UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1706
FIDELITY BANK PLC,
Plaintiff - Appellee,
v.
M/T TABORA, her engines, boilers, etc. In Rem, et al.;
NORTHERN FOX SHIPPING N.V.; ERES N.V. BELGIUM, in personam,
Defendants – Appellants,
and
THE MASTER OF THE M/T TABORA,
Garnishee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:05-cv-00871-WDQ)
Argued: March 24, 2009 Decided: June 16, 2009
Before MICHAEL, MOTZ, and KING, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
ARGUED: Alexander McKenzie Giles, SEMMES, BOWEN & SEMMES,
Baltimore, Maryland, for Appellants. James Dygert Skeen, SKEEN
& KAUFFMAN, LLP, Baltimore, Maryland, for Appellee. ON BRIEF:
JoAnne Zawitoski, SEMMES, BOWEN & SEMMES, Baltimore, Maryland,
for Appellants.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Eres N.V. Belgium (Eres) and Northern Fox Shipping
N.V. (Northern Fox) appeal the district court’s dismissal of
their wrongful arrest counterclaim against Fidelity Bank PLC
(Fidelity) on forum non conveniens grounds. The dismissal was
conditioned on the Nigerian Federal High Court accepting
jurisdiction over Eres and Northern Fox and their counterclaim,
which would make an alternative forum available, according to
the district court. On March 19, 2009, less than a week before
we heard oral argument (and well after the district court
ruled), the Nigerian Federal High Court issued a decision making
it clear that the Nigerian courts have not accepted
jurisdiction. We therefore vacate the district court’s
dismissal order and remand for further proceedings.
I.
The facts underlying the dispute between the parties
were set forth in some detail in our opinion in the previous
appeal in this case. See Fidelity Bank v. Northern Fox Shipping
N.V., 242 F. App’x 84 (4th Cir. 2007) (unpublished) (affirming
the forum non conveniens dismissal of two of Eres and Northern
Fox’s counterclaims while vacating and remanding with respect to
the dismissal of the wrongful arrest counterclaim, the claim at
issue today). A brief summary of those facts follows.
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Eres, a Belgian corporation, chartered the M/T Tabora,
a vessel owned by Northern Fox, a Netherlands Antilles
corporation to deliver a shipment of bitumen from Curacao,
Netherlands Antilles, to a predetermined place just outside
Nigerian waters near the port of Lagos, Nigeria. In the fall of
2002 Eres and Northern Fox engaged in a dispute with Fidelity, a
bank organized and located in Nigeria that held the bills of
lading for the cargo (bitumen), over the failed delivery of the
cargo. That dispute eventually led Fidelity to have the M/T
Tabora arrested in the port of Baltimore, Maryland, on March 31,
2005, pursuant to a verified complaint, which included Eres and
Northern Fox as defendants. The complaint sought $8,871,076 in
damages.
The warrant for the arrest of the M/T Tabora was
vacated five days later (on April 5, 2005) based on the district
court’s determination that Fidelity’s in rem claim against the
ship was time barred and that Fidelity had failed to establish
that it had a pending claim against Eres and Northern Fox in
Nigeria. Fidelity then made an ex parte application to the
Federal High Court in Nigeria for an order allowing Fidelity to
serve by courier outside Nigerian jurisdiction an amended
statement of claim for wrongful arrest on Eres and Northern Fox,
which that court granted on April 8, 2005. The district court
in Maryland, however, denied Fidelity’s subsequent motion to
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reconsider its order vacating the arrest of the M/T Tabora.
Meanwhile, also on April 8, 2005, Eres and Northern Fox filed
their answer in district court along with a counterclaim
alleging wrongful arrest of the M/T Tabora, seeking unpaid
demurrage charges from Fidelity, and requesting a declaratory
judgment that Fidelity’s claim was time barred.
After Eres and Northern Fox filed a motion for summary
judgment on September 23, 2005, Fidelity moved on October 12,
2005, to have its complaint dismissed without prejudice under
Fed. R. Civ. P. 41(a)(2) and to have the entire action
(including Eres and Northern Fox’s counterclaim) dismissed on
forum non conveniens grounds. On December 9, 2005, the district
court granted Fidelity’s forum non conveniens motion and denied
Eres and Northern Fox’s summary judgment motion as moot.
On December 20, 2005, the Nigerian Federal High Court
issued an order dismissing the April 8, 2005, order allowing
Fidelity to serve Eres and Northern Fox by courier (or
substituted service). The Nigerian court also stated that it
lacked in rem jurisdiction over the M/T Tabora, but that its
original writ of summons was still valid in personam against
Eres and Northern Fox. Fidelity filed a notice of appeal in the
Nigerian Court of Appeal challenging several rulings of the
Federal High Court. Fidelity claims that its appeal encompassed
the December 20, 2005, ruling of the Federal High Court.
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Meanwhile, Eres and Northern Fox appealed the Maryland
district court decision. On July 13, 2007, this court affirmed
the forum non conveniens dismissal as to the demurrage and
declaratory judgment counts of Eres and Northern Fox’s
counterclaim, but vacated the dismissal of their wrongful arrest
count and remanded for further forum non conveniens analysis.
Fidelity Bank, 242 F. App’x at 92-93. Specifically, we
determined (1) that Fidelity had failed to show that Nigerian
law recognized a claim for wrongful arrest or that the Nigerian
courts would take jurisdiction of that claim and (2) that the
district court had not properly weighed the public and private
interest factors at issue. Id. (citing Gulf Oil Corp. v.
Gilbert, 330 U.S. 501, 508-09 (1947)).
After remand the district court received further
evidence and briefing on these questions, and on February 28,
2008, it again dismissed Eres and Northern Fox’s wrongful arrest
counterclaim on forum non conveniens grounds. The district
court first concluded that Eres and Northern Fox had “the better
of the statutory argument” that Nigerian law did not confer
jurisdiction over their wrongful arrest counterclaim.
Nevertheless, the court determined that a Nigerian forum “may be
available” and “appears to be adequate” for the purposes of
forum non conveniens. J.A. 1293, 1296. See Piper Aircraft Co.
v. Reyno, 454 U.S. 235, 247-55 (1981) (requiring that the
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foreign forum be both available and adequate). In its
discussion of whether Nigeria was an available forum, the
district court noted that Fidelity had an ongoing appeal in the
Nigerian Court of Appeal potentially challenging the December
20, 2005, order of the Nigerian Federal High Court that had
vacated its earlier order allowing Fidelity to serve Eres and
Northern Fox by courier. A decision in Fidelity’s favor would
render Eres and Northern Fox parties to the Nigerian action.
The district court thus concluded that “there exist[ed] a
possibility that Eres and Northern Fox could bring the wrongful
arrest counterclaim in Nigeria,” even though “the status of the
Nigerian action appear[ed] to be in flux.” J.A. at 1296.
Because of this uncertainty, the district court conditioned its
forum non conveniens dismissal on “the Nigerian Federal High
Court accepting jurisdiction over [Eres and Northern Fox] and
their counterclaim.” J.A. 1301.
Eres and Northern Fox then filed the appeal pending
before us today. At oral argument on March 24, 2009, counsel
for Eres and Northern Fox informed us that the Court of Appeal
in Nigeria had recently issued a written decision in Fidelity’s
purported appeal of the December 20, 2005, order of the Federal
High Court. That decision, issued on March 19, 2009, was
submitted to this court on March 31. The decision held that
Fidelity’s notice of appeal had in fact failed to appeal the
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December 20, 2005, order, which therefore remained intact.
Fidelity Bank PLC v. M/T “Tabora”, CA/L/551/2006, slip op. at 26
(Court of Appeal, Holden at Lagos March 19, 2009).
II.
We review a district court’s forum non conveniens
decision for abuse of discretion. Piper Aircraft, 454 U.S. at
257. Forum non conveniens analysis proceeds in two steps.
First, a court determines whether there exists an alternative
forum that is both available and adequate. Piper Aircraft, 454
U.S. at 254. Second, if such a forum exists, the court must
then weigh the private and public interest factors from Gulf
Oil. 330 U.S. 501.
The primary issue before the district court was
whether the Nigerian courts would recognize and entertain Eres
and Northern Fox’s counterclaim for wrongful arrest. If not,
Nigeria would not be available as an alternative forum. The
district court held that because there was a possibility that
the pending appeal in the Nigerian Court of Appeal would result
in the assertion of jurisdiction over Eres and Northern Fox and
their claims, Nigeria was an available alternative forum. But
in order to account for the uncertainty surrounding the Nigerian
proceedings, the district court conditioned its forum non
conveniens dismissal on the Nigerian Federal High Court
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accepting jurisdiction over Eres and Northern Fox and their
counterclaim.
Notwithstanding the inclusion of the condition, there
is a question of whether a forum non conveniens dismissal may be
based on only a possibility that an alternative forum is
available. See Bank of Credit & Commerce Int’l (Overseas) Ltd.
v. State Bank of Pakistan, 273 F.3d 241, 247 (2d Cir. 2001)
(holding that a district court dismissing a case on forum non
conveniens grounds should have a “‘justifiable belief’ that the
[alternative forum] would not decline to hear the case.”).
However, we need not grapple with that question because the
March 19, 2009, decision of the Nigerian Court of Appeal has
made it clear that the Nigerian courts have not accepted
jurisdiction over the wrongful arrest claim at issue here. That
decision affirmed the continuing vitality of the Nigerian
Federal High Court’s December 20, 2005, order, which dismissed a
prior order allowing Fidelity to serve Eres and Northern Fox by
courier outside Nigerian jurisdiction. Fidelity Bank,
CA/L/551/2006, slip op. at 26. The Court of Appeal decision
states in no uncertain terms that the Nigerian courts lacked in
rem jurisdiction over the M/T Tabora, that service has not been
made on Eres or Northern Fox, and that substituted service
cannot be made on Eres and Northern Fox because the December 20,
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2005, order of the Federal High Court disallowing such service
was left intact. CA/L/551/2006, slip op. at 15, 26.
Thus, regardless of whether the district court erred
in granting a forum non conveniens dismissal, the condition on
which that dismissal was based -- that the Nigerian Federal High
Court accept jurisdiction over Eres and Northern Fox and their
counterclaim -- has not been satisfied. We therefore vacate the
district court’s order dismissing Eres and Northern Fox’s
wrongful arrest counterclaim and remand for proceedings on the
merits of that claim.
VACATED AND REMANDED
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