins and elements of the
doctrine of forum non conveniens will provide context for
our consideration of the issues on review. Generally, rules of
personal jurisdiction and venue ensure that actions are liti-
gated in an appropriate forum. See World-Wide Volkswagen
Corp. v. Woodson, 444 US 286, 292, 100 S Ct 559, 62 L Ed 2d
490 (1980) (jurisdictional due process requirement of “mini-
mum contacts” is intended to protect defendant from burden
of litigating in “distant or inconvenient forum”); Kohring v.
Ballard, 355 Or 297, 312, 325 P3d 717 (2014) (“Jurisdiction
refers to the authority of the court to hale a defendant into
court, while venue concerns the particular location where it
is appropriate for the court to exercise that authority.”). In
rare cases, however, jurisdiction and venue for an action are
proper in a forum where litigating the action would be seri-
ously inconvenient to the parties, witnesses, or the court.
The doctrine of forum non conveniens—Latin for “inconve-
nient forum”—provides that, in such cases, “a court having
jurisdiction may decline to exercise it on considerations of
convenience, efficiency, and justice.” Kedy v. A.W. Chesterton
Co., 946 A2d 1171, 1178 (RI 2008) (citing AT & T Corp. v.
Sigala, 274 Ga 137, 138, 549 SE2d 373, 375 (2001)); see also
Restatement (Second) of Conflict of Laws § 84, comment
a (1971) (“The rule has been developed that a court, even
though it has jurisdiction, will not entertain the suit if it
believes itself to be a seriously inconvenient forum provided
that a more appropriate forum is available to the plaintiff.”).
	        The importance of forum non conveniens and the fre-
quency with which courts have invoked that doctrine in dis-
missing certain actions have varied over time. Historically,
restrictive jurisdictional rules tended to prevent more
than one forum from being competent to adjudicate a dis-
pute, and as a result, the rule that a court with jurisdiction
might nonetheless decline to hear a case in favor of allowing
a forum with concurrent jurisdiction to do so instead was
infrequently used.10 See Peter B. Rutledge, With Apologies to
	10
        Prior to the development of modern jurisdictional rules, concurrent juris-
diction occurred most often in cases that arose from activity aboard a foreign
Cite as 359 Or 63 (2016)	79

Paxton Blair, 45 NYU J Int’l L & Pol 1063, 1065-66 (2013)
(describing history and evolution of forum non conveniens
doctrine).
	        Nonetheless, the basic principles from which forum
non conveniens originates are deeply rooted in the common
law. It has long been an established rule that a court may
sometimes refuse to consider a case on the merits, despite
having jurisdiction over the parties and subject matter.
See David Shapiro, Jurisdiction and Discretion, 60 NYU L
Rev 543, 546-60, 547-60, 571-74 (1985) (describing a court’s
“traditional equitable discretion not to proceed”). Indeed,
although the doctrine’s Latin name was not commonly used
in this country until the twentieth century, a court’s author-
ity to decline to hear a case involving foreign litigants or
subject matter for prudential reasons has been recognized
in the United States and Great Britain for nearly two hun-
dred years. See Gulf Oil, 330 US at 504 (describing history
of doctrine noting that “courts of equity and of law also occa-
sionally decline, in the interest of justice, to exercise juris-
diction, where the suit is between aliens or nonresidents,
or where for kindred reasons the litigation can more appro-
priately be conducted in a foreign tribunal.” (internal cita-
tions and quotation marks omitted)); Robert Braucher, The
Inconvenient Federal Forum, 60 Harv L Rev 908, 909-18
(1947) (discussing history of forum non conveniens doctrine).
As one United States district court in Maine noted in 1836:
    “The courts of this country are not bound to take jurisdic-
    tion of controversies between foreigners having no domi-
    cil in this country * * *. It is a question of discretion to the
    court, whether it will take cognizance of the case, or not,
    and it cannot be charged with a denial of justice if it remits
    the parties, with their rights entire, to their domestic

vessel on the high seas. As a result, many of the early examples of the doctrine of
forum non conveniens are found in cases involving actions of that type. Peter B.
Rutledge, With Apologies to Paxton Blair, 45 NYU J Int’l L & Pol 1063, 1065-66
(2013). See, e.g., Willendson v. Forsoket, 29 Fed Cas 1283, 1284, 1 Pet Adm 197
(DC Pa 1801) (declining for prudential reasons to exercise jurisdiction over con-
tract case brought by sailor against captain); Johnson v. Dalton, 1 Cow 543, 548,
13 Am Dec 564, 1823 WL 1885, *4 (NY Sup Ct 1823) (describing well-settled rule
that courts have sound discretion to decline to exercise jurisdiction over cases
arising from torts committed on high seas involving foreign litigants; affirming
decision of trial court to hear case, because under the circumstances, “to send the
plaintiff to a foreign tribunal would be a denial of justice.”).
80	                         Espinoza v. Evergreen Helicopters, Inc.

    forum. * * * The question is, therefore, not one affecting the
    competency of the court, but it turns upon the expediency
    of taking jurisdiction in the particular case.”

The Bee, 3 F Cas 41, 43, 1 Ware 332, 336 (D Me 1836) (inter-
nal citations omitted); see also, e.g., Tulloch v. Williams,
8 Dunlop, 657 (Scot Sess 1846) (notwithstanding court’s
jurisdiction over matter, it would decline to hear case;
forum was not convenient because evidence and witnesses
were in Jamaica, Jamaican law was likely to apply, and
defendant had agreed to answer any process served on him
there).
	        By the latter half of the nineteenth century, as the
development of modern jurisdictional rules allowed courts to
expand their extraterritorial reach, the risk of jurisdictional
competition between forums increased. Accordingly, so too
did the importance of forum non conveniens as a mecha-
nism for addressing cases where jurisdiction and venue
were proper but the forum unsuitable. Rutledge, Apologies,
at 1067; see also Paxton Blair, The Doctrine of Forum Non
Conveniens in Anglo-American Law, 29 Colum L Rev 1, 20-30
(1929) (describing examples of doctrine’s use and evolution).
Thus, as the basic contours of the doctrine crystallized, it
was invoked with greater frequency by courts in a variety
of jurisdictions. See, e.g., Western Railway Co. v. Miller, 19
Mich 305, 315-316, 1869 WL 3643, *6-7 (1869) (articulating
version of rule similar to modern doctrine of forum non con-
veniens); Pierce v. Equitable Life Assur. Soc., 145 Mass 56,
62-63, 12 NE 858, 863-64 (1887) (recognizing that court may
decline to exercise jurisdiction over action against defendant
foreign corporation if it would be gravely inconvenient due to
location of parties and evidence, but retaining case because
inconvenience in that instance not insuperable). 11
	11
       Another Scottish case, Clements v. Macaulay, 4 Macpherson, 583 (Scot
Sess 1866), not only contains a well-developed discussion of the doctrine of forum
non conveniens, as it was understood at the time, but turns on facts that are inter-
esting from a historical standpoint. In that case, a merchant brought an action
in Scotland against his business partners, seeking his share of the proceeds from
a joint venture to provide supplies to the confederate army during the United
States’ Civil War. After the trial court refused to dismiss the action, the Scottish
Court of Session reversed, holding that the action was more appropriately tried in
the United States where the parties had entered into the arrangement and where
most of the relevant evidence was located.
Cite as 359 Or 63 (2016)	81

	Today, forum non conveniens is an ingrained fea-
ture of the common law, having been adopted throughout
the federal courts and in nearly every state, either by judi-
cial decision or legislative mandate. See Kedy, 946 A2d at
1179-80 (noting recognition of doctrine in jurisdictions
throughout United States). The defendant, as the moving
party, bears the “heavy burden” to establish that an action
should be dismissed, or stayed, on forum non conveniens
grounds. Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp.,
549 US 422, 430, 127 S Ct 1184, 167 L Ed 2d 15 (2007). As
an equitable doctrine reserved to the sound discretion of the
trial court, however, there is no bright line rule for when a
court should grant such a motion. See Piper Aircraft, 454
US at 249-50 (declining to lay down a “rigid rule” to govern
forum non conveniens because “each case turns on its facts”
and “[i]f central emphasis were placed on any one factor, the
forum non conveniens doctrine would lose much of the very
flexibility that makes it so valuable.” (internal citations and
quotation marks omitted)); see also Sinochem, 549 US at
429 (“Dismissal for forum non conveniens reflects a court’s
assessment of a ‘range of considerations, most notably the
convenience to the parties and the practical difficulties that
can attend the adjudication of a dispute in a certain local-
ity.’ ” (citing Quackenbush v. Allstate Ins. Co., 517 US 706,
723, 116 S Ct 1712, 135 L Ed 2d 1 (1996))).
	        A court’s exercise of discretion in granting or deny-
ing a motion to dismiss for forum non conveniens in most
jurisdictions today is guided by the two-stage, multi-factor
test set out by the United States Supreme Court in Gulf Oil,
discussed below, which identifies a number of private and
public considerations intended to help determine the relative
advantages and costs of the available forums. Restatement
at § 84 comment c; see, e.g., Stangvik v. Shiley Inc., 54 Cal
3d 744, 751, 819 P2d 14, 17 (1991) (noting adoption of Gulf
Oil test); Lesser v. Boughey, 88 Haw 260, 263-64, 965 P2d
802, 805-06 (1998) (same); Myers v. Boeing Co., 115 Wash
2d 123, 128, 794 P2d 1272, 1275 (1990) (same); see also, e.g.,
State ex rel. Ford Motor Co. v. Nibert, 235 W Va 235, 239-40,
773 SE2d 1, 5-6 (2015) (describing West Virginia forum non
conveniens statute, which adopts test similar to that in Gulf
Oil).
82	                   Espinoza v. Evergreen Helicopters, Inc.

	        At the first stage of the Gulf Oil test, the court
considers whether there is an alternative forum in which
the action may be tried. At that stage, the moving party
is usually required to establish, as a threshold issue, that
an alternative forum is available and capable of provid-
ing relief. See Gulf Oil, 330 US at 506-07 (“In all cases in
which the doctrine of forum non conveniens comes into play,
it presupposes at least two forums in which the defendant
is amenable to process; the doctrine furnishes criteria for
choice between them.” (emphasis added)); see also Carijano
v. Occidental Petroleum Corp., 643 F3d 1216, 1225 (9th Cir
2011), reh’g den, 686 F3d 1027 (9th Cir 2012), cert den, 133
S Ct 1996 (2013) (under Gulf Oil, to prevail on motion to
dismiss based on forum non conveniens, defendant must
demonstrate existence of adequate alternative forum, mean-
ing forum where defendant is amenable to process and that
“offers a satisfactory remedy”); but see, e.g., Islamic Republic
of Iran v. Pahliavi, 62 NY2d 474, 484, 467 NE2d 245, 249
(1984) (although availability of another suitable forum is
important consideration, it is not prerequisite to application
of forum non conveniens doctrine).
	        At the second stage of the test, the court’s discre-
tion is guided by a balancing of the interests at stake. The
court initially looks to the private interests of the parties to
“weigh relative advantages and obstacles to fair trial.” Gulf
Oil, 330 US at 508. Some of those factors may include:
   “[T]he relative ease of access to sources of proof; availabil-
   ity of compulsory process for attendance of unwilling, and
   the cost of obtaining attendance of willing, witnesses; pos-
   sibility of view of premises, if view would be appropriate to
   the action; and all other practical problems that make trial
   of a case easy, expeditious and inexpensive[;] * * * [and] the
   enforceability of a judgment if one is obtained.”
Id. In addition, the court may consider public-interest fac-
tors that are relevant to whether litigating in the plaintiff’s
chosen forum would serve the ends of justice. Public-interest
factors identified in Gulf Oil include: the administrative
difficulties and burden on the court in the plaintiff’s cho-
sen forum; the unfairness of imposing the expense of trial
and the burden of jury duty on residents of a community
with little or no connection to the controversy; the interest
Cite as 359 Or 63 (2016)	83

in “having localized controversies decided at home”; and
choice of law issues, including whether the court will be
required to apply its own law, or that of another jurisdic-
tion. Id. at 508-09. When, on balance, the relevant private
and public interests “strongly favor” litigating the action in
the alternative forum, the court may dismiss the complaint,
or alternatively, in some jurisdictions, stay the action. Id.
at 508; see Stangvik, 54 Cal 3d at 749-51 (under California
law, court may either dismiss or stay action for forum non
conveniens).
B.  The Availability of Forum Non Conveniens in Oregon
	         We next consider the threshold question presented:
whether the doctrine of forum non conveniens is available in
Oregon. Under the Oregon Constitution, rules of the common
law that existed when the Constitution took effect in 1859 are
incorporated into the laws of this state. See Oregon Const.,
Art 18, § 7 (“All laws in force in the Territory of Oregon when
this Constitution takes effect, and consistent therewith,
shall continue in force until altered, or repealed.”); Laws of
Oregon 1843-49, Act of June 27, 1844, Art III, § 1, p 100
(1853) (“[T]he Common Law of England and principles of
equity, not modified by the statutes of Iowa or of this govern-
ment, not incompatible with its principles, shall constitute
a part of the law of this land.”); see also Fulmer v. Timber
Inn Restaurant and Lounge, Inc., 330 Or 413, 424, 9 P3d
710 (2000) (unless modified or abrogated, applicable com-
mon law rules are binding on Oregon courts). As discussed,
the doctrine that courts may decline to hear cases involv-
ing foreign subject matter or litigants for reasons of conve-
nience and justice was well-established in 1859. Indeed, by
that time, courts throughout the United States and Great
Britain already were articulating the key elements of forum
non conveniens and employing it with increasing regularity.
See, e.g., McIvor v. McCabe, 26 How Pr 257, 16 Abb Pr 319,
1863 WL 3736, *2 (NY Super 1863) (“Every court is pri-
marily the judge of its own jurisdictional powers, and may
assume them or decline them * * *. Whether, therefore, the
court will afford jurisdiction in cases of trespass occurring
out of the State may be said to rest in discretion merely, and
may be denied whenever substantial justice may require it
* * *.”).
84	                 Espinoza v. Evergreen Helicopters, Inc.

	        Recognizing those common law roots, this court
has noted the existence of forum non conveniens and its rel-
evance as a mechanism for addressing the question of where
a particular action ought to be litigated. See, e.g., Myers
v. Brickwedel, 259 Or 457, 464-65, 486 P2d 1286 (1971)
(acknowledging doctrine); Reeves v. Chem Industrial Co.,
262 Or 95, 100, 495 P2d 729 (1972) (noting that “[c]ourts
often refuse to hear a case because of forum non conveniens
considerations” (internal citation and quotation marks omit-
ted) (emphasis added)). Thus, although this court has never
expressly held that forum non conveniens is part of Oregon
law or reached the issue of whether a court may decline to
hear a case on that ground, it has suggested as much. State
ex rel. Hydraulic Servocontrols Corp. v. Dale, 294 Or 381, 390
n 5, 657 P2d 211 (1982) (recognizing that forum non conve-
niens could apply to tort action where actual injury occurred
outside forum and at least one party is foreign, but conclud-
ing that was not dispositive of personal jurisdiction in that
case); North Pacific v. Guarisco, 293 Or 341, 356 n 12, 647
P2d 920 (1982) (suggesting that a trial court might consider
factors such as whether there is an alternative convenient
forum available and whether “center of gravity” for dispute
is in that alternative forum in determining whether to exer-
cise jurisdiction over action).
	        Notwithstanding that history, plaintiffs argue
that we are now prevented from formally adopting the
doctrine of forum non conveniens, because the dismissal
or stay of an action on that ground is inconsistent with
Oregon law. Plaintiffs first contend that our precedents
require courts to proceed with actions where jurisdiction
and venue are proper. That characterization of our case
law is incorrect. We never have held that an Oregon court
is required to adjudicate any case. Cf. Couey v. Atkins, 357
Or 460, 522, 355 P3d 866 (2015) (although trial courts
have constitutional authority to consider certain moot
cases, they are not required to adjudicate such actions,
merely because there is jurisdiction). Rather, we have
repeatedly recognized that for a variety of reasons, “a
court is not always required to exercise such jurisdiction
as it may possess.” Reeves, 262 Or at 100. Under appropri-
ate circumstances, a court may sometimes dismiss or stay
Cite as 359 Or 63 (2016)	85

an action for entirely prudential reasons, regardless of the
type of relief sought.
	         This court addressed the authority of a trial court
to dismiss an action for prudential reasons in Reed v. First
Nat. Bank of Gardiner, 194 Or 45, 241 P2d 109 (1952), an
action to recover money damages stemming from an alleged
fraud. There, the trial court dismissed the action for want of
prosecution. Id. at 49. On appeal, the plaintiff argued that
the trial court had acted without authority because it did
not comply with a statute requiring notice prior to such a
dismissal. Id. at 53-54. This court disagreed. Noting that
the efficient and diligent litigation of disputes is an essential
public policy interest, we held that “[t]he power of a court
to dismiss an action for want of prosecution is an inherent
power, and it exists independently of statute or rule of court.”
Id. at 55. Because the trial court’s dismissal of the plaintiff’s
complaint was “fully justified” and therefore reasonable and
appropriate under the circumstances, this court held that
the trial court had not abused its discretion and affirmed
the dismissal. Id. at 57.
	Since Reed, we have confirmed that courts may dis-
miss or stay an action, without reaching the merits, for pru-
dential reasons in a variety of situations. See, e.g., League of
Oregon Cities v. State of Oregon, 334 Or 645, 652, 56 P3d 892
(2002) (stating rule that even when a court has jurisdiction
over an action pursuant to Uniform Declaratory Judgments
Act, it may decline to exercise that jurisdiction on equita-
ble grounds if it determines that another more appropriate
remedy exists); Oregon Medical Assn. v. Rawls, 276 Or 1101,
1106, 557 P2d 664 (1976) (when constitutionality of statute
is challenged, court may decline to entertain suit and leave
issue for another day when issue is better presented in order
“to most efficiently ration scarce judicial resources”); Reeves,
262 Or at 100–01 (upholding trial court’s dismissal of action
for breach of contract based on its conclusion that forum-
selection clause was not unfair or unreasonable).
	       Plaintiffs argue that the doctrine of forum non con-
veniens is contrary to the principle of comity, which, they
argue, requires Oregon courts to enforce legal obligations
arising under foreign law and prohibits them from treating
86	                         Espinoza v. Evergreen Helicopters, Inc.

an action differently because the litigants or subject matter
originate outside the forum. Plaintiffs contend that our cases
on the role of comity oblige trial courts to proceed with dam-
ages actions brought by foreign suitors.12 To the extent that
our cases recognize principles of comity and require Oregon
courts to respect them, however, comity does not prevent
courts from dismissing or staying an action brought by a for-
eign plaintiff for forum non conveniens. “Comity” refers to
“[a] principle or practice among political entities (as coun-
tries, states, or courts of different jurisdictions) whereby
legislative, executive, and judicial acts are mutually recog-
nized.” Black’s Law Dictionary 324 (10th ed 2014); see also
Kotera v. Daioh Int’l U.S.A. Corp., 179 Or App 253, 274, 40
P3d 506 (2002) (“Comity is a flexible concept that counsels
us to enforce the laws of other states when, in the circum-
stances at hand, those laws neither offend international duty
or convenience nor fail to protect the recognized rights of our
citizens.” (internal citations and quotation marks omitted)).
	        Although the concept of comity is consistent with
the view that courts ought generally to recognize and
enforce rights arising under foreign law or out of conduct
in other jurisdictions, we have never considered that obli-
gation to be absolute. See State ex rel. Kahn v. Tazwell, 125
Or 528, 544, 266 P 238, motion to recall mandate den, 126
Or 585 (1928), overruled on other grounds by Reeves, 295 Or
95 (“Under principles of comity the courts of one state will
enforce rights arising in other states, unless contrary to the
laws or public policy of the state in which such enforcement
is sought, and will entertain suits brought by citizens of
other states.” (Emphasis added.)); see also Reeves, 262 Or at
100-01 (court may decline to enforce a contractual provision
pointing to law of another jurisdiction if it would be “unfair
or unreasonable”); McGirl v. Brewer, 132 Or 422, 445-46,
285 P 208 (1930) (on rehearing) (noting that the extent of

	12
        In support of that view, plaintiffs cite dicta in Bowles v. Barde Steel Co.,
177 Or 421, 435, 164 P2d 692 (1945) that “courts are not free to refuse to enforce
a foreign right at the pleasure of the judges, to suit the individual notion of expe-
diency or fairness.” Plaintiffs’ reliance on Bowles is misplaced. The issue in that
case was the extent to which state courts are obligated to entertain rights of
action created by federal law. See generally id. at 428, 452-80. Taken in context,
none of the passages from Bowles that plaintiffs cite stand for the propositions
they assert.
Cite as 359 Or 63 (2016)	87

comity afforded to courts in other jurisdictions is a matter of
judicial policy and discretion).
	         Moreover, the principle of comity suggests that
courts should treat their foreign counterparts with respect
and not presume that the justice they offer is inherently
inferior or inadequate, directly contrary to plaintiffs’ posi-
tion that the Peruvian courts are inadequate to decide this
dispute. Rather, the respect that comity requires is con-
sistent with the dismissal or staying of an action so that
it may be litigated more conveniently and effectively in a
forum abroad, particularly when that forum has a stronger
interest in the underlying controversy. See Blair, Doctrine,
at 6 n 34 (“To apply the doctrine of forum non conveniens
to a particular case consequently does not involve ignoring
the requirements of comity; on the contrary in some cases
only by doing so can the requirements of comity be met.”).
See, e.g., Kotera, 179 Or App at 273-5 (upholding trial court’s
exercise of discretion in declining, for reasons of comity
and convenience, to hear case more appropriately suited to
Japanese tribunal). In sum, there is no rule of decision by
this court that prevents us from recognizing the doctrine of
forum non conveniens as part of the common law of Oregon.
	         Plaintiffs next contend that forum non conveniens
is inconsistent with the legal framework that the Oregon
legislature has provided to address where certain actions
may be litigated and when trial courts may change the place
of trial. Because the legislature has the power to alter or
repeal common law rules by statutory enactment, plaintiffs
are correct that we must consider whether the doctrine of
forum non conveniens is inconsistent with other applicable
laws. See Fulmer, 330 Or at 424.
	        Plaintiffs and amicus argue that Oregon’s venue
statutes are inconsistent with the doctrine of forum non
conveniens. Oregon’s venue statutes do establish where cer-
tain actions may be litigated and allow a court to transfer
an action to another venue within the state for a variety of
reasons, including the convenience of the parties, but those
statutes are silent as to whether, in the interest of justice
and convenience, a court may dismiss or stay an action in
favor of allowing it to be litigated in another forum outside
88	                         Espinoza v. Evergreen Helicopters, Inc.

the state. See ORS 14.030 - 14.165 (statutes specifying
where venue is proper and when venue transfer is autho-
rized);13 cf. Cal Civ Proc Code § 410.30 (authorizing court
to stay or dismiss an action when it finds in the interest of
substantial justice that dispute should be heard in forum
outside state).
	        Plaintiffs and amicus argue that Oregon’s venue
statutes nonetheless prohibit forum non conveniens by neg-
ative implication. In support of that view, they cite Elliott
v. Wallowa County, 57 Or 236, 239, 109 P 130 (1910), abro-
gated by State ex rel. Douglas Cty. v. Sanders, 294 Or 195,
655 P2d 175 (1982), where this court noted that “there is
no authority given a circuit court to change the venue of
a case except for the causes specified in the [venue] stat-
ute,” and argue that because Oregon’s statute provides only
that a court may transfer venue on inconvenience grounds, a
court may not dismiss or stay an action for the same reason.
They contrast Oregon law with other states where legisla-
tures have enacted statutes expressly providing that courts
may dismiss or stay actions for forum non conveniens. Cf. La
Code Civ Proc art 123 (providing that upon motion a court
may dismiss certain actions predicated on acts or omissions
originating outside the state for forum non conveniens and
setting out standard for application of doctrine); W Va Code
§ 56-1-1a (same).
	       However, the enactment of a statute concerning a
particular subject does not necessarily eliminate related
common law rules. See, e.g., Holien v. Sears, Roebuck and
Co., 298 Or 76, 90-97, 689 P2d 1292 (1984) (enactment of
statutory remedy for employment discrimination did not
abrogate common law action for wrongful discharge);14

	13
        ORS 14.110(1), which governs venue transfers, provides in part:
    	    “The court or judge thereof may change the place of trial, on the motion
    of either party to an action or suit, when it appears from the affidavit of such
    party that the motion is not made for the purpose of delay and:
    	    “* * * * *
    	 “(c) That the convenience of witnesses and the parties would be pro-
    moted by such change[.]”
	14
        Superseded in part by statute, Or Laws 2007 ch 903, as stated in Gladfelder
v. Pacific Courier Services, LLC, No. 3:12-CV-02161, 2013 WL 2318840, at *2
(D Or May 28, 2013).
Cite as 359 Or 63 (2016)	89

Cordon v. Gregg, 164 Or 306, 315-16, 101 P2d 414 (1940) (on
rehearing) (common law rules relating to disposition of real
property not abrogated by statutory scheme for intestate dis-
position, but remain in force as background rules to operate
when statute does not address specific situation). Rather, for
a pre-existing common law rule to be abrogated, it must be
evident that that the legislature intended “to negate [that
rule], either expressly or by necessary implication.” Holien,
298 Or at 96-97 (citing Brown v. Transcon Lines, 284 Or 597,
610, 588 P2d 1087 (1978)).
	        Although the venue statutes set out certain proce-
dural parameters for addressing the appropriateness of a
particular forum, plaintiffs have offered nothing to suggest
that those statutes were intended to eliminate the common
law doctrine of forum non conveniens, either expressly, or by
necessary implication. To the contrary, plaintiffs’ contention
is belied by the text of those statutes, which neither require
a court to adjudicate every case that is properly before it, nor
prohibit a court from taking other measures in response to
concerns about whether a dispute may be fairly and effec-
tively adjudicated in that forum. The general venue rule is
permissive; it provides, “When the court has jurisdiction of
the parties, it may exercise it in respect to any cause of action
or suit wherever arising, except for the specific recovery of
real property situated without this state, or for an injury
thereto.” ORS 14.030 (emphasis added); but see Kohring, 355
Or at 301 (notwithstanding permissive wording of venue
statute, defendants have “right” to insist that action be tried
in proper, rather than improper forum). As noted, although
ORS 14.110 sets out conditions for when a court may change
the place of trial, it does not prohibit the stay or dismissal
of an action for similar reasons. See ORS 14.110 (providing
grounds for change of venue). Except for specific and limited
categories of cases, the venue statutes do not mandate the
adjudication of an action in any particular venue. Compare
ORS 14.040 (providing that certain actions relating to dis-
position of property “shall be commenced and tried in the
county in which the subject of the action or suit, or some
part thereof, is situated” (emphasis added)); ORS 14.050
(listing types of suits that must be brought and tried in
county where the cause of action arose). The venue statutes
90	                         Espinoza v. Evergreen Helicopters, Inc.

do not abrogate the common law doctrine of forum non
conveniens.
	        Further, the law of venue is not the only source of
judicial authority for addressing the appropriateness of a
particular forum. Even if forum non conveniens were not
a well-developed common law doctrine, courts would have
authority to stay or dismiss an action for prudential reasons
as an exercise of their inherent power to administer justice.
See Couey, 357 Or at 491-93, 502 (courts have inherent judi-
cial power, which is plenary and vested in them by Article
VII (amended) of the Oregon Constitution).15 For, as we have
long recognized, “courts of general jurisdiction * * * have the
inherent power to do whatever may be done under the gen-
eral principles of jurisprudence to insure to the citizen a fair
trial, whenever his life, liberty, property or character is at
stake. The possession of such power involves its exercise as
a duty whenever public or private interests require.” State
ex rel. Ricco v. Biggs, 198 Or 413, 430, 255 P2d 1055 (1953),
overruled in part on other grounds by State ex rel. Maizels v.
Juba, 254 Or 323, 460 P2d 850 (1969) (quoting Crocker v.
Justices of Superior Court, 208 Mass 162, 179, 94 NE 369,
377 (1911)) (emphasis in State ex rel. Ricco). 16

	15
        Article VII, (amended) section 1, provides in part:
     “The judicial power of the state shall be vested in one supreme court and in
     such other courts as may from time to time be created by law.”
Although Article VII (amended) refers to slightly different judicial bodies as
being vested with the “judicial power” than Article VII (original), the operative
phrase “judicial power” is the same in both versions. See Couey, 357 Or at 491-92
(discussing text and history of original and amended versions of Article VII and
differences between them).
	16
        That Article VII (amended) vests courts with the power to dismiss or stay
cases for forum non conveniens is made evident by the historical and legal con-
text of that provision. See Couey, 357 Or at 492-93 (because text of Article VII
does not include any limitation on the exercise of the “judicial power,” we exam-
ine its historical context and the common law for evidence of its boundaries). As
noted, during the nineteenth century, courts were generally understood to be
able, under the common law, to decline to hear certain types of actions that were
otherwise proper. That power was not limited to cases where the litigants or sub-
ject matter were foreign, but could be exercised in a variety of circumstances. For
example, if a case that was already underway became moot during the course of
the litigation, courts had discretion to allow the case to continue, or, for pruden-
tial reasons, to dismiss it without reaching the merits. See id. at 500-01 (describ-
ing how judicial power was understood to confer authority on courts to “dispose[ ]
of moot cases as a matter of prudence, discretion, and judicial economy” and cases
applying that standard).
Cite as 359 Or 63 (2016)	91

	        The dismissal or stay of an action according to the
doctrine of forum non conveniens is consistent with those
principles, for, as an equitable doctrine, forum non conve-
niens is concerned at its core with “considerations of funda-
mental fairness and sensible and effective judicial admin-
istration.” Kedy, 946 A2d at 1179 (citing Adkins v. Chicago,
R.I. & P.R. Co., 54 Ill 2d 511, 514, 301 NE2d 729, 730 (1973));
see also id. at 1180 (stating well-established principle that
“[t]he inherent power of courts includes the authority to dis-
miss on the basis of forum non conveniens” and noting cases
recognizing that power).
	         This court has confirmed that, under appropriate
circumstances, courts have inherent authority to change
the place where a case will be tried even when the venue
statutes do not expressly provide for it. In State v. Nagel, 185
Or 486, 202 P2d 640, cert den, 338 US 818 (1949), the defen-
dant appealed his criminal conviction, assigning error to
the trial judge’s refusal to move his trial to another county.
Id. at 497-98. The defendant asserted that a change of venue
was necessary in his case because the alleged victim was
the daughter of a prominent county judge, making it impos-
sible for him to receive a fair trial in that same county. Id. at
500-01. This court disagreed and affirmed the judgment of
the trial court. Id. at 520. Considering Oregon’s venue stat-
ute as it then existed, and the various circumstances under
which that statute authorized a court to change venue for
trial, this court concluded that a change of venue was not
authorized in that case. Id. at 497-506. However, this court
declined to rest its decision on that lack of statutory author-
ity. Id. at 506. Instead, disavowing the statement in an ear-
lier case that a trial court may only change venue as pro-
vided by statute, this court confirmed that a trial court has
inherent authority to change the place of trial to ensure the
fairness of the proceedings. Id. at 505-06. The trial judge’s
refusal to grant the defendant’s motion was affirmed, not
because the trial court lacked authority to transfer, but
because there was no evidence that the jury was biased or
that the defendant had been deprived of a fair trial. Id. at
507-08. Although the issue raised in Nagel had particular
constitutional implications due to the nature of the proceed-
ings, the concerns underlying a court’s decision to dismiss or
92	                        Espinoza v. Evergreen Helicopters, Inc.

stay an action for forum non conveniens—the fair and effec-
tive administration of justice—are similar.
	        Finally, plaintiffs cite a number of scholarly arti-
cles that articulate various policy grounds for rejecting the
doctrine of forum non conveniens and argue that we should
refuse to recognize it in Oregon for those reasons.17 One
such policy argument is that forum non conveniens is no lon-
ger necessary as a standalone doctrine and that its objec-
tives may be more effectively realized through jurisdictional
rules. See, e.g., Rutledge, Apologies, at 1069-71 (arguing
that reduced jurisdictional competition between forums has
lessened need for doctrine as means of channeling disputes
between international fora); Simona Grossi, Forum Non
Conveniens as a Jurisdictional Doctrine, 75 U Pitt L Rev 1,
32-36 (2013) (arguing that forum non conveniens should be
reformulated as a jurisdictional rule); Markus Petsche, A
Critique of the Doctrine of Forum Non Conveniens, 24 Fla J
Int’l L 545, 573-79 (2012) (arguing that objectives of forum
non conveniens are more appropriately addressed through
jurisdictional rules). However, even if forum non conveniens
is less pertinent today than previously, or may be addressed
through changes to other legal rules, it does not follow that
we should decline to recognize the doctrine entirely. As it
stands today, civil legal proceedings may still be filed in a
forum where jurisdiction and venue are proper, but where
litigation of the action would be extraordinarily inconve-
nient and inappropriate. In such a case, a court may, and
in fact should, exercise its power to dismiss or stay the case
and allow the dispute to be resolved elsewhere.
	       Other scholars criticize the doctrine on the grounds
that it is difficult to articulate a coherent standard for
when it should be applied. As a result, its critics argue,
forum non conveniens tends, at a minimum, to be applied
inconsistently and, at worst, applied too often and for ille-
gitimate and even discriminatory reasons. See, e.g., Pamela

	17
       In a related vein, plaintiffs and amicus argue that because the issue of
whether forum non conveniens should be adopted in this jurisdiction is laden with
policy considerations, we should defer to the legislature and decline to recog-
nize it by judicial decision. As discussed above, legislative authorization is not
required for a court to identify and apply the common law. We see no infirmity in
recognizing the doctrine here.
Cite as 359 Or 63 (2016)	93

Bookman, Litigation Isolationism, 67 Stan L Rev 1081,
1095 (2015) (criticizing frequency with which federal courts
dismiss actions and arguing that doctrine has become a
“most-suitable-forum” rule, where dismissal is based on a
judge’s belief, for virtually any reason, that trial elsewhere
would be more appropriate); Grossi, Jurisdictional Doctrine,
at 23-31 (criticizing indeterminacy and arbitrariness of
doctrine); Petsche, Critique, at 559-72 (criticizing inconsis-
tent application of doctrine and impermissible motivations
behind dismissals). As a practical consequence, some argue,
forum non conveniens has become a mechanism for “reverse
forum-shopping”:
   “[C]onvenience has little to do with why defendants seek a
   forum non conveniens dismissal. The real reason is to force
   the plaintiff to re-file the lawsuit in another country, whose
   substantive and procedural laws are more favorable to the
   defendant. No one seriously disputes that this is the real
   function of the current doctrine.”
Walter Heiser, Forum Non Conveniens and Choice of Law:
The Impact of Applying Foreign Law in Transnational Tort
Actions, 51 Wayne L Rev 1161, 1167 (2005).
	        Although criticisms of the doctrine, as applied,
may well have merit, there is nothing inherent in the forum
non conveniens doctrine that makes it more prone to mis-
use than any other common law doctrine that requires the
consideration and weighing of multiple factors. Rather, like
any discretionary power, the decision to dismiss or stay an
action for forum non conveniens is guided by legal principles
that provide a range of permissible options. The narrow-
ness with which those options are prescribed is a question of
striking the right balance between uniformity and flexibil-
ity in the law—for, although we appropriately seek to avoid
inconsistency, strict rules rigidly applied also can lead to
unjust results in particular cases. The doctrine of forum non
conveniens provides a means of striking an appropriate bal-
ance between the court’s obligation to decide cases properly
before it and its authority to dismiss or stay certain actions
in order to protect the interests of fundamental fairness
and effective judicial administration. To the extent that a
trial court might dismiss actions for forum non conveniens
too freely, that issue bears more on how we articulate the
94	                          Espinoza v. Evergreen Helicopters, Inc.

legal principles that guide its application than on whether
we should recognize the doctrine at all.
	        In conclusion, nothing in our cases or any applicable
statute suggests that the doctrine of forum non conveniens
is unavailable in Oregon. Although there may be legitimate
reasons to restrict its application as a matter of policy, we
do not find any of those considerations to be so weighty as to
cause us to reject the doctrine entirely. Therefore, because
forum non conveniens is a long-established part of the com-
mon law and no legislative enactment or decision of this
court has altered or repealed that doctrine or the power of
a court to dismiss or stay an action on that ground, we now
recognize it as part of Oregon law and hold that, consistent
with the standards announced in this opinion, courts in this
state may dismiss or stay an action for that reason.
C.  The Doctrine of Forum Non Conveniens Under Oregon
    Law
	        We next consider the contours of the doctrine of
forum non conveniens under Oregon law. As noted, most
jurisdictions that have adopted the doctrine rely on the two-
step framework described by the United States Supreme
Court in Gulf Oil and subsequent cases to articulate the
standards that should guide its application. Because the
approach articulated in Gulf Oil offers a helpful way of
categorizing and weighing the considerations pertinent to
whether a dismissal or stay is appropriate in a particular
case, we follow the majority of other jurisdictions in adopt-
ing the two-step analysis and non-exclusive list of factors set
out in that opinion.18
	18
        In some jurisdictions, particularly those where forum non conveniens has
been adopted by statute, the law provides that courts must consider each of a
specified list of private- and public-interest factors. See, e.g., State ex rel. Mylan,
Inc. v. Zakaib, 227 W Va 641, 649-50, 713 SE2d 356, 364 (2011) (stating rule
that courts must state findings of fact and conclusions of law as to each of eight
factors listed in West Virginia statute authorizing dismissal of actions for forum
non conveniens). Because we adopt forum non conveniens as a common law doc-
trine, we consider it appropriate to preserve the flexibility inherent in that doc-
trine by following the traditional rule that courts need only consider those factors
that are relevant in a particular case. See Piper Aircraft, 454 US at 257 (stating
general rule that analysis of private- and public-interest factors is within sound
discretion of trial court and that court need only consider those factors that are
relevant).
Cite as 359 Or 63 (2016)	95

	         Federal precedent, however, does not control our
interpretation of forum non conveniens. See Am. Dredging
Co. v. Miller, 510 US 443, 453, 456 114 S Ct 981, 127 L Ed
2d 285 (1994) (forum non conveniens is “procedural rather
than substantive;” adoption of doctrine is matter of local pol-
icy for states); Hust v. Moore-McCormick Lines, Inc., 180 Or
409, 415, 177 P2d 429 (1947) (where question is procedural,
federal precedent is not controlling and Oregon courts
may apply Oregon law). Cf. PSU Association of University
Professors v. PSU, 352 Or 697, 710-11, 291 P3d 658 (2012)
(when this court interprets Oregon law, federal precedents
interpreting analogous federal laws are persuasive but not
binding). Therefore, we also look to other sources of author-
ity to determine what standards should guide Oregon courts
in determining whether to dismiss or stay an action on that
ground.
     1.  Moving Party’s Burden of Proof Generally
	        A defendant that moves to dismiss or stay an action
for forum non conveniens must demonstrate that the legal
standards for a dismissal or stay on that ground have been
met. See Sinochem, 549 US at 430 (“A defendant invoking
forum non conveniens ordinarily bears a heavy burden in
opposing the plaintiff’s chosen forum.”). Thus the burden
rests on the defendant, as the moving party, to demonstrate
that an alternative forum is available and adequate, and
that the interests of convenience and justice weigh so heav-
ily in favor of litigating the action in that forum that it is
appropriate for the court to dismiss or stay the action. See
Kedy, 946 A2d at 1183 (“It is well settled that the defendant
carries the burden of persuasion at each stage of the forum
non conveniens inquiry.”).
	        Consistently with the standard for motions to dis-
miss under ORCP 21 generally, in considering a motion
to dismiss for forum non conveniens, the trial court must
“assume the truth of all well-pleaded facts alleged in the
complaint and give plaintiff, as the nonmoving party, the
benefit of all favorable inferences that may be drawn from
those facts.”19 Bradbury v. Teacher Standards and Practices
	19
       We leave for another day whether a trial court would be obligated to accept
as “well-pleaded” allegations that appear to be preemptively directed at a forum
96	                         Espinoza v. Evergreen Helicopters, Inc.

Comm., 328 Or 391, 393, 977 P2d 1153 (1999) (stating gen-
eral standard applicable to a motion to dismiss); see also,
e.g., Carijano, 643 F3d at 1222 (factual allegations in plain-
tiff’s complaint accepted as true for purposes of forum non
conveniens motion); Energy Claims Ltd. v. Catalyst Inv. Grp.
Ltd., 2014 UT 13, ¶ 3 n 1, 325 P3d 70, 73 (2014) (same);
Acharya v. Microsoft Corp., 189 Wash App 243, 251, 354 P3d
908, 912 (2015) (court must accept nonmoving party’s evi-
dence, including factual allegations in complaint, and all
reasonable inferences that may be drawn from them, as
true).
	        In order to resolve the motion, the trial court may
find it necessary to make preliminary factual findings as
to issues outside the pleadings. For example, the trial court
may find it necessary to make findings pertaining to the
adequacy of the proposed alternative forum, or to the avail-
ability and location of potentially relevant evidence. To do so,
the trial court may consider facts asserted by the parties and
resolve contested facts based on record evidence submitted
by the parties. Cf. Black v. Arizala, 337 Or 250, 265, 95 P3d
1109 (2004) (in determining, on motion to dismiss, whether
to exercise jurisdiction pursuant to venue agreement, court
may consider both facts alleged in complaint and “matters
outside the pleading, including affidavits, declarations and
other evidence”). That is not to say, however, that the court
necessarily must engage in extensive fact-finding and con-
duct hearings to resolve disputed factual issues. As noted
by the Delaware Chancery Court, “[t]he entire purpose of
the forum non conveniens doctrine is to relieve defendants
from the undue burdens of litigating in an especially incon-
venient forum. That purpose would be subverted if a defen-
dant had to endure costly, protracted proceedings in order
to avail itself of the doctrine in the first place.” Aveta, Inc.
v. Colon, 942 A2d 603, 609 (Del Ch 2008). In many cases,
it may be sufficient for the parties to present their factual
assertions to the court through affidavits.

non conveniens motion, for example, allegations that do not bear on the merits of
any of the claims asserted but which relate only to the location and availability of
evidence that is likely to be material to those claims. Cf. Bliss v. Southern Pacific
Co. et al, 212 Or 634, 650-52, 321 P2d 324 (1958) (allegations in amended com-
plaint not “well-pleaded;” they offered no material support for plaintiff’s claims).
Cite as 359 Or 63 (2016)	97

	        Plaintiffs argue that a trial court deciding a motion
to dismiss for forum non conveniens should be prohibited
from making any factual finding that “goes to the merits”
of a plaintiff’s claims. However, in the ordinary forum non
conveniens case, evaluating the relevant private- and public-
interest factors will always require some degree of “entan-
glement” with the merits. See Van Cauwenberghe v. Biard,
486 US 517, 528, 108 S Ct 1945, 1952, 100 L Ed 2d 517
(1988) (noting that to evaluate Gulf Oil factors, court “must
scrutinize the substance of the dispute between the parties
to evaluate what proof is required, and determine whether
the pieces of evidence cited by the parties are critical, or
even relevant, to the plaintiff’s cause of action and to any
potential defenses to the action” and likewise “consider the
locus of the alleged culpable conduct, often a disputed issue,
and the connection of that conduct to the plaintiff’s chosen
forum.”).
	        In any case, the factual issues that the trial court
actually resolves to decide a forum non conveniens motion
will tend to be qualitatively different from those that deter-
mine the outcome on the merits. For the most part, the fac-
tual issues that go directly to the merits—for example, in
a tort action sounding in negligence, the parties’ relation-
ship, the defendant’s actions, and whether those actions
were the cause of the plaintiff’s injury—will be alleged in
the complaint. Because the trial court must accept all of the
plaintiff’s well-pleaded allegations as true, it need not, and
should not, decide those facts, even if they are disputed. On
the other hand, the factual issues outside of the pleadings
that the trial court may resolve to decide a forum non conve-
niens motion ordinarily will concern, for example, the condi-
tion of the judiciary in the proposed alternative forum, the
enforceability of a judgment from that forum, and the ease
or difficulty of obtaining evidence there, as compared to the
forum where the plaintiff filed its action.
	       Finally, even when a factual issue does bear directly
on the merits, making factual findings as to issues outside of
the pleadings for purposes of deciding a forum non conveniens
motion does not violate “a party’s right to trial on disputed
questions of material fact.” See Black, 337 Or at 265. Simply
98	                  Espinoza v. Evergreen Helicopters, Inc.

put, determining whether to stay or dismiss an action for
forum non conveniens “does not entail any assumption by the
court of substantive law-declaring power.” Sinochem, 549 US
at 433 (internal citations and quotation marks omitted). For
that reason, a trial court’s factual findings made for the pur-
pose of deciding a forum non conveniens motion are distinct
from any finding on the merits. As in other circumstances
where the trial court makes such preliminary findings, those
findings do not constitute a valid and final determination as
to any issue, and therefore cannot have any preclusive effect
on a plaintiff’s underlying claims. See Nelson v. Emerald
People’s Utility Dist., 318 Or 99, 103, 862 P2d 1293 (1993)
(“Issue preclusion arises in a subsequent proceeding when
an issue of ultimate fact has been determined by a valid
and final determination in a prior proceeding.” (Emphasis
added.)); see also Vasquez v. Yll Shipping Co., Ltd., 692 F3d
1192, 1198-99 (11th Cir 2012) (concluding that factual deter-
minations made by Florida court in dismissing action for
forum non conveniens had no preclusive effect; dismissal on
that ground did not bar plaintiff from litigating same claims
and legal theories in federal court). Therefore, although a
trial court is required to accept the plaintiff’s well-pleaded
allegations, there is no rule barring the court from making
any additional preliminary findings, as necessary, for pur-
poses of deciding a forum non conveniens motion.
      2.  Step One:  Adequacy of Alternative Forum
	        As noted, at the first step of the Gulf Oil test, the
court must determine, drawing on the facts alleged in the
complaint and on other findings as necessary, whether there
is an adequate alternative forum in which to try the action.
See 330 US 506-07 (forum non conveniens “presupposes at
least two forums in which the defendant is amenable to pro-
cess” and “furnishes criteria for choice between them”); Piper
Aircraft, 454 US at 254 n 22 (“At the outset of any forum
non conveniens inquiry, the court must determine whether
there exists an alternative forum.”). At this first step, most
jurisdictions require the moving party to establish that an
alternative forum is available and capable of providing the
plaintiff with relief. See Restatement § 84 comment c (one of
most important factors in determining whether to dismiss
action for forum non conveniens is whether “a suitable forum
Cite as 359 Or 63 (2016)	99

is available to plaintiff”; ordinarily, “the suit will be enter-
tained, no matter how inappropriate the forum may be, if
the defendant cannot be subjected to jurisdiction in other
states.”); Nemariam v. Fed. Democratic Republic of Ethiopia,
315 F3d 390, 392-95 (DC Cir 2003) (adequacy of alterna-
tive forum must be established as prerequisite; reversing
dismissal of action because defendant was “unable to sub-
stantiate its claim that [plaintiff] will receive a remedy” in
the alternative forum).
	        We agree with the majority of jurisdictions that
establishing the adequacy of the proposed alternative forum
is a threshold requirement. In our view, it would be contrary
to the ends of justice to force a plaintiff into another forum
if the result would be to deprive the plaintiff of a remedy
entirely. See Mace v. Mylan Pharm., Inc., 227 W Va 666,
676, 714 SE2d 223, 233 (2011) (“Undeniably, the interest of
justice would not be served, nor would a plaintiff be conve-
nienced, if an action over which a court in this state had
proper jurisdiction was dismissed in favor of an alternate
jurisdiction in which the remedy provided is so clearly inad-
equate or unsatisfactory that it is no remedy at all.”).
	        In considering the adequacy of the proposed alter-
native forum, the focus of the court’s inquiry is on the suffi-
ciency of the proposed alternative forum from the plaintiff’s
perspective. To be adequate, the alternative forum must be
one in which the defendant is amenable to service of process,
where the courts would have jurisdiction, and where the law
and the judicial system are capable of providing the plaintiff
with meaningful redress. Piper Aircraft, 454 US at 250, 254-
55, n 22.20 That means that the plaintiff is not prevented
by some procedural bar from filing its action (for example,
by the running of the applicable statute of limitations), that
courts in that forum offer a reasonably comparable means
of redress and that those courts are not “so fraught with
corruption, delay and bias as to provide no remedy at all.”
Carijano, 643 F3d at 1227 (internal citations omitted); see
also Piper Aircraft, 454 US at 250, 254 n 22 (noting that
	20
        Because of the facts of this case, we focus primarily on situations where the
proposed alternative forum is outside the United States, although the doctrine
also may be applicable where the alternative forum is a court in another state or
territory of the United States.
100	                       Espinoza v. Evergreen Helicopters, Inc.

where applicable law in alternative forum is “clearly unsat-
isfactory,” such as when it fails to provide plaintiff any com-
parable cause of action, it may be inadequate); 21 Nemariam,
315 F3d at 395 (“While a more limited recovery than is
available in the plaintiff’s forum of choice does not automat-
ically make the alternative forum inadequate, we fail to see
how an alternative forum in which the plaintiff can recover
nothing for a valid claim may also be deemed adequate.”).
	        One way that an alternative forum may be inad-
equate is if a judgment obtained in that forum would be
unenforceable.22 The defendant, for example, may have
few assets in the alternative forum, rendering any judg-
ment obtained in that jurisdiction meaningless unless the
plaintiff can enforce its judgment elsewhere. See gener-
ally Christopher Whytock & Cassandra Burke Robertson,
Forum Non Conveniens and the Enforcement of Foreign
Judgments, 111 Colum L Rev 1444 (2011) (describing “trans-
national justice gap” whereby plaintiffs may be prevented
from obtaining redress in any forum). If, in such a case, the
court determines that the judicial system in the alternative
forum fails to comport with minimum standards of due pro-
cess, such that its judgments would be unenforceable where
the defendant’s assets are located, that forum is inherently
inadequate and the defendant’s motion will fail at this first
step. See ORS 24.360 (setting out standards for recognition
of foreign money judgments and circumstances under which
Oregon court may refuse to do so).23

	21
        Whether the substantive law applied in plaintiff’s chosen forum will actu-
ally differ from that which would apply in the proposed alternative forum, of
course, will depend on a choice-of-law analysis, which a trial court deciding a
forum non conveniens motion may be unsuited, or unable, to resolve. See, e.g.,
D’Agostino v. Johnson & Johnson, Inc., 115 NJ 491, 496-97, 559 A2d 420 (1989)
(it was inappropriate for trial court to resolve motion to dismiss for forum non
conveniens on ground that change in law due to litigating in alternative forum
would be unfavorable to plaintiff; without discovery, there were insufficient facts
from which to determine what law would apply to action).
	22
        The potential enforceability of a judgment obtained in the proposed alter-
native forum is identified in Gulf Oil as a private interest factor to be weighed
at the second step of the court’s analysis. For the reasons discussed, we conclude
that that issue also is relevant at this first step.
	23
        The Uniform Foreign-Country Money Judgments Recognition Act, adopted
in Oregon, sets forth a wide range of circumstances under which a court may
refuse to enforce a judgment obtained in another country, including:
Cite as 359 Or 63 (2016)	101

	         Notwithstanding the defendant’s burden, the mere
possibility that the alternative forum may be less favorable
to the plaintiff is not alone sufficient to render that forum
inadequate for forum non conveniens purposes. Once the
defendant makes a showing that the alternative forum is
adequate, the plaintiff must offer some evidence that would
substantiate the claim that it is not. See Leon v. Million
Air, Inc., 251 F3d 1305, 1312-13 (11th Cir 2001) (although
defendant has ultimate burden to establish adequacy of
alternative forum, plaintiff asserting that forum is inad-
equate due to corruption or delay must substantiate those
allegations); RIGroup LLC v. Trefonisco Mgmt. Ltd., 949 F
Supp 2d 546, 554 (SDNY 2013), aff’d, 559 F App’x 58 (2d Cir
2014) (notwithstanding defendant’s burden of persuasion,
plaintiff must produce evidence of corruption, delay or lack
of due process in alternative forum; “conclusory submis-
sions,” “bare denunciations” and “sweeping generalizations”
about forum’s legal system insufficient to overcome defen-
dant’s showing of adequacy (internal citations and quotation
marks omitted)). Once evidence is presented that calls the
adequacy of the proposed alternative forum into doubt, how-
ever, it is the defendant’s burden to persuade the court that
the facts are otherwise. Leon, 251 F3d at 1312. See also, e.g.,
Bridgestone/Firestone N. Am. Tire, LLC v. Garcia, 991 So 2d
912, 917 (Fla Dist Ct App 2008), rev den, 8 So 3d 1133 (Fla
2009) (where evidence was in conflict as to whether alterna-
tive forum was available and adequate, trial court did not
err in concluding that defendant failed to carry burden to as
to first step of forum non conveniens test).
     3.  Step 2:  Weighing the Private and Public Interests
	        At the second step of the Gulf Oil test, the court con-
siders and balances the relevant private and public interests

    “(g) The judgment was rendered in circumstances that raise substantial
    doubt about the integrity of the rendering court with respect to the judg-
    ment; or
    “(h)  The specific proceeding in the foreign court leading to the judgment was
    not compatible with the requirements of due process of law.”
ORS 24.360(3)(g), (h). Further, an Oregon court is prohibited from recognizing
any judgment from a foreign country where “the judgment was rendered under a
judicial system that does not provide impartial tribunals or procedures compati-
ble with the requirements of due process of law.” ORS 24.360(2)(a).
102	                        Espinoza v. Evergreen Helicopters, Inc.

to determine whether, on the whole, those interests justify
granting the defendant’s motion. Gulf Oil, 330 US at 508. As
noted, although the doctrine of forum non conveniens “leaves
much to the discretion of the court,” the exercise of that dis-
cretion is not unlimited. Id. Rather, “unless the balance is
strongly in favor of the defendant, the plaintiff’s choice of
forum should rarely be disturbed.” Id.; see also Carijano, 643
F3d at 1224 (noting that forum non conveniens is “an excep-
tional tool to be employed sparingly” (internal citations and
quotation marks omitted)). What it means for the balance of
interests to be “strongly in favor of the defendant,” however,
varies across jurisdictions and, indeed, is difficult to articu-
late with precision.
	       For the reasons set out below, we conclude that in
Oregon, a trial court may dismiss or stay an action for forum
non conveniens only when the moving party demonstrates
that there is an adequate alternative forum available, and
that the relevant private and public-interest considerations
weigh so heavily in favor of litigating in that alternative
forum that it would be contrary to the ends of justice to
allow the action to proceed in the plaintiff’s chosen forum.24
	        Courts in different jurisdictions have taken vary-
ing approaches to defining how strongly the balance of
interests must favor the alternative forum for an action to
be dismissed or stayed on forum non conveniens grounds.
Under federal law, a district court may grant a defendant’s
forum non conveniens motion “when an alternative forum
has jurisdiction to hear [a] case, and when trial in the cho-
sen forum would ‘establish * * * oppressiveness and vexa-
tion to a defendant * * * out of all proportion to plaintiff’s
	24
        Amicus urge us to impose an even more stringent standard that would
allow an action to be dismissed only if the balancing of relevant interests shows
that the plaintiff brought its action in that forum with the intent of “vexing,
harassing or oppressing” the defendant. We reject that proposal for two rea-
sons. First, whether litigating an action in the plaintiff’s chosen forum would
be seriously inconvenient and contrary to the interests of justice does not turn
on the plaintiff’s intent in bringing its action in that forum. Second, the abuse
and harassment of a defendant by filing in a forum that is inconvenient for that
party is readily addressed by the court’s analysis of the relevant private- and
public-interest factors. See Carijano, 643 F3d at 1228 (“A party’s intent in joining
a lawsuit is relevant to the balancing of the forum non conveniens factors only to
the extent that it adds to an overall picture of an effort to take unfair advantage
of an inappropriate forum”).
Cite as 359 Or 63 (2016)	103

convenience,’ or when the ‘chosen forum [is] inappropriate
because of considerations affecting the court’s own admin-
istrative and legal problems.’ ” Am. Dredging Co., 510 US at
447–48 (quoting Piper Aircraft, 454 US at 241) (ellipsis and
brackets in original).
	        In other jurisdictions, the moving defendant must
demonstrate that litigating in the plaintiff’s chosen forum
would be so “unduly inconvenient, expensive or otherwise
inappropriate” that it would cause “overwhelming hardship”
or would effectively deprive one party “a meaningful day in
court.” See, e.g., Aveta, 942 A2d at 608 (“[T]o achieve a stay
or dismissal for forum non conveniens, a defendant must
demonstrate that litigating in the plaintiff’s chosen forum
would present an overwhelming hardship.”); Christian v.
Smith, 276 Neb 867, 876, 759 NW2d 447,457 (2008) (“[A]
forum is seriously inconvenient only if one party would be
effectively deprived of a meaningful day in court.”).
	       Still other courts have stated that a defendant need
only demonstrate that the alternative forum is more con-
venient and that the balance of circumstances otherwise
“strongly favors” that forum. See, e.g., First Am. Bank v.
Guerine, 198 Ill 2d 511, 518, 764 NE2d 54, 59 (2002) (An
action may be dismissed for forum non conveniens if defen-
dant demonstrates “that the plaintiff’s chosen forum is
inconvenient to the defendant and another forum is more
convenient to all parties” and that “the balance of factors
strongly favors transfer.”).
	        Considering those variations, we conclude that an
action should be stayed or dismissed for forum non conve-
niens only when the ends of justice require it. It is an estab-
lished rule that a plaintiff has the right to seek redress in
any forum where subject matter and personal jurisdiction
can be established and where venue is proper, and that if
multiple forums are available, the plaintiff may choose from
those forums available to it. See Cortez v. Palace Resorts,
Inc., 123 So 3d 1085, 1094 (Fla 2013) (“[I]t is axiomatic that
the plaintiff has the right to choose the forum.”); Sales v.
Weyerhaeuser Co., 163 Wash 2d 14, 19, 177 P3d 1122, 1124
(2008) (“A plaintiff has the original choice to file his or her
complaint in any court of competent jurisdiction.”); see also
104	                 Espinoza v. Evergreen Helicopters, Inc.

Van Dusen v. Barrack, 376 US 612, 633-37, 84 S Ct 805, 11
L Ed 2d 945 (1964) (recognizing and discussing plaintiff’s
venue privilege in federal context). In light of those princi-
ples, the role of forum non conveniens is limited. It is “not a
‘doctrine that compels plaintiffs to choose the optimal forum
for their claim.’ ” Carijano, 643 F3d at 1224 (quoting Dole
Food Co., Inc. v. Watts., 303 F3d 1104, 1118 (9th Cir 2002)).
Likewise, as the Connecticut Supreme Court has noted,
forum non conveniens may not be used by defendants to cir-
cumvent the plaintiff’s venue right in order to obtain a more
favorable forum generally:
   “[A court] cannot exercise its discretion [to dismiss for
   forum non conveniens] in order to level the playing field
   between the parties. The plaintiff’s choice of forum, which
   may well have been chosen precisely because it provides
   the plaintiff with certain procedural or substantive advan-
   tages, should be respected unless equity weighs strongly in
   favor of the defendant.”
Picketts v. Int’l Playtex, Inc., 215 Conn 490, 501, 576 A2d
518, 524 (1990) (internal citations and quotation marks
omitted). See also Restatement § 84 comment c (“[S]ince it
is for the plaintiff to choose the place of suit, his choice of a
forum should not be disturbed except for weighty reasons.”).
Rather, forum non conveniens serves as a corrective mech-
anism to be employed only when allowing an action to pro-
ceed in the chosen forum would jeopardize the interests of
“fundamental fairness” and “sensible and effective judicial
administration.” Kedy, 946 A2d at 1179.
	         Evergreen argues that we should afford less defer-
ence to a plaintiff’s choice of forum when the plaintiff, or
the real party in interest, resides outside that forum. Such
a rule is appropriate, Evergreen contends, because the pur-
pose of forum non conveniens is to ensure that actions are
tried where they are convenient and when a plaintiff is for-
eign to the forum where it files suit, it is less reasonable
to presume that it is convenient for the plaintiff to litigate
there. See Piper Aircraft, 454 US at 255-56 (holding that
the “ordinarily strong” presumption in favor of the plain-
tiff’s choice of forum “applies with less force” when the plain-
tiff has not chosen its home forum and that in that circum-
stance, “the plaintiff’s choice deserves less deference”). We
Cite as 359 Or 63 (2016)	105

recognize that a majority of jurisdictions do adhere to such
a rule. However, the Washington Supreme Court, consider-
ing the doctrine of forum non conveniens under its own state
law, has rejected that approach entirely. See, e.g., Myers, 794
P2d at 1280-81 (expressly declining to adopt Piper Aircraft
“lesser deference” rule because it lacks well-reasoned sup-
port and is unnecessary to ensure equitable result). And
courts in other states have rejected it in part. See, e.g., Cortez,
123 So 3d at 1094 (rejecting Piper “lesser deference” rule
with respect to plaintiffs who are residents of other states);
Kennecott Holdings Corp. v. Liberty Mut. Ins. Co., 578 NW2d
358, 361 (Minn 1998) (rejecting Piper “lesser deference” rule
for United States citizen plaintiffs because “[t]o accord less
deference to the choice of forum of a United States citizen
because the plaintiff is not a resident of Minnesota simply
defies fairness and logic.”).
	          We agree with the Washington Supreme Court that
there is no principled reason to vary the degree of deference
afforded to the plaintiff’s choice of forum based on where
the plaintiff, or real party in interest, resides. As noted, we
defer to a plaintiff’s choice not because it is assumed to be
convenient, but because it is the plaintiff’s right to choose
from those forums that are available to it. Moreover, under
the standard that we have articulated, whether an action
should be dismissed or stayed for forum non conveniens
turns not on whether that forum is convenient for the plain-
tiff, but on whether litigating there would be so inconvenient
generally—for litigants, third parties, and the court—that
the court ought to override the plaintiff’s choice. Cf. First
Am. Bank, 198 Ill 2d at 518 (defendant cannot meet its bur-
den under forum non conveniens doctrine by “assert[ing]
that the plaintiff’s chosen forum is inconvenient to the plain-
tiff”); Ison v. E.I. DuPont de Nemours & Co., 729 A2d 832,
846 (Del 1999) (overarching factor that court must consider
in forum non conveniens analysis is substantial hardship
to defendant). The answer to that question, and whether a
plaintiff’s place of residency is even relevant, is fact-specific
and will vary from case to case.
	       In sum, considering the nature of forum non con-
veniens as an extraordinary equitable remedy and the def-
erence owed to every plaintiff’s forum choice, we hold that
106	                 Espinoza v. Evergreen Helicopters, Inc.

a trial court may dismiss or stay an action for forum non
conveniens only when the moving party demonstrates that
there is an adequate alternative forum available, and that
the relevant private and public-interest considerations
weigh so heavily in favor of litigating in that alternative
forum that it would be contrary to the ends of justice to
allow the action to proceed in the plaintiff’s chosen forum.
See Aveta, 942 A2d at 608 (grant of forum non conveniens
motion permitted only when hardship to defendant is “over-
whelming”); Adkins v. Hontz, 280 SW3d 672, 676 (Mo Ct
App 2009) (“The doctrine [of forum non conveniens] is to be
applied with caution and only upon a clear showing of incon-
venience and when the ends of justice require it.” (internal
citations and quotation marks omitted) (emphasis added));
Christian, 276 Neb at 876 (forum is “seriously inconvenient”
such that dismissal for forum non conveniens is appropriate
when defendant would be “deprived of a meaningful day in
court”). See also State ex rel. Ricco, 198 Or at 430 (courts
have “inherent power to do whatever may be done under the
general principles of jurisprudence to insure to the citizen a
fair trial” and should exercise that power “whenever public
or private interests require” it. (emphasis added)).
        a.  Private-Interest Factors to Be Considered
	         Having established the general substantive stan-
dard that should guide courts in determining whether the
balance of interests sufficiently favors granting a defen-
dant’s forum non conveniens motion, we turn to an examina-
tion of the specific private-interest factors to be considered
in reaching that decision. In Gulf Oil, the Supreme Court
stated that in considering those interests, the trial court
should “weigh the relative advantages and obstacles to fair
trial.” Gulf Oil, 330 US at 508. Keeping that in mind, trial
courts should consider not only the relative convenience of
one forum compared to another, but the consequences that
litigating in each forum might have on the plaintiff’s access
to effective redress, and on both parties’ ability to prosecute,
or defend, the claims asserted.
	        The first factor, and often the most important, is
“the relative ease of access to sources of proof,” including the
time, expense and difficulty of obtaining the evidence that
Cite as 359 Or 63 (2016)	107

the parties will need to litigate the action, and in particu-
lar, whether certain evidence is likely to be unavailable. Id.
When examining the accessibility of witnesses and evidence
for trial, the court should not only determine where evidence
is located, but consider the actual and practical burden it
would create to try the case in the plaintiff’s chosen forum,
as compared to the proposed alternative forum. For exam-
ple, although access to a view of the premises where a tort
arose is sometimes helpful to a jury, it may be less so in
some cases. Where the site is remote and the parties are
likely to rely instead on photographs, videos and expert tes-
timony, an inability to visit that location in person, whether
the case proceeds in one forum or another, may be of mar-
ginal importance. See, e.g., Reid-Walen v. Hansen, 933 F2d
1390, 1398 (8th Cir 1991) (inability to view premises of acci-
dent unimportant where defendant failed to establish that
view was necessary and where testimony regarding site and
demonstrative evidence were adequate).
	        Similarly, a trial court should not assume or spec-
ulate that it will necessarily be burdensome to obtain evi-
dence located in other states or overseas. Consistent with its
burden of establishing that the relevant private and public
interests weigh so heavily in favor of the alternative forum
that the ends of justice require the court to dismiss or stay
the action, the moving party must identify specific evidence
located in other places that is material to the case and
demonstrate that accessing it for purposes of litigating in
the plaintiff’s chosen forum will be extraordinarily difficult.
See Aveta, 942 A2d at 609-10 (to prevail on motion to dis-
miss for forum non conveniens, moving party must identify
particular, specific evidence necessary to case that it can-
not produce in plaintiff’s chosen forum); Pierce v. Albertson’s
Inc., 121 NM 369, 372, 911 P2d 877, 880 (1996) (“The mov-
ing party, therefore, has the heavy burden of an early show-
ing of inaccessibility of concrete sources of proof essential
to a fair adjudication * * *. Showings of expense and delay
and of public interest likewise must be concrete and not
speculative.”).
	        When considering whether obtaining evidence
located outside the plaintiff’s chosen forum is likely to impose
an undue burden, the court should consider what means are
108	                        Espinoza v. Evergreen Helicopters, Inc.

available for obtaining that evidence. For example, although
a substantial amount of the evidence relevant to the claims
and defenses asserted in this case may be found in Peru,
and even held by third parties there, mechanisms exist for
obtaining that evidence.25 Although obtaining evidence from
another country will always be somewhat inconvenient, diffi-
culties of that sort are inherent in transnational actions and
do not necessarily demonstrate an undue burden to litigate
in the plaintiff’s chosen forum. Whether that is the case will
depend on the type of evidence in question, how important
it is to the issues in dispute, and the cost and effectiveness
of the procedures necessary to obtain access for discovery
purposes and for use at trial. 26 Absent any showing on those
issues, it is unlikely that the moving party will be able to
meet its burden to show that this first factor weighs in favor
of a dismissal or stay.
	        The trial court also must take into consideration
the fact that litigating the action in the proposed alter-
native forum will not necessarily alleviate the burden of
discovering relevant evidence and presenting it at trial.
Transnational actions, in particular, often involve evidence
in multiple locations, and therefore pose some degree of dif-
ficulty regardless of where they are tried. When that is the
case, the inaccessibility of some evidence in the plaintiff’s
chosen forum may be counterbalanced by the inaccessibility
of other evidence in the alternative forum, such that this

	25
        Peru and the United States are parties to the Inter-American Convention
on Letters Rogatory and its Additional Protocol, which provide means of gath-
ering evidence in Peru to aid litigation in the United States, even when that
evidence is held by a third party. See generally Inter-American Convention on
Letters Rogatory, available at http://www.oas.org/juridico/english/treaties/b-36.
html (last accessed Apr 4, 2016) (text of treaty and list of signatories); Additional
Protocol to The Inter-American Convention on Letters Rogatory, available at
http://www.oas.org/juridico/english/treaties/b-46.html, (last accessed Apr 4,
2016) (text of protocol and list of signatories).
	26
        To say that routine processes for obtaining evidence from other jurisdic-
tions are available is not to say that it such mechanisms are never unduly bur-
densome or that they are always adequate substitutes. For example, where a case
turns on the credibility of an unwilling third-party witness who is located over-
seas, a videotaped deposition obtained through a letters rogatory process may be
an inadequate substitute for live testimony at trial. As other courts have noted,
“depositions serve as poor proxies for live testimony because the fact finder loses
the opportunity to effectively and contemporaneously evaluate the credibility of
the witness.” Aveta, 942 A2d at 612-13.
Cite as 359 Or 63 (2016)	109

factor weighs little in the court’s overall analysis. See Ison,
729 A2d at 843 (burden of obtaining evidence was neutral in
forum non conveniens analysis where evidence was located
in multiple countries, including in both alternative forum
and plaintiff’s chosen forum).
	         The second private-interest factor encompasses
“all other practical problems that make trial of a case easy,
expeditious and inexpensive.” Gulf Oil, 330 US at 508. One
such practical problem might include, for example, language
barriers. If much of the key documentary and testimonial
evidence is in a foreign language, the expense and difficulty
of translation to English could pose a significant obstacle to
litigating in the plaintiff’s chosen forum. See, e.g., Aveta, 942
A2d at 614 (concluding that language barrier was signifi-
cant factor in forum non conveniens analysis where transla-
tors would be needed not only for witness testimony but to
allow defendant to communicate with counsel). The need for
translation, of course, may cut both ways, and some amount
of translation may be required regardless of where the action
is litigated. Similarly, another practical consideration could
be the parties’ location and whether they would be required
to travel far from home. See id. at 1187 (noting location of
Puerto Rican defendant in evaluating whether litigation in
Rhode Island would cause hardship); cf. Stangvik, 54 Cal 3d
at 755 (forum presumptively convenient for corporate defen-
dant incorporated and with its principal place of business in
that forum).
	        Also relevant under this factor is the practical bur-
den that forcing the plaintiff to bring its action anew in
the alternative forum will create. See Reid-Walen, 933 F2d
at 1398 (“As part of the Gilbert private interest analysis,
courts must be sensitive to the practical problems likely to
be encountered by plaintiffs in litigating their claim, espe-
cially when the alternative forum is in a foreign country.”),
Energy Claims, 2014 UT 13 at ¶ 37 (in weighing private
interests, “courts must take into account the practical bur-
den plaintiffs will face in filing a new action after dismissal
for forum non conveniens”). For example, the plaintiff may
be faced with procedural rules in the alternative forum that
make it more difficult to initiate and sustain its action, such
as an inability to pursue claims on a contingent fee basis,
110	                       Espinoza v. Evergreen Helicopters, Inc.

restrictions on types of damages recoverable, limited pre-
trial discovery rules, or mandatory fee-shifting. See id.;
see also Picketts, 215 Conn at 506-08 (acknowledging that
plaintiff whose action is dismissed for forum non conveniens
may face procedural differences in alternative forum, such
as more restrictive discovery rules, that undermine its abil-
ity to obtain redress there); Ison, 729 A2d at 845 (where no
other actions pending, trial court should consider cost and
prejudice that would result from dismissal, including, for
example, how far discovery has commenced and whether
that process would have to begin anew in alternate forum).
As discussed, the practical burden that the plaintiff will
face in the alternative forum might be so extreme that that
forum cannot offer an effective remedy, rendering it inad-
equate at the first step of the court’s analysis. Even when
the proposed alternative forum is adequate for purposes of
the first step in the analysis, however, such practical reper-
cussions are relevant to whether trying the action in that
forum would be easy, expeditious and efficient. See, e.g.,
Reid-Walen, 933 F2d at 1399 (concluding that where try-
ing case in alternative Jamaican forum was practically and
financially infeasible for plaintiff, that was important factor
weighing against dismissal).

	        Another private-interest factor is the extent to which
the defendant may seek to implead or join third parties and
the jurisdictional and logistical ease with which that can be
done in the alternative forum compared to plaintiff’s cho-
sen forum. See Piper Aircraft, 454 US at 259 (recognizing
that “the problems posed by the inability to implead poten-
tial third-party defendants” in plaintiff’s chosen forum sup-
ported holding trial in alternative forum). The importance
of this factor will depend on the context. If the court finds
that there is an indispensible party that cannot be made a
part of the action in the plaintiff’s chosen forum, that factor
may weigh heavily in favor of dismissal.27 See Radeljak v.
Daimlerchrysler Corp., 475 Mich 598, 609, 719 NW2d 40, 45
(2006) (defendant’s inability to implead persons or entities
partially responsible for plaintiffs’ injuries significant factor

	27
       Moreover, in such a case, the court’s inability to join an indispensible or
necessary party may be an independent ground for dismissal under ORCP 29.
Cite as 359 Or 63 (2016)	111

weighing in favor of dismissal for forum non conveniens). On
the other hand, where there is no compulsory joinder issue,
it is not necessarily unreasonable to require a defendant to
pursue indemnification or contribution claims against other
parties by the way of a separate action in a different forum.28
See, e.g., Ison, 729 A2d at 846 (concluding that where defen-
dant made no attempt to implead third-parties and where
inability to do so would not create overwhelming hardship
for defendant, that factor was illusory did not require dis-
missal of action for forum non conveniens).
	         Finally, an additional private interest that some-
times is relevant is the potential difficulty of enforcing a
judgment obtained in the alternative forum. Gulf Oil, 330
US at 508. As noted, when a judgment obtained in the
alternative forum is likely to be unenforceable, that forum
is inadequate and the defendant’s motion will fail at the
first step. Even when that is not the case, however, and the
judgment will be merely difficult to enforce, the burden of
doing so may still weigh against compelling the plaintiff to
try its action in the alternative forum. See Carijano, 643
F3d at 1231-32 (concluding that where defendant had not
agreed to accept enforcement of Peruvian judgment, poten-
tial difficulty of doing so was relevant private-interest fac-
tor weighing against dismissal so that action may be tried
in Peru).
           b.  Public-Interest Factors to Be Considered
	        In addition to the private interests of the parties,
Gulf Oil provides that the court also may consider public-
interest factors that are relevant to the administration of
justice generally. 330 US at 508-09. One important public-
interest factor is the extent to which either forum has an
interest in, and connection to, the underlying controversy.
Id. at 509; Pain v. United Technologies Corp., 637 F2d 775,
791 (DC Cir 1980), cert den, 454 US 1128 (1981), overruled
in part on other grounds by Piper Aircraft, 454 US at 241
(“[T]he central question which a court must answer when

	28
      Here, the parties dispute whether certain contractual arrangements
between Evergreen and Helinka would allow Evergreen to compel Helinka to
appear in Oregon. We express no opinion on that issue or on the issue of whether
Helinka could be considered an indispensible party.
112	                 Espinoza v. Evergreen Helicopters, Inc.

weighing the public interests in the outcome and adminis-
tration of a case such as this is whether the case has a gen-
eral nexus with the forum sufficient to justify the forum’s
commitment of judicial time and resources to it.”).
	        Often, a forum’s interest in a particular case will be
strongest when the events that gave rise to that action took
place within the forum, or when a large number of affected
persons are located there. In Gulf Oil, the Court noted that
“[i]n cases which touch the affairs of many persons, there is
reason for holding the trial in their view and reach rather
than in remote parts of the country where they can learn of
it by report only. There is a local interest in having localized
controversies decided at home.” 330 US at 508-09. A forum
also may have a strong interest in providing redress to its
own residents, regardless of where the activity giving rise to
the action occurred or who else is affected. See Stangvik, 54
Cal 3d at (noting that a “state has a strong interest in assur-
ing its own residents an adequate forum for the redress of
grievances “and that until recent statutory enactment, dis-
missal for forum non conveniens was not permitted if plain-
tiff was California resident).
	         On the other hand, a forum’s interest in a partic-
ular controversy is not contingent on whether the plaintiff
is a forum resident or on whether the events that gave rise
to liability occurred there. The fact that the defendant is a
forum resident can be a relevant consideration also in deter-
mining the forum’s connection to an action. See Stangvik, 54
Cal 3d at 760 (court may consider defendant corporation’s
connection to forum, given that it was incorporated in and
had its principal place of business there, in determining
forum’s interest in action and deciding forum non conve-
niens motion). For example, regardless of whether any of the
alleged wrongful conduct occurred there, a forum may have
some interest in providing a place where claims against its
own corporate residents may be heard. See Picketts, 215
Conn at 502 (“Connecticut continues to have a responsibility
to those foreign plaintiffs who properly invoke the jurisdic-
tion of this forum; especially in the somewhat unusual sit-
uation where it is the forum resident who seeks dismissal.”
(internal quotation marks and brackets omitted)); see also
Margaret Stewart, Forum Non Conveniens: A Doctrine in
Cite as 359 Or 63 (2016)	113

Search of A Role, 74 Cal L Rev 1259, 1282 (1986) (discussing
sovereign’s interest in providing forum for obtaining redress
from its own corporate residents, especially when jurisdic-
tion elsewhere is uncertain).
	         Another public-interest factor that is sometimes
considered is whether litigating the action in the plaintiff’s
chosen forum is likely to involve significant administra-
tive difficulties, or impose a particularly great burden on
the court system. Gulf Oil, 330 US at 508-09. For exam-
ple, when an action with minimal connection to a forum is
likely to undermine the administration of justice generally
by consuming substantial resources that would otherwise
be available to other litigants, that factor may weigh in favor
of dismissing or staying the action. See, e.g., Stangvik, 54
Cal 3d at 763 (upholding stay of action for forum non con-
veniens where forum had minimal interest in action and it
would unduly burden California court system). However,
the doctrine of forum non conveniens is not a mechanism for
courts to control their dockets, and the resolution of disputes
is in fact the courts’ raison d’etre. While impacts on the judi-
cial system may be relevant to whether a dismissal or stay
would promote the ends of justice overall, such consider-
ations ordinarily will not take precedence over the private
interests of the litigants or the interest of the forum itself in
the underlying dispute. See First Am. Bank, 198 Ill 2d at 517
(“Court congestion is a relatively insignificant factor, espe-
cially where the record does not show the other forum would
resolve the case more quickly.”).
	        A final public-interest factor that some courts have
identified is whether litigating the action in the plaintiff’s
chosen forum implicates conflicts of laws issues that pose
practical difficulties for the court. As the United States
Supreme Court noted in Gulf Oil:
   “There is an appropriateness, too, in having the trial of a
   diversity case in a forum that is at home with the state law
   that must govern the case, rather than having a court in
   some other forum untangle problems in conflict of laws, and
   in law foreign to itself.”
330 US at 509. When the court in the plaintiff’s chosen
forum will be required to apply the law of another country,
114	                 Espinoza v. Evergreen Helicopters, Inc.

and when doing so will be difficult for the court, that too
may weigh in favor of requiring the plaintiff to litigate
its action in the alternative forum. See, e.g., Archangel
Diamond Corp. Liquidating Trust v. Lukoil, 812 F3d 799,
808 (10th Cir 2016) (trial court did not abuse discretion in
dismissing action for forum non conveniens where it con-
cluded that interpreting and applying Russian law would
impose significant administrative burden on court in plain-
tiff’s chosen forum).
	         As noted, however, what law will apply to an action
may not be clear at the early stage of litigation at which the
issue of forum non conveniens is typically raised. That is par-
ticularly so for transnational tort actions involving parties
domiciled in different jurisdictions and stemming from con-
duct in multiple locations. In cases such as those, the trial
court may be unable to determine which law applies with-
out resolving factual issues that go directly to the merits,
such as whose conduct caused the injury, and where those
conduct occurred. See, e.g., ORS 15.440 (setting out gen-
eral rules for choice of law determinations for tort claims);
cf. D’Agostino, 115 NJ at 496-97 (trial court unable to resolve
motion to dismiss for forum non conveniens based on choice-
of-law considerations when, in absence of discovery, there
were insufficient facts to perform that analysis).
	        Moreover, even when the court can determine with
some degree of certainty that foreign law will apply to the
action, it is not necessarily the case that applying that law
will impose an unreasonable burden. See Picketts, 215 Conn
at 512 (“Connecticut courts are quite capable of applying for-
eign law when required to do so and it would be improper to
invoke the doctrine of forum non conveniens solely to avoid a
choice of law analysis.”); cf. DiRienzo v. Philip Servs. Corp.,
294 F3d 21, 31 (2d Cir 2002) (on motion to dismiss for forum
non conveniens, factor of avoiding application of foreign law
was neutral, since both foreign and United States law would
apply in part). Oregon courts are competent to apply the law
of other jurisdictions, including other countries, and some-
times do so, particularly when the foreign law is relatively
simple, similar to that in the United States, and in the same
language. See, e.g., Fisher v. Huck, 50 Or App 635, 642-43
624 P2d 177, rev dismissed, 291 Or 566 (1981) (concluding
Cite as 359 Or 63 (2016)	115

that British Columbia law applied to tort action arising
from automobile accident in British Columbia; remanding
to trial court to apply correct law). Thus, while choice-of-
law considerations may be relevant, a trial court need not
always give them significant weight in its forum non conve-
niens analysis.
	        To summarize, in Oregon, courts considering a
motion to dismiss or stay an action for forum non conveniens
should apply a two-step analysis to determine whether to
grant such a motion. At the first step, the court must consider
whether there is an adequate alternative forum in which
to try the action. If the alternative forum is inadequate,
the defendant’s motion should be denied. If the alternative
forum is adequate, the court proceeds to the second step,
where it considers the relevant private and public interests
to determine whether, on the whole, those interests weigh so
heavily in favor of the alternative forum that that it would
be contrary to the ends of justice to allow the action to pro-
ceed in the plaintiff’s chosen forum. At each stage of the
forum non conveniens inquiry, the burden remains with the
moving party to establish those underlying facts necessary
for the court to decide the appropriateness of a stay or dis-
missal. Consistent with that burden, and the standard for
a motion to dismiss generally, a court considering a defen-
dant’s motion to dismiss for forum non conveniens must
accept as true all well-pleaded facts alleged in the plaintiff’s
complaint, and give the plaintiff, as the non-moving party,
the benefit of all favorable inferences that might be drawn
from those facts.
    4.  Application of Forum Non Conveniens to Plaintiffs’
        Actions
	       We turn now to the application of forum non conve-
niens in this case. We begin with the appropriate standard
of review. It is well-settled law in other jurisdictions that
whether to dismiss or stay an action for forum non con-
veniens is committed to the sound discretion of the trial
court. See Piper Aircraft, 454 US at 238 (stating standard
of review); Stangvik, 54 Cal 3d at 751 (same). That stan-
dard is consistent with the manner in which we review
similar trial court rulings. See, e.g., Bremner v. Charles,
116	                       Espinoza v. Evergreen Helicopters, Inc.

312 Or 274, 278-80, 821 P2d 1080 (1991) 29 (order to bifur-
cate liability and damages phases of trial); Reed, 194 Or
at 57 (dismissal of action for want of prosecution); Horner
v. Pleasant Creek Min. Corp., 165 Or 683, 703-04, 107 P2d
989 (1940), reh’g den, 165 Or 683 (1941) (decision whether
to assume jurisdiction over action instituted by foreign
plaintiff against foreign corporation “a matter within the
sound judicial discretion of the trial court.”). We conclude
that the decision of a trial court to dismiss or stay an action
for forum non conveniens also should be reviewed for abuse
of discretion.
	       In considering that standard, it is helpful to under-
stand what we mean by “discretion.” When a trial court
exercises discretion, it acts within certain legal boundaries
to choose from several permissible outcomes:
    “Judicial discretion should * * * be exercised according to
    fixed legal principles in order to promote substantial jus-
    tice. * * * In short, judicial discretion is always bounded by
    a simple framework: It must be lawfully exercised to reach
    a decision that falls within a permissible range of legally
    correct outcomes.”
State v. Harrell/Wilson, 353 Or 247, 254, 297 P3d 461
(2013) (internal citations and quotation marks omitted); see
also State v. Rogers, 330 Or 282, 312, 4 P3d 1261 (2000)
(“[D]iscretion, as this court has used that term, refers to the
authority of a trial court to choose among several legally cor-
rect outcomes.”). In deciding a forum non conveniens motion,
the trial court exercises discretion in several respects: by
determining what private- and public-interest factors to
consider, whether evidence in the record demonstrates that
those factors weigh in favor of the dismissal or stay of the
action, and ultimately, whether the ends of justice require
stay or dismissal of the action.
	       In making those determinations, a trial court can
exceed the bounds of its permitted discretion in several
ways. First, a trial court’s decision may be legally imper-
missible because it was guided by the wrong substantive

	29
       Modified on recons, 313 Or 339 (1992), cert den, 506 US 975 (1992), adh’d to
as modified on recons, 315 Or 291 (1993).
Cite as 359 Or 63 (2016)	117

standard. See State v. Sarich, 352 Or 600, 615, 291 P3d
647 (2012) (as prerequisite to exercise of discretion, court
must apply correct legal standard for determining scope
of that discretion). Because whether a trial court applied
the correct substantive standard to guide its decision is a
question of law, we review that issue for legal error. See
id. at 615-17 (reviewing for legal error whether trial court
applied correct standard for determining competency of
witness).
	        Second, a trial court may abuse its discretion if its
decision is based on predicate legal conclusions that are
erroneous or predicate factual determinations that lack suf-
ficient evidentiary support. For example, in order to weigh
the private interests at stake, a trial court deciding a forum
non conveniens motion must make factual findings about the
availability of relevant evidence in each forum. Likewise,
the court may draw and rely on legal conclusions about the
choice of law applicable to the action, or the enforceability
of a judgment from the alternative forum. We review the
trial court’s predicate legal conclusions “without defer-
ence to determine whether proper principles of law where
applied correctly,” Rogers, 330 Or at 312, and its predicate
factual findings—express or implicit—for any evidence in
the record to support them. See State v. Davis, 345 Or 551,
564-65, 201 P3d 185 (2008), cert den, 558 US 873 (2009)
(where trial court ruling depends on resolution of disputed
factual issues, “we will not disturb the trial court’s express
or implicit factual findings so long as those findings are sup-
ported by evidence”); see also State v. Washington, 355 Or
612, 630, 330 P3d 596, cert den, 135 S Ct 685 (2014) (apply-
ing any evidence standard to factual findings predicate to
trial court exercise of discretion in requiring criminal defen-
dant to be restrained at trial).
	        Finally, even when the correct law is applied and
there is sufficient evidentiary support for underlying fac-
tual findings, a trial court abuses its discretion if its deci-
sion is clearly against all reason and evidence. See Port of
Umatilla v. Richmond, 212 Or 596, 625, 321 P2d 338 (1958)
(“abuse of discretion” is “a clearly erroneous conclusion and
judgment—one that is clearly against the logic and effect of
such facts as are presented in support of the application, or
118	                       Espinoza v. Evergreen Helicopters, Inc.

against the reasonable and probable deductions to be drawn
from the facts disclosed upon the hearing.’ ” (citing State v.
Draper, 83 UT 115, 27 P2d 39, 49-50 (1933)).
	        Here, plaintiffs contend that the trial court abused
its discretion in several respects. They take issue with the
substantive standard that the trial court applied to guide
its decision, arguing that the trial court failed to give suf-
ficient deference to their choice of Oregon as the forum in
which to litigate their claims. Plaintiffs also argue that the
trial court abused its discretion by failing to accept as true
the well-pleaded allegations in their complaints. Pointing
to the court’s statements at oral argument and in its letter
opinion, plaintiffs assert that the trial court made factual
determinations that went to the underlying merits of their
claims and that it based its decision at least in part on those
determinations and on its own view of the relative strength
of the claims asserted, all without the benefit of merits dis-
covery. As a result, plaintiffs argue, the trial court failed
to give sufficient credit to all of their claims and struck an
unreasonable balance in weighing the relevant private- and
public-interest factors, leading to an outcome—dismissal of
the action—that was an abuse of the trial court’s discretion.
For the reasons stated below, we conclude that the trial court
erred as a matter of law by applying the wrong substantive
standard to guide its decision and by failing to accept as
true plaintiffs’ well-pleaded allegations.30
	        As described above, the first step in the forum non
conveniens analysis is whether there is an adequate alter-
native forum in which the action may be tried. Consistently
with that standard, the trial court first considered, as a
threshold issue, whether Evergreen demonstrated that
there was an adequate alternative forum available. The trial
court concluded that Evergreen had met its burden, because
Peruvian courts were available to try the action and plain-
tiffs had conceded in their briefing before that court that
Peru offered an adequate alternative forum. The court did
	30
        Because we conclude that the trial court failed to apply the correct sub-
stantive standard to guide its discretion, we do not consider whether the trial
court abused its discretion in either balancing the private- and public-interest
factors relevant to this case, or in concluding that the dismissal of plaintiffs’
actions would best serve the ends of justice.
Cite as 359 Or 63 (2016)	119

note that plaintiffs later contended that Peruvian courts
were inadequate, on the ground that the relevant statutes
of limitations had run in Peru. However, because Evergreen
agreed to waive any statute of limitations defenses it might
have otherwise raised in Peru, the trial court concluded that
nothing would prevent plaintiffs from pursuing their claims
in that forum.
	        Evergreen did present evidence to the trial court
that Peru offered comparable legal remedies for wrong-
ful death and that plaintiffs could obtain redress in Peru
through those remedies. In response, the only issue that
plaintiffs raised before the trial court was that the statute of
limitations for those claims had run in Peru., Plaintiffs nei-
ther asserted nor presented any evidence to the trial court
that those remedies were defective in any other way, that
the Peruvian legal system was incapable of providing relief,
or that a judgment obtained there would not be enforceable
against Evergreen.31 As a result, the trial court did not err
in concluding, based on the evidence presented to it, that
Peru offered an adequate alternative forum.
	        At the second step in its forum non conveniens
analysis, however, the trial court erred by applying the
wrong substantive standard for when a dismissal or stay
on that ground is appropriate. As noted, when considering
whether an action should be dismissed or stayed for forum
non conveniens, a trial court’s discretion is limited. It can-
not grant a defendant’s forum non conveniens motion “simply
because another forum, in the court’s view, may be superior
to that chosen by the plaintiff.’ ” Picketts, 215 Conn at 501
(citing Pain, 637 F2d at 783). Rather, under the standard
we have articulated, the moving party must affirmatively
establish that the relevant private- and public-interest fac-
tors weigh so heavily in favor of dismissing or staying the
action that allowing it to proceed would be contrary to the
ends of justice.

	31
         As noted, plaintiffs raised the argument that Peruvian courts were fun-
damentally inadequate due to corruption and other institutional defects for the
first time before the Court of Appeals. That court declined to consider the issue
because it was not preserved. Espinoza, 266 Or App at 47-48. It does not appear
that plaintiffs raised the issue of whether a judgment against Evergreen obtained
in Peru would be enforceable in Oregon.
120	                 Espinoza v. Evergreen Helicopters, Inc.

	         In this case, the trial court appears to have applied
a less stringent standard. In its letter opinion, the trial court
stated that dismissal is permitted if, after determining that
there is an adequate alternative forum, the court concludes
“that trying the action elsewhere would best serve the con-
venience of the parties and the ends of justice.” (Emphasis
added.) Concluding that “trial of this lawsuit will largely
center on, and depend upon, witnesses and documents
regarding circumstances in Peru at the time of the crash,
rather than circumstances in Oregon or the United States”
such that “the private and public interest factors weigh in
favor of dismissal,” the trial court appears to have granted
Evergreen’s motion primarily, if not exclusively, on the
ground that litigating the actions in Peru would be simply
more convenient. (Emphasis added.) The trial court stated
that the ends of justice would be “best served” by trial in
Peru, but not that trial in Oregon would be so inconvenient
as to be contrary to the ends of justice. Because the trial
court therefore applied the wrong substantive standard
to guide its decision, it abused its discretion in granting
Evergreen’s motions to dismiss.
	        The trial court also applied the wrong substantive
standard to guide its decision by failing to “assume the truth
of all well-pleaded facts alleged in the complaint and give
plaintiff[s], as the nonmoving part[ies], the benefit of all
favorable inferences that may be drawn from those facts.”
Bradbury, 328 Or at 393. Although it is entirely appropriate
for a trial court to resolve factual issues related to the ease
with which the parties might prove, or disprove, facts mate-
rial to the merits of their dispute, by deciding, for example,
where certain evidence is located, a trial court may not rely
on factual findings that contradict—implicitly or expressly—
the well-pleaded allegations in the plaintiff’s complaint.
	         Here, plaintiffs’ complaints contained factual alle-
gations that would support both direct negligence and vicar-
ious liability claims against Evergreen. In particular, plain-
tiffs alleged that Evergreen “fail[ed] to properly maintain,
inspect, test and/or repair the subject helicopter and ensure
that the subject helicopter was kept in a safe condition” and
that those failures were “[a] substantial factor in causing
the crash and [decedents’] injuries.” There is no dispute that
Cite as 359 Or 63 (2016)	121

Evergreen performed work on the helicopter’s mechanical
systems in the months just prior to the crash, or that the
helicopter had been in use for only a matter of weeks when
the crash occurred.
	        Despite plaintiffs’ well-pleaded allegations, the trial
court appears to have based its decision, at least in part,
on its determination that mechanical systems installed and
tested by Evergreen in Oregon played no role in the crash,
and that pilot error instead was its cause. For example, in
its letter opinion, the trial court stated that it would not
base its decision on the possibility that the crash resulted
from “a malfunction in the warning or altimeter systems
installed by Evergreen in the United States” and dismissed
as speculative plaintiffs’ contention that discovery might
reveal evidence of such a defect.
	        That the trial court made factual findings that
contradicted the well-pleaded allegations in plaintiffs’ com-
plaint is supported further by the parties’ arguments before
that court. When arguing in favor of its motion, Evergreen
relied heavily on the contention that, because there was lit-
tle evidence to support plaintiffs’ theory that a mechanical
failure was the cause of the crash, the trial court should
give that claim, and the evidence in Oregon pertinent to it,
little weight in assessing which forum has a greater con-
nection to the litigation and in which location most of the
relevant evidence was likely located. Further, at the hear-
ing on Evergreen’s motion, the parties discussed the eviden-
tiary support for plaintiffs’ mechanical failure theory, and,
as part of that exchange, the trial court specifically asked
plaintiffs’ counsel what evidence they had that a mechanical
failure was the cause of the crash:
   “[PLAINTIFFS’ COUNSEL]:  And then maybe another
   key either to causation or to debunk a defense is really going
   to be what’s going on with that enhanced ground proximity
   warning system. It was installed just two months before
   it took off here. It was tested and inspected here. It was
   cleared here, and yet there were squawks and things that
   we know nothing about that Evergreen’s people found on
   this system.
   “* * * * *
122	                 Espinoza v. Evergreen Helicopters, Inc.

   “THE COURT:  Where in the record will I find this—the
   squawks that you referred to?
   “[PLAINTIFFS’ COUNSEL]:  Unfortunately, we don’t
   have the squawks.
   “* * * * *
   “[PLAINTIFFS’ COUNSEL]:  Could I just start by talking
   about what the systems are and giving the Court just a
   brief explanation about them?
   “THE COURT:  You can. But I think I understand.
   * * * What I’m interested in is what evidence do you have
   that there was potentially some issue associated with [the
   mechanical systems on the helicopter]?”
(Emphasis added.)
	         Rather than assuming the truth of plaintiffs’ well-
pleaded allegations and limiting its factual findings to those
issues outside the pleadings that the trial court needed
to resolve to dispose of Evergreen’s motion, the trial court
instead looked to plaintiffs to identify evidence in the record
to support those allegations. When it found such evidence
lacking, the trial court appears to have made its own, con-
trary, finding as to the probable cause of the crash. Insofar
as it based its decision, at least in part, on that determina-
tion, the trial court failed to accept as true the well-pleaded
factual allegations supporting plaintiffs’ direct negligence
claims, erred as a matter of law, and abused its discretion in
granting Evergreen’s motions. Cf., Koss Corp. v. Sachdeva,
363 Ill Dec 434, 446-44, 975 NE2d 236, 248-49 (Ill Ct App),
rev den, 981 NE2d 998 (Ill 2012) (trial court abused discre-
tion when it disregarded some of plaintiff’s allegations as
lacking support in record, and as a result, failed to consider
all of plaintiffs claims in determining whether dismissal for
forum non conveniens was appropriate).
	        Evergreen argues that we should not require trial
courts to accept all well-pleaded allegations as true, because
that standardmakes it possible for a plaintiff to avoid dis-
missal for forum non conveniens by asserting meritless theo-
ries and claims to link its action to the forum it has chosen.
Evergreen’s argument is not well-taken. Although styled as
a motion to dismiss when raised by a defendant, the purpose
Cite as 359 Or 63 (2016)	123

and function of forum non conveniens is not to test the suf-
ficiency of a plaintiff’s complaint. Rather, forum non conve-
niens allows the court and the parties to avoid considering
the merits of an action, at least at that early stage, precisely
because the defendant claims that the plaintiff’s chosen
forum is unsuited to that task. See Sinochem, 549 US at
432 (“A forum non conveniens dismissal denies audience to
a case on the merits;” “it is a determination that the merits
should be adjudicated elsewhere.” (internal citation and quo-
tation marks omitted)). It is for that reason that defendants
typically raise the issue of forum non conveniens at the out-
set of a case, before any merits discovery has taken place.
	         Considering the purpose and function of the doc-
trine of forum non conveniens, we see no reason to depart
from the well-established standard for deciding motions to
dismiss of accepting as true the well-pleaded allegations in
the complaint. As noted by another appellate court faced
with the same issue, “[i]t is unreasonable to require a plain-
tiff to prove up its entire case on a motion to dismiss for forum
non conveniens where a defendant, with its greater eviden-
tiary burden, has no such obligation.” Koss, 363 Ill Dec at
446. If a defendant truly believes that some of the plaintiff’s
claims are insufficiently pled or that they lack merit, noth-
ing would bar it from filing a motion to dismiss for failure
to state a claim, or even a motion for summary judgment.
See id. at 446-47 (arguments that plaintiff’s allegations are
conclusory or that they fail to state a claim cannot be prop-
erly addressed through forum non conveniens motion; defen-
dant should raise such issues by separate motion). Likewise,
nothing would prevent a court from deciding, on an appro-
priate motion and under the correct legal standard, that a
claim should be dismissed and thus not considered in deter-
mining whether the action should be dismissed or stayed on
forum non conveniens grounds.
	        On this record, the cause of the crash is disputed,
and while the trial court was undoubtedly and appropri-
ately concerned that much of the evidence concerning the
crash would be found in Peru, it appears as though the
trial court did not consider the possibility that a significant
amount of documentary and testimonial evidence pertinent
124	                 Espinoza v. Evergreen Helicopters, Inc.

to plaintiffs’ direct negligence claims is likely to be found
in Oregon. Plaintiffs’ complaints contained sufficient fac-
tual allegations to state a claim upon which relief could be
granted on that theory. To the extent that the trial court,
having concluded that plaintiffs’ direct negligence claims
were speculative and weak, discounted the importance of
evidence in Oregon that would have been relevant to those
claims, it not only failed to give sufficient credit to the well-
pleaded allegations in plaintiffs’ complaints, it veered into
the merits of the dispute at a stage in the litigation when it
was poorly equipped to do so.
                     III. CONCLUSION
	         For the reasons discussed above, we hold that the
doctrine of forum non conveniens is part of the common law
of this state. When a party moves to dismiss or stay an action
on that ground, the court may grant the motion if that party
demonstrates that an alternative forum is available and
adequate, and that the relevant private- and public-interest
considerations weigh so heavily in favor of a dismissal or
stay that allowing the litigation to proceed would be con-
trary to the ends of justice. Because the trial court failed to
apply that standard in its dismissal of plaintiffs’ claims, and
likewise, consistent with the posture of a motion to dismiss,
failed to accept plaintiffs’ well-pleaded allegations as true,
it erred as a matter of law and exceeded the bounds of its
discretion.
	       The decision of the Court of Appeals is affirmed.
The judgment of the circuit court is vacated, and the case is
remanded to the circuit court for further proceedings.
