UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CHIN-TEN HSU, et al., as Executors of the
will of Yueh-Lan Wang,
Plaintiffs,
v. Civil Action No. 10-1743 (JEB)
NEW MIGHTY U.S. TRUST, et al.,
Defendants.
MEMORANDUM OPINION
Having watched this case wend its way through many twists and turns, the Court must
now determine whether it in fact belongs across the Pacific. Bringing a Motion to Dismiss for
forum non conveniens, Defendants contend that Taiwan, not the District of Columbia, is the
appropriate jurisdiction in which to resolve this dispute over the estate of plastics magnate Yung-
Ching (Y.C.) Wang. At the time of his death in 2008, Y.C. was worth an estimated $6.8 billion –
making him, according to Forbes, the 178th wealthiest individual in the world. Although he
amassed quite a fortune, he lacked one crucial asset: a last will and testament. In the years since
his passing, the distribution of Y.C.’s estate has thus become a significant source of contention
among his many putative heirs. These claimants, to further complicate matters, belong to three
separate “families” derived from Y.C.’s relationships with different women.
Nearly eight years ago, Winston Wen-Young Wong, Y.C.’s son from his Second Family,
kicked off this modern-day Jarndyce v. Jarndyce when he filed suit on behalf of the First Family,
which consists solely of Yueh-Lan Wang, the woman to whom Y.C. had been married since
1935. Winston, whom Yueh-Lan named as her lone heir, alleged that her marital share of Y.C.’s
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estate had been “shorted” by unlawful transfers of funds prior to Y.C.’s death. Asserting that
Defendants – a D.C.-based trust and its affiliates – held a portion of these assets, Winston sought
to reclaim Yueh-Lan’s full disbursement from Y.C.’s estate. After a series of intervening events
– including Yueh-Lan’s death and the subsequent appointment of Executor-Plaintiffs in Taiwan
– and procedural detours, the case returned to this Court’s docket last year. This past August, the
Court allowed Plaintiffs to file a Second Amended Complaint, and today it turns to Defendants’
Motion to Dismiss that Complaint. Finding that Taiwan is an adequate alternative forum and
that the relevant interests weigh strongly in favor of dismissal, the Court will grant their Motion
under the doctrine of forum non conveniens. It will, however, condition that grant upon
Defendants’ waiver of statue-of-limitations defenses and potential additional constraints.
I. Background
A. Factual and Procedural History
As the lengthy and colorful history of this case is set forth in full in the Court’s prior
Opinions, it need not repeat the complete narrative here. See Yueh-Lan Wang ex rel. Wong v.
New Mighty U.S. Tr. (Wang I), 841 F. Supp. 2d 198, 200 (D.D.C. 2012), rev'd sub nom. Wang
by & through Wong v. New Mighty U.S. Tr. (Wang Appellate Decision), 843 F.3d 487 (D.C.
Cir. 2016); Yueh-Lan Wang by & through Winston Wen-Young Wong v. New Mighty U.S. Tr.
(Wang II), 322 F.R.D. 11, 15 (D.D.C. 2017). The Court also frequently refers to participants by
their first name to avoid confusion and not out of any disrespect.
To recap briefly: this dispute centers on the disbursement of the estate of Y.C. Wang.
When Y.C. died in 2008, his plastics empire made him the second-wealthiest individual in
Taiwan. See Second Am. Compl, ¶ 18. Yet he had no will – an unfortunate oversight given that
he left behind nine children and three putative wives. This suit is brought on behalf of the estate
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of the first of those partners, Yueh-Lan. Married to Y.C. for 72 years, Yueh-Lan witnessed her
husband’s meteoric rise, including his founding of Formosa Plastic Group, which is “one of
Taiwan’s biggest and most profitable manufacturing conglomerates with annual sales of over
$60 billion and operations in five countries.” Id., ¶ 17. She, as the “First Family,” also
witnessed his fathering children with two other women — Wang Yang Chiao and Pao Chu (P.C.)
Lee. Id., ¶¶ 25-26. While Y.C. and Yueh-Lan had no offspring, his relationship with Wang
Yang Chiao resulted in the birth of five children known as the “Second Family,” and P.C. Lee
produced another four known as the “Third Family.” Id., ¶ 26.
As any reader of Bleak House could have been predicted, the matter of Y.C.’s estate and
its disbursement has led to some discord among his three families and their various children.
Related suits have been brought in Taiwan, Bermuda, New Jersey, Hong Kong, and, of course,
before this Court. See ECF 38-4 (discussing Taiwan action); SAC, ¶ 64 (discussing Bermuda
action); Shu v. Wang (DNJ Action), 2016 WL 6080199, at *1 (D.N.J. Oct. 17, 2016); ECF 49-
21, ¶ 60 (discussing Hong Kong Action). This case was first filed on October 14, 2010, by Dr.
Winston Wen-Young Wong (Winston), a member of the Second Family and Y.C.’s eldest son,
who asserted that he was acting through a valid power-of-attorney in bringing the suit on Yueh-
Lan’s behalf. See ECF No. 1 (Complaint). Although Winston is a Second Family member,
Yueh-Lan named him as her sole heir, and he thus has a significant interest in the restoration of
any assets to her estate. See SAC, ¶ 14. Defendants are a trust formed under the laws of the
District of Columbia — New Mighty U.S. Trust — as well as its trustee, Clearbridge, LLC, and a
beneficiary of the trust, New Mighty Foundation. See SAC, ¶¶ 19-21. Both the Foundation and
Clearbridge, it should be noted, are linked to children of the Third Family. See Wang II, 322
F.R.D. at 16.
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Yueh-Lan’s claims sought the return of property transferred by Y.C. to Defendants
during the five years prior to his death, on the ground that Taiwanese and D.C. law would
allegedly entitle her to recover these assets as part of her 50% spousal share. Wang I, 841 F.
Supp. 2d at 200. Although Yueh-Lan received a portion of Y.C.’s $1.7 billion “Taiwan Assets”
after his death, she asserted that this sum “represent[ed] only a fraction of Y.C.’s” holdings, and
that the full Marital Assets were in fact “greater than double the value of [that] property.” SAC,
¶¶ 5, 34-36; see ECF No. 47-2 (Decl. of Andrew Muscato), ¶ 20 (asserting that Yueh-Lan
received “hundreds of millions of dollars” from Y.C.’s Taiwan Assets).
Defendants initially moved to dismiss these claims on a variety of grounds, and this
Court granted that entreaty after finding a lack of diversity jurisdiction. Wang I, 841 F. Supp. 2d
at 208; see Wang Appellate Decision, 843 F.3d at 488. Plaintiff appealed this ruling, but Yueh-
Lan died shortly thereafter. Although she had named Winston as her sole heir, she had failed to
appoint an executor. See Wang Appellate Decision, 843 F.3d at 489; SAC, ¶ 14. The D.C.
Circuit thus held the case in abeyance while the Taiwanese courts determined who should act in
that role. Eventually, Chen-Teh Shu, Dong-Xung Dai, and Robert Shi were chosen by the
courts, and the three men moved to substitute themselves as Yueh-Lan’s personal representatives
under the appropriate Federal Rule of Appellate Procedure while the case was still pending at the
D.C. Circuit. Id. at 489. Before ruling on that motion, though, the D.C. Circuit again stayed the
case after the Supreme Court granted certiorari in Americold Realty Trust v. ConAgra Foods,
Inc., 136 S. Ct. 1012 (2016), which addressed the appropriate citizenship test for a real-estate
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trust – a question germane to the existence of diversity jurisdiction in this case. Wang Appellate
Decision, 843 F.3d at 489 n.6.
Based on the decision in Americold, the D.C. Circuit eventually reversed this Court’s
dismissal of Yueh-Lan’s Complaint. The Circuit, at the same time, also granted the Executors’
substitution motion “without prejudice to the defendants’ ability to renew in district court those
arguments they ha[d] pressed before.” Id. at 496. Returning to this Court, Plaintiff Executors
filed a Motion for Leave to File a Second Amended Complaint and for Other Relief. See Wang
II, 322 F.R.D. at 30; ECF No. 37. Finding that Defendants’ various futility, joinder, and bad-
faith arguments fell short, and that many should be reserved for later briefing, the Court
concluded that “no barriers exist[ed] to the filing of Plaintiff Executors’ Second Amended
Complaint” and granted the motion in full. Wang II, 322 F.R.D. at 32.
B. Second Amended Complaint
The operative Second Amended Complaint alleges five counts under the Civil Code of
Taiwan: (1) Yueh-Lan has not received the full value of the 50% share she is entitled to under
Article 1030-1; (2) to the extent her claim cannot be satisfied from property held by Y.C. at his
death, Plaintiffs are entitled to restitution from third parties pursuant to Article 1030-3; (3) Yueh-
Lan is entitled to restitution from Defendants for infringing upon her right of inheritance
pursuant to Article 1146; (4) Plaintiffs are entitled to the return of assets, monies, and property
distributed or transferred to Defendants from the marital estate pursuant to Article 767; and (5)
Defendants unjustly benefited from the improper acquisition of Y.C.’s assets and are bound to
return them under Article 179. See SAC, ¶¶ 66-101. Plaintiffs also bring four counts under D.C.
common law: (1) unlawful conversion of Yueh-Lan’s rightful marital property; (2) unjust
enrichment from the improper acquisition and use of such property; (3) an action for a
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constructive trust to be imposed to ensure that Plaintiffs receive Yueh-Lan’s statutory share of
Y.C.’s estate; and (4) an action for an accounting of all the assets, monies, and property owned
by Y.C. prior to his death. See id., ¶¶ 102-120.
Defendants have now filed a Motion to Dismiss the Second Amended Complaint,
alleging both that it fails to state a claim under Fed. R. Civ. 12(b)(6) and that it should be
discretionarily dismissed under the doctrine of forum non conveniens. See ECF 47 (Mot. to
Dismiss SAC). Briefing on this Motion is now complete, and the Court must decide whether this
suit will remain on its docket.
II. Standard of Review
Because the Court ultimately grants Defendants’ Motion to Dismiss pursuant to forum
non conveniens, it need not address their Motion under Rule 12(b)(6). It therefore presents the
standard for only the former below.
Whether to dismiss a case under forum non conveniens is a “discretionary decision that
can be made at any time.” Stromberg v. Marriott Int'l, Inc., 474 F. Supp. 2d 57, 60 (D.D.C.
2007), aff'd, 256 F. App'x 359 (D.C. Cir. 2007). Dismissal under the doctrine is a “non-merits
threshold inquiry,” which “reflects a court’s assessment of a range of considerations, most
notably the ‘convenience to the parties and the practical difficulties that can attend the
adjudication of a dispute in a certain locality.’” MBI Grp., Inc. v. Credit Foncier du Cameroun,
558 F. Supp. 2d 21, 26-27 (D.D.C. 2008) (quoting Sinochem Int'l Co. Ltd. v. Malaysia Int'l
Shipping Corp., 549 U.S. 422 (2007)).
Applying forum non conveniens is a two-fold inquiry. First, the Court asks whether an
adequate alternative forum exists. If so, it next looks to a set of public and private factors to
determine if they favor dismissal. “If the balance favors the foreign forum, and if the Court is
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convinced that plaintiff effectively can bring its case in the alternative forum, the Court may
dismiss the case on grounds of forum non conveniens.” KPMG Fin. Advisory Servs. Ltd. v.
Diligence LLC, 2006 WL 335768, at *1 (D.D.C. Feb. 14, 2006) (citing Pain v. United Techs.
Corp., 637 F.2d 775, 785-86 (D.C. Cir. 1980)). In asserting the doctrine, “the defendant has the
burden on all aspects of a motion to dismiss on forum non conveniens grounds, including the
obligation to establish as a prerequisite that an adequate alternative forum exists.” Id.
III. Analysis
Before turning to the two-step inquiry, the Court begins with a preliminary dispute over
the application of forum non conveniens to this case – i.e., the timing of Defendants’ Motion.
Finding that this issue does not preempt a full analysis under FNC, the Court then proceeds to
separately assess the adequacy of the alternative forum, and the private and public interests at
stake.
A. Timing
As Plaintiffs acknowledge, motions to dismiss pursuant to forum non conveniens are not
subject to any jurisdictional time bar or procedural waiver. See Opp. at 21. Yet they nonetheless
assert that Defendants’ Motion in this case should be rejected as untimely, citing to a series of
cases holding that FNC motions must be brought within a “reasonable” time. Id. at 21-22.
According to the Executors, this period has elapsed. Pointing out that this case has been pending
since October 2010, Plaintiffs contend that Defendants had a number of opportunities to raise
FNC earlier, but instead engaged in a “long-term, deliberate choice to not move for dismissal on
FNC grounds.” Id. at 22. Plaintiffs assert that “no new facts have emerged” over the long life of
this lawsuit that “might justify Defendants’ recent shift” in asking for FNC dismissal. Id. at 25.
Their “eleventh-hour decision to file an FNC motion,” the Executors maintain, thus “has the
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appearance of improper forum shopping and gamesmanship.” Id. Finally, they state that “it
would be highly inefficient for the parties and the courts, as well as prejudicial to Plaintiffs, to
dismiss the case at this stage.” Id. at 26.
The Court begins its analysis by noting that, although some courts have held that a
defendant must bring an FNC motion within a “reasonable” period of time, the D.C. Circuit is
not among them. See, e.g., Stromberg, 474 F. Supp. 2d at 60 (decision “to dismiss a case under
the forum non conveniens doctrine . . . can be made at any time”); L & L Const. Assocs., Inc. v.
Slattery Skanska, Inc., 2006 WL 1102814, at *3 (D.D.C. Mar. 31, 2006) (court retains flexibility
to make FNC dismissal decision “at any time”). In the absence of governing Circuit precedent,
this Court declines to impose any such timeliness requirement. Yet, even if it were to consider
the “reasonableness” of Defendants’ timing, Plaintiffs would nonetheless not prevail. Although
they are correct that this suit has been pending for eight years, this longevity is due not to any
dilatory tactics or “gamesmanship” by Defendants, but instead is the result of the case’s
circuitous procedural history.
As discussed above, the Court granted Defendants’ first Motion to Dismiss for lack of
subject-matter jurisdiction in 2012. After Plaintiffs appealed, the Court of Appeals suspended
briefing and held the case in abeyance in order to resolve the executorship proceedings after
Yueh-Lan’s death, a process that took three years. See Wang II, 322 F.R.D. at 16-17. Restarting
the appeal in the fall of 2015, Plaintiffs filed their motion for substitution, and Defendants
requested dismissal on the ground that the suit was a “legal nullity.” Id. at 18. Yet the briefing
on these claims was again suspended, pending the Supreme Court’s decision in Americold,
which finally issued in spring 2016. On December 9 of that year, the D.C. Circuit ruled in
Plaintiffs’ favor and remanded the case to this Court. Plaintiffs then moved to amend their
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Complaint in March 2017, and Defendants opposed on a number of grounds – including FNC.
In August, the Court granted the Motion to Amend and denied FNC dismissal at that time, but
permitted Defendants to reassert the defense in later briefing. The Executors filed their
Amended Complaint in August 2017, and Defendants responded with the instant Motion to
Dismiss, briefing on which was complete in late December. As this recounting demonstrates, the
fact that 2018 has now arrived without even the filing of an Answer is hardly the result of
Defendants’ strategic choice.
Defendants admittedly could have sought an FNC dismissal in their initial Motion to
Dismiss, but they instead asserted a lack of diversity jurisdiction. This was certainly proper.
While “forum non conveniens may justify dismissal of an action though jurisdictional issues
remain unresolved,” the doctrine may also be raised after such threshold questions have been
addressed. Sinochem, 549 U.S. at 429, 424 (finding that FNC dismissal may precede
jurisdictional inquiry, but noting contexts in which court might “first determine its own authority
to adjudicate the case”). Although Plaintiffs suggest that Defendants were under some sort of
obligation to raise FNC when Yueh-Lan appealed from this Court’s ruling in Wang I, this
position makes little sense in light of fundamental rules and practices of appellate procedure.
This Court’s first Opinion addressed a discrete issue of law – whether or not Yueh-Lan had
established subject-matter jurisdiction in the District. Wang I, 841 F. Supp. 2d at 200.
Concluding that the citizenship of a trust required consideration of the citizenship of the trust’s
beneficiaries, this Court found that Plaintiff had not adequately demonstrated diversity and
dismissed the First Amended Complaint on that ground. It was that decision that was appealed,
and, given the intervening decision in Americold, overruled. See Wang Appellate Decision, 843
F. 3d at 494-96. Plaintiffs’ contention that Defendants should have tacked on a novel FNC
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submission during the course of this proceeding ignores the narrow scope of the issue on appeal
and the fact that appellate courts generally do not “consider an issue not passed upon below,”
particularly when it involves a discretionary, fact-intensive analysis such as forum non
conveniens. See Kingman Park Civic Ass'n v. Williams, 348 F.3d 1033, 1039 (D.C. Cir. 2003).
In sum, Plaintiffs’ suggestion that Defendants should be deemed to have forfeited their FNC
defense by not raising it in prior stages of this suit – or that their decision to now mount such a
defense evinces any gamesmanship or improper motive – holds no water.
Similarly unavailing is Plaintiffs’ more pragmatic assertion that it would be “highly
inefficient” to dismiss the case at this stage. It is true that where “litigation has progressed
significantly,” efficiency concerns may weigh against a belated assertion of FNC. See Wright &
Miller, Federal Practice & Procedure § 3828 (4th ed. 2017). Yet the Executors are off the mark
when they state that “[t]his case is analogous to decisions denying an FNC motion after
discovery” or other substantial stages in litigation. See Opp. at 27. While this case is now
approaching the eight-year mark, it has not progressed beyond a Motion to Dismiss; there has
been no answer, no discovery, no motions for summary judgment, and, of course, no trial date
set. Cf. Zelinski v. Columbia 300, Inc., 335 F.3d 633, 642-43 (7th Cir. 2003) (holding that
district court did not abuse discretion in denying forum non conveniens motion that was not
made until one month before scheduled trial); Lony v. E.I. Du Pont de Nemours & Co., 935 F.2d
604, 614 (3d Cir. 1991) (holding that when “discovery in a case has proceeded substantially so
that the parties already have invested much of the time and resources they will expend before
trial” presumption against FNC increases); Jimmerson v. Kaiser Found. Health Plan of Mid-Atl.
States, Inc., 663 A.2d 540, 545 (D.C. 1995) (finding that “belated dismissal” on FNC grounds
would waste litigants’ and court’s efforts when “[d]iscovery was complete, a detailed joint pre-
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trial statement filed, the pretrial conference completed, and a trial date selected”). At bottom,
this suit may be aged in years, but it is still young at heart. Although the Court recognizes that
Plaintiffs have put in substantial hours and effort on this matter, see Opp. at 26, 45, such a
commitment of resources does not justify denying Defendants’ Motion as untimely or unduly
prejudicial.
B. FNC Analysis
Having resolved this preliminary issue, the Court may now focus on the substance of
Defendants’ attempt to dismiss this case pursuant to forum non conveniens. Under the doctrine,
“[a] court first determines whether there is an adequate alternative forum and, if so, then
proceeds to balance both private interest factors and public interest factors in favor of the
respective forums.” Jackson v. American Univ., Cairo, 52 Fed. App’x. 518, 518 (D.C. Cir.
2002) (citing Piper, 454 U.S. at 241). If the Court concludes that the alternative forum is
sufficient, and either the private-interest factors or the public-interest factors evince a “strong
tilt” towards that forum, dismissal may be appropriate. MBI Grp., 558 F. Supp. 2d at 26–27. At
bottom, however, FNC is a fact-based and flexible analysis, and one that is committed to the
discretion of the district court. As the Supreme Court has opined, “[I]f central emphasis were
placed on any one factor, the forum non conveniens doctrine would lose much of the very
flexibility that makes it so valuable.” Piper, 454 U.S. at 249-50; see also Van Cauwenberghe v.
Biard, 486 U.S. 517, 529 (1988) (“[T]he district court is accorded substantial flexibility in
evaluating a forum non conveniens motion, and each case turns on its facts.”) (internal citations
and quotation marks omitted). So long as an adequate alternative forum is available and the
district court has found that the public or private interests favor dismissal, it may dismiss an
action “when it appears that there is an imposition upon its jurisdiction.” Cruise Connections
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Charter Mgmt. 1, LP v. Attorney Gen. of Canada, 764 F. Supp. 2d 155, 160 (D.D.C. 2011)
(citation omitted).
1. Adequate Alternative Forum
The Court thus begins by asking whether Taiwan is an adequate alternative forum to hear
this action. See El-Fadl v. Cent. Bank of Jordan, 75 F.3d 668, 677 (D.C. Cir. 1996), abrogated
on other grounds by Samantar v. Yousuf, 560 U.S. 305 (2010) (“Availability of adequate
alternative fora is a threshold test . . . in the sense that a forum non conveniens motion cannot be
granted unless the test is fulfilled.”) (quotation marks and citation omitted). “In determining the
suitability of an alternative forum, the Court must determine whether an alternative forum is
available (i.e., whether defendants are amenable to process or otherwise within the forum's
jurisdiction) and whether the forum is adequate (i.e., whether the parties will be deprived of all
remedies or treated unfairly).” Irwin, 448 F. Supp. 2d at 33 (citing Piper, 454 U.S. at 254)
(emphasis added).
a. Availability
In its prior Opinion, this Court concluded that “Defendants have not carried their burden
to prove that an alternative forum is actually, not just theoretically, available.” Wang II, 322
F.R.D. at 25-26. At that time, Defendants had submitted affidavits establishing that they would,
in fact, “consent to process in Taiwan.” Id. The Court found, however, that they had not
“adequately respond[ed]” to Plaintiffs’ contention that the statute of limitations had run on the
underlying claims. Id. Noting that Defendants did not “fully waiv[e] their right to a limitations
defense in Taiwan,” the Court held that “[t]his alone dooms their forum non conveniens
argument for now.” Id. Yet the Court left the FNC door ajar, stating, “If Defendants will waive,
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they can renew their request for an FNC dismissal in a future motion that fully articulates such a
position.” Id.
Defendants took up that charge. They have now returned with waivers in hand and have
fully disavowed raising any statute-of-limitations defenses if this case is dismissed and re-filed in
Taiwan. See ECF Nos. 47-9 (Decl. of Susan Wang), 47-10 (Decl. of William Wen-Yuan Wong),
47-11 (Decl. of Donald D. Kozusko). Defendants’ expert on Taiwanese law, Professor Yeong-
Chin Su, has stated that Taiwan courts will enforce these agreements, a conclusion that Plaintiffs
do not dispute. See ECF Nos. 47-6 (Decl. of Yeong-Chin Su IV), ¶¶ 6-7; 42-25 (Su Decl. III), ¶¶
5-7. In light of these affidavits, the Court is satisfied that Taiwan is available to Plaintiffs as an
alternative forum. See Moletech Glob. Hong Kong Ltd. v. Pojery Trading Co., 2009 WL
3151147, at *4 (N.D. Cal. Sept. 25, 2009) (finding defendants’ agreement to “waive any
Taiwanese statute of limitations” was “sufficient to establish that Taiwan is an adequate
alternative forum”); see also Stromberg v. Marriott Int’l, Inc., 256 Fed. App’x. 359, 360 (D.C.
Cir. 2007) (holding district court did not abuse its discretion in finding Mexico an adequate
forum because “[a]ppellees agreed to accept service in Mexico and waived any statute-of-
limitations defenses”); In re Disaster, 540 F. Supp. at 1145 (finding that alternative forums can
be “created by the defendants’ consent”). To the extent that Plaintiffs assert that the Court
should “consider” Defendants’ “shift” in position regarding their willingness to waive statute-of-
limitations claims, see Opp. at 28, this argument can be easily disregarded. As noted above, the
Court’s prior Opinion explicitly invited Defendants to waive such defenses and then to “renew
their request for an FNC dismissal.” Wang II, 322 F.R.D. at 26. It would be Janus-faced to now
punish them for doing so.
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Finally, to the extent that concerns remain regarding Plaintiffs’ ability to re-file in
Taiwan, the Court will give them the opportunity to request that additional reasonable conditions
be imposed on dismissal.
b. Adequacy
Having now established that the courthouse door in Taiwan is open to Plaintiffs, the
Court must next resolve whether that forum provides an adequate alternative for their claims.
Although the “adequacy qualification” under FNC “allows the court some room to make
discretionary judgments as to the viability” of alternative forums, the Supreme Court has stated
that only in “rare circumstances” should such inadequacy be found. See In re Disaster, 540 F.
Supp. at 1145 (citing Piper, 454 U.S. at 254 n.22). A forum fails the adequacy prong only
“where the remedy offered by the alternative forum is clearly unsatisfactory” such that “there is .
. . danger that [Plaintiffs] will be deprived of any remedy or treated unfairly.” Piper, 454 U.S. at
254 n.22. The Executors argue that this case presents that rare instance for a number of reasons.
i. Defendants’ Waiver
They initially focus on the scope of Defendants’ waivers. Plaintiffs assert that Taiwan is
an inadequate forum because, although Defendants consented to service of process and waived
statute of limitations, they “have not waived a myriad of other issues decided in Plaintiffs’
favor.” Opp. at 28. This argument falls well short of demonstrating inadequacy. Although the
Executors may be correct that Defendants will “seek to relitigate” certain questions if this case is
re-filed abroad, this is no barrier to dismissal under FNC. Id. The fact that issues already
determined here may be back on the table in Taiwan does not reflect any fatal shortcoming of the
alternative forum, but instead only a shift in governing law. See El-Fadl, 75 F.3d at 678 (“A
foreign forum is not inadequate merely because it has less favorable substantive law [or] because
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it employs different adjudicative procedures.”) (internal citation omitted); Borden, Inc. v. Meiji
Milk Prods. Co., 919 F.2d 822, 829 (2d Cir. 1990) (stating that “unavailability of beneficial
litigation procedures similar to those available in the federal district courts does not render an
alternative forum inadequate”). Dismissal under FNC may put Plaintiffs in the unenviable
position of having to re-hash a few questions already addressed by this Court, and Taiwan’s law
may (or may not) be less favorable to their claims, but the specter of relitigation does not render
a foreign forum an inadequate alternative.
ii. Corruption
Plaintiffs next concentrate their fire on their “bona fide concern that a Taiwan court
would decide this case upon extrajudicial considerations.” Opp. at 28. They “believe they will
never obtain a fair trial against these Defendants in Taiwan,” id. at 30, a conviction based on the
“substantial power” wielded by members of the “Third Family” and their allegedly close
affiliation with Taiwan government officials. Id. at 29. According to Plaintiffs, these ties have
the potential to influence the Taiwan judiciary. In support of this fear, they point to a State
Department Report noting that “some political commentators and academics publicly question[]
the impartiality of judges and prosecutors involved in high-profile and politically sensitive
cases.” ECF No. 42-24 (2016 Human Rights Report) at 4.
The Court does not deny that Y.C. and his progeny may have myriad connections to the
economy and elite spheres of Taiwan. See ECF 49-21 (Christian Luthi Aff.), ¶¶ 11, 22 (stating
that Susan Wang, Y.C.’s daughter, is a senior executives a FPG, which generates over 13% of
Taiwan’s GDP); ECF 49-1 (Daniel Weinberger Decl. III), ¶ 22 (Susan Wang member of business
delegation to U.S. headed by former Taiwan Vice President). Yet Plaintiffs have provided no
evidence that the Third Family’s influence would lead to judicial corruption in this case. See
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Warter v. Boston Sec., S.A., 380 F. Supp. 2d 1299, 1311 (S.D. Fla. 2004) (“Only evidence of
actual corruption in a particular case will warrant a finding that an alternate forum is
inadequate.”) (emphasis omitted). The record thus does not support their assertion that its
“power,” even if substantial, renders Taiwan an inadequate alternative forum. See El-Fadl, 75
F.3d at 678 (foreign forum not inadequate “because of general allegations of corruption in the
judicial system”); Eastman Kodak Co. v. Kavlin, 978 F. Supp. 1078, 1084 (S.D. Fla. 1997)
(noting that argument that “[t]he ‘alternative forum is too corrupt to be adequate’ . . . does not
enjoy a particularly impressive track record”) (collecting cases). Indeed, Taiwan has repeatedly
been held to be an adequate forum by federal courts. See, e.g., Moletech, 2009 WL 3151147, at
*4; In re Air Crash Over Taiwan Straits on May 25, 2002, 331 F. Supp. 2d 1176, 1181-88 (C.D.
Cal. 2004); Lee Yu-Ge v. Johnson & Johnson, 2011 WL 3566859, at *2 (N.D. Ohio Aug. 12,
2011) (noting that “a number of other courts have deemed Taiwan to be an adequate alternate
forum”).
Plaintiffs also cannot rely on the State Department Report as objective support for their
corruption concerns. A closer examination of that document reveals that while “some political
commentators and academics” may have speculated as to the partiality of the judiciary, the
Report also states that Taiwan has “an independent and impartial” civil system. See State Dep’t
Rep. at 5. Especially in light of this conclusion, the vague concerns mentioned in the Report are
not sufficient to show that Taiwan is an inadequate forum. See El-Fadl, 75 F.3d at 678 (finding
reliance on State Department Report expressing “concern about the impartiality” of Jordanian
court system insufficient to demonstrate forum’s inadequacy). In sum, the evidence does not
support the conclusion that Taiwan’s legal system is “so fraught with corruption . . . and bias as
to provide ‘no remedy at all.’” Tuazon v. R.J. Reynolds Tobacco Co., 433 F.3d 1163, 1179 (9th
16
Cir. 2006). The Court therefore finds unavailing Plaintiffs’ position that they would be denied a
fair trial because of Defendants’ alleged influence over Taiwanese courts.
iii. Evidentiary concerns
Plaintiffs next assail the shortcomings of Taiwan’s power to compel the production of
evidence and order discovery. According to them, “[B]ecause of Taiwan’s lack of international
status,” its courts have “no power to compel the production of evidence from any non-party
witnesses outside Taiwan.” Opp. at 29. Their legal expert asserts that this suit, if re-filed, will
therefore be “cut off at [its] inception . . . because the Taiwan courts are not cloaked with the
sovereign authority of a fully recognized independent nation.” ECF No. 39-1 (Chen Decl. II), ¶
152. Plaintiffs dispute that discovery under 28 U.S.C. § 1782(a), which provides that a “district
court of the district in which a person resides or is found may order him to give his testimony or
statement or to produce a document or other thing for use in a proceeding in a foreign . . .
tribunal,” would provide any “meaningful solution to these concerns,” as Defendants are likely
to “vigorously oppose[]” any such requests. See Opp. at 30. Defendants reply that Taiwan’s
lack of international status is irrelevant to the FNC analysis, and that discovery under § 1782 is
“unquestionably available,” even if “properly objected to.” Reply at 16. They note, moreover,
that Plaintiffs would also have letters rogatory at their disposal – a method by which they could
obtain evidence and testimony from abroad. Id.
The Court agrees with Defendants that Taiwan is not rendered an inadequate forum
because of Plaintiffs’ evidentiary concerns. As it addresses in greater depth below, the use of
either forum may place certain witnesses and evidence beyond the reach of compulsory
discovery. Yet “a foreign forum's restrictive discovery or procedural rules do not render that
forum inadequate.” Marra v. Papandreou, 59 F. Supp. 2d 65, 73 (D.D.C. 1999); see In re Air
17
Crash, 331 F. Supp. 2d at 1187 (finding that plaintiffs’ arguments “regarding the availability of .
. . pretrial discovery . . . do not warrant a finding that Taiwan's procedural safeguards are
inadequate for forum non conveniens purposes”). If compelled to re-file in Taiwan, moreover,
Plaintiffs will still be able to request discovery through § 1782, which provides for the
production of evidence located in the United States “upon the application of any interested
person.” 28 U.S.C. § 1782(a) (evidence may be produced “pursuant to a letter rogatory issued[]
or request made” by foreign tribunal or interested party). The availability of such discovery
further assures the Court that Taiwan is a viable alternative forum. See Strategic Value Master
Fund, Ltd. v. Cargill Fin. Servs., Corp., 421 F. Supp. 2d 741, 769 (S.D.N.Y. 2006) (“When
evaluating a motion for dismissal pursuant to forum non conveniens . . . the availability of letters
rogatory is relevant to a court's analysis.”).
iv. Remedies
Last, the Executors contend that Taiwan courts will be unable to order an adequate
remedy even if they succeed. They argue that because Taiwan “do[es] not recognize claims in
equity or provide equitable remedies” and because they “will be unable to enforce any judgment
obtained against Defendants,” that country is an inadequate alternative forum to hear this suit.
See Opp. at 30. Defendants rejoin that the potential for Plaintiffs to obtain less-favorable
remedies in the alternative forum “does not render Taiwan inadequate.” Reply at 17.
On this point, the precedent again supports Defendants’ position. The Supreme Court has
established that only when “the remedy provided by the alternative forum is so clearly
inadequate or unsatisfactory that it is no remedy at all,” can the district court conclude that
“dismissal would not be in the interests of justice.” Piper, 454 U.S. at 254. That bar was not
met, the Court held, when plaintiffs were unable to rely on a particular legal theory in the
18
alternative forum, or when their potential damages award would be limited. Id. at 254-55. Here,
too, the evidence does not show that Plaintiffs will be deprived of any “remedy at all.” As
discussed below, their claims revolve around alleged violations of Taiwan’s Civil Code. They
do not suggest that the Code provides no remedy for their suit, but instead that “equitable
remedies” will not be available. The Court can hardly deem meaningless the remedies Taiwan
has chosen to provide for such infractions in its own courts. See Huertas v. Kingdom of Spain,
2006 WL 785302, at *2 (D.D.C. Mar. 27, 2006) (“[A] remedy will not be considered inadequate
merely because the plaintiff's potential award will be smaller.”); In Re Disaster, 540 F. Supp. at
1145-46 (potentially smaller damage award and inability to rely on particular theory of liability
do not render forum inadequate). Indeed, when a New Jersey district court dismissed Plaintiffs’
nearly identical claims on FNC grounds, it reached the same conclusion on this issue. As the
court there held, “It would be illogical, to say the least, to believe that a Taiwanese court is
unable to provide an adequate remedy for a violation of its own laws.” DNJ Action, 2016 WL
6080199, at *8.
Plaintiffs’ argument that Taiwan is inadequate because they may be unable to enforce a
judgment in U.S. courts is similarly unavailing. Enforceability of a foreign judgment is not a
necessary condition for FNC dismissal; it is instead one of the factors that may be considered in
the balancing of the private interests at stake. See Gulf Oil Corp v. Gilbert, 330 U.S. 501, 508
(1947). Whether or not the Executors could enforce a favorable Taiwanese judgment thus does
not determine the threshold question of the forum’s adequacy to address the dispute at hand. See
Windt, 544 F. Supp. 2d at 418 (foreign forum inadequate when it “completely prohibit[s] any
meaningful litigation of the subject matter disputed”) (quotation marks omitted). The one case
cited by Plaintiffs in support of their argument, Nemariam v. Fed. Democratic Republic of
19
Ethiopia, 315 F.3d 390 (D.C. Cir. 2003), is not to the contrary. Nemariam did not address the
enforcement of remedies, but instead involved circumstances in which the plaintiff had no
personal right to any remedy in the alternative forum. Id. at 395. Plaintiffs’ alleged inability to
enforce a favorable judgment therefore does not establish that Taiwan is an inadequate
alternative forum.
Although the facts of this case may be unusual, its legal underpinnings do not present the
“rare circumstance” in which an alternative forum is not a viable option. The Court,
consequently, finds that Taiwan is an available and adequate forum for this suit and that
Defendants thus clear the first hurdle to obtaining FNC dismissal.
2. Balancing of Interests
Next up is a determination of whether the private and public interests at stake tip
“strongly” in favor of dismissal. See Lans v. Adduci Mastriani & Schaumberg L.L.P., 786 F.
Supp. 2d 240, 293 (D.D.C. 2011). Before proceeding to those enumerated interests, however,
the Court addresses one initial matter – the appropriate level of deference due to Plaintiffs’
choice of forum. See Windt v. Qwest Commc'ns Int'l, Inc., 544 F. Supp. 2d 409, 416 (D.N.J.),
aff'd, 529 F.3d 183 (3d Cir. 2008) (noting that courts “conduct their balancing in light of the
degree of deference the plaintiff's choice of forum deserves”).
a. Deference
There is ordinarily a strong presumption in favor of a plaintiff’s chosen forum, but such
deference “applies with less force” when the plaintiff is foreign. Sinochem, 549 U.S. at 430
(quoting Piper, 454 U.S. at 255-54). As the Supreme Court has explained,
[W]hen the home forum has been chosen, it is reasonable to assume
this choice is convenient. When the plaintiff is foreign, however,
this assumption is much less reasonable. Because the central
purpose of any forum non conveniens inquiry is to ensure that the
20
trial is convenient, a foreign plaintiff’s choice deserves less
deference.
Piper, 454 U.S. at 255-56.
Here, Plaintiffs, who are all citizens of Taiwan, acknowledge that they have filed suit
outside their home forum. Yet they nonetheless assert that their selection of D.C. should be
“granted a high degree of deference” because it was “made for legitimate reasons and evinces
genuine convenience.” Opp. at 31. In support, the Executors point to the fact that all named
Defendants are located in the District and that there are “bona fide connections” between the
controversy and the forum. Id. at 32 (alteration omitted). Relying on their allegations that
Defendants created the D.C.-based trusts for the purpose of receiving and holding over $2 billion
of Y.C.’s estate in violation of Yueh-Lan’s spousal rights, and that Defendants “continue to hold
billions of dollars” in the District, Plaintiffs assert that this forum has a “substantial relation to
the action.” Id. at 32-33. Finally, they contend that they “never had a choice to sue in any other
forum,” as Defendants were not amenable to process in Taiwan. Id. at 32. The fact that
Defendants have now consented to such foreign jurisdiction “does nothing,” Plaintiffs argue, “to
alter the fact that the forum choice” was based on “genuine jurisdictional convenience.” Id.
Defendants counter that the Executors’ forum choice should not, in fact, be accorded a
“high degree of deference.” Noting that the “genuine convenience” test for evaluating that
choice has not been adopted by this Circuit, Defendants contend that lesser deference is due. See
Reply at 13-14. And, with respect to Plaintiffs’ assertion that the suit has a “substantial relation”
to the forum, Defendants respond that the underlying claims “predominantly concern[] Taiwan
law and Taiwan policy issues.” Id. at 14.
The Court agrees that Plaintiffs’ choice of forum should, in this case, be given less
deference than is normally due when considering dismissal under forum non conveniens. As an
21
initial matter, it notes that this Circuit has not yet addressed the relevance of whether a foreign
defendant’s forum choice was motivated by “legitimate reasons” or “genuine convenience.”
Plaintiffs instead import these considerations from a line of Second Circuit cases. See, e.g.,
Iragorri v. United Techs. Corp., 274 F.3d 65, 73 (2d Cir. 2001) (holding that foreign plaintiff’s
forum choice given “greater deference . . . to the extent that it was motivated by legitimate
reasons, including the plaintiff’s convenience”); Norex Petroleum Ltd. v. Access Indus., Inc.,
416 F.3d 146, 157 (2d Cir. 2005) (granting “substantial deference” to foreign plaintiff’s forum
choice when informed by “genuine convenience”) (internal quotation marks omitted); In re
Herald, 540 F. App'x 19, 26-27 (2d Cir. 2013) (affirming “very limited deference” given to
foreign plaintiffs’ choice not motivated by “genuine convenience”). So, too, with Plaintiffs’
reliance on the suit’s alleged “bona fide” connections with the District. See, e.g., Pollux Holding
Ltd. v. Chase Manhattan Bank, 329 F.3d 64, 71 (2d Cir. 2003) (level of deference given to
foreign plaintiff's choice of forum “depends on the bona fide connection the plaintiff has with
that forum”); Iragorri, 274 F.3d at 71–72 (deference given to foreign plaintiff’s choice depends,
in part, on degree of “plaintiff’s or the lawsuit’s bona fide connection . . . to the forum of
choice”).
By contrast, this Circuit has not relied on any such considerations when determining the
level of deference given to a foreign plaintiff’s forum choice. Instead, it has approvingly cited
the standard established by the Supreme Court – namely, that a foreign plaintiff’s choice of
forum is entitled to “less deference.” Friends for All Children, Inc. v. Lockheed Aircraft Corp.,
717 F.2d 602, 605 n.5 (D.C. Cir. 1983) (internal quotation marks omitted); see also Pac. Mar.
Ass'n v. NLRB, 905 F. Supp. 2d 55, 60–61 (D.D.C. 2012) (“[T]he plaintiff's choice of forum is
afforded great deference . . . [but] that choice is conferred less deference by the court when a
22
plaintiff's choice of forum is not the plaintiff's home forum.”); Irwin v. World Wildlife Fund,
Inc., 448 F. Supp. 2d 29, 33 (D.D.C. 2006) (“Although there is a strong presumption in favor of
the plaintiff's choice of forum, plaintiff's choice is entitled to less deference if she is a citizen and
resident of a foreign state.”); In re Disaster, 540 F. Supp. at 1144 (“presumption in favor of the
initial forum choice applies with less than maximum force when the real parties in interest are
foreign”).
Following this guidance, the Court will not grant Plaintiffs in this case the benefit of any
“strong presumption” in favor of their forum choice. Instead, their selection carries “less
weight” as the Court proceeds in its analysis under forum non conveniens.
b. Private Interests
The private interests include (1) the “relative ease of access to sources of proof”; (2) the
“availability of compulsory process for attendance of unwilling, and the cost of obtaining
attendance of willing, witnesses”; and (3) the catch-all consideration of “all other practical
problems that make trial of a case easy, expeditious and inexpensive.” Gulf Oil Corp, 330 U.S.
at 508. The Court focuses its analysis on the first two considerations, as those are the ones most
discussed and disputed by the parties.
i. Access to Proof
At the outset, an obvious and substantial obstacle impedes access to relevant evidence in
the District of Columbia – the language barrier. This case involves complex questions of
Taiwanese law, the resolution of which depends at least in part on the interpretation of various
Chinese-language documents and the testimony of non-English-speaking witnesses. See Mot. at
44-45 (listing documents already in record that have required translation); Opp. at 40. Indeed,
even at this stage in litigation, the parties dispute the English meaning of certain pieces of
23
evidence, including a 2010 Taiwanese Tax Settlement Agreement regarding the distribution of
Y.C.’s estate. See ECF Nos. 37-2, 38-5 (differing translations). According to Defendants, this
Agreement states that Yueh-Lan Wang, Yang Chiao-Wang, and P.C. Lee were “in fact the
spouses of Mr. Y.C. Wang.” ECF No. 42-25 (Su Sur-Reply Decl.), ¶ 14. According to
Plaintiffs, the correct translation of the Agreement is that the three women only “emotionally,”
“sentimentally, or “with their emotions” recognized that they were Y.C.’s wives, not that they
were legally so. See ECF Nos. 18-2 (Decl. of Tsung-Fu Chen I), ¶ 53; 39-1 (Chen Decl. II), ¶
77; 37-1, Exh. J (Decl. of Xin Min Liu). Lacking any familiarity with Mandarin, this Court has
no ability to determine which version should prevail. And that is precisely the point: a U.S. court
is an inconvenient forum for a case in which substantial decisions may rise or fall on the
interpretation of a given Chinese phrase. See MBI Grp., Inc. v. Credit Foncier Du Cameroun,
616 F.3d 568, 576 (D.C. Cir. 2010) (upholding dismissal under FNC when “district court
concluded that the private interests clearly favored a Cameroonian forum” in part due to the
“complexity of the French-to-English translation necessary for taking evidence and testimony”);
Irwin, 448 F. Supp. 2d at 35 (necessity of translating documents and testimony from French to
English created “administrative difficulties of trying the case in the District of Columbia” that
“weigh in favor of dismissal”). Concerned that this case could become lost in translation, the
Court concludes that this issue weighs in favor of dismissal.
Although neither side disputes the language difficulties (nor could they in good faith,
given the extant record), they sharply diverge as to which forum would provide greater access to
critical witnesses, documents, and other evidence. According to Plaintiffs, much of this
information is located “in the U.S., or outside of Taiwan.” Opp. at 34. Specifically, they assert
that evidence regarding the “purpose, formation, and functioning” of New Mighty Trust, the
24
“transfer of Marital Assets to Defendants,” and Y.C.’s “ownership interests in the assets” are all
located in the United States. Id. at 34-36 (describing individuals and documents here). The
Executors have submitted a declaration listing eighteen witnesses and entities that, upon
information and belief, are located in the United States and “are likely to possess documents and
information relevant to the claims and facts alleged in the [Second Amended Complaint].” ECF
No. 49-1 (Decl. of Daniel Weinberger), ¶ 4. Although certain of these enumerated witnesses
would seem more crucial than others, see id., (listing legal assistant “who notarized documents
relating to this matter” and “close personal friend” of Y.C.), the Court has no reason to doubt that
at least some of them possess relevant information.
Defendants also have a list. Indeed, they contend that “the real parties in interest are
principally located in Taiwan” and go on to describe the many witnesses who reside in that
country. See Mot. at 35-37. These individuals include the four NM-US trust managers, the
persons who “direct” the operations of NMF, the Executor-Defendants themselves, Y.C.’s
alleged spouse P.C. Lee, the children of his alleged spouse Yang Chiao, and those involved in
negotiating the Tax Settlement Agreement. Id. at 36-39. As with Plaintiffs, however,
Defendants also include certain individuals whose connections to the instant suit seem, at this
stage, somewhat tenuous. See Mot. at 40 (listing Yueh-Lan’s housekeeper and medical
professionals); 42 (listing general director of FPG Museum and “other museum staff”).
Regardless, the Court does not doubt that “witnesses with knowledge of [relevant] matters are
located in Taiwan.” Mot. at 42.
Just as the parties dispute the geographic distribution of the relevant proof, they also
diverge as to the ease of access to such evidence. Plaintiffs assert that Defendants have failed to
demonstrate that they will be deprived of necessary evidence if the case is not dismissed. See
25
Opp. at 40. Noting that Defendants will be able to use letters rogatory to obtain evidence located
in Taiwan and that they have “essentially limitless resources,” Plaintiffs contend that Defendants
will face no great burden in obtaining proof from abroad. Id.; ECF No. 49-35 (Chen Opp.
Decl.), ¶¶ 72-74 (discussing procedures for obtaining evidence in Taiwan pursuant to letters
rogatory); Sayles v. Pac. Engineers & Constructors, Ltd., 2009 WL 791332, at *4 (W.D.N.Y.
Mar. 23, 2009) (discussing particulars and requirements of letters rogatory under Taiwanese
law). Defendants rejoin that they are, in fact, likely to face evidentiary obstacles if this case
remains in D.C. They assert that letters rogatory are not a sufficient substitute for trying this
case in Taiwan, and that they will therefore be deprived of necessary sources of proof. See
Reply at 16 (citing Chang v. Baxter Healthcare Corp., 599 F.3d 728, 735 (7th Cir. 2010), for
statement that letters rogatory are not a “very satisfactory means of obtaining evidence from
Taiwan”).
At this point in the litigation, the precise evidentiary contours of this case remain
somewhat murky. What is clear is that whether this suit is brought in D.C. or Taiwan, a certain
amount of relevant proof is likely to be located outside the forum. On balance, however, it
appears that Defendants have a somewhat stronger argument regarding the location of relevant
sources of proof and individuals critical to this action, as is perhaps unsurprising given that the
central figures in this case are Taiwanese. The Court therefore concludes that this issue weighs
slightly in favor of dismissal.
ii. Obtaining Witnesses
As with the question of where the relevant witnesses are located, the parties split as to
which forum would be better able to compel and procure testimony from these individuals.
According to Plaintiffs, “[T]o the extent there are relevant Taiwan witnesses,” they consist
26
almost entirely of “employees, agents, and affiliates” of Defendants, thus “obviating any concern
that [it] will be difficult to procure” access to them in the United States. See Opp. at 39.
Plaintiffs contend, moreover, that evidence from any “remaining unwilling witnesses” can be
obtained by this Court through letters rogatory or unspecified “other powers.” Id. at 40. By
contrast, they assert (albeit while incorrectly suggesting that this Court would transfer, rather
than dismiss, this case under FNC) that “none of the non-Taiwan witnesses will be subject to
compulsory process if the case is transferred to Taiwan.” Id.
Defendants respond that, if the case is not dismissed, they will face significant challenges
in compelling evidence for use in trial. Taiwan, as they note, is not a party to the Convention on
the Taking of Evidence Abroad in Civil or Commercial Matters, and there is no ability to compel
witnesses in Taiwan to appear in-person in U.S. courts. See Mot. at 42; Chang v. Baxter
Healthcare Corp., 599 F.3d 728, 735 (7th Cir. 2010) (finding that “Taiwanese law makes it
difficult to gather evidence for use in a trial in a foreign country because Taiwan is not a party to
the Convention”); see also Warter v. Boston Sec., S.A., 380 F. Supp. 2d 1299, 1312 (S.D. Fla.
2004) (noting that if case proceeded in U.S., defendants’ only means of compelling testimony
and evidence would be “foreign letters rogatory process,” while if filed in Argentina, “Plaintiffs
could use the Argentine rules of procedure . . . [and] could compel testimony and documents
from unwilling U.S. witnesses pursuant to [§ 1782]”) . Defendants also dispute that they have
meaningful control over the “numerous Taiwanese witnesses” such that it would not be difficult
to procure their testimony for trial. See Mot. at 42. Finally, Defendants note that “many” of
their potential witnesses are elderly, and thus the inconvenience of their travel to the United
States would be “significant and substantial, if not impossible.” Id. at 43; see DNJ Action, 2016
WL 6080199, at *10 n.22 (finding that “P.C. is currently 81 years old, resides in Taiwan, and
27
does not speak English” and that Plaintiffs “essentially concede[] that Taiwan is a more
convenient forum for P.C.”).
On this factor, as with the location of sources of proof, the Court finds that both sides
present viable arguments in favor of their preferred forum. Whether this case proceeds in D.C.
or in Taiwan, there will be legal and logistical hurdles to compelling witnesses and obtaining
testimony. See DNJ Action at *14 (finding that “whether the matter is litigated in Taiwan or in
New Jersey,” either forum will be “unable to compel documents or witnesses who may be
relevant to many issues in this case”). The Court thus concludes that this factor hangs in
equipoise.
On the whole, therefore, the private interests tilt somewhat toward dismissal.
b. Public Interests
The considerations governing the public-interest analysis, conversely, include (1) the
“local interest in having localized controversies decided at home”; (2) the interest in having the
trial in a forum that is “at home” with the law that must govern the action; (3) the avoidance of
unnecessary problems in conflicts of laws or in the application of foreign law; and (4) the
unfairness of burdening citizens in the current forum with jury duty. See Gulf Oil Corp, 330
U.S. at 508-09. Assessing each of these factors, the Court concludes that the public interest in
this case tips sharply in favor of dismissal.
i. Local Interest
Plaintiffs contend that “the citizens of D.C. and the U.S. have a strong interest in this
litigation.” Opp. at 42. They maintain that “substantial culpable conduct occurred” in the
District, “including the receipt of property and the establishment of the New Mighty U.S. Trust
structure itself.” Id. at 41. Pointing to the fact that Defendants are incorporated and located in
28
this country, they argue that “Defendants and their affiliates have benefited substantially from
U.S. laws” and thus “cannot now complain of the burden . . . [that] results from this Court’s
jurisdiction.” Id. at 43. Defendants rejoin that this emphasis on local and U.S. interests is but a
smokescreen for the real dispute underlying this case – the correct interpretation of Taiwan’s
Civil Code regarding marriage and inheritance. They posit that there “is little to no local interest
in the claims asserted,” and that the “resolution of this Taiwan-law based action is unlikely to
have any impact in the District of Columbia.” Mot. at 32.
Defendants have the better position. The central question here is whether Yueh-Lan, a
lifelong resident and citizen of Taiwan, was denied certain spousal rights under Taiwanese
inheritance law. Indeed, each count in the Second Amended Complaint is in some way premised
on her claimed entitlement to her full share of Y.C.’s marital estate. See SAC, ¶¶ 71-118.
Whichever way this case comes out in the end, its legal impact will be far greater in Taiwan than
in the District of Columbia – a forum that would very rarely confront issues of Taiwanese marital
law. Although the District may have a weak interest in this dispute given Defendants’ local
incorporation and business operations, the central claims plainly implicate Taiwanese concerns.
See DNJ Action, 2016 WL 6080199, at *13 (noting that “citizens of Taiwan likely have a strong
interest in the distribution of the estate of one of its wealthiest citizens”). Indeed, resolving this
case would implicate questions of that country’s social policies and family law – hardly the
“local interests” of a federal court located an ocean away. See, e.g, ECF Nos. 49-35 (Chen Opp.
Decl.), ¶¶ 78-81 (discussing history of bigamy in Taiwan); 39-1 (Chen Decl. II), ¶¶ 52-55, 72-73
(discussing definition of marriage in Taiwan); 42-25 (Su Sur-Reply Decl.) (discussing
determination of relative spousal contributions to a marriage). Just as federal courts may decline
to decide diversity-jurisdiction cases involving domestic relations, the subject matter at issue
29
here is particularly ill-suited for determination in the current forum. See, e.g. Ellison v. Sadur,
700 F. Supp. 54, 55 (D.D.C. 1988) (“Federal courts generally will not accept jurisdiction over a
case that involves the resolution of a marital dispute[.]”). In light of these concerns and the
strong Taiwanese interests at stake, this factor tips sharply in favor of dismissal.
ii. Applying Foreign Law
The Court next considers “the interest in having the trial in a forum that is at home with
the law that must govern the action” and the potential for “unnecessary problems in conflicts of
laws or in the application of foreign law.” On this issue, Plaintiffs contend that “while some
issues of Taiwan law exist in this case, D.C. law will also apply.” Opp. at 44. Yet their attempt
to equate the relevance of Taiwanese and D.C. law is belied by their Second Amended
Complaint. That pleading alleges five substantive counts under different sections of Taiwan’s
Civil Code (as compared to four common-law counts), see SAC, ¶¶ 66-101, and the D.C. claims
are, at least in part, contingent upon these foreign-law allegations. Without engaging in a full
conflicts analysis, it appears that the merits of Plaintiffs’ D.C.-law claims likely depend upon the
viability of their arguments under Taiwan’s Civil Code. See id., ¶¶ 102-110 (counts for
conversion and unjust enrichment under D.C. law require, respectively, “unlawful” control over
another’s personal property and “unjust” retention of benefit by defendant); cf. Piper, 454 U.S. at
251 (stating that “the public interest factors point towards dismissal where the court would be
required to untangle problems in conflict of laws, and in law foreign to itself”) (internal
quotation marks and citations omitted); Lans, 786 F. Supp. 2d at 300 (finding that “[w]hile the
Court need not definitively resolve the choice of law issue at this point, the likelihood that
foreign law will apply weighs against retention of the action”) (internal quotation marks and
citation omitted). Plaintiffs’ contention that this case involves only “some issues” of Taiwanese
30
law is thus somewhat disingenuous. Instead, the Court agrees with Defendants that at the core of
this suit lie claims under Taiwanese law.
The Court notes, moreover, that Plaintiffs brought many of the same Taiwanese and
common-law claims in their New Jersey suit. See DNJ Action, 2016 WL 6080199, at *8 n.19
(discussing Taiwanese causes of action and identifying New Jersey causes of action as
“conversion,” “unjust enrichment, “constructive trust,” “accounting” and “civil conspiracy”). In
dismissing that case under FNC, the court there found that “the New Jersey claims are seemingly
contingent on . . . Taiwanese law.” Id. at *8. “[T]o succeed on any of the New Jersey claims,”
that court held, “Plaintiffs first need to prove an underlying violation of Taiwanese law.” Id. at
*8 n.19. So, too, do the D.C. claims at issue here seem to rise or fall with Plaintiffs’ allegations
under Taiwan’s Civil Code. The Court therefore concurs with the New Jersey court’s
determination that “[t]he dispute here rests entirely on the application of Taiwanese law.” Id. at
*12.
There is no doubt that this Court is “empowered to resolve questions of foreign law,”
Mot. at 32, and that the need to do so does not compel dismissal under FNC. See Cruise
Connections Charter, 764 F. Supp. 2d at 163–64 (need to apply foreign law “alone is not
sufficient to warrant dismissal”). Although “showing that another jurisdiction’s law will apply is
not alone sufficient to refuse retention of a case if the court will not have any difficulty applying
[such] law,” this is not such a case. See Lans, 786 F. Supp. 2d at 300. This Court readily
acknowledges that it will have some degree of difficulty in interpreting the numerous provisions
of Taiwan’s Civil Code at issue here. See Moletech, 2009 WL 3151147, at *6 (finding that
application of Taiwan’s law “would be an arduous task as the Court is unfamiliar with
Taiwanese law, and this factor weighs heavily in favor of dismissal of this action”); In re Air
31
Crash, 331 F. Supp. 2d at 1211 (“Because Taiwanese law is likely to apply to these actions, and
because the court is unfamiliar with Taiwanese law, this public factor . . . weighs in favor of
dismissal on forum non conveniens grounds.”). As the record makes clear, this is no
straightforward task here. See Su Decl. I, ¶¶ 78 (noting that no Taiwanese court has previously
addressed allocating spousal share among multiple wives); ¶¶ 149-51 (discussing meaning of
Settlement Agreement); Chen Decl. II, ¶ 117 (noting that Taiwanese courts have never
considered application of relevant Civil Code provisions “to the situation of multiple spouses”).
Parsing and applying the relevant Civil Code provisions will require this Court to gain a
significant level of expertise regarding foreign family and inheritance law, and to resolve a
number of questions of first impression arising under Taiwanese law. In light of such
challenges, the Court concludes that this factor weighs strongly in favor of dismissal.
iii. Burden on D.C. Citizens
In addition to taxing the foreign expertise of this Court, there is also the concern that a
trial in this case would “unfairly” burden citizens of the District with jury duty. When assessing
motions to dismiss under FNC, courts seek to “avoid[] the imposition of jury duty on people of a
community which has no relation to the litigation.” Wye Oak Tech., Inc. v. Republic of Iraq,
941 F. Supp. 2d 53, 58 (D.D.C. 2013) (internal quotation marks and citation omitted). While this
suit has some relation to the District – Defendants are D.C.-based entities and Plaintiffs bring
claims under D.C. law – the gravamen of the case, as discussed above, involves Taiwan’s Civil
Code. Fairness to a future D.C. jury therefore counsels in favor of dismissal. See BCCI
Holdings (Luxembourg), Societe Anonyme v. Mahfouz, 828 F. Supp. 92, 99–100 (D.D.C. 1993)
(finding that “the District of Columbia’s relatively minor interest in the outcome of the dispute
does not justify submitting its citizens to the rigors of sitting as jurors”); In re Air Crash, 331 F.
32
Supp. 2d at 1206 (stating that “it is clear [], given Taiwan's significant connection to the actions,
and California's minimal one, requiring California citizens to serve as jurors in these cases would
be an unfair burden”).
IV. Conclusion
Bearing in mind that flexibility is the “watchword” and convenience the “central focus”
of the forum non conveniens inquiry, the Court concludes that the private interests tip slightly in
favor of dismissal and the public interests come out strongly in support of that result. Because it
also finds that Taiwan is an available and adequate alternative forum, it will ultimately grant
Defendants’ Motion to Dismiss under forum non conveniens. The Court will, however,
condition such dismissal upon Defendants’ continued submission to Taiwan’s jurisdiction and
waiver of their statute-of-limitations defenses. Recognizing, moreover, that Plaintiffs may have
remaining concerns regarding their ability to re-file in Taiwan, the Court will provide them the
opportunity to request additional conditions subsequent to the issuance of this Opinion.
Defendants will in turn have the chance to respond to any such requests, and the Court will
determine if any further constraints to dismissal are warranted. A contemporaneous Order so
stating shall issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: February 12, 2018
33
Wang v. New Mighty U.S. Trust
Combined Opinion