Carijano v. Occidental Petroleum Corp.

RYMER, Circuit Judge,

concurring in part, dissenting in part:

I agree that the district court did not abuse its discretion in determining that Peru is an adequate alternative forum. I also believe that conditions on dismissal might be appropriate, but would not require that any be imposed. Nor would I reanalyze whether to dismiss on grounds of forum non conveniens from scratch, because dismissals for forum non conveniens may be reversed only when there has been a clear abuse of discretion. Creative Tech., Ltd. v. Aztech Sys. Pte, Ltd., 61 F.3d 696, 699 (9th Cir.1995). The district court considered the relevant public and private interest factors, its findings are supported in the record, and its balancing of these factors was not unreasonable. Thus, its decision deserves substantial deference. See id.

I

I cannot say that the district court abused its discretion in weighing the public and private interest factors. It took into account that 25 out of the 26 plaintiffs are Peruvian and that Amazon Watch is only one plaintiff on one out of the 12 causes of action. Amazon Watch was not originally a plaintiff in California state court, having been added only after the Peruvian plaintiffs learned that Occidental was going to move for dismissal based on forum non conveniens. The court could find that these circumstances lessen the deference due to the plaintiffs’ choice of forum.

The district court could also find, as it did, that the facts of the case center primarily on Peruvian lands and Peruvian people. It found that many witnesses, including family members and community leaders, physicians, and consultants, are beyond the reach of compulsory process in the United States. Carijano asserts the court abused its discretion by not specifically stating which witnesses would be unwilling to travel to the United States, but it can be “difficult to identify” specific individuals when many witnesses “are located beyond the reach of compulsory process.” Piper Aircraft, 454 U.S. at 258, 102 S.Ct. 252. Here, as in Lueck, it appears that most of the evidence in the United States would be under the control of Occidental (or alternatively, Amazon Watch), and therefore could be produced no matter what the forum. Lueck, 236 F.3d at 1146-47 (noting that private factors favored dismissal where evidence in the United States was under both parties’ control, and evidence in New Zealand could not be summoned to the United States). Finally, the district court’s balancing is supported by evidence that a trip from the Achuar territory to a Peruvian city is shorter and less costly than that trip followed by a 16-20 hour flight to Los Angeles.

The district court considered the strong interest of both Peru and California in this dispute, but weighted Peru’s more heavily given that the suit involves Peruvian land and citizens. This is not a clearly erroneous assessment as both the alleged tort, and injury, occurred there.

II

Carijano suggests that more discovery may have mattered, but has not made a clear showing of actual and substantial prejudice sufficient to demonstrate the district court abused its discretion by denying additional discovery. Carijano simply argues that the parties produced contradictory evidence and speculates that additional discovery might have helped its case. But Carijano’s extensive recitation of the evidence it presented in district court demonstrates the court did have enough informa*1238tion to balance the parties’ interests. Even when it’s possible that discovery might have provided more detail, a district court does not abuse is discretion in denying discovery if the parties have provided “enough information to enable the District Court to balance the parties’ interests.” Cheng, 708 F.2d at 1412 (quoting Piper Aircraft, 454 U.S. at 258, 102 S.Ct. 252).

Ill

While conditions on dismissal are generally not necessary in a forum non conveniens dismissal, they may be necessary to ensure that the defendant does not defeat the adequacy of a foreign forum. Leetsch v. Freedman, 260 F.3d 1100, 1104 (9th Cir.2001). Conditions such as accepting service, submitting to the jurisdiction, waiving the statute of limitations, making discovery, and agreeing to enforceability of the judgment may be appropriate here. I would, therefore, remand for the court specifically to consider whether its dismissal should be conditioned. Otherwise, I would affirm.