Dickson Marine Inc. v. Panalpina, Inc.

REVISED, June 28, 1999

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

97-30872

DICKSON MARINE INCORPORATED;
DICKSON GMP INTERNATIONAL, INCORPORATED;
POWER OFFSHORE SERVICES INCORPORATED;
POWER WELL SERVICE NO. 4, INCORPORATED
Plaintiffs/Appellants,

versus

PANALPINA, INC.;
PANALPINA NEW ORLEANS;
PANALPINA PORT GENTIL; AIR SEA BROKER, A.G.;
AIR SEA BROKER, S.A.;
AIR SEA BROKER, LTD; SATRAM; SEMTS;
and L’UNION DES ASSURANCES DE PARIS, (UAP)
Defendants,
and

AIR SEA BROKER, LTD. and PANALPINA
TRANSPORTS MONDIAUX GABON S.A.
Defendants/Appellees.

Appeal from the United States District Court
for the Eastern District of Louisiana
June 23, 1999

Before DeMOSS, PARKER, and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

The district court dismissed the Louisiana plaintiffs’ actions

against two foreign corporate subsidiaries of a multinational

corporation on grounds of lack of personal jurisdiction in

Louisiana as to one defendant and forum non conveniens as to the

1
other. The Plaintiff argues that Louisiana is the proper forum for

the actions because of an agency relationship or a lack of separate

corporate identity between the corporations. For essentially the

same reasons assigned by the district court, we affirm the district

court’s decision to reject the plaintiffs’ arguments and dismiss

their actions.

I.

The Plaintiffs, Dickson Marine, Inc., Dickson GMP

International, Inc., Power Offshore Services, Inc., and Power Well

Service No. 4, Inc. (collectively referred to as “Dickson”),

brought these actions to recover for significant property damage to

the DICKSON IV, a vessel owned and operated by Dickson.

In 1992 the DICKSON IV was operating off the coast of West

Africa and was in need of repairs. To arrange for these repairs,

Dickson contacted the New Orleans office of Panalpina, Inc., an

American corporation based in New Jersey (“Panalpina-N.J.”).

Unable to help directly, Panalpina-N.J. referred Dickson to Air Sea

Broker, Ltd. (“Air Sea”). Air Sea put Dickson in touch with

Panalpina Transports Mondiaux Gabon S.A (“Panalpina Gabon”) in Port

Gentil, Gabon to handle the repairs. Panalpina Gabon did not have

actual repair capabilities, but it subcontracted with SATRAM and

SEMTS to conduct the necessary work. During the repair work, the

DICKSON IV capsized.

In 1993, Dickson and its hull underwriters filed a

“Zahlungsbefehl” in Switzerland against Air Sea. A Zahlungsbefehl

2
(an order to pay) is a legal document that interrupts the statute

of limitations and preserves a party’s legal rights. Thereafter,

in 1995 Dickson filed this suit in Louisiana state court against

Panalpina-N.J., Panalpina Gabon (Incorrectly identified as

Panalpina Port Gentil), Air Sea (Incorrectly identified as three

separate companies), SATRAM, SEMUS, and L’Union des Assurance de

Paris. Panalpina-N.J., Panalpina Gabon, and Air Sea removed the

suit to Federal Court.

In the district court, Dickson released and dismissed SEMTS

and L’Union des Assurance de Paris. SATRAM has not appeared and

Dickson has not sought a default judgment against them. The action

against Panalpina-N.J. was dismissed on summary judgment. Thus,

the only defendants on appeal are Panalpina Gabon and Air Sea.

Panalpina Gabon is a Gabonese corporation with its principal

place of business in Port Gentil, Gabon. Air Sea is a Swiss

corporation with its principal place of business in Basel,

Switzerland. Air Sea and Panalpina Gabon are subsidiaries of

Panalpina World Transport, Inc. (“Panalpina World”), an

international conglomerate having operations through subsidiaries

on six continents. Air Sea acts as a coordination/liaison office

for Panalpina World’s subsidiaries on the Western Coast of Africa.

Panalpina Gabon filed a motion to dismiss for a lack of

personal jurisdiction and Air Sea filed a motion for dismissal due

to forum non conveniens in the district court. The district court

granted both motions. Dickson is appealing the orders of the

district court.

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 II.

The only issues Dickson brings before this Court are (1) did

the district court commit error in granting Panalpina Gabon’s

motion to dismiss for lack of personal jurisdiction, and (2) did

the district court abuse its discretion in granting Air Sea’s

motion of forum non conveniens.

III.

Absent any dispute as to the relevant facts, whether in

personam jurisdiction can be exercised over a defendant is a

question of law and subject to de novo review. Ruston Gas

Turbines, Inc. v. Dondaldson Co., Inc., 9 F.3d 415, 418 (5th Cir.

1993).

A district court’s dismissal for forum non conveniens is

reviewed by a court of appeal for an abuse of discretion. Piper

Aircraft Co. v. Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 266

(1981). Appellate courts “review the lower court’s decisionmaking

process and conclusion and determine if it is reasonable,” they do

not “perform a de novo analysis and make the initial determination

for the district court.” In Re Air Crash Disaster Near New

Orleans, Louisiana, 821 F.2d 1147, 1167 (5th Cir. 1987).

IV.

To exercise personal jurisdiction over a nonresident

defendant, two requirements must be met. First, the nonresident

defendant must be amenable to service of process under a State’s

long-arm statute. Jones v. Petty-Ray Geophysical, Geosource, Inc.,

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954 F.2d 1061, 1067 (5th Cir. 1992). Second, the assertion of in

personam jurisdiction must be consistent with the 14th Amendment’s

Due Process Clause. Id. Because Louisiana’s long-arm statute

extends to the limits of due process, we only need to determine if

subjecting Panalpina Gabon to suit in Louisiana would offend the

Due Process Clause of the 14th Amendment. See LSA-R.S. 13:3201(B).

See also Petroleum Helicopters, Inc. v. Avco Corp., 513 So.2d 1188,

1191 (La. 1987).

The Due Process Clause protects an individual’s liberty

interest in not being subject to the binding judgments of a forum

with which the individual has established no meaningful “contacts,

ties, or relations.” Burger King Corp. v. Rudzewicz, 471 U.S. 462,

474, 105 S.Ct. 2174, 2183 (1985), citing International Shoe Co. v.

Washington, 326 U.S. 310, 66 S.Ct. 154 (1945). Requiring that

individuals have “fair warning that a particular activity may

subject [them] to the jurisdiction of a foreign sovereign,” Shaffer

v. Heitner, 433 U.S. 186, 218, 97 S.Ct. 2569, 2587 (1977) (Stevens,

J., concurring), the Due Process Clause “gives a degree of

predictability to the legal system that allows potential defendants

to structure their primary conduct with some minimum assurance as

to where that conduct will and will not render them liable to

suit.” Burger King, 471 U.S. at 474, 105 S.Ct. at 2183, citing

World-Wide Volkswagen Corp. v. Woodson, 44 U.S. 286, 297, 100 S.Ct.

559, 567 (1980).

Due process will not be offended if the nonresident defendant

has “certain minimum contacts with [the forum] such that the

5
maintenance of the suit does not offend ‘traditional notions of

fair play and substantial justice.’” International Shoe, 326 U.S.

at 316, 66 S.Ct. at 158, quoting Milliken v. Meyer, 311 U.S. 457,

463, 61 S.Ct. 339, 343 (1940). When an action “arises out of” a

defendant’s contacts with the forum, a “relationship among the

defendant, the forum, and the litigation” is the essential

foundation of in personam jurisdiction. Shaffer v. Heitner, 433

U.S. 186, 204, 97 S.Ct. 2569, 2579 (1977). This type of

jurisdiction, in which the suit arises out of or is related to the

defendant’s contacts with the forum, is commonly referred to as

“specific jurisdiction.” Helicopteros Nacionales De Colombia, S.A.

v. Hall, 466 U.S. 408, 414 n. 8, 104 S.Ct. 1868, 1872 n. 8 (1984).

Additionally, there may be instances “in which the continuous

corporate operations within a state [are] so substantial and of

such a nature as to justify suit against [a foreign defendant] on

causes of action arising from dealings entirely distinct from those

activities.” International Shoe, 326 U.S. at 318, 66 S.Ct. at 159.

When this situation prevails, enabling the state to exercise

personal jurisdiction over a defendant in a suit not arising out of

or not related to the defendant’s contacts with the forum, the

forum is said to have “general jurisdiction.” Helicopteros, 466

U.S. at 414 n. 9, 104 S.Ct. at 1872. Defendants can be subject to

general in personam jurisdiction if they have “continuous and

systematic” contacts with the forum state. Perkins v. Benquet

Consolidated Mining Co., 342 U.S. 437, 445, 72 S.Ct. 413, 418

(1952)

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 In the present case, Dickson avers that Panalpina Gabon is

subject to in personam jurisdiction in Louisiana under a specific

jurisdiction theory because of the contacts created when Air Sea

assisted Dickson in contracting for vessel repairs with Panalpina

Gabon in Gabon. In the alternative, Dickson claims Panalpina Gabon

has continuous and systematic contacts with Louisiana to warrant

general jurisdiction. We will consider Dickson’s arguments in

turn.

A.

As we stated above, when the litigation “arises out of” a

defendant’s contacts with the forum, a “relationship among the

defendant, the forum, and the litigation” is the essential

foundation of specific jurisdiction. Shaffer, 433 U.S. at 204, 97

S.Ct. at 2579. There must be “some act by which the defendant

purposefully avails itself of the privilege of conducting

activities within the forum State, thus invoking the benefits and

protections of its laws.” Hanson v. Denckla, 357 U.S. 235, 253, 78

S.Ct. 1228, 1239-40 (1958). The “purposeful availment” element

“ensures that a defendant will not be haled into a jurisdiction

solely as a result of ‘random,’ ‘fortuitous,’ or ‘attenuated’

contacts, ... or of the ‘unilateral activity of another party or a

third person.’” Burger King Corp., 471 U.S. at 475, 105 S.Ct. at

2183.

Dickson maintains that the repair arrangement with Panalpina

Gabon represents and establishes sufficient contacts to warrant

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specific jurisdiction. Notably, however, there is no evidence in

the record of a written or formalized contract between Panalpina

Gabon and Dickson for the repair of the DICKSON IV. The record

shows that a Dickson representative contacted the office of

Panalpina-N.J. in New Orleans which contacted Air Sea which

assisted Dickson in contracting with Panalpina Gabon for the repair

of Dickson’s vessel in Gabon. Employees of Dickson traveled to

Gabon to inspect the facilities and to receive an estimate of

repair. Panalpina Gabon began the repairs in Gabon, but there is

a dispute as to whether Dickson actually accepted Panalpina Gabon’s

offer.

In any event, the existence of a contractual relationship,

although relevant, does not automatically establish sufficient

minimum contacts. Burger King, 471 U.S. at 478, 105 S.Ct. at 2185.

A contract is merely an intermediate step serving to tie up prior

consequences which themselves are the real object of the business

transaction. Id. The factors of prior negotiations and

contemplated future consequences, along with the terms of a

contract and the parties’ actual course of dealing, must be

evaluated in determining whether the defendant purposefully

established minimum contacts within the forum. Id. Thus,

regardless of whether an actual written contract existed, we must

look to the prior negotiations, contemplated future consequences of

the agreement, and the actual course of dealing between the parties

to determine if minimum contacts existed between Panalpina Gabon

and Louisiana.

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 In attempting to show sufficient minimum contacts, Dickson

presents a three-part argument. First, Dickson assumes that Air

Sea made enough contacts with Louisiana, related to the repair

contract between Dickson and Panalpina Gabon, to subject Gabon to

Louisiana jurisdiction if those contacts are attributable to Gabon.

The facts in the record, however, do not support Dickson’s initial

assumption.

The bulk of the negotiations to repair the DICKSON IV occurred

in Gabon, Africa and Basel, Switzerland. The arrangement called

for its performance in Gabon and contemplated only minimal contacts

between Dickson and either Panalpina Gabon or Air Sea in Louisiana.

Essentially, the transaction was a contract of repair between

Dickson and Panalpina Gabon entered into in Gabon. The parties

contemplated that once Panalpina Gabon repaired the vessel in Gabon

and Dickson made payment, all contacts created by the arrangement

would cease. Moreover, no portion of the performance was to occur

in Louisiana. The sole place of performance was to be on the coast

of Africa in Gabon. See Petty-Ray Geophysical, 954 F.2d at 1068.

Dickson sought out Air Sea and Panalpina Gabon for the repairs;

neither employees nor agents of Panalpina Gabon or Air Sea came to

Louisiana to solicit the repairs of the specific vessel DICKSON IV.

As the Supreme Court has stated, the “unilateral activity of those

who claim some relationship with a nonresident defendant cannot

satisfy the requirement of contact with the forum state.” Hanson

v. Denckla, 357 U.S. at 253, 78 S.Ct. at 1239-40. Because the

repairs on the DICKSON IV created only limited contacts with

9
Louisiana, were performed entirely outside of Louisiana, were

negotiated for primarily in Gabon, and were initiated by Dickson,

the contacts with Louisiana created by the repair contract or

arrangement were not sufficient to establish the minimum contacts

with the forum as required by due process.

Second, Dickson nevertheless attempts to prove that the

contacts of Air Sea can be attributed to Panalpina Gabon, asserting

that Air Sea acted as Panalpina Gabon’s agent or that Air Sea was

the alter-ego of Panalpina Gabon. Dickson’s argument fails because

it cannot demonstrate that Panalpina Gabon exercised control over

Air Sea.

Courts have long presumed the institutional independence of

related corporations, such as parent and subsidiary, when

determining if one corporation’s contacts with a forum can be the

basis of a related corporation’s contacts. See Cannon Mfg. Co. v.

Cudahy Packing Co., 267 U.S. 333, 45 S.Ct. 250 (1925). This

presumption of corporate separateness, however, may be overcome by

clear evidence. Donatelli v. National Hockey League, 893 F.2d 459,

465 (1st Cir. 1990). Invariably such clear evidence requires an

additional or a “plus” factor, “something beyond the subsidiary’s

mere presence within the bosom of the corporate family.” Id.

There must be evidence of one corporation asserting sufficient

control to make the other its agent or alter ego. Id., 893 F.2d at

465-66. See also Walker v. Newgent, 583 F.2d 163, 167 (5th Cir.

1978); Wells Fargo & Co. v. Wells Fargo Exp. Co., 556 F.2d 406, 420

(9th Cir. 1977). Moreover, the burden of making a prima facie

10
showing of such symbiotic corporate relatedness is on the proponent

of the agency/alter ego theory. Product Promotions, Inc. v.

Cousteau, 495 F.2d 483, 492-93 (5th Cir. 1974), overruled on other

grounds, Insurance Corporation of Ireland v. Compagnie des Bauxites

de Guinee, 456 U.S. 694, 702-03, 102 S.Ct. 2099, 2104-05 (1982), as

stated in Burstein v. State Bar of California, 693 F.2d 511, 518 n.

12 (5th Cir. 1982).

It is undisputed that Air Sea frequently has benefited

Panalpina Gabon by assisting maritime companies in contracting with

Panalpina Gabon for services in Gabon. But there is no evidence in

the record that Panalpina Gabon controlled Air Sea. The record

shows that Air Sea is a “middleman” who assists vessel owners in

contracting with Panalpina World subsidiaries in countries on the

West coast of Africa for maritime service. These facts alone are

not enough evidence to establish a prima facie case of control.

Dickson has not alleged concrete facts or introduced any evidence

to show that Air Sea had any actual or apparent authority to bind

Panalpina Gabon, or that Air Sea and Panalpina Gabon have

disregarded corporate formalities to the point of Air Sea being an

alter ego of Panalpina Gabon.

In Hargrave v. Fibreboard Corporation, 710 F.2d 1154 (5th Cir.

1983), this Court set out factors to be considered in deciding

whether a parent company can be held amenable to personal

jurisdiction because of the acts of a subsidiary. Id. at 1159.

There is only a sibling corporate relationship between Air Sea and

Panalpina Gabon by virtue of Panalpina World’s ownership of a

11
majority interest in each. Thus, it could be argued that an even

stronger showing under the Hargrave factors should be required.

Application of the Hargrave factors by analogy, however, fails to

demonstrate, even minimally, that Panalpina Gabon controlled Air

Sea or was an alter ego of Air Sea.

The Hargrave factors are (1) amount of stock owned by the

parent of the subsidiary; (2) did the two corporations have

separate headquarters; (3) did they have common officers and

directors; (4) did they observe corporate formalities; (5) did they

maintain separate accounting systems; (6) did the parent exercise

complete authority over general policy; (7) did the subsidiary

exercise complete authority over daily operations. Id. at 1160.

There is little evidence that any of the Hargrave factors tug

in favor of finding that Panalpina Gabon controlled Air Sea. No

business was done outside of Gabon by Panalpina Gabon; Panalpina

Gabon’s principal place of business is in Gabon and Air Sea’s is in

Switzerland; Panalpina Gabon did not dictate policy to Air Sea;

Panalpina Gabon did not own any Air Sea stock; and neither

controlled the other’s daily operations. As this Court stated in

Hargrave, the mere fact that a corporate relationship exists is not

sufficient to warrant the assertion of jurisdiction over a related

corporate entity. Hargrave, 710 F.2d at 1159. Therefore we are

convinced that Dickson failed to carry the burden of establishing

a prima facie showing of sufficient control to establish an alter-

ego or agency relationship between Air Sea and Panalpina Gabon.

In conclusion, Disckson’s argument falters at every turn:

12
Dickson assumes without adequately demonstrating that sufficient

specific contacts were made with Louisiana to subject Panalpina

Gabon to personal jurisdiction if Air Sea’s acts as an intermediary

can be imputed to Panalpina Gabon; Dickson asserts that Air Sea

acted as Panalpina Gabon’s agent, but fails to adduce facts showing

that Panalpina Gabon controlled Air Sea; and Dickson contends that

Panalpina Gabon’s corporate affiliation with Air Sea is sufficient

evidence of corporate control, but does not set forth facts to

demonstrate control or alter ego status under the Hargrave factors.

B.

Unlike the specific jurisdiction analysis, which focuses on

the cause of action, the defendant and the forum, a general

jurisdiction inquiry is dispute blind, the sole focus being on

whether there are continuous and systematic contacts between the

defendant and the forum. Helicopteros, 466 U.S. at 414, 104 S.Ct.

at 1872. See Mary Twitchell, The Myth of General Jurisdiction, 101

Harv.L.Rev. 610 (1988). Due process requires that “continuous and

systematic” contacts exist between the State and the foreign

corporation to exercise general personal jurisdiction because the

forum state does not have an interest in the cause of action.

Helicopteros, 466 U.S. at 415-16, 104 S.Ct. at 1872-73.

Despite the factually intensive nature of determining whether

a defendant has “continuous and systematic” contacts, the Supreme

Court has only addressed two cases that have directly dealt with

general jurisdiction: Perkins v. Benquet Consolidated Mining

13
Company, 342 U.S. 437, 72 S.Ct. 413 (1952) and Helicopteros

Nacionales De Colombia, S.A. v. Hall.

In Perkins v. Benquet Consolidated Mining Company, Benquet

Consolidated Mining Co. (“Benquet Mining”) was forced to halt its

mining operations due to the Japanese occupation of the Philippine

Islands during World War II. While the company was exiled from the

Philippines, Benquet Mining’s president, general manager, and

principal stockholder returned to his home in Ohio. There he

conducted the company’s business, which included drawing salary

checks, using two Ohio banks to hold company funds, holding several

directors’ meetings, and reestablishing business in the Philippines

after the occupation. The president of Benquet Mining essentially

“carried on in Ohio a continuous and systematic supervision of the

necessarily limited wartime activities of the company.” Perkins,

342 U.S. at 448, 72 S.Ct. at 419. Finding personal jurisdiction

over Benquet Mining in Ohio, the Court held that these continuous

and systematic contacts with Ohio were sufficient to hold them

subject to personal jurisdiction in Ohio. Id., 342 U.S. at 448, 72

S.Ct. at 420.

In Helicopteros Nacionales De Colombia, S.A. v. Hall, a

helicopter accident occurred in Peru that killed American citizens.

The relatives of those citizens sued the foreign defendant,

Helicopteros, in Texas state court. The Court concluded that

because the accident did not arise out of or relate to the foreign

corporation’s activities in the forum state, specific personal

jurisdiction did not apply.

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 With respect to whether there was general personal

jurisdiction, the Court found that Helicopteros had never been

authorized to do business in Texas, never had an agent for service

of process in Texas, never solicited business in Texas, never

signed a contract in Texas (although it did contract with residents

of Texas several times), never had any employee based in Texas,

never owned any real property in Texas, never maintained an office

in Texas, did not maintain any records in Texas, and did not have

any shareholders in Texas. Helicopteros, 466 U.S. at 411-12, 104

S.Ct. at 1870-71.

Helicopteros, however, did have numerous contacts with Texas.

For seven years, Helicopteros purchased helicopters, spare parts,

and accessories from Bell Helicopters in Texas; Helicopteros sent

prospective pilots to Texas training; and management and

maintenance personnel of Helicopteros visited Bell in Texas.

Helicopteros, 466 U.S. at 411, 104 S.Ct. at 1870.

Notwithstanding the contacts Helicopteros had with Texas, the

Court held that the contacts did not “constitute the kind of

continuous and systematic general business contacts the Court found

to exist in Perkins.” Helicopteros, 466 U.S. at 416, 104 S.Ct. at

1873. “[P]urchases and related trips, standing alone, are not a

sufficient basis for a State’s assertion of jurisdiction.” Id.,

466 U.S. at 417, 104 S.Ct. at 1874.

Dickson attempts to show that Air Sea, along with Panalpina

World and Panalpina-N.J., are the agents or alter egos of Panalpina

Gabon in an effort to attribute continuous and systematic contacts

15
with Louisiana to Panalpina Gabon. Dickson alleges that Panalpina

Gabon, through Air Sea, Panalpina World and Panalpina-N.J.,

solicited business in Louisiana, contracted with Louisiana

residents, and advertised in Louisiana. Dickson attempts to

establish an agency/alter-ego relationship by introducing volumes

of exhibits, affidavits, and depositions into the record that

purportedly show how Panalpina World, Air Sea, and Panalpina-N.J.

disregarded corporate formalities with respect to Panalpina Gabon

bringing about continuous and systematic contacts with Louisiana.

As we previously stated, the mere fact that a corporate

relationship exists is not sufficient evidence to warrant the

assertion of jurisdiction over a related corporate entity.

Hargrave, 710 F.2d at 1159. There must be control exerted by the

principal over the agents. Donatelli, 893 F.2d at 465-66.

Although there is ample evidence of the Panalpina corporations

having many dealings with each another, there is no evidence in the

record of Panalpina Gabon exercising any control over Air Sea,

Panalpina World, or Panalpina-N.J. These companies are separate

entities organized under the laws of separate sovereigns. Indeed,

the parties do not dispute that Panalpina Gabon does not have any

offices, shareholders, or employees located in Louisiana, and that

contracts with Louisiana companies were always performed in Gabon.

The record shows that Panalpina Gabon simply exercised its right to

structure its affairs in a manner calculated to shield it from the

general jurisdiction of forums other than Gabon. Bearry v. Beech

Aircraft Corp., 818 F.2d 370, 375-76 (5th Cir. 1987). Furthermore,

16
Panalpina Gabon has not afforded itself the benefits and

protections of the laws of Louisiana but has calculatedly avoided

them. Id. at 376. In sum, because the alleged agency or alter ego

relationship does not exist, Air Sea’s actions in Louisiana could

not and did not establish any contacts, much less “continuous and

systematic” contacts, between Panalpina Gabon and Louisiana as

required by due process to subject Panalpina Gabon to general

personal jurisdiction in Louisiana. Helicopteros, 466 U.S. at 416,

104 S.Ct. at 1873.

C.

Dickson also argues that in personam jurisdiction over

Panalpina Gabon should be established as a sanction for the failure

to participate in good faith discovery.

In Insurance Corporation of Ireland, Limited v. Compagnie des

Bauxites de Guinee, 456 U.S. 694, 102 S.Ct. 2099 (1982), the

Supreme Court held that the failure to comply with discovery

requests “may amount to a legal submission to the jurisdiction of

the court, whether voluntary or not.” Id., 456 U.S. at 704-05, 102

S.Ct. at 2105. The Court stated:

The expression of legal rights is often subject to

certain procedural rules: The failure to follow those

rules may well result in a curtailment of the rights.

Thus, the failure to enter a timely objection to personal

jurisdiction constitutes, under Rule 12(h)(1), a waiver

of the objection. A sanction under Rule 37(b)(2)(A)

17
 consisting of a finding of personal jurisdiction has

precisely the same effect.

Id.

After a review of the record, we agree with the district court

that Dickson’s argument is “without merit and disingenuous.”

Panalpina Gabon participated in good faith discovery. The record

reveals that Panalpina Gabon allowed a deposition to be taken of an

employee in New Orleans and the employee brought records requested

by Dickson from Gabon. Unlike Baxuites where the defendant did

nothing to cooperate with the plaintiff’s requests for discovery or

the district court’s orders, it is clear that Panalpina Gabon has

cooperated sufficiently. Therefore, we affirm the district court’s

denial of sanctions under Rule 37(b)(2).

V.

After the district court dismissed Panalpina Gabon, the

remaining defendant, Air Sea, sought dismissal on the grounds of

forum non conveniens, which the district court granted.

An appellate court cannot reverse a district court’s granting

of a motion to dismiss for forum non conveniens unless the district

court abused its discretion. Reyno, 454 U.S. at 255, 102 S.Ct. at

265. “[W]here the court has considered all relevant public and

private interest factors, and where its balancing of these factors

is reasonable, its decision deserves substantial deference.” Id.,

454 U.S. at 257, 102 S.Ct. at 266.

In discussing the abuse of discretion standard of review, the

18
Supreme Court stated that “[t]he question, of course, is not

whether this Court, or whether the Court of Appeals, would as an

original matter have dismissed the action; it is whether the

District Court abused its discretion in so doing.” National Hockey

League v. Metropolitan Hockey Club, 427 U.S. 639, 642, 96 S.Ct.

2778, 2780 (1976). Although a list of examples of abuses of

discretion is difficult to formulate, generally, a district court

abuses its discretion when it grants a motion to dismiss without

oral or written reasons or if it fails to address and balance the

relevant principles and factors. In re Air Crash Disaster, 821

F.2d at 1166. We will review the district court’s decision under

these established principles of appellate review.

The doctrine of forum non conveniens was “crystallized” in

Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 67 S.Ct. 839 (1947)

and its companion case Koster v. (American) Lumbermans Mutual

Casualty Company, 330 U.S. 518, 67 S.Ct. 828 (1947). Reyno, 454

U.S. at 248 n. 13, 102 S.Ct. at 262 n. 13. The general principle

of the doctrine “is simply that a court may resist imposition upon

its jurisdiction even when jurisdiction is authorized.” Gilbert,

330 U.S. at 507, 67 S.Ct. at 842. The doctrine of forum non

conveniens presupposes at least two forums where the defendant is

amendable to process and simply furnishes criteria for choice

between them. Id., 330 U.S. at 506-07, 67 S.Ct. at 842.

Therefore, once an adequate and available alternate forum is

identified, several “private” and “public” interest factors must be

balanced in order to determine if dismissal is warranted. Id., 330

19
U.S. at 508, 67 S.Ct. at 843. The “private” interest factors are:

[T]he relative ease of access to sources of proof;

availability of compulsory process for attendance of

unwilling, and the cost of obtaining attendance of

willing, witness; possibility 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.

Id.

The “public” interest factors are:

[T]he administrative difficulties flowing from court

congestion; the “local interest in having localized

controversies decided at home”; the interest in having

the trial of a diversity case in a forum that is at home

with the law that must govern the action; the avoidance

of unnecessary problems in conflict of laws, or in the

application of foreign law; and the unfairness of

burdening citizens in an unrelated forum with jury duty.

Reyno, 454 U.S. at 241 n. 6, 102 S.Ct. at 258 n. 6, quoting

Gilbert, 330 U.S. at 509, 67 S.Ct. at 843.

The Court has emphasized that no one private or public

interest factor should be given conclusive weight, and that the

plaintiff’s initial choice of forum should usually be respected.

In Re Air Crash Disaster, 821 F.2d at 1163. The central focus of

the forum non conveniens inquiry, however, is convenience. Reyno,

454 U.S. at 249, 102 S.Ct. at 262.

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 A.

The case law is clear that an alternate forum is adequate and

available when the entire case and all of the parties come within

the jurisdiction of that forum. Syndicate 420 at Lloyd’s London v.

Early American Ins. Co., 796 F.2d 821 (5th Cir. 1986). As the

district court observed, Dickson and its hull underwriters have

previously brought an action against Air Sea in Switzerland,

displaying that an adequate and available alternate forum exists in

Switzerland. Although the substantive law governing the action may

be different, the differences in substantive law should not be

given conclusive weight in a forum non conveniens inquiry. Reyno,

454 U.S. at 248-49, 102 S.Ct. at 262. Notably, however,

Switzerland does recognize causes of action for both contract and

tort, and Dickson and its hull underwriters have adequately

preserved their legal rights against Air Sea with the filing of the

Zahlungsbefehlen.

The district court’s conditional dismissal complies with In re

Air Crash Disaster Near New Orleans, Louisiana, 821 F.2d 1147 (5th

Cir. 1987), in which this Court stated that a district court must

“ensure that a plaintiff can reinstate his suit in the alternative

forum without undue inconvenience or prejudice and that if the

defendant obstructs such reinstatement in the alternative forum

that the plaintiff may return to the American forum.” Id. at 1166.

B.

In balancing the private interest factors, the district court

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correctly concluded that the focal point of the litigation against

Air Sea is in Switzerland. Although the suit arose out of the

damage to the DICKSON IV, which occurred off the coast of Africa,

the allegations of Dickson necessitate an inquiry into the

negotiations and brokering of the deal between Dickson and

Panalpina Gabon. The transaction was negotiated and brokered in

Switzerland and Gabon, the majority of the witnesses and employees

that handled the matter are located in Switzerland, and documents

and other evidence of the negotiation and brokering is located in

Switzerland and Gabon. Furthermore, because Air Sea is based in

Switzerland, it is amenable to service of process, and any judgment

levied against Air Sea will be enforceable in Switzerland. Taking

all of the private interests into consideration, we agree with the

district court that they weigh heavily in favor of Switzerland as

the most convenient forum.

Dickson maintains, on the other hand, that the appropriate

forum should be either Louisiana or Gabon because the capsize of

the vessel occurred in Gabon. We, however, do not focus solely on

the capsize of the vessel to determine the most convenient place

for the litigation between Dickson and Air Sea. The alleged

negligence of Air Sea involves the coordination of services and the

recommendation of Panalpina Gabon as the entity to repair the

vessel. Indeed, the facts and evidence surrounding the capsize of

the DICKSON IV, though relevant, are not of great consequence to a

determination of Air Sea’s alleged negligence.

Applying the public interest factors, the district court found

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that the administrative burdens will be no greater on a court in

Switzerland than on a court in Louisiana, that Gabonese or Swiss

law must be applied, but that courts in Louisiana have an interest

in this litigation because the plaintiffs are residents of

Louisiana. Although the district court concluded that the public

interest factors might point slightly toward Louisiana as the

appropriate forum, the private interest factors favoring the

Switzerland forum outweighed the public interest factors.

We do not find that the district court abused its discretion

in granting Air Sea’s motion to dismiss for forum non conveniens.

Because the district court has considered all relevant public and

private interest factors, and the balancing of the factors was

reasonable, we will not disturb its judgment. Reyno, 454 U.S. at

257, 102 S.Ct. at 266.

VI.

For the reasons assigned, we conclude that Panalpina Gabon is

not subject to in personam jurisdiction in Louisiana and that the

district court did not abuse its discretion in dismissing the claim

against Air Sea for forum non conveniens. Therefore, we affirm the

orders of the district court.

AFFIRMED.

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