UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1783
SAS INSTITUTE, INC.,
Plaintiff - Appellant,
v.
WORLD PROGRAMMING LIMITED,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (5:10-cv-00025-FL)
Submitted: February 2, 2012 Decided: February 16, 2012
Before WILKINSON, MOTZ, and WYNN, Circuit Judges.
Reversed and remanded by unpublished per curiam opinion.
Pressly M. Millen, Robert T. Numbers, II, WOMBLE CARLYLE
SANDRIDGE & RICE, LLP, Raleigh, North Carolina, for Appellant.
Peter Brown, Dennis O. Cohen, BAKER & HOSTETLER, LLP, New York,
New York; Mark R. Sigmon, GRAEBE HANNA & WELBORN, PLLC, Raleigh,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
SAS Institute, Inc. (“SAS”) appeals the district
court’s order granting World Programming Limited’s (“WPL”)
motion to dismiss on grounds of forum non conveniens. For the
reasons that follow, we reverse the judgment of the district
court and remand the case for further proceedings in SAS’s
chosen forum.
We eschew a full recounting of the applicable facts,
which are well-known to the parties. On appeal, SAS suggests
several reasons why the district court erred in its forum non
conveniens determination. Having thoroughly reviewed the
record, we are convinced that, even assuming that the U.K.
courts are an adequate and available forum for the claims raised
by SAS in its North Carolina filing, the district court abused
its discretion in concluding that WPL met its burden of proving
that the balance of conveniences weighed in favor of dismissing
the North Carolina action.
A federal court may dismiss a case on the ground of
forum non conveniens “when an alternative forum has jurisdiction
to hear [the] case, and . . . trial in the chosen forum would
establish . . . oppressiveness and vexation to a defendant . . .
out of all proportion to plaintiff’s convenience, or . . . the
chosen forum [is] inappropriate because of considerations
affecting the court’s own administrative and legal problems.”
2
Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S.
422, 429 (2007) (alterations in original). A trial court’s
forum non conveniens determination “may be reversed only when
there has been a clear abuse of discretion.” Piper Aircraft
Co. v. Reyno, 454 U.S. 235, 257 (1981).
Nevertheless, “the Supreme Court has established an
analytical framework which, as applied by this court, must guide
the district court’s analysis” when it is confronted with a
motion invoking forum non conveniens. Jiali Tang v. Synutra
Int’l, Inc., 656 F.3d 242, 248 (4th Cir. 2011). Under this
framework, a district court “must determine whether the
alternative forum is: 1) available; 2) adequate; and 3) more
convenient in light of the public and private interests
involved.” Id. Thus, a district court’s forum non conveniens
determination may amount to an abuse of discretion if “it failed
to consider a material factor or clearly erred in evaluating the
factors before it,” or did not hold the movant to its “burden of
persuasion on all elements of the forum non conveniens
analysis.” Galustian v. Peter, 591 F.3d 724, 731 (4th Cir.
2010). See also Piper Aircraft, 454 U.S. at 257.
A party seeking dismissal on grounds of forum non
conveniens “ordinarily bears a heavy burden in opposing the
plaintiff’s chosen forum.” Simochen, 549 U.S. at 430. The
moving party bears the burden not only of showing that an
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adequate alternate forum exists, Jiali Tang, 656 F.3d at 249,
but also “that the balance of private and public interest
factors favors dismissal.” Carijano v. Occidental Petroleum
Corp., 643 F.3d 1216, 1224 (9th Cir. 2011). Thus, at the second
stage of the forum non conveniens analysis, the movant must
“provide enough information to enable the District Court to
balance the parties’ interests.” Fidelity Bank PLC v. Northern
Fox Shipping N.V., 242 F. App’x 84, 91 (4th Cir. July 13, 2007)
(unpublished) (per curiam) (quoting Piper Aircraft, 454 U.S. at
258). Accord Saqui v. Pride Cent. Am., LLC, 595 F.3d 206, 213
(5th Cir. 2010) (movant bears burden of showing that the
relevant factors weigh in its favor); Wiwa v. Royal Dutch
Petroleum Co., 226 F.3d 88, 100 (2d Cir. 2000) (same).
Several considerations convince us that the district
court did not hold WPL to its burden of proving that the
applicable factors weighed in favor of dismissal. First, while
a citizen’s forum choice is not dispositive, Piper Aircraft, 454
U.S. at 255 n.23, it is nonetheless true that when a domestic
plaintiff initiates litigation in its home forum, it is entitled
not only to the degree of deference generally accorded to a
plaintiff’s choice of forum, but to a “heightened deference”
based on its status as a citizen seeking a remedy in the courts
of its own country. Adelson v. Hananel, 510 F.3d 43, 53 (1st
Cir. 2007).
4
As a result, a domestic plaintiff’s choice of its home
forum is presumptively convenient. Piper Aircraft, 454 U.S. at
255-56; Adelson, 510 F.3d at 53. Accordingly, “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 plaintiff’s convenience, which may be shown to be
slight or nonexistent.’” Duha v. Agrium, Inc., 448 F.3d 867,
873-74 (6th Cir. 2006) (quoting Koster v. Lumbermens Mut. Cas.
Co., 330 U.S. 518, 524 (1947)). As a practical matter,
therefore, “[i]n any balancing of conveniences, a real showing
of convenience by a plaintiff who has sued in his home forum
will normally outweigh the inconvenience the defendant may have
shown.” Koster, 330 U.S. at 524.
Unlike the district court, we see no reason to deprive
SAS of the benefit of this presumption on the facts of this
case. See Adelson, 510 F.3d at 53. Moreover, we believe the
district court gave undue weight to the fact that the parties
were engaged in parallel U.K. litigation. While we decline to
posit that a factor’s absence from the list of private and
public interests explicitly enumerated in Gilbert eliminates it
from the realm of permissible considerations, see Piper
Aircraft, 454 U.S. at 241 n.6, we nonetheless observe that the
mere presence of parallel litigation bears only marginally on
5
the touchstone of the forum non conveniens analysis; namely,
convenience. See Adelson, 510 F.3d at 54; Guidi v. Inter-Cont’l
Hotels Corp., 224 F.3d 142, 148 (2d Cir. 2000). The district
court’s stated concerns over “forum-shopping on an international
scale” are likewise only marginally relevant to the question of
convenience to the parties. Carijano, 643 F.3d at 1228.
Instead, such an undue focus on the U.K. litigation in this case
risked “convert[ing] the analysis” from balancing the respective
conveniences “into a determination of which of the two pending
cases should go forward.” Adelson, 510 F.3d at 54.
The effect of the court’s insufficient regard for the
presumptive deference due to SAS’ choice of forum is compounded
by its consideration of the applicable public and private
interest factors in the almost utter absence of WPL’s production
of record evidence as to any of them. Of course, a case may be
dismissed for forum non conveniens only when the relevant public
and private interests “strongly” favor an alternate forum.
Gilbert, 330 U.S. at 508; Jiali Tang, 656 F.3d at 246. Thus
WPL, which held the burden of proof, was required to show that
the relevant factors weighed in its favor to such a degree that
they surmounted the significant presumption already weighing
against it.
This, on any plausible reading of the record, WPL
failed to do. Even before this court, WPL fails to identify any
6
specific record evidence pertaining to any of the relevant
factors, other than a single barebones declaration observing
that most of WPL’s employees and documents are located in the
U.K. While a party seeking forum non conveniens dismissal is
not required to undertake “extensive investigation” in order to
demonstrate that its private interests would be adversely
impacted by the continuance of the litigation, Piper Aircraft,
454 U.S. at 258-59, a movant must nevertheless produce at least
some evidence demonstrating that its interests would be unduly
affected by the challenged litigation. See Carijano, 643 F.3d
at 1231; Duha, 448 F.3d at 877. Even now, WPL can point to
precious little in the record to support the district court’s
conclusions that “all or most of the evidence” would be found in
the U.K., and that there would be “myriad” U.K. witnesses whom
it would be “cost[ly]” to transport to testify in North
Carolina, and our review of the record has uncovered nothing
more. See also DiRienzo v. Philip Servs. Corp., 294 F.3d 21, 30
(2d Cir. 2002) (noting that factors such as the location of
evidence and witness travel costs are hassles that, absent “a
satisfactory explanation,” do not demonstrate that “a trial in
the United States would be so oppressive and vexatious to [the
defendant] as to be out of all proportion to plaintiffs’
convenience.”).
7
Particularly when ranged against the strong
presumption in favor of SAS’ choice of its home forum, we are
constrained to conclude that the scant evidence pertaining to
the inconvenience that would be suffered by WPL as the result of
the North Carolina forum cannot suffice to meet WPL’s burden of
tipping the balance of conveniences “strongly” in WPL’s favor.
Gilbert, 330 U.S. at 508. We can only conclude on this record
that WPL failed to bear its burden and that the district court
“committed a legal error by failing to hold [WPL] to [its]
burden of proof.” DiRienzo, 294 F.3d at 30. As a consequence,
the district court abused its discretion by “striking an
unreasonable balance of [the] relevant factors.” Carijano, 643
F.3d at 1234 (quoting Ravelo Monegro v. Rosa, 211 F.3d 509, 511
(9th Cir. 2000)); Adelson, 510 F.3d at 54. *
Accordingly, we reverse the judgment of the district
court and remand the case for proceedings not inconsistent with
this opinion and in SAS’s chosen forum. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the material before the court and argument will not
aid the decisional process.
REVERSED AND
REMANDED
*
Due to this conclusion, we need not reach the other
arguments asserted by the parties in this appeal.
8