United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 22, 2010 Decided August 6, 2010
No. 09-7079
MBI GROUP, INC. AND ATLANTIC GROUP, SCI,
APPELLANTS
v.
CREDIT FONCIER DU CAMEROUN AND GOVERNMENT OF THE
REPUBLIC OF CAMEROON,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:07-cv-00637-JDB)
Philip M. Musolino argued the cause for appellants. With
him on the briefs was Sylvia J. Rolinski. Danielle E. Musolino
entered an appearance.
Knox Bemis argued the cause and filed the brief for
appellees.
Before: GINSBURG, TATEL and GRIFFITH, Circuit Judges.
Opinion for the Court filed by Circuit Judge GRIFFITH.
2
GRIFFITH, Circuit Judge: When a purported deal to
develop affordable housing in Cameroon fell apart, MBI
Group, Inc., and Atlantic Group, SCI, sued the government of
Cameroon and a state-owned mortgage finance corporation,
Crédit Foncier du Cameroun. Concluding it would be more
appropriate for this case to be heard in Cameroon, the district
court dismissed the suit on the ground of forum non
conveniens. Plaintiffs appeal the dismissal as well as the
district court’s denial of their motion for reconsideration, and
we affirm.
I.
In 2007, MBI Group, a Delaware corporation, and Atlantic
Group, MBI’s Cameroonian affiliate, brought suit in the
district court seeking damages from Crédit Foncier du
Cameroun (CFC) and the government of Cameroon for breach
of contract and various commercial torts. Plaintiffs allege they
had an agreement with CFC to construct low-cost housing in
Cameroon, but that government officials there quashed the
project when Roger Tchoufa, MBI’s representative in
Cameroon, rebuffed their demands for bribes. According to
defendants, the project was only an illegal ploy to enable
self-dealing by a crooked official of CFC.
The district court decided that the Cameroonian courts
were better suited to sort out what actually happened, and, on
June 10, 2008, granted defendants’ motion for a forum non
conveniens dismissal. MBI Group, Inc. v. Credit Foncier du
Cameroun (MBI I), 558 F. Supp. 2d 21 (D.D.C. 2008). “[I]n an
abundance of caution and to avoid any potential undue
prejudice to plaintiffs,” the court conditioned the dismissal “on
the Cameroonian courts’ acceptance of the case.” Id. at 31.
Plaintiffs moved for reconsideration of the dismissal two
weeks later, styling their motion both as one to alter or amend a
3
judgment under Federal Rule of Civil Procedure 59(e) and as a
one for relief from a final judgment under Rule 60(b). Their
primary contention was that they could not possibly make the
prohibitively steep deposit required for a court in Cameroon to
consider their case. Unwilling to accept plaintiffs’ claims about
the deposit, the district court dismissed their motion for
reconsideration without prejudice pending a ruling from a
Cameroonian court specifying what that nation’s law required.
See MBI Group, Inc. v. Credit Foncier du Cameroun (MBI II),
No. 07-0637, slip op. at 1–2 (D.D.C. Mar. 23, 2009).
After the court in Cameroon dismissed their suit, plaintiffs
renewed their motion for reconsideration in the district court,
which was denied on June 23, 2009. The district court
concluded that the ruling of the Cameroonian court did not
support plaintiffs’ claims about the deposit, and that plaintiffs
offered no other ground for overturning the dismissal. See MBI
Group, Inc. v. Credit Foncier du Cameroun (MBI III), 627 F.
Supp. 2d 35, 38–41 (D.D.C. 2009).
Plaintiffs noticed an appeal. There is some confusion as to
whether that appeal is limited to the June 23, 2009 order
denying reconsideration or includes the June 10, 2008 order
dismissing their suit as well. Compare Notice of Appeal, MBI
Group, Inc. v. Credit Foncier du Cameroun, No. 07-0637
(D.D.C. July 22, 2009) (indicating an intent to appeal both
rulings), with Appellants’ Br. at i (listing the district court’s
denial of reconsideration as the only ruling under review).
Little turns on this. Two of the three arguments plaintiffs press
before us involve events occurring after the dismissal of their
suit in the district court, and thus implicate only their request
for reconsideration. To the limited extent the original dismissal
is concerned, defendants have had the opportunity to respond
to plaintiffs’ arguments and suffer no prejudice by our
consideration of that ruling. We therefore proceed under the
4
assumption that plaintiffs properly appealed both the denial of
reconsideration and the underlying dismissal.
We have jurisdiction to review these rulings under 28
U.S.C. § 1291 (2006). See Ciralsky v. CIA, 355 F.3d 661, 668
(D.C. Cir. 2004) (dismissal order and denial of a Rule 59(e)
motion); Servants of Paraclete v. Does, 204 F.3d 1005, 1008
(10th Cir. 2000) (denial of a Rule 60(b) motion). We review
the forum non conveniens dismissal as well as the denial of
relief under Rules 59(e) and 60(b) for abuse of discretion. See
Agudas Chasidei Chabad v. Russian Fed’n, 528 F.3d 934, 950
(D.C. Cir. 2008) (forum non conveniens dismissal); Firestone
v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (per curiam)
(denial of a Rule 59(e) motion); Twelve John Does v. District
of Columbia, 841 F.2d 1133, 1138 (D.C. Cir. 1988) (denial of a
Rule 60(b) motion).
II.
There is a “substantial presumption” in favor of a
plaintiff’s chosen forum. Agudas Chasidei Chabad, 528 F.3d
at 950. A court may nonetheless dismiss a suit for forum non
conveniens if the defendant shows there is an alternative forum
that is both available and adequate and, upon a weighing of
public and private interests, the strongly preferred location for
the litigation. Id. In this case, the district court found a viable
forum in Cameroon and rejected plaintiffs’ concerns that they
would be incapable of getting a fair trial there. MBI I, 558 F.
Supp. 2d at 28–32. Weighing the private and public interests,
the court concluded that the scale tipped heavily in favor of
adjudication in Cameroon. Id. at 32–36.
As noted above, two issues plaintiffs raise on appeal
concern only their motion for reconsideration. They argue that,
upon reconsideration, the district court should have
(1) determined that an exorbitant court deposit effectively
5
blocked the prosecution of their suit in Cameroon and
(2) concluded that Cameroon was an inadequate forum in light
of the default convictions Roger Tchoufa and his wife
sustained there. Plaintiffs’ final contention is that the public
and private interests favored trial in the United States. We
consider each argument in turn.
A.
After the district court conditionally dismissed this suit,
plaintiffs sued defendants in Cameroon. Upon the filing of that
action, the court clerk requested a deposit of roughly five
percent of the judgment sought. Because plaintiffs’ complaint
claimed $500 million in damages, the bill approached $25
million. Seeking reconsideration in the district court, plaintiffs
argued that they could not pursue their claims in Cameroon on
account of this prohibitively expensive deposit. They claimed
that the subsequent dismissal of their Cameroonian suit
definitively established that the deposit was unavoidable and,
as such, an insurmountable obstacle to satisfaction of the
district court’s condition that the Cameroonian courts accept
their case.
The district court determined that plaintiffs—and not a
deposit requirement—were the real obstacle to the success of
their Cameroonian suit because they “at every step of the way
impeded the Cameroonian courts’ ability to consider their
case.” MBI III, 627 F. Supp. 2d at 38. On appeal, plaintiffs
contend the district court should have concluded that the courts
in Cameroon, by demanding an exorbitant filing fee, were
effectively unavailable to them.
The district court was within its discretion in denying
reconsideration if in fact plaintiffs sabotaged their own suit.
See In re Bridgestone/Firestone, Inc., 420 F.3d 702, 707 (7th
Cir. 2005) (explaining that if the “plaintiffs did not act in good
6
faith and manipulated the dismissal of their case in Mexico, the
district court should regard itself as free once again to dismiss
this complaint”). A conditional forum non conveniens
dismissal protects a plaintiff against the possibility that the
foreign forum will not hear his case. It does not give the
plaintiff license to deliberately prevent his suit in the foreign
court from going forward in order to render an alternative
forum defective. The only question we face, then, is whether
the district court abused its discretion in concluding that “the
blame for plaintiffs’ case being dismissed by the Cameroonian
court must be placed on plaintiffs themselves.” MBI III, 627 F.
Supp. 2d at 40. We find no abuse of discretion in this
conclusion.
To begin with, the district court reasonably determined
that potential alternatives to making the $25 million deposit
were available to plaintiffs. See id. Although plaintiffs’ legal
experts said the deposit was unavoidable, defendants
vigorously disagreed. They submitted that all but about $140 of
the $25 million deposit reflected a tax that plaintiffs would owe
only if they recovered the amount sought. Defendants’ experts
identified at least three ways by which plaintiffs could avoid
this payment: they could omit the amount sought from their
complaint, obtain a deferral of the payment until the entry of
judgment, or seek judicial review of the amount requested on
the theory that no tax payment is required in a suit against the
government and a government corporation. Defendants even
secured successive hearings in a Cameroonian court to argue
for a lower deposit. Plaintiffs failed to appear.
In light of these alternatives, the district court instructed
plaintiffs to pursue ways of “reducing, waiving, or at least
postponing the deposit.” MBI Group v. Credit Foncier du
Cameroun, No. 07-0637, slip op. at 3 (D.D.C. Oct. 20, 2008).
In particular, the court warned plaintiffs they could not
7
“ignore” the opportunity to contest the deposit amount and
then expect the court to find the Cameroonian forum
unavailable. Id. at 2.
Chided by the district court, plaintiffs finally appeared in
the Cameroonian proceedings. But once there, they argued that
the amount of the deposit could not be altered. They also
highlighted a second procedural defect in their case: they had
failed to return the original copy of the summons for their
lawsuit, which is a threshold requirement to bring an action in
Cameroon. They even objected to the proceedings altogether,
arguing it was their exclusive right to seek a hearing on the
deposit, and that defendants could not request one on their
behalf. For their part, defendants argued that no tax payment
was needed in a suit against the state and a state-owned entity.
The Cameroonian court issued an opinion declaring
plaintiffs’ suit “inadmissible for failure to make a deposit and
to file the original of the summons.” J.A. 355 (MBI Group, Inc.
v. Crédit Foncier du Cameroun, S.A., Civil Judgment No. 29,
Higher Court of Yaoundé (Mar. 31, 2009) (translation at 44)).
Plaintiffs claimed victory, arguing that the Cameroonian court
had adopted their position that the $25 million deposit was
obligatory, thereby making the prosecution of their claim in
Cameroon infeasible.
The district court disagreed. It determined that the
dismissal was effectively for failure to prosecute. See MBI III,
627 F. Supp. 2d at 39. In the court’s view, plaintiffs chose not
to satisfy the threshold procedural requirements to suit in
Cameroon—paying a deposit and returning the summons.
They also chose not to seek relief from those requirements.
What’s more, they essentially asked that their procedural
defaults be enforced against them. See id. The district court
found no reason to suppose that a Cameroonian court, any
8
more than an American one, would compel plaintiffs to pursue
advantageous procedural alternatives they consciously
eschewed. See id. (“[A]lthough U.S. courts permit filing fees to
be reduced for plaintiffs without adequate financial means, a
U.S. court cannot require a plaintiff to file the application
needed for in forma pauperis status.”). The district court
concluded that the possibility of success was not so remote “as
to excuse plaintiffs’ duty to proceed in good faith in Cameroon
in an attempt to reduce the clerk’s initial determination of a $25
million deposit.” Id. at 40. Accordingly, the district court
adhered to its prior determination that the Cameroonian courts
offered an available alternative forum.
Plaintiffs maintain the district court abused its discretion
because the decision of the court in Cameroon, properly
understood, established that the $25 million deposit was
mandatory. We disagree. The Cameroonian ruling did not
address defendants’ arguments concerning the deposit.
Perhaps, as plaintiffs contend, this omission amounts to an
implicit rejection of defendants’ position that the deposit
amount was set in error. But this silence could just as easily
reflect acceptance of plaintiffs’ argument that the court should
not permit defendants to challenge the deposit on plaintiffs’
behalf. Or it could reflect a position defendants have advanced:
that without the return of the summons, the court could not
adjudicate the deposit amount. Had plaintiffs argued for a
reduction in or deferral of the deposit or had they returned the
summons, we might know whether the deposit was the
insuperable hurdle they make it out to be. But plaintiffs took
none of these courses, and we remain in the dark.
Though plaintiffs bristle at the notion that their actions
suggest bad faith, we fail to see how they could be
characterized otherwise. The district court specifically
instructed plaintiffs to seize the opportunity to be heard on the
9
deposit issue and pursue the alternatives defendants had
identified. Plaintiffs did just the opposite. The bottom line is
simple: plaintiffs consistently worked to undermine their suit
in Cameroon, and the district court did not abuse its discretion
in concluding that their efforts succeeded.
B.
An alternative forum is inadequate if the plaintiff will be
“treated unfairly” there. Piper Aircraft Co. v. Reyno, 454 U.S.
235, 255 (1981); see, e.g., Tuazon v. R.J. Reynolds Tobacco
Co., 433 F.3d 1163, 1179 (9th Cir. 2006) (noting that the
prevalence of corruption, delay or bias may render a forum
inadequate). Plaintiffs argue that the district court should have
granted reconsideration in light of new evidence strengthening
their previously unsuccessful claim that Cameroon was an
inadequate forum because plaintiffs could not receive a fair
trial there. We do not reach the merits of this argument because
plaintiffs failed to preserve it below.
In opposing defendants’ motion to dismiss, plaintiffs
argued that they would not be treated fairly in a Cameroonian
court. The problem lay in the supposed desire of the
Cameroonian executive to retaliate against plaintiffs for Roger
Tchoufa going public with the bribery demands made of MBI.
This animus drove an alleged campaign of harassment against
Tchoufa that included prosecuting him and his wife for their
purported role in the corruption at CFC. Plaintiffs maintained
that the executive would be able to further its vendetta by
ordaining an adverse result against them in the courts. In
granting defendants’ motion to dismiss, the district court
rejected this argument because plaintiffs produced insufficient
evidence to rebut defendants’ showing that the judiciary in
Cameroon was independent from executive influence. MBI I,
558 F. Supp. 2d at 29–30.
10
In their first motion for reconsideration, filed on June 24,
2008, plaintiffs did not contest the district court’s conclusion
that the courts in Cameroon were independent. Then, on July
11, 2008, a Cameroonian court convicted Tchoufa and his wife
in absentia on what plaintiffs claim were bogus charges of
misappropriating public funds. In their reply to defendants’
opposition to their motion, plaintiffs pointed to the convictions
as new evidence of the inability of Cameroon’s judiciary to
withstand executive pressure.
The district court, without addressing the convictions or
any other issue plaintiffs raised, dismissed plaintiffs’ motion
without prejudice pending the result of the Cameroonian
proceeding on the deposit issue. MBI II, slip op. at 2. This left
plaintiffs free to raise in a renewed motion for reconsideration
their previous arguments in favor of vacating the dismissal of
their suit.
Plaintiffs filed that renewed motion on April 20, 2009, but
it said nothing of the Tchoufas’ convictions. Indeed, they
raised no argument at all about the independence of the
Cameroonian judiciary. They argued instead that the district
court should vacate the dismissal on account of the prohibitive
court deposit or, “[i]n the alternative,” because of its allegedly
erroneous conclusions concerning the public interests
implicated by this suit, as well as “the impact of the
unavailability of MBI’s representative [Tchoufa] in
Cameroon.” Memo. in Support of Pls. Renewed Mot. for
Reconsideration at 2. This last point did not address any
shortcoming in Cameroonian justice, but stressed instead the
disadvantages that would result from Tchoufa’s reluctance to
attend a trial in Cameroon. Only at the end of their reply to
defendants’ opposition to the renewed motion did plaintiffs
even mention the convictions.
11
The district court did not address whether the convictions
gave support to plaintiffs’ concerns about the Cameroonian
forum. Nor do we. “We root this decision in our
well-established discretion not to consider claims that litigants
fail to raise sufficiently below and on which district courts do
not pass.” Cruz v. Am. Airlines, Inc., 356 F.3d 320, 329 (D.C.
Cir. 2004). Though “[t]here is no bright-line rule to determine
whether a matter has been properly raised” below, Edmond v.
U.S. Postal Serv. Gen. Counsel, 949 F.2d 415, 422 (D.C. Cir.
1991), “district courts, like this court, generally deem
arguments made only in reply briefs to be forfeited,”
Pardo-Kronemann v. Donovan, 601 F.3d 599, 610 (D.C. Cir.
2010). We see no reason to deviate from that principle here.
“[R]eply briefs reply to arguments made in the response
brief—they do not provide the moving party with a new
opportunity to present yet another issue for the court’s
consideration.” Novosteel SA v. United States, 284 F.3d 1261,
1274 (Fed. Cir. 2002).
That plaintiffs raised the convictions during the
proceedings on their first reconsideration motion does not
excuse their failure to present the issue in their renewed motion
for reconsideration. District courts need not refer back to prior
filings to identify arguments that the moving party could (and
should) have addressed in the motion then under consideration.
By failing to raise the issue of the convictions in their renewed
motion for reconsideration, plaintiffs failed to preserve it for
our review.
Because plaintiffs raise no other objection to the district
court’s underlying assessment of the independence of
Cameroon’s judicial branch, see Appellants’ Br. at 28–30
(arguing only that the Tchoufa’s convictions demonstrated that
the Cameroonian judiciary lacked independence), we need not
consider the merits of that decision. Nevertheless, we pause to
12
clarify a point of law that figured into the district court’s
original dismissal of the suit. Plaintiffs had introduced a State
Department report that found that the judiciary in Cameroon
was subject to executive influence. The district court
discounted this showing, explaining that “binding authority in
this jurisdiction defeats plaintiffs’ reliance upon the State
Department’s report.” MBI I, 558 F. Supp. 2d at 30. The
authority relied upon was a passage in El-Fadl v. Central Bank
of Jordan explaining that a “foreign forum is not inadequate
. . . because of general allegations of corruption in the judicial
system” and that “reliance on a State Department report
expressing ‘concern about the impartiality’ of the [foreign]
court system . . . is unavailing” to show inadequacy. 75 F.3d
668, 678 (D.C. Cir. 1996), abrogated on other grounds by
Samantar v. Yousuf, 130 S. Ct. 2278 (2010).
El-Fadl does not erect a per se bar to the consideration of
State Department reports in a forum non conveniens inquiry.
To be sure, “general allegations” of deficiency do not alone
warrant the conclusion that a foreign forum is inadequate. Id.
But it does not follow that State Department reports are
irrelevant to the inquiry. Such reports could be relevant to the
extent they provide reliable information that corroborates a
plaintiff’s claims about the character of another nation’s
judiciary. However, because plaintiffs have not raised the issue
for our review, we do not address whether the district court
erred in discounting the State Department report proffered in
this case.
C.
In dismissing plaintiffs’ suit, the district court determined
that the relevant private and public interests strongly favored
litigating this matter in Cameroon. See MBI I, 558 F. Supp. 2d
at 32–36. Plaintiffs contend the district court should have given
greater weight to the U.S. government’s fight against foreign
13
corruption as a public interest weighing in favor of an
American forum. The district court did not abuse its discretion
in refusing to do so.
The Supreme Court laid out the interests to be considered
in the forum non conveniens inquiry in Gulf Oil Corp. v.
Gilbert, 330 U.S. 501 (1947). The private interests include
“ease of access to sources of proof”; “availability of
compulsory process for attendance of unwilling” witnesses;
“the cost of obtaining attendance of willing” witnesses; the
“possibility of view of premises” by the court and jury if
needed; and “all other practical problems that make trial of a
case easy, expeditious and inexpensive.” Id. at 508. The public
interest factors include the “local interest in having localized
controversies decided at home”; the possibility of holding the
trial in a forum “at home with the [] 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”; and
avoiding the imposition of jury duty on “people of a
community which has no relation to the litigation” and other
“administrative difficulties” that flow from foreign litigation
congesting local courts. Id. at 508–09.
The district court concluded that the private interests
clearly favored a Cameroonian forum because of the numerous
hurdles to proceeding in the United States, including the cost
and complexity of the French-to-English translation necessary
for taking evidence and testimony, the court’s inability to
subpoena unwilling witnesses located in Cameroon, and the
cost of producing the willing ones. MBI I, 558 F. Supp. 2d at
32–34. The court determined that the public interests also
supported dismissal. It found the United States’s interest in
seeing domestic companies made whole for injuries sustained
abroad outweighed by Cameroon’s superior interest in a matter
involving a development project and official corruption in that
14
country as well as the district court’s unfamiliarity with
Cameroonian law. Id. at 34–36.
Plaintiffs argue that the district court abused its discretion
in ignoring the United States’ interest in protecting domestic
corporations, like MBI, from the corrupt practices of foreign
governments, such as the bribery demands plaintiffs say
scuttled their project. Plaintiffs consider this interest to be a
part of the government’s interest in having this controversy
resolved in the United States. But they identify no case in
which this purported interest in fighting foreign corruption
figured into a court’s forum non conveniens analysis. Even if it
were an appropriate consideration, at most it would be matched
against Cameroon’s own significant interest in this
controversy, but it would hardly disturb the district court’s
overall conclusion that the public and private interests strongly
favored dismissal. We therefore conclude that the district court
did not abuse its discretion in weighing the public and private
interests.
III.
For the foregoing reasons, the dismissal of plaintiffs’ suit
and the denial of their renewed motion for reconsideration are
Affirmed.