RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0379p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellant, -
ZIONS FIRST NATIONAL BANK,
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No. 09-1704
v.
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Defendant-Appellee. -
MOTO DIESEL MEXICANA, S.A. DE C.V.,
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Appeal from the United States District Court
for the Eastern District of Michigan at Ann Arbor.
No. 08-10528—John Corbett O’Meara, District Judge.
Argued: July 27, 2010
Decided and Filed: December 15, 2010
Before: GIBBONS and KETHLEDGE, Circuit Judges; SARGUS, District Judge.*
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COUNSEL
ARGUED: Daniel G. Kielczewski, ABBOTT NICHOLSON, P.C., Detroit, Michigan,
for Appellant. Adolfo Campero, Jr., CAMPERO & BECERRA, Laredo, Texas, for
Appellee. ON BRIEF: Daniel G. Kielczewski, ABBOTT NICHOLSON, P.C., Detroit,
Michigan, for Appellant. Adolfo Campero, Jr., CAMPERO & BECERRA, Laredo,
Texas, for Appellee.
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OPINION
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SARGUS, District Judge. From December 10, 2007, through December 14,
2007, Moto Diesel Mexicana, S.A. de C.V. (“MDM”) issued eight checks totaling
$2 million to Casa de Cambio Majapara S.A. de C.V. (“Majapara”). The checks were
*
The Honorable Edmund A. Sargus, Jr., United States District Judge for the Southern District of
Ohio, sitting by designation.
1
No. 09-1704 Zions First Nat’l Bank v. Moto Diesel Mexicana Page 2
drawn on MDM’s account at Comerica Bank in Detroit, Michigan. On December 14
and 18, 2007, Majapara attempted to deposit all the funds from the eight checks into its
account at Zions First National Bank in Salt Lake City, Utah (“Zions”). In turn,
Majapora withdrew the $2 million from its account at Zions. Thereafter, however,
Comerica Bank notified Zions that the checks from MDM had been dishonored because
of insufficient funds. Ultimately, Zions suffered a loss of $2 million.
Zions brought suit against MDM alleging (1) holder in due course status;
(2) conversion; and (3) quantum valebant. In response to the Complaint, MDM filed
three motions to dismiss, under F. R. Civ. P. 12(b)(2), (5) and (6). Several months later,
before disposition of the pending motions, MDM filed a motion to dismiss on the
grounds of forum non conveniens. On April 1, 2009, the district court granted the
motion to dismiss on the grounds of forum non conveniens and denied as moot the other
pending motions.
Zions thereafter filed a motion for reconsideration, which the district court
denied. A timely appeal followed. On appeal, Zions argues that the district court erred
in dismissing its claims on forum non conveniens grounds. For the reasons that follow,
we VACATE the decision of the district court and REMAND for further proceedings
consistent with this Opinion.
I. STANDARD OF REVIEW
We review for clear abuse of discretion a district court’s determination that the
doctrine of forum non conveniens requires dismissal of a case. Duha v. Agrium, Inc.,
448 F.3d 867, 873 (6th Cir. 2006).1 A dismissal upon the grounds of forum non
conveniens is justified when a defendant establishes that an adequate alternative forum
is available and that the public and private factors enumerated in Gulf Oil Corp. v.
1
As explained by the Supreme Court, the doctrine is “a supervening venue provision, permitting
displacement of the ordinary rules of venue when, in light of certain conditions, the trial court thinks that
jurisdiction ought to be declined.” Am. Dredging Co. v. Miller, 510 U.S. 443, 453 (1994). Following
enactment of 28 U.S.C. § 1404(a) in 1962, the doctrine of forum non conveniens now applies only in cases
in which the alternative forum is in another country. If another federal district is an alternative forum,
dismissal on grounds of forum non conveniens is inapplicable and § 1404(a) applies. Sinochem Int’l Co.
v Malay. Int’l Shipping Corp., 549 U.S. 422, 430 (2007).
No. 09-1704 Zions First Nat’l Bank v. Moto Diesel Mexicana Page 3
Gilbert, 330 U.S. 501, 508-09 (1947), demonstrate that the chosen forum is
unnecessarily burdensome to a defendant or a district court. Id. The relevant public and
private factors in a forum non conveniens challenge, as set forth in Gulf Oil, include
access to witnesses and evidence, availability of compulsory process, cost of obtaining
witnesses, administration difficulties for the trial court, local interest in the litigation, and
the law applicable to the controversy. Gulf Oil, 330 U.S. at 508-09. These factors are
to be considered for each analytically distinct claim brought by a plaintiff. Duha, 448
F.3d at 879. “[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.” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257 (1981).
In determining whether a case should be dismissed on the grounds of forum non
conveniens, a district court must apply a strong presumption in favor of a plaintiff’s
selected forum, particularly if the forum is the home of the plaintiff, because “it is
reasonable to assume that this choice is convenient.” Id. at 255-56. When the plaintiff’s
choice of forum, however, is not the home of the plaintiff, the normally applicable
assumption that the forum choice is convenient carries significantly less weight. Id. at
255-56. Nevertheless, “[t]his lesser standard of deference should presumptively not
apply to a U.S. plaintiff’s choice of forum.” Duha, 448 F.3d at 874. Instead, “[i]n
general, the standard of deference for a U.S. plaintiff’s choice of a home forum permits
dismissal only when the defendant ‘establish[es] such oppressiveness and vexation to
a defendant as to be out of all proportion to a plaintiff’s convenience, which may be
shown to be slight or nonexistent.’” Id. 873-74 (quoting Koster v. Am. Lumbermens
Mut. Cas. Co., 330 U.S. 518, 524 (1947) (alteration in original)).
II. DISCUSSION
In this action, the district court applied the doctrine of forum non conveniens to
dismiss all three counts of Zions’ complaint based upon a conclusion that the case was
not a “local controversy.” Zions First Nat’l Bank v. Moto Diesel Mexicana, S.A., No.
08-10528, 2009 WL 910764, at *3 (E.D. Mich. Apr. 1, 2009) (internal quotation marks
omitted). The district court noted that none of the parties involved in the dispute is
No. 09-1704 Zions First Nat’l Bank v. Moto Diesel Mexicana Page 4
located in Michigan, the forum, and that “[t]he only connection to Michigan is that
MDM bounced checks drawn on an account here.” Id.
In determining that the case should be dismissed on the grounds of forum non
conveniens, the district court focused upon two considerations: first, whether an
adequate alternative forum exists for adjudicating the dispute; and second, whether
public and private interests can be best satisfied by a transfer of the case to an alternative
forum. As to the first factor, the district court determined that the courts of Mexico
provided an adequate forum. As to the second factor, the district court considered the
location of witnesses and evidence. The court found that all of the witnesses for MDM
and Majapara resided in Mexico, while Zions’ witnesses were in Utah. The court also
noted that, although the bank records were located in Michigan, they could be easily
transferred to Mexico. The district court, however, did not discuss whether the choice
of forum was oppressive or vexatious, nor did the district court conduct a separate
analysis of the relevant pubic and private factors for each distinct set of claims asserted
by Zions. We conclude that these omissions require remand.
Our review of this action is guided by Duha, 448 F.3d 867. In Duha, this Court
reversed the decision of a district court which had dismissed all claims on the basis of
forum non conveniens. The district court, in a manner similar to this case, analyzed two
issues regarding an alternative forum. First, the district court found that Argentina, the
foreign forum in that case, provided a reasonable and available alternative forum. Id.
at 872. Second, the court determined that, while witnesses were scattered among various
countries, Argentina provided the most convenient forum. Id.
On appeal, this Court recognized that the decision of the district court was
entitled to deference under a clear abuse of discretion review. Id. at 873. Nonetheless,
this Court found that the district court erred for three reasons:
First, the district court did not apply the deference required for a forum
choice made by a U.S. plaintiff under Koster v. American Lumbermens
Mutual Casualty Co., 330 U.S. 518, 524, 67 S.Ct. 828, 91 L.Ed. 1067
(1947). Second, the district court erred in its weighing of the relative ease
of access to documents and live testimony. Third, the district court, in
No. 09-1704 Zions First Nat’l Bank v. Moto Diesel Mexicana Page 5
balancing the convenience of the alternative forums, disregarded a
substantial portion of plaintiff’s claims.
Id. All of these reasons are implicated in the case before us. We address each one in
turn.
A. Deference to Plaintiff’s Forum Selection
The district court failed to accord the appropriate degree of deference to Zions’
selection of Michigan as the forum for prosecuting this action. Indeed, the district
court’s ruling does not mention, and does not appear to have considered, the deference
that a plaintiff’s choice of forum is normally accorded, or the fact that it was Zions, a
U.S. plaintiff, that made the forum selection. In this appeal, MDM contends that the
deference normally given to a plaintiff’s choice of a forum does not apply when the
forum is not the “home” of the plaintiff. See Piper Aircraft, 454 U.S. at 255-56 (noting
that a foreign plaintiff’s choice of forum does not carry the same assumption that its
choice of forum is convenient as does the choice of a plaintiff bringing suit in its home
forum). Zions, a Utah corporation, brought this case in Michigan, where it is not a
resident. Unlike the Scottish plaintiff in Piper Aircraft, however, Zions is not a foreign
plaintiff. It is a corporation with its principal place of business in Salt Lake City, Utah,
and therefore a U.S. plaintiff. Thus, the lesser standard of deference to a plaintiff’s
choice of forum does not apply.
Moreover, Zions has brought this action in the district in which the claims
allegedly arose. If the claim by MDM is that Utah is a more convenient forum, then
such matter is addressed under 28 U.S.C. § 1404(a). If the claim is that the case is better
suited for disposition in Mexico, then the doctrine of forum non conveniens provides the
analysis, which includes the strong presumption in favor of the plaintiff’s forum
selection.
Although we note that a district court need not make an explicit finding that
proceeding with the suit in the United States would be oppressive or vexatious to a
defendant, Kryvicky v. Scandinavian Airlines Sys., 807 F.2d 514, 517 (6th Cir. 1986),
No. 09-1704 Zions First Nat’l Bank v. Moto Diesel Mexicana Page 6
the forum non conveniens determination must indicate that the district court considered
whether any oppression and vexation to a defendant was “out of all proportion to
plaintiff’s convenience.” Koster, 330 U.S. at 524. Here, the district court’s opinion does
not indicate that it undertook the requisite analysis. Accordingly, the district court erred
in failing to accord Zions the strong presumption in favor of its selection of the Eastern
District of Michigan as the forum for this case.
B. Relative Ease of Access to Documents and Witnesses
The district court’s failure to recognize the strong presumption in favor of Zions’
choice of Michigan as the forum for this action is evident in its analysis of the relevant
Gulf Oil factors. In that respect, the district court erred in according inordinate weight
to the cost of travel and obtaining witnesses.
The district court’s discussion of the private Gulf Oil factors consisted of the
following:
The private interest factors–access to sources of proof, location of
witnesses–weigh in favor of Mexico. All of MDM and Majapara’s
witnesses are located there. Zions Bank’s witnesses are in Utah, although
they apparently have traveled to Mexico on business before. The parties
have not identified any witnesses in Michigan, except perhaps a
custodian of the records of Comerica Bank. MDM’s bank records are in
Michigan, although it should be a simple matter to transfer those records
to Mexico; these records are likely in MDM’s possession already as well.
As a practical matter, all parties will need to travel to Michigan for trial
if the case remains here, which the court believes will be more
logistically difficult and expensive than if the case were tried in Mexico.
Zions, 2009 WL 910764, at *3.
The cost of travel and of obtaining testimony of witnesses is an appropriate
consideration in initially determining whether the forum selected by the plaintiff
oppresses the defendant. Here, the district court simply noted the potentially greater
logistical difficulty and expense entailed by requiring the parties to travel to Michigan
instead of Mexico. Id. Such a conclusion does not establish an oppressive or vexatious
burden on the defendant, which used a bank in Michigan to conduct the business at issue
No. 09-1704 Zions First Nat’l Bank v. Moto Diesel Mexicana Page 7
in this case. The fact that MDM’s witnesses are in Mexico is a consideration, but less
so given that the gist of this lawsuit is business activity of MDM in Detroit, Michigan.
With respect to this factor, MDM contends on appeal that Majapara witnesses
would resist the giving of testimony in the United States, because the company is
allegedly under criminal investigation in Mexico. No such finding was made by the
district court, however, and the affidavit cited by MDM indicates only that one officer
of the company has been arrested in connection with a criminal investigation, but does
not specify whether that officer is actually a witness in this case. (See R. 13 Ex. A. ¶ 5.)
As held in Duha, availability of compulsory process, though a consideration, “is less
weighty when it has not been alleged or shown that any witness would be unwilling to
testify.” Duha, 448 F.3d at 877.
C. Analysis of the Claims
Finally, in balancing the convenience of the alternative forums, the district court
disregarded a substantial portion of plaintiff’s claims. In considering the application of
the doctrine of forum non conveniens, a district court must analyze each claim brought,
particularly if the causes of action asserted require different types of proof and evidence.
Id. at 879. In this case, Zions’ claim that it is a holder in due course of a negotiable
instrument requires different proof and evidence from its claims for conversion and
quantum valebant.2 Thus, the district court was required to evaluate the ease of access
to documents and witnesses as that factor pertains to Zions’ holder-in-due-course claim
separately from its other claims. The district court’s discussion, set forth above, offers
no separate analysis of the Gulf Oil factors–in particular the ease of access to witnesses
and documents–with respect to Zions’ claim that MDM is liable to Zions as a holder in
due course of a negotiable instrument. Virtually all of the evidence in support of such
claim would necessarily be documentary, most of which would presumably be located
where the transaction occurred, which was Detroit, Michigan. In sum, the district court
2
Quantum valebant literally defined as “as much as they were worth,” is a claim requiring proof
of worth and, at least theoretically, requires more proof than that of a holder in due course. See Webster’s
Legal Dictionary, 6th ed., p. 1244.
No. 09-1704 Zions First Nat’l Bank v. Moto Diesel Mexicana Page 8
did not conduct a separate evaluation of each of the claims to determine which forum
was best suited to resolve the litigation, as it was required to do under Duha.3
III. CONCLUSION
Based upon the foregoing, we conclude that the district court did not state
adequately its reasons for dismissing Zions’ claims on the grounds of forum non
conveniens. Accordingly, the decision of the district court is hereby VACATED and the
case REMANDED for further proceedings consistent with this opinion.
3
We note that in considering each discrete claim under the Gulf Oil factors, the district court is
free to conclude that some claims survive a forum non conveniens challenge, while others do not. See
Boosey & Hawkes Music Publishers, Ltd. v. Walt Disney Co., 934 F. Supp. 119, 120 (S.D.N.Y. 1996)
(granting, on grounds of forum non conveniens, defendant’s motion to dismiss only the second cause of
action asserted in plaintiff’s complaint), vacated in part on other grounds, 145 F.3d 481 (2d Cir. 1998).