Forum Non Conveniens Permitted Despite Assumed Extraterritorial TVPA Civil Remedy; Punitive-Damages-Only Relief Can Make a Foreign Forum “Adequate”

1. Introduction

This appeal arose from alleged sexual assaults and related coercion occurring in New Zealand, where Scarlett Pavlovich (a New Zealand citizen now living in Scotland) worked for Neil Gaiman (a UK citizen and lawful permanent resident living in Wisconsin). Pavlovich sued in the Western District of Wisconsin after Gaiman moved there, asserting federal claims under the Trafficking Victims Protection Act (TVPA) and Wisconsin tort claims.

The central issue on appeal was not the merits of the trafficking or tort allegations, but whether the district court properly exercised its discretion to dismiss the entire case under forum non conveniens in favor of New Zealand—despite the presence of federal statutory claims and despite Pavlovich’s arguments that New Zealand’s remedial scheme is too limited to be “adequate.”

Key issues

• Whether New Zealand is an available and adequate alternative forum.
• How much deference is owed to a foreign plaintiff’s choice of a U.S. forum when suing a U.S. resident.
• Whether private/public interest factors—especially evidence access and international comity—support dismissal.
• What effect, if any, an assumed extraterritorial TVPA civil remedy should have on the forum non conveniens analysis.
• Whether Pavlovich waived a broader argument that extraterritorial statutes categorically bar forum non conveniens dismissals.

2. Summary of the Opinion

The Seventh Circuit (Judge Kolar) affirmed. Applying abuse-of-discretion review under Piper Aircraft Co. v. Reyno, the court held the district court reasonably concluded that:

• New Zealand is available because Gaiman consented to suit there (citing In re Factor VIII or IX Concentrate Blood Products Litigation).
• New Zealand is adequate because even if compensatory damages are effectively unavailable under New Zealand’s accident-compensation structure, Pavlovich could seek punitive damages for “truly outrageous conduct”—which is “some remedy,” not “no remedy at all” (applying Piper Aircraft Co. v. Reyno and Stroitelstvo Bulgaria Ltd. v. Bulgarian-American Enterprise Fund).
• A potential requirement to post security for costs does not render the forum inadequate, particularly where the requirement is discretionary and uncertain (again relying on Stroitelstvo Bulgaria).
• Private-interest factors supported New Zealand because critical witnesses/evidence are there and New Zealand does not guarantee broad discovery to assist U.S. litigation; compelled discovery for U.S. litigation would be limited and discretionary.
• Public-interest factors favored New Zealand given its strong regulatory interest in channeling injuries on its soil through its distinctive compensation scheme, and because retaining the case would risk undermining international comity.

The court explicitly assumed without deciding that the TVPA civil-remedy provision applies extraterritorially, but held that—even on that assumption—the district court did not abuse its discretion in finding New Zealand’s connection stronger.

3. Analysis

3.1 Precedents Cited (and How They Shaped the Decision)

A. Framing, posture, and review standard

• Doe v. Purdue University — cited for the pleading-stage lens: the appellate court recounts facts as alleged, drawing inferences in plaintiff’s favor when reviewing a dismissal posture.
• Piper Aircraft Co. v. Reyno — anchors (i) abuse-of-discretion review for forum non conveniens and (ii) the high bar for “inadequacy” of an alternative forum. The Seventh Circuit repeatedly tracks Piper’s admonition that an unfavorable change in law/remedy is usually insufficient; inadequacy requires “no remedy at all.”
• Deb v. SIRVA, Inc. — supplies the Seventh Circuit’s formulation of the two-step inquiry (available/adequate forum plus balancing) and the “realm of appropriate conclusions” language that operationalizes deference.
• Stroitelstvo Bulgaria Ltd. v. Bulgarian-American Enterprise Fund — provides both (i) an example of what counts as an abuse of discretion (ignoring a relevant factor) and (ii) the doctrinal yardstick for inadequacy: the alternative remedy must be “so clearly inadequate or unsatisfactory that it is no remedy at all.”
• American Dredging Co. v. Miller — supplies the private/public factor framework and identifies “practical problems” (witnesses, documents, ease/cost) and local interest/connection considerations.
• Kamel v. Hill-Rom Co. — cited for the baseline definition of the doctrine: a discretionary tool allowing dismissal even where jurisdiction otherwise exists.

B. Availability and adequacy of New Zealand

• In re Factor VIII or IX Concentrate Blood Products Litigation — supports the proposition that a defendant’s consent to suit renders the alternative forum “available.”
• Piper Aircraft Co. v. Reyno — used to reject the idea that a less generous remedial regime is, by itself, “inadequate.”
• Stroitelstvo Bulgaria Ltd. v. Bulgarian-American Enterprise Fund — leveraged to neutralize the “security for costs” argument and to emphasize that even significant litigation costs do not automatically make a forum inadequate.
• International Brotherhood of Electrical Workers v. Foust — invoked to acknowledge the U.S. conception of punitive damages as punishment/deterrence, but then the court distinguishes that purpose from the forum non conveniens adequacy question (“any remedy”).

C. Deference to plaintiff’s forum choice

• Clerides v. Boeing Co. — supplies the “home forum” presumption, and the “strongly favors the defendant” threshold when a plaintiff sues at home.
• In re Factor VIII or IX Concentrate Blood Products Litigation — reduces the presumption’s force for plaintiffs suing far from home due to the heightened risk of weak connection.
• Instituto Mexicano del Seguro Social v. Zimmer Biomet Holdings, Inc. and Abad v. Bayer Corp. — together yield the key calibration here: when a foreign plaintiff sues a U.S. resident, plaintiff’s choice is “little more than a tie breaker” after comparing forums.

D. Evidence access and practical litigation constraints

• American Dredging Co. v. Miller — used for the “easy, expeditious and inexpensive” practicality frame and evidence-access considerations.
• Pavlovich v. Palmer (D. Mass.) — not binding but important factually; it established (as quoted) that Gaiman’s wife consented to service in New Zealand, undercutting Pavlovich’s claim that a key witness would be beyond New Zealand’s reach.

E. Public interest, extraterritorial statutes, and international comity

• Roe v. Howard — the opinion notes this Fourth Circuit decision as the only circuit authority directly addressing TVPA civil-remedy extraterritoriality (“to the extent” the predicate offense applies extraterritorially).
• Ratha v. Phatthana Seafood Co. — supports the Seventh Circuit’s choice to assume without deciding extraterritorial reach for purposes of the forum non conveniens analysis.
• RJR Nabisco v. European Community — used as comity-infused caution: applying U.S. remedies to foreign claims may let foreign citizens bypass “less generous remedial schemes,” which is relevant to the public-interest balancing.
• Cisco Systems, Inc. v. Doe I — reinforces sensitivity to foreign policy consequences when U.S. courts adjudicate cases with international-law dimensions; the Seventh Circuit analogizes that caution to comity concerns implicated here.
• Abitron Austria GmbH v. Hetronic International, Inc. (Sotomayor concurrence) and RJR Nabisco v. European Community (Ginsburg concurrence) — cited to situate forum non conveniens as a doctrine that can serve comity functions, even if the Supreme Court has not made comity an explicit element of the doctrine.
• Volodarskiy v. Delta Airlines, Inc. — Seventh Circuit authority recognizing comity concerns may be addressed under forum non conveniens.
• Fischer v. Magyar Allamvasutak Zrt. — demonstrates the Seventh Circuit’s willingness to weigh international comity directly as part of the public-interest balance.
• Cooper v. Tokyo Electric Power Co., Inc., Ford v. Brown, and Gonzalez v. Chrysler Corp. — illustrate cross-circuit consensus that comity and respect for foreign policy choices can align with (and inform) forum non conveniens dismissal.

F. Waiver doctrine

• Allen v. City of Chicago — supports the rule that arguments raised for the first time on appeal are typically waived.
• Argyropoulos v. City of Alton — supports the rule that concessions at oral argument can constitute waiver.
• Crothersville Lighthouse Tabernacle Church, Inc. v. Church Mutual Insurance Co., S.I. — underscores the Seventh Circuit’s strictness in civil waiver: “the end of the line.”

3.2 Legal Reasoning (Step-by-Step)

A. The court’s threshold move: treating adequacy as “any remedy,” not “equivalent remedy”

Pavlovich’s primary attack on adequacy was remedial: New Zealand’s accident-compensation structure allegedly forecloses compensatory damages for her injuries and provides mental-health services she cannot access while living in Scotland. The Seventh Circuit accepted the premise arguendo—yet held the forum still adequate because Pavlovich conceded the availability of punitive damages for “truly outrageous conduct.”

B. “Security for costs” is a contingency, not a categorical bar

Pavlovich argued New Zealand might require her to post security for defense costs—an insurmountable barrier. The court’s response was pragmatic and deferential: (i) Pavlovich offered no authority that such a requirement makes a forum inadequate, (ii) significant fees have not defeated adequacy in prior cases (including Stroitelstvo Bulgaria), and (iii) her own expert described the security requirement as discretionary, so the burden was speculative.

C. Plaintiff’s forum choice gets only marginal weight

The court applied its established sliding scale: because Pavlovich is a foreign plaintiff suing a U.S. resident, her choice of Wisconsin is “little more than a tie breaker” (per Instituto Mexicano del Seguro Social v. Zimmer Biomet Holdings, Inc. and Abad v. Bayer Corp.). This framing matters: it lowers the “inertia” that must be overcome to affirm dismissal.

D. Private-interest factors: discovery limits and practical access to proof

Although Pavlovich argued New Zealand courts could assist U.S. litigation with compelled depositions and documents, her expert acknowledged New Zealand does not permit general discovery for out-of-country litigation, and any compelled discovery would be discretionary. The Seventh Circuit treated that uncertainty as supporting the district court’s conclusion that New Zealand is the more practical forum for evidence largely located there.

The court also rejected the “key witness not subject to jurisdiction” point by noting Pavlovich overlooked that Gaiman’s wife had consented to service in New Zealand (as recognized in Pavlovich v. Palmer).

E. Public-interest factors: assumed extraterritorial TVPA does not eliminate comity or New Zealand’s regulatory stake

A major appellate move was the court’s decision to assume without deciding that the TVPA civil-remedy provision applies extraterritorially—citing Ratha v. Phatthana Seafood Co. as an example of that technique. This let the court sidestep a difficult statutory question (not yet decided in the Seventh Circuit) while still addressing Pavlovich’s “Congressional preference” argument.

Even under that assumption, the court held New Zealand’s interest was stronger: it has a “one-of-a-kind” scheme governing redress for harms on its soil, and allowing a U.S. suit risks permitting bypass of a “less generous remedial scheme,” a comity concern echoed in RJR Nabisco v. European Community. The opinion further situates comity within the forum non conveniens toolkit via Volodarskiy v. Delta Airlines, Inc., Fischer v. Magyar Allamvasutak Zrt., and supportive inter-circuit authority (Cooper v. Tokyo Electric Power Co., Inc.; Ford v. Brown; Gonzalez v. Chrysler Corp.).

F. Waiver narrows the holding’s reach (but strengthens its procedural lesson)

Pavlovich tried to argue on appeal that when Congress makes a remedy extraterritorial, a court may not dismiss for forum non conveniens. The Seventh Circuit refused to engage: she did not raise it below (waiver per Allen v. City of Chicago) and she affirmatively waived it at oral argument (Argyropoulos v. City of Alton). The court’s reliance on Crothersville Lighthouse Tabernacle Church, Inc. v. Church Mutual Insurance Co., S.I. signals a strict procedural boundary: civil waiver ends the inquiry.

3.3 Impact

A. A concrete “adequacy” signal: punitive damages can be enough

The most practically novel point is the court’s adequacy analysis: a foreign forum can be “adequate” even where compensatory damages may be unavailable, so long as the plaintiff has some non-illusory remedy—here, punitive damages. Future litigants challenging adequacy in the Seventh Circuit should expect courts to:

• Focus on whether the plaintiff is truly left with no remedy, not whether the remedy matches U.S. compensation norms.
• Treat punitive or other non-compensatory remedies as relevant to adequacy, absent authority to exclude them.

B. TVPA and other extraterritorial federal statutes: no automatic shield from forum non conveniens

Although the court avoided deciding TVPA extraterritoriality, its approach is consequential: even assuming an extraterritorial federal cause of action exists, the case may still be dismissed on forum non conveniens grounds where the foreign sovereign has a stronger connection and comity concerns are substantial. That matters for transnational human-trafficking and abuse cases where:

• Conduct occurs abroad,
• Key witnesses and records are abroad, and
• The foreign state has made a deliberate remedial policy choice potentially undercut by U.S. litigation.

C. Comity as an explicit weight in the Seventh Circuit’s public-interest balancing

The opinion consolidates and reaffirms the Seventh Circuit’s willingness to weigh international comity in forum non conveniens (building on Fischer v. Magyar Allamvasutak Zrt. and Volodarskiy v. Delta Airlines, Inc.). This will likely:

• Encourage defendants to frame public-interest arguments around foreign regulatory schemes and sovereign interests (not just “convenience”).
• Prompt plaintiffs to directly address comity—rather than focusing solely on U.S. statutory policy—especially when the foreign forum’s remedial limits are intentional features of its legal system.

D. Litigation practice: waiver is outcome-determinative

The waiver discussion is a cautionary precedent: appellate courts will not entertain ambitious structural arguments about Congress, extraterritorial remedies, and forum non conveniens if not preserved. The court’s “twice over” framing (not raised below; waived at argument) signals that preservation failures can foreclose potentially far-reaching questions.

4. Complex Concepts Simplified

• Forum non conveniens: A judge-made doctrine allowing dismissal (usually without prejudice) when another country’s (or state’s) courts are a substantially better place to litigate—based on convenience and the interests of justice—even if the U.S. court has jurisdiction.
• Available vs. adequate forum:
  • Available means the defendant can be sued there (often satisfied by consent).
  • Adequate means the plaintiff will not be deprived of all remedies or treated fundamentally unfairly; it does not require equal remedies to U.S. law.
• Punitive damages: Money awarded to punish and deter misconduct (not to compensate). Here, the court treated their availability as proof the plaintiff is not left with “no remedy at all.”
• Security for costs: A court-ordered deposit to ensure a plaintiff can pay a defendant’s costs if the plaintiff loses. The Seventh Circuit treated this as a possible, discretionary hurdle—not a per se sign of inadequacy.
• Extraterritoriality: Whether a U.S. statute applies to conduct outside the United States. The court assumed (without deciding) the TVPA civil remedy could apply abroad, but still affirmed dismissal.
• International comity: Respect for another nation’s laws and policy choices. Here, comity meant being cautious about using U.S. courts and remedies in a way that would let a litigant bypass New Zealand’s deliberately different compensation system.
• Waiver: Losing an argument because it was not raised at the proper time (e.g., in the district court) or was affirmatively abandoned. In the Seventh Circuit’s words (quoting Crothersville Lighthouse Tabernacle Church, Inc. v. Church Mutual Insurance Co., S.I.), in civil cases it is “the end of the line.”

5. Conclusion

Scarlett Pavlovich v. Neil Gaiman reinforces a pragmatic, comity-sensitive forum non conveniens framework in the Seventh Circuit. The decision’s core takeaways are:

• Adequacy is a low bar: a foreign forum is adequate if it offers some meaningful remedy; punitive damages may suffice even where compensation is limited.
• Foreign plaintiffs get less deference: when suing far from home—even against a U.S. resident—the forum choice functions largely as a tie-breaker.
• Comity can be decisive: U.S. courts may decline to host disputes tightly bound to a foreign sovereign’s territory and remedial policy, even assuming a U.S. statute could reach the conduct.
• Preservation matters: broad arguments about Congress and extraterritorial remedies will not be heard if waived.

In broader context, the opinion signals that transnational misconduct allegations—including those pleaded under powerful federal statutes like the TVPA—will still face searching scrutiny under forum non conveniens when the nucleus of facts, evidence, and sovereign interests lies abroad.