UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ANTHONY J. RANKINE,
Plaintiff-Appellant,
v.
JOHN RANKINE,
Defendant-Appellee,
and
No. 98-1260
CEANET INCORPORATED; CEANET
PARTY LIMITED; STOREY BLACKWOOD
ACCOUNTANTS; JOHN DEAKER; JOHN
CAMPBELL; DAVID HEWITT; GERALD
TEO; J. HAYES; M. GARNETT; D.
BARTON; J. HILL; COLIN V. RUSSELL,
Defendants.
Appeal from the United States District Court
for the Western District of North Carolina, at Statesville.
Richard L. Voorhees, Chief District Judge.
(CA-96-61-5-V)
Submitted: August 18, 1998
Decided: November 23, 1998
Before WIDENER and HAMILTON, Circuit Judges, and HALL,
Senior Circuit Judge.
_________________________________________________________________
Vacated and remanded by unpublished per curiam opinion.
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COUNSEL
Anthony J. Rankine, Appellant Pro Se. Michael Cornelius Landreth,
Greensboro, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Anthony Rankine appeals from a district court order adopting the
magistrate judge's recommendation to dismiss his civil action pursu-
ant to the doctrine of forum non conveniens. We review a decision to
grant a motion to dismiss on forum non conveniens grounds for abuse
of discretion. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 237 (1981).
Dismissal is appropriate where the various public and private interest
factors delineated by the Supreme Court in Gulf Oil Corp. v. Gilbert,
330 U.S. 501, 508-09 (1947), weigh in favor of litigating the action
in an available alternative forum. While we find that the district court
properly weighed the pertinent Gilbert factors in this case and acted
within its discretion by finding that the Supreme Court for New South
Wales would be a more appropriate forum for litigation of this action,
we agree with Rankine that the court erred by not requiring the
Appellees to carry their burden to establish that this forum is actually
available. See El-Fadl v. Central Bank of Jordan , 75 F.3d 668, 676-
77 (D.C. Cir. 1996).
Generally, the district court's dismissal on forum non conveniens
grounds should be conditional on the moving party's provision of its
consent to the jurisdiction of the proposed alternative forum, together
with a waiver of any limitations defenses. See Scottish Air Intern. v.
British Caledonian Group, 81 F.3d 1224, 1235 (2d Cir. 1996);
Ceramic Corp. of Amer. v. Inka Maritime Corp., 1 F.3d 947, 949 (9th
Cir. 1993). If the moving party does not waive its limitations
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defenses, we have held that it has the burden to show, as to each indi-
vidual cause of action, that no statute of limitations in the proposed
alternative forum renders that forum unavailable. See Kontoulas v.
A.H. Robins. Co., 745 F.2d 312, 316 (4th Cir. 1984). Rankine cor-
rectly contends that in this case the Appellees have not waived their
limitations defenses. In fact, they asserted a limitations defense in
their answer to Rankine's complaint. Moreover, the district court
declined to address Rankine's limitations argument on the ground that
making a legal determination regarding the applicable statute of limi-
tations would be contrary to the purposes of the forum non conve-
niens doctrine. Such a determination, however, is a threshold matter
essential to determining whether the proposed alternative forum is
actually available.
Accordingly, we vacate the district court's dismissal order and
remand for further proceeding consistent with this opinion. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
VACATED AND REMANDED
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