Henri Solari v. Goodyear Tire & Rubber Co.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0357n.06

Case No. 15-4242

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

FILED
Jun 29, 2016
HENRI SOLARI, Individually, and on behalf )
DEBORAH S. HUNT, Clerk
of all other persons similarly situated; )
GERARD CARNABY; CHARLY DUPUIS, )
Individually, and on behalf of all other persons
)
similarly situated,
) ON APPEAL FROM THE UNITED
Plaintiffs-Appellants, ) STATES DISTRICT COURT FOR
) THE NORTHERN DISTRICT OF
v. ) OHIO
)
GOODYEAR TIRE AND RUBBER )
COMPANY, )
)
Defendant-Appellee. )

BEFORE: COOK and KETHLEDGE, Circuit Judges; SARGUS, District Judge.

COOK, Circuit Judge. French plaintiffs allege they suffered injuries while working for a

French company in its factory in France. They sued a United States company in the Northern

District of Ohio, and the district court dismissed their case under the doctrine of forum non

conveniens. Determining that the district court committed no abuse of discretion, we AFFIRM.

I.

Plaintiffs Henri Solari, Gerard Carnaby, and Charly Dupuis live in France. They allege

that they were exposed to toxic substances while working for Goodyear Dunlop Tires France


The Honorable Edmund A. Sargus, Chief United States District Judge for the Southern
District of Ohio, sitting by designation.
Case No. 15-4242, Solari, et al. v. Goodyear Tire & Rubber Co.

(Goodyear France)—a French corporation—at its factory in Amiens. Carnaby claims he

developed bladder cancer as a result of this exposure, while Solari says his eczema stems from

his work at the factory as well. Dupuis currently has no illness, but asserts he “is at risk of

developing health problems in the future due to his employment in the Amiens Factory.”

Blaming Goodyear Tire & Rubber Company (Goodyear U.S.), Plaintiffs sued in the

Northern District of Ohio.1 They seek to represent a class of “at least 700 persons,” “who were

employed by [Goodyear France] at the Amiens Factory . . . between 1995 and the present date,

and who have suffered, currently suffer, or may in the future suffer harm to their physical and/or

mental health as [a] . . . result of [Goodyear U.S.’s] acts and omissions.” Plaintiffs allege that

Goodyear U.S. manufactured toxic products in the United States and compelled Goodyear

France to use those products in Amiens, but failed to warn Plaintiffs of risks the toxic products

posed or to provide adequate safety equipment. Plaintiffs assert numerous tort claims, as well as

spoliation stemming from the Amiens Factory’s disassembly.

Goodyear U.S. moved to dismiss for forum non conveniens, arguing that Plaintiffs’ case

belongs in France. Agreeing, the district court dismissed subject to four conditions on Goodyear

U.S and denied Plaintiffs’ motion to file a sur-reply to the dismissal motion as moot. Plaintiffs

appeal both decisions.

II.

A. Dismissal for Forum Non Conveniens

We review a dismissal on forum non conveniens grounds for abuse of discretion. Piper

Aircraft Co. v. Reyno, 454 U.S. 235, 257 (1981). Under the doctrine of forum non conveniens, a

district court with jurisdiction and venue may nonetheless decline to exercise its jurisdiction in

1
Goodyear U.S. is Goodyear France’s corporate “grandparent.”
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the interests of justice and convenience. Rustal Trading US, Inc. v. Makki, 17 F. App’x 331, 335

(6th Cir. 2001) (citing Howe v. Goldcorp Invs., Ltd., 946 F.2d 944, 945 (1st Cir. 1991)). A

forum-non-conveniens analysis has three steps: decide the deference owed the plaintiff’s forum

choice, see Wong v. PartyGaming Ltd., 589 F.3d 821, 830, 833 (6th Cir. 2009), then determine

whether the defendant has established both “that an adequate alternative forum is available and

that the public and private factors . . . demonstrate that the chosen forum is unnecessarily

burdensome to [the] defendant or [the] district court.” Zions First Nat’l Bank v. Moto Diesel

Mexicana, S.A. de C.V., 629 F.3d 520, 523 (6th Cir. 2010) (citation omitted). When the district

court considers “all relevant public and private interest factors, and where its balancing of these

factors is reasonable, its decision deserves substantial deference.” Piper, 454 U.S. at 257 (citing

Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 511–12 (1947)).

1. Deference to Plaintiffs’ Forum Choice

Ordinarily, a plaintiff’s forum choice receives a strong presumption in its favor. Piper,

454 U.S. at 255. A foreign plaintiff’s forum choice, however, “deserves less deference” because

it “is much less reasonable” to presume the choice convenient. Id. at 256. Pointing to out-of-

circuit cases, Plaintiffs argue that the district court abused its discretion by failing to state

explicitly the amount of deference given to their forum choice, see Lony v. E.I. Du Pont de

Nemours & Co., 886 F.2d 628, 634 (3d Cir. 1989), and by in fact giving their choice no

deference, see Lacey v. Cessna Aircraft Co., 862 F.2d 38, 46 (3d Cir. 1988).

But neither the Supreme Court nor this court requires a district court to state explicitly the

amount of deference afforded a plaintiff’s forum choice. In any event, the district court

explained that “a foreign plaintiff’s forum choice ‘deserves less deference’” than a domestic

plaintiff’s, and that finding that a foreign plaintiff’s “chosen forum would be burdensome . . . is

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sufficient to support dismissal on grounds of forum non conveniens.” The court thus explained

both the deference it granted Plaintiffs’ forum choice (less than a domestic plaintiff’s) and the

standard required to dismiss (burdensomeness).

2. Availability of an Adequate Alternative Forum

Before a court may dismiss for forum non conveniens, the defendant must show that an

adequate alternative forum exists. Zions, 629 F.3d at 523. “Ordinarily, this requirement will be

satisfied when the defendant is ‘amenable to process’ in the other jurisdiction.” Piper, 454 U.S.

at 254 n.22 (citing Gilbert, 330 U.S. at 506–07). In rare cases an alternative forum may provide

a remedy so “clearly inadequate or unsatisfactory that it is no remedy at all”—for example

“where the alternative forum does not permit litigation of the subject matter of the dispute.” Id.

at 254 & n.22. Unfavorable differences in law not rising to this level fail to undermine a forum’s

adequacy. Id. at 254–55.

Goodyear U.S. has repeatedly agreed to submit to French jurisdiction for the claims

asserted in Plaintiffs’ amended complaint. So unless Plaintiffs can show that France would

decline jurisdiction or otherwise provides a “clearly unsatisfactory” remedy, Goodyear U.S. has

shown an adequate alternative forum. See Piper, 454 U.S. at 254 n.22.

Jurisdiction. Plaintiffs argue that the district court should not have determined that

French courts would hear Plaintiffs’ claims. They cite their expert’s declaration—by French law

professor Bruno Dondero—to argue that under Article 42 of the French Code of Civil Procedure

(French Code), a defendant’s place of incorporation has jurisdiction over disputes and no

exception applies here.

Goodyear U.S.’s expert—former French Supreme Court Justice Jean-Paul Béraudo—

explains that, contrary to Professor Dondero’s claim, multiple French courts have jurisdiction to

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hear this dispute. While Justice Béraudo agrees that jurisdiction is usually proper in the “place

where the defendant lives,” he observes that Article 46 of the French Code allows a plaintiff to

sue in tort “before . . . the court of the place of the event causing liability or the [place where] the

damage was suffered.” Because the events and damage from which Plaintiffs complain occurred

in Amiens, the tribunal de grande instance there would have jurisdiction over this case.

Additionally, to the extent Plaintiffs’ claims target the work relationship, France provides the

tribunal des affaires de sécurité sociale for “occupational disease claims,” and the conseil de

prud’hommes “for claims of other harm related to workplace injuries or exposures.”

Plaintiffs also fail to grapple with extensive caselaw in which federal courts concluded

that France offers an adequate alternative forum for similar claims. See, e.g., Gschwind v.

Cessna Aircraft Co., 161 F.3d 602, 606–07 (10th Cir. 1998) (products liability and wrongful

death); Magnin v. Teledyne Cont’l Motors, 91 F.3d 1424, 1429 (11th Cir. 1996) (negligence and

products liability); Marnavi Splendor GMBH & Co. KG v. Alstom Power Conversion, Inc.,

706 F. Supp. 2d 749, 754–55 (S.D. Tex. 2010) (negligence, breach of contract, and breach of

warranty); Faurecia Exhaust Sys., Inc. v. Walker, 464 F. Supp. 2d 700, 709–10 (N.D. Ohio 2006)

(contract dispute). And Professor Dondero’s analysis ignores that Goodyear U.S. “has agreed to

submit to French jurisdiction voluntarily,” which Justice Béraudo explains prohibits French

courts from sua sponte declining jurisdiction once Goodyear U.S. appears. Plaintiffs fail to show

that French courts cannot hear their case.

Adequacy of Remedies. Next, Plaintiffs complain that French courts offer insufficient

remedies because they lack class actions, procedural mechanisms to discover prospective class

members, and injunctive relief for medical monitoring. But the absence of class actions does not

render an otherwise adequate forum inadequate. Wong, 589 F.3d at 831. It follows that the

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absence of discovery to find prospective class members also cannot thwart France as an adequate

alternative forum. As for medical monitoring, Justice Béraudo explains that France offers

damages for anxiety and fear of future illness. But even if France lacked those remedies, it

offers others such as damages for physical harm, which is enough. See Piper, 454 U.S. at 255

(observing that even though Scottish law precluded plaintiffs’ “strict liability theory, and

although their potential damages award may be smaller, there is no danger that they will be

deprived of any remedy”).

Conditional Dismissal. The district court dismissed Plaintiffs’ complaint provided that

Goodyear U.S.:

(1) Consents to suit and acceptance of process in France in civil actions filed by
the Plaintiffs on the claims stated in the First Amended Complaint; (2) [a]grees to
make available any documents or witnesses within its control that are necessary
for fair adjudication of a civil action brought in . . . France by the Plaintiffs on the
claims stated in the First Amended Complaint; (3) [c]onsents to pay or perform
any judgment or judgments rendered against it in France in a civil action brought
by the Plaintiffs on the claims stated in their First Amended Complaint; and (4)
[a]grees to waive any statute of limitations defense that did not exist prior to the
institution [of] the action filed herein.

Plaintiffs argue that the district court should have included two additional conditions: make

Goodyear U.S. agree to the dismissal conditions and allow Plaintiffs to re-file should French

courts deny jurisdiction. In both its briefing on appeal and at oral argument, Goodyear U.S.

agreed to comply with these conditions. It also agreed to abide by substantially similar

conditions in a declaration filed with the district court. If Goodyear U.S. violates any of these

conditions, Plaintiffs should move under Federal Rule of Civil Procedure 60(b) to revive this

case in the Northern District of Ohio.

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3. The Private and Public Factors

Courts weigh private- and public-interest factors to decide if a defendant has shown the

chosen forum burdensome. Piper, 454 U.S. at 257–61. Plaintiffs argue the district court abused

its discretion by concluding that these factors favor dismissal, and by not applying the factors to

each of Plaintiffs’ distinct claims. We consider each contention in turn.

a. Factor Application

(i) The Private-interest Factors

This court recognizes the following private-interest factors:

[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, witnesses; possibility of view of premises, if view would be appropriate .
. . ; and all other practical problems that make trial of a case easy, expeditious and
inexpensive.

Dowling v. Richardson-Merrell, Inc., 727 F.2d 608, 612 (6th Cir. 1984) (quoting Gilbert,

330 U.S. at 508). A court may also consider the enforceability of a judgment in the foreign

forum. Id. Here, the district court concluded that these factors “unite to weigh heavily in favor

of dismissal.” We agree.

France provides better access to sources of proof than does Ohio. As Plaintiffs

acknowledge, “evidence of [their] harm” “[is] located in France,” and Goodyear France stores

documents regarding each of its employee’s exposure to toxic chemicals in France. Also,

because any exposure to toxic chemicals, warnings regarding chemicals, representations about

health risks from work at the factory, and safety precautions taken occurred in Amiens, witnesses

to this conduct likely reside in France. That many of these documents and witnesses will likely

require translation to English further favors dismissal. See Barak v. Zeff, No. 06-14424, 2007

WL 1098530, at *4 (E.D. Mich. Apr. 12, 2007). And while Plaintiffs counter that the toxic

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chemicals came from the United States and that Goodyear U.S. maintains records of the

chemicals used at the Amiens factory in Akron, Goodyear U.S. has agreed to make evidence it

controls available in France. See Stewart v. Dow Chem. Co., 865 F.2d 103, 104–05, 107 (6th

Cir. 1989) (determining that a defendant agreeing to produce documents under its control as a

condition of dismissal supported dismissing for forum non conveniens).

The other private-interest factors also back dismissal. As for witness attendance, the

number of potential third-party witnesses located in France—e.g., the 700 potential class

members’ doctors—coupled with the expense of transporting to and accommodating those

witnesses in Ohio, counsels toward dismissal. See Barak v. Zeff, 289 F. App’x 907, 912 (6th Cir.

2008). So too does Goodyear U.S.’s pledge to pay or perform any judgment. Finally, the district

court thought that “practical problems associated with administering a class of foreign nationals”

weighed in favor of dismissal. Plaintiffs identify France’s lack of contingency fees and a

mechanism to discover class members as practical problems with that forum. As we have

already explained, however, the lack of a mechanism to discover class members matters not.

And because Plaintiffs are foreign, we give little weight to the increased financial burden that the

lack of contingency fees imposes on them. See Dowling, 727 F.2d at 616.

(ii) The Public-interest Factors

Courts consider the following public-interest factors: “administrative difficulties . . . for

courts when litigation is . . . in congested centers instead of . . . handled at its origin”; the burden

of imposing jury duty on a community which has no relation to the litigation; ensuring cases that

impact many persons are litigated “in their view and reach . . .”; the “local interest in having

localized controversies decided at home”; and having courts at home with the law decide cases,

“rather than having a court in some other forum untangle problems in conflict of laws, and in law

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foreign to itself.” Gilbert, 330 U.S. at 508–09. The district court concluded that “all of the public

interest factors weigh in favor of dismissal.” Again, we agree.

Plaintiffs argue Ohio has an interest in its courts deciding this case because they sued an

Ohio corporation, and Goodyear U.S.’s wrongful conduct—decision making regarding both

chemicals used in the manufacturing process and certain safety equipment—occurred in Ohio.

But the location of Goodyear U.S.’s decision making simply cannot overcome that Plaintiffs

present a controversy centered in France: they live in France, worked for a French company in a

French factory, and suffered injuries in France. Indeed, when products or work conditions cause

injuries, the place of injury has a greater interest in resolving any ensuing disputes than the place

of corporate decision making. Auxer v. Alcoa, Inc., 406 F. App’x 600, 605 (3d Cir. 2011);

Kryvicky v. Scand. Airlines Sys., 807 F.2d 514, 517 (6th Cir. 1986) (citing Dowling, 727 F.2d at

616); see also Piper, 454 U.S. at 260–61. Moreover, this case relates to and most touches the

allegedly injured Amiens factory workers and the surrounding community.

b. Applying the Factors to Plaintiffs’ Distinct Claims

Citing Duha v. Agrium, Inc., 448 F.3d 867, 879 (6th Cir. 2006), and Zions, 629 F.3d at

526, Plaintiffs assert that the district court abused its discretion by applying the private- and

public-interest factors to all their claims at once, instead of conducting a separate analysis of

each “distinct claim[],” such as negligence, products liability, promissory estoppel, and

spoliation.

In both Duha and Zions, this court reversed forum-non-conveniens dismissals because

district courts failed to apply the private- and public-interest factors separately to multiple claims

where proof of at least one of the claims largely depended on evidence in the United States.

Duha, 448 F.3d at 870–71, 875–76, 879–81; Zions, 629 F.3d at 526. But in each case, the

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district court dismissed after focusing on and analyzing only the claim most dependent upon

evidence located in a foreign forum. See Duha, 488 F.3d at 880–81; Zions, 629 F.3d at 526.

Without providing specifics, Plaintiffs assert that their various claims “clearly encompass

different . . . sources of evidence,” thus requiring separate analysis.

Though Plaintiffs present “distinct claims” in that they allege multiple causes of action,

all Plaintiffs’ claims arise out of events occurring at the Amiens factory. Plaintiffs’ non-

spoliation claims will largely require the same evidence: what chemicals individuals were

exposed to, whether those chemicals caused harm, and the extent of that harm. While the

spoliation claim requires different evidence than the other claims—i.e., evidence regarding the

Amiens factory’s dismantling—that evidence is in France. Thus, the Duha court’s concern that a

district court could “dismiss a plethora of convenient claims because it correctly dismissed one

inconvenient claim,” 448 F.3d at 879, is not present here. All Plaintiffs’ claims are inconvenient

in Ohio; the district court did not need to analyze each separately.

B. Denial of Plaintiffs’ Sur-Reply

Finally, Plaintiffs challenge the district court’s denial of their sur-reply as moot, which

we review for abuse of discretion. Modesty v. Shockley, 434 F. App’x 469, 472 (6th Cir. 2011)

(citing Seay v. Tenn. Valley Auth., 339 F.3d 454, 480 (6th Cir. 2003)). They argue that because

Goodyear U.S.’s reply to its motion to dismiss for forum non conveniens referenced new French

law and its motion to dismiss for failure to state a claim raised new factual arguments, the district

court should have allowed them a sur-reply. See Key v. Shelby Cty., 551 F. App’x 262, 265 (6th

Cir. 2014) (noting a district court may allow a sur-reply to respond to new arguments made in a

reply).

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The French law allegedly first raised in Goodyear U.S.’s reply—“regulation . . .

44/2001”— was not “new”: it appeared in both Justice Béraudo’s first declaration and Professor

Dondero’s declaration in response. And Goodyear U.S. made its allegedly new factual argument

in its reply to its separate motion to dismiss for failure to state a claim, but the district court

dismissed for forum non conveniens. Plaintiffs fail to show the district court abused its

discretion in denying their sur-reply.

III.

For these reasons, we AFFIRM.

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