Adelson v. Hananel

United States Court of Appeals
For the First Circuit

Nos. 06-2281, 06-2282

SHELDON G. ADELSON,

Plaintiff-Appellant/Cross-Appellee,

v.

MOSHE HANANEL,

Defendant-Appellee/Cross-Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Reginald C. Lindsay, U.S. District Judge]

Before

Torruella and Lynch, Circuit Judges,
and Fusté,* District Judge.

Andrew H. Schapiro, with whom Philip Allen Lacovara,
Christopher J. Houpt, Mayer, Brown, Rowe & Maw LLP, Franklin H.
Levy, and Duane Morris LLP, were on brief, for appellant/cross-
appellee.
James A. G. Hamilton, with whom Burns & Levinson LLP was on
brief, for appellee/cross-appellant.

December 5, 2007

*
Of the District of Puerto Rico, sitting by designation.
 TORRUELLA, Circuit Judge. This is an appeal from the

district court's dismissal of a case for forum non conveniens.

Plaintiff Sheldon Adelson, a United States citizen, is an

international businessman with substantial holdings around the

world, including several casinos and a corporation named Interface

Partners International, Ltd. ("IPI"). IPI is a Delaware

corporation which was established for the purpose of making

business investments in Israel, and has offices in Needham,

Massachusetts, Nevada, and Israel. The defendant, Moshe Hananel,

is a citizen and resident of Israel who was hired in 1995 to serve

as the General Manager of IPI's operations in Israel. Adelson

terminated Hananel's employment with IPI in April 2000, resulting

in several lawsuits in an Israeli labor court. In February 2004,

Adelson filed the instant suit in the United States District Court

for the District of Massachusetts seeking a declaration of the

parties' respective rights pursuant to an oral employment contract

between IPI and Hananel.

After finding that it had personal jurisdiction over the

defendant for the declaratory action, the district court dismissed

the case for forum non conveniens. The court determined that

Israel is an adequate alternative forum and that the balancing of

public and private interest factors weighs in favor of the Israeli

forum. Adelson v. Hananel, No. 04-10357 (D. Mass. July 18, 2006)

(order dismissing the case on grounds of forum non conveniens).

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The plaintiff now appeals, arguing, inter alia, that the district

court failed to afford heightened deference to the plaintiff, a

U.S. citizen, and his choice of forum, and erred in relying on the

pendency of concurrent action in Israel. The defendant cross-

appeals and contends that the district court lacks personal

jurisdiction over him. We affirm the district court's finding of

personal jurisdiction, but reverse the dismissal for forum non

conveniens.

I. Background

Adelson and Hananel enjoyed a social friendship prior to

their decision to become involved in business together. In late

2005, Hananel became aware that IPI's General Manager in Israel

would be vacating that position and he expressed interest in the

job. According to the facts alleged in the complaint, on

December 5, 1995, Adelson, Hananel, and IPI's General Counsel, Paul

Roberts, met in IPI's office in Needham and formally agreed that

Hananel would become a full-time employee of IPI.1 Hananel's

responsibilities were to identify, recruit, and hire business

analysts and portfolio managers who would help IPI search out and

identify opportunities in Israel in the high technology sector.

His agreed salary was $100,000 and twelve percent of the net

profits realized by IPI from any high tech investments which were

1
Although the exact date on which they agreed that Hananel would
begin his employment with IPI is in dispute, he became a full-time
employee by January 1, 1996.

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found, recommended, and made as a result of his efforts. Although

the parties confirmed and finalized the terms of employment and all

three men shook hands, nothing was ever set in writing.2

In the course of Hananel's employment, he and Adelson

stayed in constant communication via daily telephone calls to

discuss IPI business. Although it is unclear whether Adelson was

in Massachusetts during those phone calls, it is undisputed that

the substance of the conversations was IPI-related. Hananel was

also in frequent contact with other IPI officers, such as Chief

Financial Officer Stephen O'Connor and IPI's Treasurer, who were

based in Needham. The Needham office also managed all of the

budgeting and funding for the Israel branch; Hananel submitted his

annual budget to and made all requests for operating funds through

that office because the funds were held in Massachusetts bank

accounts. Various written communications between Hananel and

O'Connor confirm that reporting structure.

On at least one occasion, Hananel went to Massachusetts

to attend a meeting on behalf of an Israeli company, iMD Soft,

Ltd., in which IPI had a substantial investment. As a

representative of IPI, Hananel was a member of iMD's Board of

2
According to an affidavit submitted by Roberts, he offered to
prepare a written contract memorializing the terms of the
employment contract, but Hananel replied that it was unnecessary
because of his personal relationship with Adelson.

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Directors and participated in a meeting with officers from Agilent

Technologies in Andover, Massachusetts.

Hananel's employment was terminated in April 2000,

allegedly for malfeasance. Adelson claims that Hananel did little

to no work for IPI and used IPI's finances and personnel for his

own personal and business purposes. In 2001, Hananel sued Adelson

and IPI in Tel Aviv District Labor Court for compensation which he

alleges he was owed under his oral employment contract. Adelson

countersued in the Israeli court, seeking the return of the

allegedly misused IPI funds. In February 2002, as the parties were

negotiating the severance terms, Hananel demanded twelve percent of

Adelson's shares in a new multi-billion dollar real estate, casino,

resort hotel, and convention project in Macau, China. Hananel

claimed that he had facilitated the venture and, pursuant to his

employment contract, was entitled to a percentage of the shares.

Denied his request, Hananel filed a second suit in the Tel Aviv

District Labor Court alleging that he was entitled to twelve

percent of the stock option shares. The Israeli court soon

thereafter consolidated the two cases.

Adelson filed the instant complaint in federal court on

February 23, 2004, seeking a declaratory judgment regarding

Hananel's alleged interest in the Macau business, injunctive

relief, and damages. The complaint alleges that Hananel harassed

and threatened Adelson and IPI, issuing defamatory claims in press

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releases in Chinese and American news media and threatening other

parties involved in the business project. Adelson contends that

Hananel's claims amount to extortion and that they are inhibiting

his ability to deal freely in his Macau business venture.3

Following jurisdictional discovery, Hananel filed renewed

motions to dismiss for lack of personal jurisdiction and forum non

conveniens.4 The district court referred the motions to the

Magistrate Judge who recommended that the motion to dismiss for

lack of personal jurisdiction be denied as to Count One for

declaratory judgment, but granted as to the other three counts.

The Magistrate Judge also recommended that the motion to dismiss

for forum non conveniens be granted. Rejecting the parties'

various objections to the Magistrate Judge's report, the district

court adopted and accepted both recommendations. Adelson now

appeals the dismissal for forum non conveniens, and Hananel cross-

appeals the denial of his motion to dismiss, for lack of personal

jurisdiction, Count One of the complaint.

3
During his deposition, Hananel asserted that he was entitled to
shares of Adelson's other international investments, beyond the
interests in Macau. Adelson's suit in the District of Massachusetts
refers broadly to investments anywhere in the world, while the
Israeli suit is focused specifically on Macau.
4
Hananel initially filed motions to dismiss for lack of personal
jurisdiction and forum non conveniens in June 2004. After a
hearing, the district court denied, without prejudice, the motion
to dismiss for lack of jurisdiction and ordered that it could be
renewed after jurisdictional discovery. The court also denied,
without prejudice, the dismissal for forum non conveniens until it
could establish that it had jurisdiction over the defendant.

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 II. Discussion

A. Personal Jurisdiction

We first review the district court's denial of Hananel's

motion to dismiss Count One for lack of personal jurisdiction.5

Faced with a motion to dismiss for lack of personal jurisdiction,

a district court "may choose from among several methods for

determining whether the plaintiff has met [its] burden." Daynard

v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d 42,

50-51 (1st Cir. 2002). In this case, the district court employed

the most common method, the "prima facie method" or the "prima

facie evidentiary standard," rather than adjudicating the

jurisdictional facts. The district court found that the amount of

detailed and specific evidence provided by the plaintiff weighed in

favor of applying the prima facie standard. Under this standard,

the court need only "consider . . . whether the plaintiff has

proffered evidence that, if credited, is enough to support findings

of all facts essential to personal jurisdiction." Foster-Miller,

Inc. v. Babcock & Wilcox Canada, 46 F.3d 138, 145 (1st Cir.

1995)(quoting Boit v. Gar-Tec Products, Inc., 967 F.2d 671, 675

(1st Cir. 1992)).

We review both the district court's decision to use the

prima facie standard and its conclusion under that standard de

5
Adelson neither objected to nor appeals the district court order
dismissing Counts Two - Four for lack of personal jurisdiction.

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novo. Foster-Miller, 446 F.3d at 147; see also United States v.

Swiss American Bank, Ltd., 274 F.3d 610, 619 (1st Cir. 2001).

Here, the parties do not object to the court's choice of method;

the defendant contends only that it was misapplied.

Applying the prima facie standard, Adelson bears the

burden of establishing that the district court has personal

jurisdiction over Hananel. We "must accept the plaintiff's

(properly documented) evidentiary proffers as true for the purpose

of determining the adequacy of the prima facie jurisdictional

showing." Foster-Miller, 46 F.3d at 145. In fact, we accept those

facts as true, irrespective of whether the defendant disputes them,

and in so doing, "construe them in the light most congenial to the

plaintiff's jurisdictional claim." Mass. Sch. of Law at Andover,

Inc. v. Am. Bar Ass'n, 142 F.3d 26, 34 (1st Cir. 1998). Those

facts put forward by the defendant become part of the mix only to

the extent that they are uncontradicted. Id. at 34.

It is undisputed that Adelson is proceeding under a

theory of specific (rather than general) jurisdiction and,

therefore, must demonstrate that the Massachusetts long-arm statute

grants jurisdiction over Hananel and that the exercise of that

jurisdiction comports with the Due Process Clause of the Fifth

Amendment. See Foster-Miller, 46 F.3d at 144. Under the

Massachusetts statute, "[a] court may exercise personal

jurisdiction over a person, who acts directly or by an agent, as to

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a cause of action in law or equity arising from the person's . . .

transacting any business in this commonwealth." Mass. Gen. Laws

ch. 223A, § 3(a)(2000). In Massachusetts, the Court can "sidestep

the statutory inquiry and proceed directly to the constitutional

analysis" because the state's long-arm statute is coextensive with

the limits allowed by the Constitution. Daynard, 290 F.3d at 52

(citing "Automatic" Sprinkler Corp. of Am. v. Seneca Foods Corp.,

361 Mass. 441 (1972)).

In order for Massachusetts to exercise personal

jurisdiction over Hananel, an out-of-state defendant, the Due

Process Clause requires that Hananel have sufficient minimum

contacts with the state, such that "maintenance of the suit does

not offend 'traditional notions of fair play and substantial

justice.'" Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)

(quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)). For

specific jurisdiction, we have broken the minimum contacts analysis

into three categories -- relatedness, purposeful availment, and

reasonableness:

First, the claim underlying the litigation
must directly arise out of, or relate to, the
defendant's forum-state activities. Second,
the defendant's in-state contacts must
represent a purposeful availment of the
privilege of conducting activities in the
forum state, thereby invoking the benefits and
protections of that state's laws and making
the defendant's involuntary presence before
the state's courts foreseeable. Third, the
exercise of jurisdiction must, in light of the
Gestalt factors, be reasonable.

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Daynard, 290 F.3d at 60 (quoting Foster-Miller, 46 F.3d at 144).

1. Relatedness

Generally, relatedness refers to the requirement that the

underlying claim "arise out of" or be "related to" the activities

within the forum state. The relatedness standard is a "flexible,

relaxed standard," Pritzker v. Yari, 42 F.3d 53, 61 (1st Cir.

1994), which focuses on the "nexus between the defendant's contacts

and the plaintiff's cause of action." Ticketmaster-New York, Inc.

v. Alioto, 26 F.3d 201, 206 (1st Cir. 1994). Count One of the

complaint seeks a judgment declaring the rights and obligations

under Hananel's oral employment contract. We have held that in

contract claims, we may look to and draw inferences from "the

parties' prior negotiations and contemplated future consequences,

along with the terms of the contract and the parties' actual course

of dealing." Daynard, 390 F.3d at 52 (quoting Burger King Corp. v.

Rudzewicz, 471 U.S. 462, 479 (1985)) (internal quotation marks

omitted). Furthermore, where the cause of action is for an alleged

breach of contract, we ask whether the defendant's activity in the

forum state was "instrumental either in the formation of the

contract or its breach." See Phillips Exeter Acad. v. Howard

Phillips Fund, Inc., 196 F.3d 284, 289 (1st Cir. 1999).

At the heart of this declaratory action is a dispute

regarding the specific terms of an oral employment contract; the

district court properly observed that "[n]othing could be more

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instrumental in the formation of a contract than the literal act of

forming the contract itself." The court first found that the

contract between the parties was "formalized and entered into in

Massachusetts" and "subjected Hananel to substantial control and

ongoing connection to Massachusetts in the performance of this

contract." Hananel's appeal urges us to reject Adelson's version

of the events which Adelson alleges transpired on December 5, 1995.

His arguments are unpersuasive; the law makes it clear that under

the prima facie standard, Adelson's evidence is accepted as true

and all inferences are drawn in favor of his jurisdictional claim.

See Mass. Sch. of Law, 142 F.3d at 34. Affidavits from both

Adelson and Roberts recount that the three men finalized the

specific terms of employment which Adelson and Hananel had

informally discussed prior to that meeting. The district court

properly found that the employment contract was formalized and

entered into during Hananel's December 5, 1995 trip to

Massachusetts when he met with Adelson and Roberts. Accordingly,

the instant action arises from and is related to Hananel's

activities within the forum. See Phillips Exeter Acad., 196 F.3d

at 289.

2. Purposeful Availment

Our next inquiry is whether Hananel's contacts with

Massachusetts constitute purposeful availment. This requirement

ensures that jurisdiction is not based on merely "random, isolated

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or fortuitous" contacts with the forum state. Sawtelle v. Farrell,

70 F.3d 1381, 1391 (1st Cir. 1995) (quoting Keeton v. Hustler

Magazine, Inc., 465 U.S. 770, 774 (1984)). The two key focal

points of this concept are voluntariness and foreseeability. Id.,

70 F.3d at 1391 (citing Ticketmaster, 26 F.3d at 207). The

contacts must be voluntary and not based on the unilateral actions

of another party. Burger King, 471 U.S. at 475. And, the

defendant's contacts must be such that he could "reasonably

anticipate being haled into court there." World-Wide Volkswagen

Corp. v. Woodson, 444 U.S. 286, 297 (1980).

Here, the district court concluded that the two

requirements were easily met. First, Hananel freely and of his own

volition expressed interest in and obtained employment with IPI and

negotiated and executed his own contract while in Massachusetts.

Second, the court found that the evidence established the

foreseeability of litigation in Massachusetts: (1) his employment

relationship was formalized in Massachusetts with IPI's lawyer, (2)

his business card acknowledged his ongoing relationship with the

state, and (3) all of his budgets and financial funds were

submitted to and obtained through IPI's Needham office. Moreover,

given that it was Hananel who sought this employment contract with

a company whose key officers were all located in Massachusetts and

whose financial accounts were all administered out of

Massachusetts, the court properly concluded that Hananel had

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purposefully availed himself of Massachusetts law. See Burger

King, 471 U.S. at 473 ("[P]arties who 'reach out beyond one state

and create continuing relationships and obligations with citizens

of another state' are subject to regulation and sanctions in the

other State for the consequences of their activities." (quoting

Travelers Health Ass'n v. Virginia, 339 U.S. 643, 647 (1950))).

On appeal, Hananel challenges the district court's

findings on both voluntariness and foreseeability. He contends

that he had traveled to Massachusetts in December 1995 for the

purpose of seeking medical advice on his diabetic condition. While

that may be true, we do not see how it is relevant to the district

court's findings of voluntariness and foreseeability. The district

court did not conclude that the sole purpose of coming to

Massachusetts had been to formalize the agreement; the court simply

concluded that on December 5, Hananel freely met with IPI and

Adelson, and finalized his employment contract. Likewise, the

foreseeability of litigation in Massachusetts was established upon

meeting with IPI and Adelson and agreeing to the terms of the

employment contract. The original purpose of the Massachusetts

visit is inconsequential. Hananel's independent and voluntary

meeting with Adelson and Roberts transformed the relevant portion

of his visit into a business visit.

Furthermore, the district court properly found that the

additional evidence proffered by Adelson demonstrated that

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Hananel's contacts with Massachusetts continued during his

employment. Although he oversaw the Israel office, Hananel

communicated regularly with members of IPI's Needham office

regarding various financial matters. His annual budgets were

submitted to the Needham office and all operational funds were

approved and disbursed through the Needham office. It is clear

that the evidence reviewed by the district court supports a finding

that there existed sufficient ties between Massachusetts and the

employment contract. Hananel knowingly affiliated himself with a

corporate entity which was based primarily in Needham,

Massachusetts and, thus, the possibility of a suit there was amply

foreseeable.

3. Reasonableness

Even after concluding that minimum contacts exist,

personal jurisdiction may only be exercised if it would be

reasonable, pursuant to a series of factors known as the "Gestalt

factors." Foster-Miller, 46 F.3d at 144. Those factors are:

(1) the defendant's burden of appearing, (2)
the forum state's interest in adjudicating the
dispute, (3) the plaintiff's interest in
obtaining convenient and effective relief, (4)
the judicial system's interest in obtaining
the most effective resolution of the
controversy, and (5) the common interests of
all sovereigns in promoting substantive social
policies.

United Elec., Radio and Mach. Workers of Am. v. 163 Pleasant St.

Corp., 960 F.2d 1080, 1088 (1st Cir. 1992) (citing Burger King, 471

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U.S. at 477). The factors, intended to aid the court in achieving

substantial justice, play a larger role in cases where the minimum

contacts question is very close. See Ticketmaster, 26 F.3d at 210

("[T]he weaker the plaintiff's showing on the first two prongs

(relatedness and purposeful availment), the less a defendant need

show in terms of unreasonableness to defeat jurisdiction."); see

also Burger King, 471 U.S. at 477 ("[W]here a defendant who

purposefully has directed his activities at forum residents seeks

to defeat jurisdiction, he must present a compelling case that the

presence of some other consideration would render jurisdiction

unreasonable."). The court below found that the Gestalt factors

support the conclusion that jurisdiction is reasonable. We agree.

Admittedly, Hananel lives and works in Israel and is a

legally blind diabetic. While those facts evoke sympathy for the

undeniable burden placed upon Hananel, the district court properly

concluded that no "special or unusual burden" existed here.

Pritzker, 42 F.3d at 64. The court noted that neither his foreign

residence nor his medical condition precluded him from traveling

internationally in the course of his employment or from agreeing to

work for an American company. Furthermore, Adelson, a resident of

the state, has an interest in bringing this action in

Massachusetts, which weighs in favor of a finding of personal

jurisdiction. And, as we noted in an earlier case, Massachusetts

has a "stake in being able to provide a convenient forum for its

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residents to redress injuries inflicted by out-of-forum actors."

Daynard, 290 F.3d at 62 (quoting Sawtelle, 70 F.3d at 1395)

(internal quotation marks omitted). The state's interest in the

case is further heightened by the involvement of IPI's executive

officers who are employed in Massachusetts and of funds which are

held and managed in Massachusetts. Although Hananel casts doubt

upon Adelson's ability to claim that Massachusetts is more

convenient than Israel, he fails to recognize that this factor

requires deference to a plaintiff's choice of forum. See Foster-

Miller, 46 F.3d at 151; see also Ticketmaster, 26 F.3d at 211

(recognizing that a plaintiff must be accorded "a degree of

deference in respect to the issue of its own convenience").

Lastly, while the interests of the judicial system in achieving

efficient resolution militate against Adelson because of the prior

suits pending in Israel, the district court properly concluded that

this factor alone was insufficient to tip the constitutional

balance on the facts of this case.

Accordingly, Hananel's contacts with Massachusetts

constitute "minimum contacts" in such a manner that it does not

"offend traditional notions of fair play and substantial justice"

for Adelson to bring this case in the state. Int'l Shoe, 326 U.S.

at 316 (quoting Milliken, 311 U.S. at 463).

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 B. Forum Non Conveniens

Adelson appeals from the decision of the district court

to dismiss the suit for forum non conveniens. The decision to

grant or deny a motion to dismiss for forum non conveniens is

generally committed to the district court's discretion. Piper

Aircraft Co. v. Reyno, 454 U.S. 235, 257 (1981). We will find an

abuse of discretion if the district court (1) failed to consider a

material factor; (2) substantially relied on an improper factor; or

(3) assessed the proper factors, but clearly erred in weighing

them. Iragorri v. Int'l Elevator, Inc., 203 F.3d 8, 12 (1st Cir.

2000). Errors of law, however, are reviewed de novo. Id.

We begin with the well-known framework for forum non

conveniens outlined by the Supreme Court in a pair of 1947

opinions, Gulf Oil Corp. v. Gilbert, 330 U.S. 501, and Koster v.

Lumbermens Mut. Cas. Co., 330 U.S. 518. Those cases and their

progeny established forum non conveniens as a discretionary tool

for the district court to dismiss a claim, even when it has proper

jurisdiction. See Gilbert, 330 U.S. at 507. That power, however,

is limited by the overarching principle that a "plaintiff's choice

of forum should rarely be disturbed." Id. at 508; see also Howe v.

Goldcorp Invs., Ltd., 946 F.2d 944, 950 (1st Cir. 1991) (forum non

conveniens is intended to "avoid trials in places so 'inconvenient'

that transfer is needed to avoid serious unfairness" (quoting Piper

Aircraft Co., 454 U.S. at 259)). Accordingly, the party moving

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for dismissal bears the heavy burden of establishing that an

adequate alternative forum exists and that "considerations of

convenience and judicial efficiency strongly favor litigating the

claim in the second forum." Iragorri, 203 F.3d at 12 (emphasis

added). Neither party disputes the availability and adequacy of

the Israeli forum. The issue is whether the district court

properly balanced the factors in the second step of the analysis.

In this case, the district court found that the suit was

not vexatious and that no great equity weighed in the defendant's

favor. Yet, because there was already a case pending before the

Israeli court, the district court concluded that the public

interest factors weighed in favor of dismissal. On appeal, Adelson

contends that the district court (1) improperly reversed the burden

of proof, requiring the plaintiff to prove why he could not fairly

litigate his claim in Israel; (2) failed to give proper deference

to a United States plaintiff's choice of forum; and (3) placed

undue significance on the existence of concurrent litigation in the

Israeli court. We agree with Adelson and reverse the district

court's dismissal.

As a starting point, it is undisputed that a plaintiff

enjoys some degree of deference for his original choice of forum.

See Gulf Oil, 330 U.S. at 508. Added to that is the heightened

deference which accompanies a plaintiff's choice of home forum.

See Koster, 330 U.S. at 524 (holding that when the plaintiff has

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chosen his home forum, he should not be deprived of it absent a

"clear showing" of either "oppressiveness and vexation" or evidence

that the chosen forum is "inappropriate"). Although Adelson is not

a Massachusetts domiciliary, the Massachusetts district court is

still deemed a "home forum" where the alternative is foreign. See

Reid-Walen v. Hansen, 933 F.2d 1390, 1394 (8th Cir. 1991) (in a

forum non conveniens case involving a foreign court, "the 'home'

forum for the plaintiff is any federal district in the United

States, not the particular district where the plaintiff lives").

A logical extension of that heightened deference in favor of a

plaintiff's "home forum" applies in cases such as this which

involves a U.S. citizen plaintiff who is seeking to litigate in a

United States forum. While the Supreme Court held that dismissal

is "not automatically barred" in such cases, Piper Aircraft Co.,

454 U.S. at 256 n.23, a heavy presumption weighs in favor of that

plaintiff's initial forum choice.

In the past, we have implicitly recognized the "strong

presumption favoring the American forum selected by American

plaintiffs." Mercier v. Sheraton Int'l Inc., 981 F.2d 1345, 1355

(1st Cir. 1992). Other circuits have more explicitly articulated

the strength of this presumption when the plaintiffs are citizens,

residents, or corporations of this country. See, e.g., SME Racks,

Inc. v. Sistemas Mecánicos Para Electrónica, S.A., 382 F.3d 1097,

1104 (11th Cir. 2004) ("[T]here is a strong federal interest in

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making sure that plaintiffs who are United States citizens

generally get to choose an American forum for bringing suit, rather

than having their case relegated to a foreign jurisdiction."

(quoting Esfeld v. Costa Crociere, S.P.A., 289 F.3d 1300, 1311

(11th Cir. 2002)); Carey v. Bayerische Hypo-Und Vereinsbank AG, 370

F.3d 234, 238 (2d Cir. 2004) (noting the "presumptive validity of

a United States resident's choice of a United States forum");

Raytheon Eng'rs and Constructors, Inc. v. HLH and Assocs. Inc., No.

97-20187, 1998 WL 224531 at *2 (5th Cir. Apr. 17, 1998)

(recognizing the presumption in favor of a plaintiff's choice of

forum, "especially when a United States plaintiff has chosen the

home forum").

While the district court properly observed that Adelson

is a United States citizen and that there is a "heavy presumption"

in favor of his choice of forum, the district court ignored that

presumption because of the existence of the concurrent action in

the Israeli court. Indeed, in its analysis up to that point, the

district court had found that the "private interest factors did not

weigh in favor of either party" and that the public interest was

"also in equipoise between the parties." Moreover, the court also

found that Adelson's suit was neither vexatious nor oppressive.

Thus, it was the existence of concurrent litigation that not only

caused the balance to shift in favor of the foreign forum, but also

eviscerated the presumption in favor of the plaintiff's forum. In

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discussing the Israeli suit, the district court stated, "I see no

reason why Adelson cannot fairly litigate his claim in Israel."

The district court erred in so construing the importance of

concurrent litigation within the forum non conveniens analysis.

Having found the public and private interest factors to

be in equipoise, the district court should have concluded that the

defendant failed to overcome the heavy presumption in favor of the

plaintiff's home forum. It is the defendant who carries the burden

of establishing that the "compendium of factors relevant to the

private and public interests implicated by the case strongly favors

dismissal." Iragorri, 203 F.3d at 12 (emphasis added). Factors

relevant to the public interest analysis include:

administrative difficulties of docket
congestion; the general goal of "having
localized controversies decided at home," and
. . . ease of access to the proceedings on the
part of interested citizens, the trier's
relative familiarity with the appropriate
rules of decision, and the burdens of jury
duty.

Id. (quoting Gilbert, 330 U.S. at 508-509). The existence of

concurrent litigation is not a relevant factor to the analysis;

none of the factors enumerated above invokes a comparison between

the two competing fora. By focusing on the existence of parallel

proceedings in a foreign court, the district court essentially

converted the analysis into a determination of which of the two

pending cases should go forward. In so doing, the court

erroneously lowered the defendant's burden of proving that the

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balance of factors justified dismissal of a suit from a U.S.

plaintiff's choice of home forum.

III. Conclusion

For the foregoing reasons, the judgment of the district

court denying the motion to dismiss for lack of personal

jurisdiction is affirmed, and the judgment dismissing for forum non

conveniens is reversed.

Affirmed in part; and Reversed in part. Costs are taxed

in favor of Sheldon G. Adelson.

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