In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14‐2484
ASHOKE DEB,
Plaintiff‐Appellant,
v.
SIRVA, INC., et al.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:13‐cv‐01245‐TWP‐DML — Tanya Walton Pratt, Judge.
____________________
ARGUED OCTOBER 29, 2015 — DECIDED AUGUST 11, 2016
____________________
Before FLAUM, MANION, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. Ashoke Deb contracted with an In‐
dian moving company, Allied Lemuir, to move his belong‐
ings from Calcutta, India to St. John’s, Canada, but his belong‐
ings never left India. He now seeks to hold the defendants,
two United States companies, SIRVA, Inc. and Allied Van
Lines, Inc., responsible for the improper disposal and loss of
his personal property in connection with his move. SIRVA
and Allied moved to dismiss the complaint, arguing that Deb
2 No. 14‐2484
had failed to state a claim for which the court could grant re‐
lief, that he had failed to join a necessary party, and that the
United States federal courts were not the proper venue for his
claim. The district court agreed with the latter argument and
dismissed on the grounds of forum non conveniens. Deb ap‐
peals. Because we have determined that the district court did
not hold the defendants to their burden of demonstrating that
India was an available and adequate forum for this litigation,
we vacate and remand the case to the district court to do so.
I.
Because the defendants, SIRVA and Allied Van Lines,
moved to dismiss, we will construe the facts in the plaintiff’s
favor for now, but will discuss the nuances of our assump‐
tions below. Jackson v. Payday Fin., LLC, 764 F.3d 765, 773, n.19
(7th Cir. 2014), cert. denied, 135 S. Ct. 1894 (2015).
In August, 2009, in preparation for his move from Cal‐
cutta, India to his current home in St. John’s in the Province
of Newfoundland and Labradour, Canada, Deb, a citizen and
resident of Canada, contracted with an Indian company, Al‐
lied Lemuir, to move his personal belongings from Calcutta
to St. John’s. Deb’s belongings, however, never left India. On
September 5, 2009, Allied Lemuir e‐mailed Deb and informed
him that sea freight charges had risen substantially, and con‐
sequently, Deb would need to pay an additional amount of
money to have the items shipped. Deb refused to pay the ad‐
ditional amount and demanded that Allied Lemuir fulfill its
obligations under the contract as written. At the same time
that Deb was attempting to settle matters with Allied Lemuir
in India, he also contacted the defendants, the United States
companies of SIRVA and Allied Van Lines, in an effort to ob‐
tain his personal goods. Furthermore, from December 2010
No. 14‐2484 3
until May 2011, Deb’s Canadian counsel attempted to resolve
the issue with an attorney for Allied Van Lines Canada (“Al‐
lied Canada”).
Allied Lemuir sent Deb a letter dated January 30, 2010, de‐
manding additional charges that had accrued for demurrage,
fumigation, renewal of customs clearance, and sea freight.
The letter stated that if Deb failed to remit payment within
seven days, it would assume he was no longer interested in
the shipment. Deb did not respond to the letter directly, but
rather relied on his Canadian lawyer to pursue a resolution
by other means, including by contacting the defendants in
this case and corresponding with them over the course of sev‐
eral months. On August 11, 2010, SIRVA’s claim services de‐
partment responded to Deb’s inquiries, stating that they were
unable to identify any record of Deb’s shipment in SIRVA’s
system, but stated that if the move was through Allied or
North American, the claims service representative would for‐
ward the message to the proper party if Deb provided a reg‐
istration number. According to a letter dated August 26, 2010,
which Deb says he did not receive until it was sent to his coun‐
sel on April 12, 2013, Allied Lemuir eventually sold Deb’s
property to pay the additional amounts it had demanded
from Deb.
Deb filed a legal action against Allied Canada in the Su‐
preme Court of Newfoundland and Labrador, Canada, in the
Trial Division on November 5, 2010. And, a few years later,
on July 12, 2013, while the Canadian case was still pending,
he filed his complaint in this case in the Indiana State Superior
Court against SIRVA and Allied Van Lines, both of which are
Delaware corporations with their principal place of business
4 No. 14‐2484
in Illinois and corporate offices in Indiana.1 On August 5,
2013, the defendants jointly filed a successful notice of re‐
moval in the district court in the southern district of Indiana.
Deb seeks to hold SIRVA and Allied Van Lines responsible
for the damages from the improper disposal and ultimate loss
of his personal property, which he alleges include original
works of intellectual property that, together with his other
personal belongings, exceed a value of $75,000. His amended
complaint alleges that SIRVA and Allied Van Lines are liable
to Deb as “joint venturers.” (R. 27, pp. 3‐4, Page ID 286‐287)
(Plaintiff’s Supp. App. B003‐B004).
The district court granted the defendants’ motion to dis‐
miss on June 6, 2014, based on the ground of forum non con‐
veniens, noting that both India and Canada offered appropri‐
ate alternative forums for the action. Deb appeals.
II.
A.
The defendants filed their motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6) (failure to state a
claim upon which relief can be granted), 12(b)(7) (failure to
join a party), and 12(b)(3) (improper venue). Subsumed
within this last category were the common law principles of
forum non conveniens and abstention. The district court dis‐
missed the case on the ground of forum non conveniens.
1 The district court stated that SIRVA has its principal place of business in
Indiana. Deb v. SIRVA Inc., No. 1:13‐CV‐01245‐TWP, 2014 WL 2573465, at
*1 (S.D. Ind. June 6, 2014) (R. 55 at p.2, Page ID 740), but this appears to be
incorrect. See Declaration of Abigail M. Jones, Memorandum in Support
of Defendant’s Motion to Dismiss Plaintiff’s Amended Complaint, Exhibit
1, ¶ 6.
No. 14‐2484 5
As the Latin name suggests, the doctrine of forum non
conveniens addresses the matter of convenience to the parties.
As the Supreme Court explained,
A federal court has discretion to 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 estab‐
lish 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 ad‐
ministrative and legal problems.
Sinochem Intʹl Co. v. Malaysia Intʹl Shipping Corp., 549 U.S. 422,
429 (2007) (citing a long line of Supreme Court precedent) (in‐
ternal citations omitted). Today, the doctrine applies in the
federal courts only when the other jurisdiction is a foreign
one.2 Stated more simply, a district court may dismiss a case
on forum non conveniens grounds when it determines that
there are “strong reasons for believing it should be litigated
in the courts of another, normally a foreign, jurisdiction.”
Fischer v. Magyar Allamvasutak Zrt., 777 F.3d 847, 866, cert. de‐
nied, 135 S. Ct. 2817 (2015) (citing Sinochem, 549 U.S. at 429‐30).
A dismissal for forum non conveniens is “committed to the
sound discretion of the trial court” and “may be reversed only
2 The common law doctrine of forum non conveniens has continuing ap‐
plication in federal courts only in cases where the alternative forum is a
foreign one. Otherwise, if the issue is one of convenience within the
United States federal court system, the Federal Rules of Civil Procedure
allow for transfer, rather than dismissal, when a sister federal court is the
more convenient forum. See 28 U.S.C. §§ 1404(a), 1406(a); Sinochem,
549 U.S. 422, 430.
6 No. 14‐2484
when there has been a clear abuse of discretion.” Piper Aircraft
Co. v. Reyno, 454 U.S. 235, 257 (1981); Abad v. Bayer Corp., 563
F.3d 663, 665 (7th Cir. 2009).
The doctrine of forum non conveniens, however, is an ex‐
ceptional one that a court must use sparingly. Gulf Oil Corp. v.
Gilbert, 330 U.S. 501, 504, 509 (the doctrine should be applied
only in “exceptional circumstances,” and “rather rare cases.”)
See also Carijano v. Occidental Petroleum Corp., 643 F.3d 1216,
1224 (9th Cir. 2011) (“The doctrine of forum non conveniens
is a drastic exercise of the court’s inherent power … . There‐
fore, we have treated forum non conveniens as an exceptional
tool to be employed sparingly.”) “[U]nless the balance is
strongly in favor of the defendant, the plaintiff’s choice of fo‐
rum should rarely be disturbed. Gulf Oil, 330 U.S. at 504.
The exceptional nature of a dismissal for forum non con‐
veniens means that a defendant invoking it ordinarily bears a
heavy burden in opposing the plaintiff’s chosen forum. Sino‐
chem, 549 U.S. at 430; Gulf Oil, 330 U.S. at 508; In re Hudson,
710 F.3d 716, 718 (7th Cir. 2013); In re Factor VIII or IX Concen‐
trate Blood Products Litigation, 484 F.3d 951, 956 (7th Cir. 2007).
A heavy burden is appropriate, because if the doctrine is suc‐
cessfully invoked, the result is not a transfer to another court
but a dismissal, and the plaintiff will not be able to refile his
case in any other court if the statute of limitations has run. In
re Hudson, 710 F.3d at 718.
When a plaintiff’s choice is not his home forum, however,
the presumption in the plaintiff’s favor “applies with less
force,” for the assumption that the chosen forum is appropri‐
ate is in such cases “less reasonable.” Sinochem, 549 U.S. at 430
(citing Piper Aircraft, 454 U.S. at 255–56). In U.S.O. Corp. v. Mi‐
zuho Holding Co., 547 F.3d 749, 752 (7th Cir. 2008), we noted
No. 14‐2484 7
that “[I]f the plaintiff is suing far from home, it is less reason‐
able to assume that the forum is a convenient one. … [and
T]he risk that the chosen forum really has little connection to
the litigation is greater.”) (citing In re Factor VIII or IX Concen‐
trate Blood Products Litigation, 484 F.3d at 956.) It is true that
Deb lives in Newfoundland, Canada and not the United
States, but although the citizenship of the plaintiff defending
against a forum non conveniens claim is relevant to the issue
of convenience, it is not dispositive of the issue. See, e.g., Scot‐
tish Air Intʹl, Inc. v. British Caledonian Grp., PLC, 81 F.3d 1224,
1232 (2d Cir. 1996). As we noted in the blood products litiga‐
tion, the issue is not so much about the foreign citizenship of
the plaintiff, but rather what that foreign nationality might in‐
dicate about the convenience to the plaintiff. In re Factor VIII
or IX Concentrate Blood Products Litig., 484 F.3d at 956. In other
words, when a plaintiff is suing far from home
the risk that the chosen forum really has little
connection to the litigation is greater. We do not
understand this as any kind of bias against for‐
eign plaintiffs. That would be inconsistent with
many treaties the United States has signed as
well as with the general principle that our
courts are open to all who seek legitimately to
use them. It is instead a practical observation
about convenience. A citizen of Texas who de‐
cided to sue in the federal court in Alaska might
face an equally skeptical court, which might
conclude that convenience requires a change in
venue under the federal statutory counterpart
to forum non conveniens.
8 No. 14‐2484
Id. at 956. Nonetheless, it is undoubtedly true that although
Deb is not a citizen or resident of the United States, litigation
in Indiana would be far more convenient from a geographical
perspective than one in India. And in any case, even if we ap‐
ply the presumption in favor of Deb with less force, it is still
the defendants’ burden to oppose the chosen forum.
In short, as we consider whether the district court exerted
permissible discretion to dismiss the case on forum non con‐
veniens grounds, we consider whether it properly placed the
burden on the defendants to demonstrate that a finding of fo‐
rum non conveniens was within the realm of appropriate con‐
clusions.
To determine whether a dismissal for forum non conven‐
iens is appropriate, a court first must determine if an alterna‐
tive and adequate forum is available and then go on to bal‐
ance the interests of the various participants. We start with
the availability of the forum because, “[a[s a practical matter,
it makes little sense to broach the subject of forum non con‐
veniens unless an adequate alternative forum is available to
hear the case. Therefore, the first step in any forum non con‐
veniens inquiry is to decide whether such a place exists.”
Kamel v. Hill‐Rom Co., 108 F.3d 799, 802 (7th Cir. 1997) (citing
Piper Aircraft, 454 U.S. at 254 n.22). The availability of the fo‐
rum is really a two‐part inquiry involving availability and ad‐
equacy. In re Factor VIII or IX Concentrate Blood Products Litig.,
484 F.3d at 957. “An alternative forum is available if all parties
are amenable to process and are within the forum’s jurisdic‐
tion. An alternative forum is adequate when the parties will
not be deprived of all remedies or treated unfairly.” Id. (citing
Kamel, 108 F.3d at 803). Adequacy only comes into play to the
No. 14‐2484 9
extent that the remedy would be so inadequate that for all in‐
tents and purposes the forum is not available. Piper Aircraft,
454 U.S. at 255, n.22. A forum is not inadequate merely be‐
cause the law in the foreign jurisdiction is less favorable to the
party opposing dismissal. Id. at 247, 250; Stroitelstvo Bulgaria
Ltd. v. Bulgarian‐Am. Enter. Fund, 589 F.3d 417, 421 (7th Cir.
2009).
We begin, therefore, by looking to the defendants to see if
they have met their burden of establishing that an alternative
forum is available and adequate. Fischer, 777 F.3d at 867. After
demonstrating that India offered an adequate forum, we
would go on to balance the interests by focusing on the (1)
relative ease of access to sources of proof; (2) availability of
compulsory process and costs for attendance of witnesses; (3)
possibility of viewing the premises, if appropriate; and (4)
other practical issues, including the ease of enforcement of
any ultimate judgment. See Gulf Oil, 330 U.S. at 508. As we
will describe, however, we need not go on to balance the in‐
terests, because we conclude that the defendants have failed
to show there was an available and adequate forum available
elsewhere.
B.
The district court concluded that there were “two possible
forums that satisfy this requirement” of an alternate available
forum—Canada and India. Deb v. SIRVA Inc., No. 1:13‐CV‐
01245‐TWP, 2014 WL 2573465, at *3 (S.D. Ind. June 6, 2014) (R.
55 at 5, Page ID 744). We begin first with the analysis of India
as an alternate forum. The defendants argued that India was
an appropriate forum because the Indian courts could exer‐
cise jurisdiction over Allied Lemuir, and “assuming, arguendo,
10 No. 14‐2484
that Deb’s joint venture theory is correct, and SIRVA and [Al‐
lied Van Lines] were doing business in India as Allied Lemuir,
and, therefore, responsible for the joint venture’s actions, the
Indian courts would be able to exercise jurisdiction over
SIRVA and [Allied Van Lines].” Defendants’ brief at 19‐20.
It is worth stopping for a moment to unpack the defend‐
ants’ argument further. Recall that Deb contracted with Allied
Lemuir to move his belongings. The failed contract was with
Allied Lemuir. Deb never sued Allied Lemuir, but instead
sued two United States companies, the defendants here,
SIRVA and Allied Van Lines. As we just explained, in order
for a district court to dismiss this case for forum non conven‐
iens, the defendants have the burden of demonstrating that
an alternate forum is available—in other words, that Deb
could sue these defendants, SIRVA and Allied Van Lines, in
India. And the only way that Deb can sue SIRVA and Allied
Van Lines in India is if the defendants had something to do
with the wrongdoing that occurred in India—either that they
broke the contract and sold the goods (which we know they
did not do) or they have some legally sufficient affiliation
with Allied Lemuir that would allow the Indian courts to ex‐
ert jurisdiction over them.
Oddly, in order to support dismissal for forum non con‐
veniens then, the defendants end up trying to thread a small‐
eyed needle by claiming, on the one hand, that they could be
subject to jurisdiction in India, while simultaneously refusing
to acknowledge an actual legal affiliation with Allied Lemuir.
To do this, the brief on appeal dances around these issues by
making naked assertions such as, “the District Court also
properly found that the Indian courts would be able to exer‐
cise jurisdiction over SIRVA and [Allied Van Lines], even
No. 14‐2484 11
without their consent,” or by trying to connect Allied Lemuir
with the defendants without really connecting them:
Here, as the District Court correctly found, the
Indian Courts may exercise jurisdiction over Al‐
lied Lemuir as a resident of India that con‐
ducted business in India. Further, as the District
Court determined, assuming arguendo, that
Deb’s joint venture theory is correct, and that
SIRVA and [Allied Van Lines] were doing busi‐
ness in India as Allied Lemuir, and, therefore,
responsible for the joint venture’s actions, the
Indian courts would be able to exercise jurisdic‐
tion over SIRVA and [Allied Van Lines] be‐
cause: (1) Allied Lemuir is an Indian corpora‐
tion and resident; and (2) SIRVA and [Allied
Van Lines] would have been doing business in
India and responsible for the joint venture’s ac‐
tions.
Defendants’ brief at 16, 19. All of these assertions depend on
the notion that SIRVA and Allied Van Lines were somehow
connected with Allied Lemuir. But it is the defendant’s bur‐
den to demonstrate that forum non conveniens is appropriate,
and the only evidence to support this contention comes from
the bald assertions in the plaintiff’s compliant that SIRVA and
Allied Van Lines were doing business in India as a joint ven‐
ture with Allied Lemuir.
The plaintiff’s assertion, to which the defendants’ point to
support a dismissal, is that Allied Lemuir is a member of the
SIRVA Group and is part of a joint venture with SIRVA and
Allied Van Lines. (R. 27, pp. 2‐3, Page ID 285‐286) (Plaintiff’s
12 No. 14‐2484
Supp. App. B002‐B003). To support that assertion, Deb at‐
tached to the complaint some marketing materials that Allied
Lemuir posted on the internet boasting of its affiliation with
SIRVA and Allied Van Lines. Id. at Ex. C. Of course, at this
point, in the current posture of a motion to dismiss, the de‐
fendants’ affiliation with SIRVA and Allied Van Lines has
never been questioned, tested or explored. All we have is
some pages printed out from the internet in which a foreign
company with the word “Allied” in its name is asserting in
marketing material that it is reliable because it is affiliated
with two international companies, one of which also has the
name “Allied” in its name. The material has not been authen‐
ticated or verified, no court has ever made a determination
about any connection between Allied Lemuir and the defend‐
ants in this case, and the defendants have never admitted any
connection to Allied Lemuir. This is so because this case
comes before us on a motion to dismiss in which a court can‐
not determine the truth of factual assertions. When consider‐
ing a motion to dismiss, the district court ordinarily assumes
the truth of all well‐pleaded allegations in the plaintiff’s com‐
plaint. Firestone Fin. Corp. v. Meyer, 796 F.3d 822, 826 (7th Cir.
2015). But this rule is less absolute when considering a motion
to dismiss under Federal Rule 12(b)(3) than under Rule
12(b)(6). Under Rule 12(b)(3), which allows for dismissal for
improper venue, the district court assumes the truth of the al‐
legations in the plaintiff’s complaint, unless contradicted by
the defendant’s affidavits. 5B Charles Alan Wright & Arthur
R. Miller, Federal Practice and Procedure § 1352 (2004). Rule
12(b)(3) is a somewhat unique context of dismissal in that a
court may look beyond the mere allegations of a complaint,
No. 14‐2484 13
and need not view the allegations of the complaint as the ex‐
clusive basis for its decision. Estate of Myhra v. Royal Caribbean
Cruises, Ltd., 695 F.3d 1233, 1239 (11th Cir. 2012).
This Circuit has not had the opportunity to discuss the in‐
tricacies of the assumptions a court should make when a de‐
fendant contradicts the plaintiff’s bald assertion of venue in a
motion to dismiss for improper venue under Rule 12(b)(3),
but we have before concluded that, when considering a mo‐
tion to dismiss in general, a court may consider matters out‐
side of the pleadings to resolve factual questions pertaining
to jurisdiction, process, or indispensable parties. English v.
Cowell, 10 F.3d 434, 437 (7th Cir. 1993). Moreover, other cir‐
cuits to have considered the question agree that it is appropri‐
ate for a district court to look outside the complaint, or partic‐
ularly at a defendant’s contradictory statements, when con‐
sidering a motion to dismiss under Rule 12(b)(3). For exam‐
ple, the Second Circuit has noted:
If the defendant presents evidence that venue is
improper and the plaintiff responds with con‐
trary evidence, “it may be appropriate for the
district court to hold a Rule 12(b)(3) motion in
abeyance until the district court holds an evi‐
dentiary hearing on the disputed facts.” Mur‐
phy, 362 F.3d at 1139. … “Alternatively, the dis‐
trict court may deny the Rule 12(b)(3) motion
while granting leave to refile it if further devel‐
opment of the record eliminates any genuine
factual issue.” Id.
Hancock v. Am. Tel. & Tel. Co., 701 F.3d 1248, 1261 (10th Cir.
2012). And the Ninth Circuit has noted that when the outcome
of a 12(b)(3) motion might have a “dramatic effect on the
14 No. 14‐2484
plaintiff’s forum choice … no disputed fact should be re‐
solved against that party until it has had an opportunity to be
heard.” Murphy v. Schneider Natʹl, Inc., 362 F.3d 1133, 1139 (9th
Cir. 2004); Pierce v. Shorty Smallʹs of Branson Inc., 137 F.3d 1190,
1192 (10th Cir. 1998) (“Plaintiff contends that in responding to
a motion to dismiss for improper venue, he was entitled to
rely upon the well pled facts of his complaint. This is true,
however, only to the extent that such facts are uncontroverted
by defendant’s affidavit.”); Home Ins. Co. v. Thomas Indus., Inc.,
896 F.2d 1352, 1355 (11th Cir. 1990) (“When a complaint is dis‐
missed on the basis of improper venue without an evidentiary
hearing, the plaintiff must present only a prima facie showing
of venue. … Further, [t]he facts as alleged in the complaint are
taken as true to the extent they are uncontroverted by defend‐
ants’ affidavits.”) (internal citations omitted).
Ordinarily these cases speak of the ability of a court to
view evidence of the party moving to dismiss (the defendant)
in order to rebut the allegations of the non‐movant’s (the
plaintiff’s) complaint asserting facts supporting its chosen
venue. This case is unique in that, in an unusual course of
events, the defendants cite to the plaintiff’s bare allegation of a
joint venture in the complaint in order to support their con‐
tention that the case should be dismissed under Rule 12(b)(3).
But the general premise is the same. Where one party makes
a bald claim of venue and the other party contradicts it, a dis‐
trict court may look beyond the pleadings to determine
whether the chosen venue is appropriate.
It is worth noting that the plaintiff’s burden in defending
a motion to dismiss is low. Other than the exceptions dis‐
cussed, a court generally accepts the plaintiff’s allegations as
No. 14‐2484 15
true for purposes of the motion to dismiss, as long as the com‐
plaint contains sufficient factual allegations to state a claim for
relief that is legally sound and plausible on its face. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). The defendants’ burden in al‐
leging forum non conveniens, however, is heavy. Sinochem,
549 U.S. at 430. Defendants must submit evidence of an ade‐
quate and alternative forum. Combining the principles we
discussed above—that the district court may look beyond the
bare allegations of the complaint where the defendants dis‐
pute facts related to venue, and that defendants bear the
heavy burden of showing an alternate forum—we look to see
whether the district court placed the burden on the defend‐
ants to demonstrate that an alternate forum was available,
and whether the defendants met that burden. We conclude
that the district court did not hold the defendants to the bur‐
den, nor did the defendants meet it. To the contrary, to the
extent the defendants offered any evidence or argument at all,
it was evidence that they would not, in fact, be subject to ju‐
risdiction in India.
Much of the language of the Defendants’ Memorandum in
Support of its Motion to Dismiss argues that they had nothing
to do with Allied Lemuir’s actions and thus could not be as‐
sociated with the Indian company. The defendants do not
even offer any evidence that they were doing business in In‐
dia. If, in fact, the defendants had nothing to do with Deb’s
loss and have no connection to Allied Lamuir, an Indian court
would have no business asserting jurisdiction over them. In
short, rather than supporting their burden of demonstrating
that there is an available and alternative forum in India, they
instead offer allegations that they would not be subject to ju‐
risdiction in India. For example, in their briefing below on the
motion to dismiss, the defendants state the following:
16 No. 14‐2484
Deb’s assertion that Defendants had an agency,
joint venture, or any other kind of relationship
among themselves, with Allied Lemuir, or any‐
one else that could impute liability on Defend‐
ants for breach of contract or conversion is
equally unavailing. Deb has failed to offer any
evidence of a joint venture or even alleged an
association of two or more persons to carry out
a single business enterprise for profit.
Memorandum in Support of Defendants’ Motion to Dismiss
Plaintiff’s Amended Complaint at 10. (R. 30, p.10, Page ID
414). The memorandum is replete with similar allegations
which, if true, would seem to lead to the conclusion that a
court in India could not assert jurisdiction over the defend‐
ants. For example, the defendants state:
• “While Deb makes much ado about a self‐serving, unau‐
thenticated Allied Lemuir document (Amended Complaint
Ex. C) purporting to demonstrate that Allied Lemuir was cre‐
ated as a joint venture between Lemuir, [Allied Van Lines]
and several other Allied companies, merely calling a relation‐
ship a ‘joint venture’ does not mean that a joint venture ex‐
ists.” Id. (internal citation omitted);
• “Deb added allegations in an attempt to bolster his asser‐
tion that SIRVA and [Allied Van Lines] are liable to Deb for
the acts of Allied Lemuir as ‘joint venturers’ (which they are
not). Id. at 2, (R. 30, p.2, Page ID 406);
• “Defendants are Delaware Corporations that are not in
privity with Deb, and have never conducted any business
with him. Further, Deb has failed to establish any ‘joint ven‐
ture’ or agency relationship between or among Defendants
No. 14‐2484 17
and Allied Lemuir (and in particular, at the time of the ship‐
ment) or any reason to believe that Deb had transacted with
anyone other than Allied Lemuir to transport his belongings.”
Id.;
• “Defendants have never conducted business or entered
into any agreements with Deb … Instead Plaintiff’s dealings
in transporting his household belongings have been exclu‐
sively with Allied Lemuir, a legally separate entity.” Id. at 3, (R.
30, p.3, Page ID 407) (emphasis ours);
• “Defendants are not liable to Deb under common agency
principles when Defendants never agreed to act as principal
creating any sort of agency relationship between Defendants
and Allied Lemuir as to this shipment.” Id. at 10, (R. 30, p.10,
Page ID 414);
• “Defendants cannot be held liable to Deb for Allied
Lemuir or anyone else’s actions under a joint venture, agency,
apparent authority, or any other theory, and Deb’s Amended
Complaint must be dismissed for his failure to state a claim
upon which relief can be granted.” Id. at 12, (R. 30, p.12, Page
ID 416)
• Allied Lemuir, a separate and distinct Indian company,
not a party to this lawsuit, arranged with Deb to transport
Deb’s belongings from India to Canada. Id. at 15, (R. 30, p.15,
Page ID 419);
• “Even assuming the veracity of these facts (which De‐
fendants dispute) Deb has failed to assert cognizable or viable
claims. There was no mistaking that Deb was dealing exclu‐
sively with Allied Lemuir for this shipment. Not one docu‐
18 No. 14‐2484
ment memorializing the transaction governing the transpor‐
tation of Deb’s personal belongings mentions SIRVA or
AVL.” Id. at 11, (R. 30, p.11, Page ID 415).
Having spent so much time asserting that they had no re‐
lationship with Allied Lemuir, it is no wonder that the de‐
fendants were left to make broad conclusory allegations about
India as an available forum. In its memorandum in support of
the motion to dismiss, under the section labeled “India is an
Available Forum” the defendants correctly note that the case
law requires that “all parties must be subject to the jurisdic‐
tion of the foreign court and amenable to process.” Id. at 20
(R. 30, p.2, Page ID 424). They then baldly assert that “India
meet[s] the requirements of an adequate alternative forum.”
Id. at 20. That is the whole of the defendants’ claim that India
is an available forum.3 They do not offer any evidence that
they would be subject to jurisdiction in India, but rather
simply conclude without reasoning, law, or concessions that
India is an adequate alternative. The defendants cannot have
it both ways. They cannot vehemently deny any connection
with the underlying actions giving rise to this litigation or any
connection to Allied Lemuir, and simultaneously assert that
the plaintiff could sue them in an Indian court. If there is an
3 In their brief before this court, the defendants argue that Deb only chal‐
lenged the adequacy of India as a forum but not the availability. It was,
however, the defendants’ burden to meet in the first instance. Sinochem,
549 U.S. at 430. And in any event, Deb explicitly argued below and in his
brief on appeal that the “Defendants fail to provide evidence that they are
subject to jurisdiction in India.” Plaintiff’s Brief at 13, Plaintiff’s Response
in Opposition to Defendant’s Motion to Dismiss at 20 (Plaintiff’s Supp.
Appendix B060).
No. 14‐2484 19
independent basis on which an Indian court might assert ju‐
risdiction over the defendants, unconnected to the facts of this
case, the defendants have not noted it.
Without any evidence or a concession to the jurisdiction of
the Indian courts, whatever the burden defendants had to
show an adequate and alternative forum in India, there can
be no doubt that the defendants did not meet it. And their ap‐
pellate brief is no more illuminating. The defendants’ argu‐
ment on the adequacy of India as a forum in this court is
simply that “the District Court correctly determined that Can‐
ada and India were available alternative forums.” Defend‐
ants’ brief at 11‐12. And because the defendants have no evi‐
dence, they rely upon a 1978 case from the Second Circuit for
the proposition that the district court need “nothing more
than a belief” that the Indian courts would be able to exercise
jurisdiction. Defendants’ brief at 15 (citing Schertenlieb v.
Traum, 589 F.2d 1156, 1163 (2d Cir. 1978). The defendants de‐
duce this principle from language of the Schertenlieb case
which states “that a district court should not dismiss unless it
justifiably believes that the alternative forum will take jurisdic‐
tion, if the defendant consents.” Id. (emphasis ours). In addi‐
tion to being an almost 40 year old case from a different cir‐
cuit, the Schertenlieb case not only does not help the defend‐
ants, it undermines their argument entirely. To begin, the lan‐
guage of the case requires a “justifiable belief”—presumably
one supported by evidence. Id. We can assume this is so be‐
cause in Schertenleib, the Second Circuit affirmed the lower
court’s dismissal on forum non conveniens grounds based on
three strong factors that demonstrated that an alternate forum
was available: first, the court had expert testimony that the
defendant could be subject to jurisdiction in the foreign forum
if the defendant conceded to jurisdiction there; second, it had
20 No. 14‐2484
the defendant’s actual concession to jurisdiction in the foreign
forum; and third, the court also secured the defendant’s
agreement to waive the statute of limitations should the case
need to return to the district court in the United States. Id. at
1160, 1166. In this case, on the other hand, the defendants’
only argument is that the district court “properly found that
the Indian courts would be able to exercise jurisdiction over
SIRVA and AVL, even without their consent.” Defendants’
brief at 16. The defendants do not tell us why that finding was
proper, particularly when it was based on the district court’s
naked belief—without evidence, without expert testimony,
and without a concession to jurisdiction. Nothing in the
Schertenleib case stands for the proposition that a district
court’s unsupported belief that a defendant would be subject
to jurisdiction in a foreign court, without more, is enough to
grant a motion to dismiss for forum non conveniens. In fact,
the cases clearly refute the idea that a district court’s mere be‐
lief is enough and instead place in the hands of the defendant
the burden (and generally a heavy one) of demonstrating the
availability and adequacy of the foreign forum. Atl. Marine
Const. Co. v. U.S. Dist. Court for W. Dist. of Texas, 134 S. Ct. 568,
583 n.8 (2013); Sinochem, 549 U.S. at 430; Gulf Oil, 330 U.S. at
508; Fischer, 777 F.3d at 867; In re Hudson, 710 F.3d at 718; In re
Factor VIII or IX Concentrate Blood Products Litigation, 484 F.3d
at 956; U.S.O. Corp. v. Mizuho Holding Co., 547 F.3d 749, 749–
50 (7th Cir. 2008); In re Ford Motor Co., Bridgestone/Firestone N.
Am. Tire, LLC, 344 F.3d 648, 652 (7th Cir. 2003).
The defendants also argue that the district court was not
required to condition the dismissal of Deb’s complaint on the
defendants’ concession to jurisdiction in India. Defendant’s
brief at 16‐17 (citing Leetsch v. Freedman, 260 F.3d 1100, 1104
(9th Cir. 2001)). This may be so, but a concession is merely one
No. 14‐2484 21
form of evidence that a defendant can present to meet her bur‐
den of demonstrating that a foreign jurisdiction will be avail‐
able and adequate. This is precisely what the Leetsch court ex‐
plains: there is no “inflexible test requiring conditional dis‐
missal” but rather, “a district court can be required to impose
conditions if there is a justifiable reason to doubt that a party
will cooperate with the foreign forum.” Leetsch, 260 F.3d at
1104. The defendants’ many arguments disavowing any con‐
nection to Allied Lemuir and the events giving rise to this lit‐
igation give this court more than fair pause about whether
they will cooperate with the Indian forum. The defendants in
this case have not consented to jurisdiction in India and have
offered not one shred of evidence that they would be subject
to jurisdiction in India.
In contrast to the matter before us, in the cases in which
one party successfully moved to dismiss a case for forum non
conveniens, that party presented evidence of an available and
adequate alternate forum or made a concession that it would
accept service and jurisdiction there in order to guarantee
availability of the alternate forum. For example, in Fischer, the
district court had before it a list of the available remedies,
plaintiffs’ concerns with bringing suit in the foreign forum,
and expert testimony from both sides as to whether those con‐
cerns were enough to render the forum inadequate. Fischer,
777 F.3d at 867. In the blood products litigation, the court
heard expert testimony from experienced British lawyers,
some of whom supported the plaintiffs and others who sup‐
ported the drug companies, and eventually accepted the de‐
fendants’ claim of an available alternative forum, but only af‐
ter the defendants agreed to accept service in the United King‐
dom. In re Factor VIII or IX Concentrate Blood Products Litig., 484
F.3d at 956‐57. And in Kamel, 108 F.3d at 803, the defendant
22 No. 14‐2484
expressly consented to Saudi Arabia’s jurisdiction and then
submitted the affidavit of an expert in Saudi Arabian law to
assure the court that Saudi law would recognize the defend‐
ant’s consent to jurisdiction or have jurisdiction even without
consent. Id. Once again we note that the defendants here of‐
fered no evidence, no experts, and no concession. The district
court abused its discretion by finding that the Indian courts
“should be able to exercise jurisdiction over the Defendants”
without placing the burden on the defendants to demonstrate
that this was so. See Deb, 2015 WL 2372465, at *3 (R. 55 at 6,
Page ID 745).
To the extent that the defendant offers any information in
support of its burden, it is the generalized conclusion that in
other cases, involving other facts and other parties, courts
have determined that India is an adequate forum. Memoran‐
dum in Support of Defendants’ Motion to Dismiss Plaintiff’s
Amended Complaint at 21 (R. 30, p.21, Page ID 425). The de‐
fendants cite cases to argue that India’s legal system, like ours,
was inherited from the British, and that its remedies for
breach of contract and conversion are similar to ours. Id. Such
generalized information does not meet the burden that the de‐
fendants must satisfy to demonstrate that Deb realistically
could sue SIRVA and Allied Van Lines in India.
The defendants’ newly introduced references to Indian
law fail for the same reason. In this court, the defendants have
attached documents purporting to be from the Indian Code of
Civil Procedure and case law from a jurisdiction in India.
These documents are not in the record and were never pre‐
sented to the district court. A party appealing a Rule 12(b)(6)
dismissal may elaborate on his factual allegations so long as
the new elaborations are consistent with the pleadings,
No. 14‐2484 23
Geinosky v. City of Chicago, 675 F.3d 743, 745, n.1 (7th Cir. 2012),
and we assume that the same would be true for a Rule 12(b)(3)
dismissal. But SIRVA and Allied are not the parties opposing
dismissal here. They had their shot at bearing the burden of
demonstrating that the United States was an inconvenient fo‐
rum. The question we face in this appeal is whether the dis‐
trict court properly dismissed this case under the doctrine of
forum non conveniens without holding the defendants to
their burden of demonstrating that there was an available and
adequate remedy elsewhere. It did not.
Deb argues in his reply brief that the new documents do
not even address the power of the Indian courts to exercise
personal jurisdiction. We do not know what they do or do not
assert. The relevant point is that they were not made part of
the record below and have never been authenticated nor sub‐
ject to an adversarial process in which the parties had an op‐
portunity to argue about their meaning and import.
We can conclude that the district court failed to hold the
defendants to any burden—whether heavy or not—of
demonstrating that there is an alternate available and ade‐
quate forum for this litigation.
C.
The district court also ostensibly based its forum non con‐
veniens dismissal on the basis that Canada offered a second
possible forum. Its only discussion of the matter, however,
was to say:
In this case, there are two possible forums that
satisfy this requirement. Mr. Deb has already
filed a claim in the Canadian courts arising out
of the same course of conduct that gave rise to
24 No. 14‐2484
the instant case, and he does not argue that the
Canadian court forum is somehow improper.
Deb, 2014 WL 2573465, at *3 (R. 55, p.5, Page ID 744).
The parties never briefed the issue of the Canadian court
as an alternative forum, however. The discussion about Can‐
ada in the briefing below centered on whether the United
States courts ought to abstain from hearing this matter under
the Colorado River doctrine. See Colo. River Water Conservation
Dist. v. United States, 424 U.S. 800, 817 (1976).4 That doctrine
allows courts to conserve judicial resources by abstaining
from accepting jurisdiction when there is a parallel proceed‐
ing elsewhere. Id. It has sometimes been applied when iden‐
tical concurrent litigation is, as in this case, pending abroad.
See U.S.O. Corp., 547 F.3d at 750. Abstention under the Colo‐
rado River doctrine may only be used in “exceptional” circum‐
stances if it would promote “wise judicial administration.”
Freed v. J.P. Morgan Chase Bank, N.A., 756 F.3d 1013, 1018 (7th
Cir. 2014).
The determinations under the Colorado River doctrine for
abstention are not the same as those made when deciding
whether a case should be dismissed for forum non conven‐
iens. Our decision in Adkins v. VIM Recycling, Inc., 644 F.3d
483, 498‐99 (7th Cir. 2011) provides a concise description of
4 In their Memorandum in Support of Defendants’ Motion to Dismiss
Plaintiff’s Amended Complaint, the defendants merely state that Canada
would also be an appropriate alternate forum for the reasons indicated in
their argument about Colorado River abstention. But such undeveloped ar‐
guments are waived. Rahn v. Bd. of Trs. of N. Ill. Univ., 803 F.3d 285, 295
(7th Cir. 2015), cert. denied, 136 S. Ct. 1685 (2016).
No. 14‐2484 25
the process for determining whether Colorado River abstention
is appropriate:
First, the court must determine whether the con‐
current state and federal actions are actually
parallel. If so, the court must consider second
whether exceptional circumstances justify ab‐
stention. … Two suits are parallel for Colorado
River purposes when substantially the same
parties are contemporaneously litigating sub‐
stantially the same issues. Precisely formal sym‐
metry is unnecessary. A court should examine
whether the suits involve the same parties, arise
out of the same facts, and raise similar factual
and legal issues. In essence, the question is
whether there is a substantial likelihood that the
[foreign] litigation will dispose of all claims pre‐
sented in the federal case. Any doubt regarding
the parallel nature of the [state] suit should be
resolved in favor of exercising jurisdiction.
Id.
The district court did not engage in a Colorado River ab‐
stention analysis. Nor did it ever engage in a forum non con‐
veniens analysis about Canada similar to the one we de‐
scribed above for India. Other than its first assertion that Can‐
ada was a possible forum, all of its discussion pertained to In‐
dia as a forum. It is true that Deb sued Allied Canada in a
Canadian court, but again, we have no idea whether Allied
Canada has any connection to the defendants in this case, let
alone whether they are “substantially the same party” (see Ad‐
kins, 644 F.3d at 498) and the defendants did not offer any ev‐
idence that they would be subject to jurisdiction in Canada.
26 No. 14‐2484
In sum, although it is within a district court’s sound dis‐
cretion to dismiss a suit for forum non conveniens (Piper Air‐
craft, 454 U.S. at 257), it can only do so after placing the burden
on the defendant to demonstrate availability and adequacy of
an alternative forum. The district court erred by failing to
properly place the burden. It may be that after conducting a
proper look into the adequacy of the forum along with a bal‐
ancing of the interests, the court may determine that a dismis‐
sal for forum non conveniens is indeed appropriate. Based on
the bare claims before the district court, however, such a de‐
termination was in error. The defendants may refile their mo‐
tion in an attempt to meet their burden. For that reason we
VACATE the decision of the district court and REMAND for
further proceedings consistent with this opinion.