United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 5, 2004
Charles R. Fulbruge III
Clerk
No. 03-11052
Summary Calendar
DELTA BRANDS INC
Plaintiff - Appellant
v.
DANIELI CORPORATION; DANIELI & C SPA; SSAB TUNNPLAT AB
Defendants - Appellees
Appeal from the United States District Court
for the Northern District of Texas
No. 3:02-CV-81-N
Before KING, Chief Judge, and DeMOSS and STEWART, Circuit Judges.
PER CURIAM:*
Delta Brands, Inc. (“Delta”), a Texas Corporation, brought
suit against SSAB Tunnplåt AB (“SSAB”), a Swedish Corporation,
Danieli Corporation (“Danieli Corp.”), a Delaware Corporation,
and Danieli & C Officine Meccaniche SpA (“Danieli & C”), an
Italian Corporation. The three defendants sought dismissal on
various grounds. After finding that Delta had failed to
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
1
establish a prima facie case of personal jurisdiction over SSAB
or Danieli Corp., the district court granted their motions to
dismiss. The district court granted Danieli & C’s motion to
dismiss on the basis of forum non conveniens, upon determining
that the relevant private and public interests favored Italy,
rather than Texas, as the appropriate forum. Delta appeals the
district court’s dismissal of its claims against SSAB, Danieli &
C, and Danieli Corp. We affirm.
I. BACKGROUND
Delta, a Texas corporation that designs and manufactures
steel-processing equipment, contacted SSAB, a sheet-steel
manufacturer based in Sweden, in an effort to market its product
to SSAB. Fortuitously, at that time, SSAB was soliciting bids
for two cut-to-length lines.1 SSAB invited Delta to submit a
bid, and Delta complied by sending a bid and layout drawings to
SSAB. Five companies besides Delta responded to SSAB’s bid
request, including Danieli & C, an Italian company.
At SSAB’s invitation, Delta flew to Sweden to discuss its
bid. During its meeting with Delta in Sweden, SSAB expressed an
interest in viewing Delta’s equipment in operation. Once Delta’s
representatives returned to the United States, SSAB again
requested to view Delta’s equipment. The parties agreed that
1
Cut-to-length lines perform a variety of functions
including uncoiling coils of steel, leveling the steel, cutting
the steel to a specific length, and stacking the cut pieces.
2
SSAB would visit the United States. SSAB thus flew to the United
States, inspected Delta’s equipment in Tennessee and Indiana, and
met with Delta representatives at Delta’s headquarters in Irving,
Texas. Throughout the trip, SSAB praised Delta’s technology.
Danieli Corp.,2 the North American representative of Danieli
& C,3 telephoned Delta to inquire about the possibility of having
Delta work as a subcontractor for Danieli & C on the SSAB
project. Employees at Danieli Corp. and Delta exchanged several
phone calls and emails on this subject, but Danieli & C and Delta
ultimately decided to pursue separate bids.
SSAB subsequently invited Delta, Danieli & C, and one other
company back to Sweden for final bidding and negotiations. After
completion of these meetings, SSAB informed Delta that it had not
been chosen for the project. Delta telephoned SSAB to inquire
who had been chosen; SSAB replied that Danieli & C was to provide
its cut-to-length lines. During this call, SSAB told Delta that
it had asked Danieli & C to provide a rotary shear like Delta’s.
At SSAB’s suggestion, Delta contacted Danieli & C, through
Danieli Corp., about possibly subcontracting on SSAB’s project.
According to Delta, Danieli Corp. opened a dialogue between Delta
2
Danieli Corp. is organized under the laws of Delaware
and its principal place of business is in Cranberry Township,
Pennsylvania.
3
Danieli Corp. is wholly owned by Danieli Holdings,
Inc., which, in turn, is wholly owned by Industrielle
Betellingung SA, which, in turn, is 90% owned by Danieli & C.
3
and Danieli & C. Danieli Corp. also forwarded technical
information from Delta to Danieli & C. These discussions
culminated in Delta submitting an offer to Danieli & C. When
Danieli & C did not immediately respond to the offer, Delta
contacted Danieli & C to check the status of its bid.
Danieli & C telephoned Delta in Texas and asked Delta to
send a delegation to Buttrio, Italy to finalize the agreement.
Delta’s representatives thus traveled to Italy. In Italy,
Danieli & C executed a confidentiality agreement with Delta and
was provided with confidential documents regarding Delta’s rotary
shear and its electromagnetic stacker. Danieli & C, however,
declined to finalized the subcontracting agreement while Delta
was in Italy; Danieli & C told Delta that the agreement would be
finalized upon Delta’s return to Texas.
Delta’s representatives returned to Texas, but Delta was not
contacted by Danieli & C as planned. Delta telephoned Danieli &
C repeatedly to check on the status of its bid. Danieli & C
eventually emailed Delta that its price was too high. When Delta
telephoned Danieli & C, Danieli & C warned that if Delta would
not provide its rotary shear and its electromagnetic stacker at a
lower price, then Danieli & C would have them manufactured by
someone else.
Delta brought suit against Danieli & C and Danieli Corp. in
federal district court in Texas, alleging that the companies had
both breached their confidentiality agreement with Delta and
4
misappropriated Delta’s trade secrets. Delta later amended its
complaint to add causes of action for fraud, conspiracy, and
negligent misrepresentation, and to include SSAB as a defendant.
Upon various motions by the defendants, the district court
dismissed Delta’s suit against Danieli & C under the doctrine of
forum non conveniens, dismissed Delta’s suit against SSAB for
lack of personal jurisdiction, and ordered Delta to amend its
complaint to state its allegations against Danieli Corp. more
specifically. Delta’s Second Amended Complaint alleges that
Danieli Corp. conspired with Danieli & C to misappropriate
Delta’s trade secrets by misrepresenting Danieli & C’s intent to
use Delta as a subcontractor and then breaching its
confidentiality agreement with Delta. After Delta submitted its
Second Amended Complaint, Danieli Corp. moved to dismiss for lack
of personal jurisdiction. The district court granted Danieli
Corp.’s motion and entered a final judgment against Delta. Delta
timely appeals the dismissal of its claims against SSAB, Danieli
& C, and Danieli Corp.
II. PERSONAL JURISDICTION
We review a district court’s decision to dismiss for lack of
personal jurisdiction de novo. Stripling v. Jordan Prod. Co.,
234 F.3d 863, 869 (5th Cir. 2000). Where, as here, the district
court did not conduct an evidentiary hearing, the party seeking
to assert personal jurisdiction is required only to present
5
sufficient facts to make out a prima facie case. Id. The court
will accept as true any uncontroverted allegations contained the
party’s complaint and will resolve all factual conflicts arising
out of the parties’ affidavits in favor of the party seeking
jurisdiction. Id. The court need not, however, accept “merely
conclusory” allegations as true. Cent. Freight Lines Inc. v. APA
Transp. Corp., 322 F.3d 376, 380 (5th Cir. 2003).
A federal court sitting in diversity may exercise personal
jurisdiction over a nonresident defendant if (1) the state long-
arm statue permits an exercise of jurisdiction and (2) an
exercise of jurisdiction would comport with the requirements of
the Due Process Clause of the Fourteenth Amendment. Religious
Tech. Ctr. v. Liebreich, 339 F.3d 369, 373 (5th Cir. 2003); see
also FED. R. CIV. P. 4(e)(1), 4(h)(1), 4(k)(1). Because the
requirements of Texas’s long-arm statute are coextensive with the
requirements of the Due Process Clause, the sole inquiry in this
case is whether the district court’s exercise of personal
jurisdiction over the defendants would be consistent with due
process. Religious Tech Ctr., 339 F.3d at 373.
The exercise of jurisdiction over a nonresident defendant is
proper, under the Due Process Clause, when two requirements have
been met: (1) the defendant has established “minimum contacts”
with the forum state and (2) exercising jurisdiction does not
offend “traditional notions of fair play and substantial
6
justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316
(1945); Alpine View Co. v. Atlas Copco AB, 205 F.3d 208, 214-15
(5th Cir. 2000). A defendant has minimum contacts with a forum
if it has “purposefully avail[ed] 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 (1958). The minimum-contacts requirement ensures
that “the defendant’s conduct and connection with the forum State
are such that he should reasonably anticipate being haled into
court there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S.
286, 297 (1980).
Personal jurisdiction may be specific or general. A court
may exercise specific personal jurisdiction over a defendant if
the suit arises out of or is related to the defendant’s
purposeful contacts with the forum. Helicopteros Nacionales de
Colombia, S.A. v. Hall, 466 U.S. 408, 414 n.8 (1984); Alpine View
Co., 205 F.3d at 215. By contrast, if a suit is unrelated to the
defendant’s activities in the forum, a court may exercise general
personal jurisdiction over the defendant if the defendant’s
contacts with the forum state are substantial and “continuous and
systematic.” Helicopteros, 466 U.S. at 414-15; Alpine View Co.,
205 F.3d at 215.
With these general principles in mind, we now consider
whether the district court properly found that it did not have
personal jurisdiction over either SSAB or Danieli Corp.
7
1. SSAB
SSAB is organized under the laws of Sweden. SSAB’s
principal place of business is Borlänge, Sweden; it has no
subsidiaries or branch offices in the United States. SSAB does
not have employees, servants, or agents in Texas, nor does it own
or lease any property in Texas. Nonetheless, Delta contends that
SSAB’s contacts with Texas are sufficient to support general
personal jurisdiction because (1) SSAB Swedish Steel (“Swedish
Steel”), which is wholly owned by SSAB’s parent corporation, SSAB
Svenskt Stal AB, maintains a Pittsburgh office and sells products
in Texas; (2) one of Swedish Steel’s employees resides in Texas;
(3) 0.04% of SSAB’s steel products were shipped by third parties
into Texas; and (4) SSAB’s representatives visited Delta’s Texas
facility on one occasion. We agree with the district court that
these contacts are insufficient to give rise to general personal
jurisdiction over SSAB.
As noted by the district court, Swedish Steel’s contacts
with Texas may not be imputed to SSAB because the evidence
demonstrates that SSAB and Swedish Steel, though owned by the
same parent corporation, are separate and distinct entities. See
Alpine View Co., 205 F.3d at 218-19; Bearry v. Beech Aircraft
Corp., 818 F.2d 370, 372-73 (5th Cir. 1987). Furthermore, that a
small portion of SSAB’s products were shipped by third parties
into Texas does not establish that SSAB availed itself of the
8
benefits and protections of Texas law. See Bearry, 818 F.2d at
373, 375-76 (holding that “[t]he laws of Texas neither protected
nor benefitted” the defendant even though nearly $250 million of
the defendant’s manufactured products flowed to independent
dealers in Texas over a five-year period). Finally, SSAB’s lone
trip to Texas for the purpose of visiting Delta’s headquarters is
not a substantial contact and certainly does not constitute
“continuous and systematic” contacts with Texas. In sum, the
flow of SSAB’s goods into Texas through third parties, combined
with one visit by SSAB to Delta’s Texas facility, are
insufficient contacts with Texas to give rise to general personal
jurisdiction.
Delta also contends, however, that SSAB has contacts with
Texas that support specific personal jurisdiction because (1)
SSAB made misrepresentations to Delta, some of these
misrepresentations were made in Texas, and it was foreseeable
that the effects of SSAB’s misrepresentations would be felt by
Delta in Texas and (2) SSAB was part of a conspiracy to acquire
and to misappropriate Delta’s confidential information.
Delta correctly notes that this court has held that tortious
actions performed outside of Texas may be sufficient, for
purposes of minimum-contacts analysis, if the actions “had
foreseeable effects in the forum and were directed at the forum.”
Wien Air Alaska, Inc. v. Brandt, 195 F.3d 208, 212 (5th Cir.
9
1999). But Delta has not shown that SSAB directed its actions at
Texas. Rather, the evidence shows that Delta sought out SSAB’s
business, first by telephoning SSAB in Sweden, and then by
traveling to Sweden to meet with SSAB representatives. In fact,
SSAB ultimately declined to create an ongoing business
relationship with Delta, opting instead to do business with
Danieli & C, an Italian Corporation. Contact initiated by Delta
is insufficient to show that SSAB purposefully directed its
actions at Texas. Hanson, 357 U.S. at 253 (“The unilateral
activity of those who claim some relationship with a nonresident
defendant cannot satisfy the requirement of contact with the
forum State.”).
Furthermore, Delta has not alleged that SSAB made
misrepresentations to Delta while SSAB was in Texas; nor has
Delta alleged that SSAB made misrepresentations in telephone
calls, faxes, or emails to Delta personnel in Texas.4 Cf. Wien
Air Alaska, Inc., 195 F.3d at 212 (holding that the defendants
had purposefully directed their actions at Texas by making
fraudulent misrepresentations to the plaintiff in telephone calls
4
SSAB did allegedly comment, during a phone call with a
Delta employee in Texas, that “the rotary shear and temper mill
in [Delta’s] material were very novel and interesting,” but,
presumably, Delta does not consider this to be a false statement.
In any case, this statement cannot form the basis for a
fraudulent-misrepresentation claim, because, under Texas law,
statements of opinion or judgment do not ordinarily support
claims of fraud. Fina Supply, Inc. v. Abilene Nat’l Bank, 726
S.W.2d 537, 540 (Tex. 1987); Ryan v. Collins, 496 S.W.2d 205, 210
(Tex. Civ. App.--Tyler 1973, writ ref’d n.r.e.).
10
to the plaintiff in Texas and in letters and faxes sent to the
plaintiff in Texas). Thus, Delta has not shown that SSAB
purposefully availed itself of the privilege of conducting
business within Texas or invoked the benefits and protections of
Texas’s laws. Consequently, we conclude that Delta has failed to
establish a prima facie case of specific personal jurisdiction
based on SSAB’s alleged misrepresentations. See Panda Brandywine
Corp. v. Potomac Elec. Power Co., 253 F.3d 865, 869 (5th Cir.
2001).
Delta also contends that specific personal jurisdiction can
be based on SSAB’s alleged participation in a conspiracy to
obtain Delta’s confidential information. To establish its prima
facie case of specific personal jurisdiction, Delta was required
to demonstrate that SSAB individually, and not as part of the
conspiracy, had minimum contacts with Texas. Guidry v. United
States Tobacco Co., 188 F.3d 619, 625 (5th Cir. 1999). Thus,
Delta was required to show that either the alleged conspiracy or
SSAB’s alleged misrepresentations were related to or arose out of
SSAB’s contacts with Texas.
Delta’s First Amended Complaint states that “Defendants SSAB
and Danieli have conspired together . . . to acquire and
misappropriate [Delta]’s confidential and proprietary
information” by making material misrepresentations to Delta. In
this section of its complaint, however, Delta makes no reference
to the state of Texas. Delta has provided no other evidence that
11
the conspiracy was related to SSAB’s contacts with Texas.
Furthermore, as explained above, there is no evidence that SSAB’s
alleged misrepresentations were directed at Texas. Therefore,
Delta has not established a prima facie case of specific personal
jurisdiction over SSAB based on its alleged participation in a
conspiracy against Delta.
As Delta has presented neither a prima facie case of general
personal jurisdiction nor a prima facie case of specific personal
jurisdiction, the district court correctly dismissed Delta’s suit
against SSAB.
2. Danieli Corp.
Delta contends that Danieli Corp. has minimum contacts with
Texas based on Danieli Corp.’s breach of Delta’s confidentiality
agreement, its fraudulent misrepresentations to Delta, and its
conspiracy with Danieli & C to acquire Delta’s confidential
information. We agree with the district court, however, that
Delta has not presented a prima facie case of specific personal
jurisdiction related to any of these claims.
In its appellate brief, Delta argues that specific personal
jurisdiction is proper based on the confidentiality agreement,
because, by entering into the agreement, Danieli Corp. “created
continuing obligations between it and [Delta], a Texas
resident[,] and has availed itself of the privilege of conducting
business in Texas.” Delta’s argument is unpersuasive. As Delta
12
admitted in its Second Amended Complaint, “Danieli [Corp.] and
Danieli & C are separate and distinct legal entities.” The
uncontradicted evidence shows that Danieli Corp. never agreed to
be bound by the confidentiality agreement between Delta and
Danieli & C. Notwithstanding that Danieli & C promised on behalf
of itself and “any other party affiliated with it [to]
maintain . . . the strict confidentiality of [Delta’s]
Confidential Information,” only Danieli & C signed the agreement.
Danieli Corp. did not know about the confidentiality agreement,5
let alone agree to be bound by it. It is far-fetched indeed to
assert that Danieli Corp. should have anticipated being haled
into Texas court in connection with a contract it did not know
about, that was executed in Italy by its affiliate, and that was
allegedly breached by its affiliate in Italy. Consequently, we
hold that Delta has failed to establish a prima facie case of
specific personal jurisdiction related to its contract claim
against Danieli Corp.
Delta also contends that specific personal jurisdiction
exists based on Danieli Corp’s fraudulent misrepresentations. In
its brief on appeal, Delta argues that Danieli Corp., like SSAB,
made misrepresentations to Delta that it knew or should have
known would cause harm to Delta in Texas. Delta, however, never
5
According to an affidavit submitted by Danieli Corp.
and uncontradicted by Delta, Danieli Corp. was unaware of the
confidentiality agreement until it received Delta’s original
complaint in this case.
13
alleged in its Second Amended Complaint that Danieli Corp.
actually misrepresented any material facts. Delta merely alleged
that misrepresentations were made, but the complaint is ambiguous
about who allegedly made them: Danieli & C, Danieli Corp., or
both.6 Since Danieli Corp. and Danieli & C are different
corporations, only misrepresentations made by Danieli Corp.
itself can be used to measure Danieli Corp.’s contacts with
Texas; Danieli & C’s contacts cannot be imputed to Danieli Corp.
See Alpine View Co., 205 F.3d at 219.
Furthermore, even if we interpreted Delta’s complaint as
alleging that Danieli Corp. made material representations to
Delta and that it was foreseeable to Danieli Corp. that the
effects of the misrepresentations would felt by Delta in Texas,
we would still find that Delta has not established a prima facie
case of jurisdiction over Danieli Corp. As with SSAB, Delta has
failed to show that Danieli Corp.’s misrepresentations had any
connection to Texas, other than that the effects of the
misrepresentations would be felt by Delta there. Critically,
Delta has not shown that Danieli Corp. purposefully directed its
actions at Texas. See Panda Brandywine Corp., 253 F.3d at 869-70
(holding that the foreseeability of causing injury in Texas is
6
Delta’s complaint alleges that, “The unlawful means
employed [by Danieli & C and Danieli Corp. to gain access to
Delta’s confidential information] was the misrepresentation to
[Delta] with respect to Danieli & C’s intent to utilize [Delta]
as a subcontractor.” Thus, it is unclear who actually made the
misrepresentations.
14
insufficient for specific personal jurisdiction, and that the
plaintiff must also show that the defendant purposefully directed
its efforts towards the forum state). Delta has not, for
example, alleged that Danieli Corp.’s misrepresentations arose
out of contacts initiated by Danieli Corp., rather than contacts
initiated by Delta.7 Nor has Delta alleged that Danieli Corp.’s
misrepresentations occurred in telephone calls, emails, or faxes,
to Delta in Texas. Cf. Wien Air Alaska, Inc., 195 F.3d at 212.
Because there has been no showing that Danieli Corp. purposefully
availed itself of the privilege of conducting business within
Texas, we find that Delta’s allegations do not support a prima
facie case of specific personal jurisdiction over Danieli Corp.
Finally, Delta argues that it properly established a prima
facie case of specific personal jurisdiction based on Danieli
Corp.’s alleged participation in a conspiracy with Danieli & C.
In its Second Amended Complaint, Delta alleges that Danieli Corp.
conspired with Danieli & C to misappropriate Delta’s confidential
information and that the “means employed [to accomplish this
goal] was the misrepresentation to [Delta] with respect to
Danieli & C’s intent to utilize [Delta] as a subcontractor [and]
the breach of the Confidentiality Agreement.” According to
7
We note that, after losing the SSAB contract to Danieli
& C, Delta initiated contact with Danieli Corp. to inquire about
subcontracting. But, of course, contacts initiated by Delta do
not show that Danieli Corp. purposefully availed itself of the
privilege of conducting business within Texas. Hanson, 357 U.S.
at 253.
15
Delta, its allegations of conspiracy were sufficient, under
Mandelkorn v. Patrick, 359 F. Supp. 692 (D.D.C. 1973), to
establish a prima facie case because Danieli Corp. never denied
that it participated in a conspiracy with SSAB and Danieli & C.
We note, first, that Mendelkorn, a district court case from the
District of Columbia, is not binding authority. Even if we
agreed with the analysis contained in Mandelkorn, however,
Delta’s argument fails because, in his affidavit, Mark Brandon,
the President of Danieli Corp., explicitly “denie[d] that
[Danieli Corp.] conspired in any way with SSAB . . . and/or
Danieli & C to acquire any information from Delta.” In any
event, as explained above, Delta has failed to show how the
alleged conspiracy between the defendants had any connection to
the state of Texas.
Because Delta has not established a prima facie case of
specific personal jurisdiction over Danieli Corp., the district
court correctly dismissed Delta’s claims against Danieli Corp.
for lack of personal jurisdiction.
III. FORUM NON CONVENIENS
We review for clear abuse of discretion a district court’s
decision to dismiss a suit under the doctrine of forum non
conveniens. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255
(1981); Baumgart v. Fairchild Aircraft Corp., 981 F.2d 824, 835
(5th Cir. 1993). “Where the district court ‘has considered all
16
relevant public and private interest factors, and where its
balancing of these factors is reasonable, its decision deserves
substantial deference.’” Baumgart, 981 F.2d at 835 (quoting Piper
Aircraft, 454 U.S. at 257).
There is a “strong presumption in favor of the plaintiff’s
choice of forum.” Piper Aircraft, 454 U.S. at 254-5.
Nonetheless, this presumption may be overcome when an alternate,
adequate forum is available and private and public interests
“clearly point towards trial in the alternate forum.” Id. at 255
& n.22. The relevant private interest factors include:
the “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 to the action; and all other
practical problems that make trial of a case easy,
expeditious and inexpensive.”
Id. at 242 n.6 (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501,
508 (1947)). The district court should also consider the
following public interest factors:
the 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.
Id. (quoting Gulf Oil Corp., 330 U.S. at 509). Although citizen
plaintiffs are given “somewhat more deference” in their choice of
forum than foreign plaintiffs, dismissal is still appropriate “if
17
the balance of conveniences suggest that trial in the chosen
forum would be unnecessarily burdensome for the defendant or the
court.” Id. at 255 n.23. The defendant bears the burden of
showing that dismissal on this basis is warranted. Robinson v.
TCI/US W. Cable Communications Inc., 117 F.3d 900, 907 (5th Cir.
1997).
Delta has not challenged the district court’s determination
that Italy is an available and adequate alternative forum for its
suit against Danieli & C. Instead, Delta claims that the
district court erred in its evaluation of the public and private
interests at stake. Regarding the private interests, Delta
argues that it is no easier to access sources of proof in Italy
than in Texas and that the cost of obtaining the attendance of
willing witnesses would be no higher if the suit were tried in
Texas than it would be if the suit were tried in Italy.
Furthermore, Delta argues that as important documents are in
English, its personnel speaks only English, and the key meetings
were conducted in English, a trial in Italy would require
extensive translation.
In considering the private interest factors, the district
court addressed all of these arguments. Although recognizing
that most of Delta’s documents and witnesses are located in
Texas, the district court concluded that Italy would provide
better overall access to sources of proof because most of the
information and witnesses necessary for trial are located in
18
Italy and Europe. Furthermore, because it found that almost all
of the relevant testimony would be provided by European
witnesses, the district court concluded that the cost of
obtaining attendance of willing witnesses would be lower if the
case were tried in Italy. Finally, the district court determined
that language barriers would be more problematic in Texas than in
Italy, as more witnesses and documents are located in Italy than
in Texas.8 We find that the district court’s analysis of these
factors was reasonable.
Delta also contends that the district court erred in finding
that the existing public interests weighed against trial in
Texas. First, Delta claims that this is a localized controversy
and, thus, that Texas has an interest in having the case heard in
its courts. Second, Delta argues that Texas law applies to the
dispute and, therefore, that courts in Texas will be most
familiar with the law to be applied. Third, because the law of
Texas applies, according to Delta, there would be no problems of
conflict of laws or the application of foreign law if the case
were tried in Texas.
The district court disagreed with Delta’s analysis of the
public interests present in this suit. The district court found
8
Certain factors, according to the district court, did
not weigh in favor of dismissal. Specifically, the district
court found that Danieli & C had not shown that witnesses would
be unavailable if the case were tried in Texas or that the
viewing of premises in Italy would be necessary.
19
that this is fundamentally an Italian dispute, rather than a
Texas dispute, because the presentation and negotiations of the
confidentiality agreement were conducted during Delta’s trip to
Italy, the confidentiality agreement was executed there, and
Danieli & C’s alleged breach of the agreement occurred there.
According to the district court, even though Texas has an
interest in hearing a case brought by one of its citizens, Italy
has a stronger interest in having the case heard in Italy because
of its interest in regulating corporations that operate within
its boundaries. Furthermore, the court concluded that, under a
“most significant contacts” analysis, Italian law would apply;
thus, Italian courts would be most at home with the law and
trying the case in Italy would avoid unnecessary problems in the
application of foreign law. Finally, the district court
concluded that it would be unfair to burden Texas citizens with
jury duty, since this is basically an Italian dispute.9
We find no clear abuse of discretion in the district court’s
analysis of the public interest factors. Specifically, we hold
that the district court did not err in concluding that Italian
law, rather than Texas law, applies to the dispute. Since this
diversity case comes to us from a district court in Texas, we
apply Texas choice-of-law rules. Klaxon Co. v. Stentor Elec.
9
Because neither Danieli & C nor Delta addressed the
administrative difficulties flowing from court congestion, the
district court did not include this factor in its analysis.
20
Mfg. Co., 313 U.S. 487, 496 (1941). Texas follows the “most
significant relationship” test for contract cases. Jackson v. W.
Telemktg. Corp. Outbound, 245 F.3d 518, 523 (5th Cir. 2001).
Under this test, the court looks at the quality, rather than the
quantity, of the parties’ contacts with a particular
jurisdiction. Id. Because Danieli & C is domiciled in Italy and
the confidentiality agreement between Delta and Danieli & C was
negotiated, executed, and allegedly breached in Italy, we find
that the district court was correct in holding that Italian law
applies. See Maxus Exploration Co. v. Moran Bros., Inc., 817
S.W.2d 50, 53-54 (Tex. 1991) (outlining the factors that a court
should consider in determining which jurisdiction has the most
significant relationship to the parties and the transaction).
Because the district court carefully considered the relevant
private and public factors, and its analysis was reasonable, we
hold that the district court did not abuse its discretion in
dismissing the suit against Danieli & C under the doctrine of
forum non conveniens.
IV. CONCLUSION
For the foregoing reasons, the judgment of the district
court is AFFIRMED.
21