REVISED, June 28, 1999
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
97-30872
DICKSON MARINE INCORPORATED;
DICKSON GMP INTERNATIONAL, INCORPORATED;
POWER OFFSHORE SERVICES INCORPORATED;
POWER WELL SERVICE NO. 4, INCORPORATED
Plaintiffs/Appellants,
versus
PANALPINA, INC.;
PANALPINA NEW ORLEANS;
PANALPINA PORT GENTIL; AIR SEA BROKER, A.G.;
AIR SEA BROKER, S.A.;
AIR SEA BROKER, LTD; SATRAM; SEMTS;
and L’UNION DES ASSURANCES DE PARIS, (UAP)
Defendants,
and
AIR SEA BROKER, LTD. and PANALPINA
TRANSPORTS MONDIAUX GABON S.A.
Defendants/Appellees.
Appeal from the United States District Court
for the Eastern District of Louisiana
June 23, 1999
Before DeMOSS, PARKER, and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:
The district court dismissed the Louisiana plaintiffs’ actions
against two foreign corporate subsidiaries of a multinational
corporation on grounds of lack of personal jurisdiction in
Louisiana as to one defendant and forum non conveniens as to the
1
other. The Plaintiff argues that Louisiana is the proper forum for
the actions because of an agency relationship or a lack of separate
corporate identity between the corporations. For essentially the
same reasons assigned by the district court, we affirm the district
court’s decision to reject the plaintiffs’ arguments and dismiss
their actions.
I.
The Plaintiffs, Dickson Marine, Inc., Dickson GMP
International, Inc., Power Offshore Services, Inc., and Power Well
Service No. 4, Inc. (collectively referred to as “Dickson”),
brought these actions to recover for significant property damage to
the DICKSON IV, a vessel owned and operated by Dickson.
In 1992 the DICKSON IV was operating off the coast of West
Africa and was in need of repairs. To arrange for these repairs,
Dickson contacted the New Orleans office of Panalpina, Inc., an
American corporation based in New Jersey (“Panalpina-N.J.”).
Unable to help directly, Panalpina-N.J. referred Dickson to Air Sea
Broker, Ltd. (“Air Sea”). Air Sea put Dickson in touch with
Panalpina Transports Mondiaux Gabon S.A (“Panalpina Gabon”) in Port
Gentil, Gabon to handle the repairs. Panalpina Gabon did not have
actual repair capabilities, but it subcontracted with SATRAM and
SEMTS to conduct the necessary work. During the repair work, the
DICKSON IV capsized.
In 1993, Dickson and its hull underwriters filed a
“Zahlungsbefehl” in Switzerland against Air Sea. A Zahlungsbefehl
2
(an order to pay) is a legal document that interrupts the statute
of limitations and preserves a party’s legal rights. Thereafter,
in 1995 Dickson filed this suit in Louisiana state court against
Panalpina-N.J., Panalpina Gabon (Incorrectly identified as
Panalpina Port Gentil), Air Sea (Incorrectly identified as three
separate companies), SATRAM, SEMUS, and L’Union des Assurance de
Paris. Panalpina-N.J., Panalpina Gabon, and Air Sea removed the
suit to Federal Court.
In the district court, Dickson released and dismissed SEMTS
and L’Union des Assurance de Paris. SATRAM has not appeared and
Dickson has not sought a default judgment against them. The action
against Panalpina-N.J. was dismissed on summary judgment. Thus,
the only defendants on appeal are Panalpina Gabon and Air Sea.
Panalpina Gabon is a Gabonese corporation with its principal
place of business in Port Gentil, Gabon. Air Sea is a Swiss
corporation with its principal place of business in Basel,
Switzerland. Air Sea and Panalpina Gabon are subsidiaries of
Panalpina World Transport, Inc. (“Panalpina World”), an
international conglomerate having operations through subsidiaries
on six continents. Air Sea acts as a coordination/liaison office
for Panalpina World’s subsidiaries on the Western Coast of Africa.
Panalpina Gabon filed a motion to dismiss for a lack of
personal jurisdiction and Air Sea filed a motion for dismissal due
to forum non conveniens in the district court. The district court
granted both motions. Dickson is appealing the orders of the
district court.
3
II.
The only issues Dickson brings before this Court are (1) did
the district court commit error in granting Panalpina Gabon’s
motion to dismiss for lack of personal jurisdiction, and (2) did
the district court abuse its discretion in granting Air Sea’s
motion of forum non conveniens.
III.
Absent any dispute as to the relevant facts, whether in
personam jurisdiction can be exercised over a defendant is a
question of law and subject to de novo review. Ruston Gas
Turbines, Inc. v. Dondaldson Co., Inc., 9 F.3d 415, 418 (5th Cir.
1993).
A district court’s dismissal for forum non conveniens is
reviewed by a court of appeal for an abuse of discretion. Piper
Aircraft Co. v. Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 266
(1981). Appellate courts “review the lower court’s decisionmaking
process and conclusion and determine if it is reasonable,” they do
not “perform a de novo analysis and make the initial determination
for the district court.” In Re Air Crash Disaster Near New
Orleans, Louisiana, 821 F.2d 1147, 1167 (5th Cir. 1987).
IV.
To exercise personal jurisdiction over a nonresident
defendant, two requirements must be met. First, the nonresident
defendant must be amenable to service of process under a State’s
long-arm statute. Jones v. Petty-Ray Geophysical, Geosource, Inc.,
4
954 F.2d 1061, 1067 (5th Cir. 1992). Second, the assertion of in
personam jurisdiction must be consistent with the 14th Amendment’s
Due Process Clause. Id. Because Louisiana’s long-arm statute
extends to the limits of due process, we only need to determine if
subjecting Panalpina Gabon to suit in Louisiana would offend the
Due Process Clause of the 14th Amendment. See LSA-R.S. 13:3201(B).
See also Petroleum Helicopters, Inc. v. Avco Corp., 513 So.2d 1188,
1191 (La. 1987).
The Due Process Clause protects an individual’s liberty
interest in not being subject to the binding judgments of a forum
with which the individual has established no meaningful “contacts,
ties, or relations.” Burger King Corp. v. Rudzewicz, 471 U.S. 462,
474, 105 S.Ct. 2174, 2183 (1985), citing International Shoe Co. v.
Washington, 326 U.S. 310, 66 S.Ct. 154 (1945). Requiring that
individuals have “fair warning that a particular activity may
subject [them] to the jurisdiction of a foreign sovereign,” Shaffer
v. Heitner, 433 U.S. 186, 218, 97 S.Ct. 2569, 2587 (1977) (Stevens,
J., concurring), the Due Process Clause “gives a degree of
predictability to the legal system that allows potential defendants
to structure their primary conduct with some minimum assurance as
to where that conduct will and will not render them liable to
suit.” Burger King, 471 U.S. at 474, 105 S.Ct. at 2183, citing
World-Wide Volkswagen Corp. v. Woodson, 44 U.S. 286, 297, 100 S.Ct.
559, 567 (1980).
Due process will not be offended if the nonresident defendant
has “certain minimum contacts with [the forum] such that the
5
maintenance of the suit does not offend ‘traditional notions of
fair play and substantial justice.’” International Shoe, 326 U.S.
at 316, 66 S.Ct. at 158, quoting Milliken v. Meyer, 311 U.S. 457,
463, 61 S.Ct. 339, 343 (1940). When an action “arises out of” a
defendant’s contacts with the forum, a “relationship among the
defendant, the forum, and the litigation” is the essential
foundation of in personam jurisdiction. Shaffer v. Heitner, 433
U.S. 186, 204, 97 S.Ct. 2569, 2579 (1977). This type of
jurisdiction, in which the suit arises out of or is related to the
defendant’s contacts with the forum, is commonly referred to as
“specific jurisdiction.” Helicopteros Nacionales De Colombia, S.A.
v. Hall, 466 U.S. 408, 414 n. 8, 104 S.Ct. 1868, 1872 n. 8 (1984).
Additionally, there may be instances “in which the continuous
corporate operations within a state [are] so substantial and of
such a nature as to justify suit against [a foreign defendant] on
causes of action arising from dealings entirely distinct from those
activities.” International Shoe, 326 U.S. at 318, 66 S.Ct. at 159.
When this situation prevails, enabling the state to exercise
personal jurisdiction over a defendant in a suit not arising out of
or not related to the defendant’s contacts with the forum, the
forum is said to have “general jurisdiction.” Helicopteros, 466
U.S. at 414 n. 9, 104 S.Ct. at 1872. Defendants can be subject to
general in personam jurisdiction if they have “continuous and
systematic” contacts with the forum state. Perkins v. Benquet
Consolidated Mining Co., 342 U.S. 437, 445, 72 S.Ct. 413, 418
(1952)
6
In the present case, Dickson avers that Panalpina Gabon is
subject to in personam jurisdiction in Louisiana under a specific
jurisdiction theory because of the contacts created when Air Sea
assisted Dickson in contracting for vessel repairs with Panalpina
Gabon in Gabon. In the alternative, Dickson claims Panalpina Gabon
has continuous and systematic contacts with Louisiana to warrant
general jurisdiction. We will consider Dickson’s arguments in
turn.
A.
As we stated above, when the litigation “arises out of” a
defendant’s contacts with the forum, a “relationship among the
defendant, the forum, and the litigation” is the essential
foundation of specific jurisdiction. Shaffer, 433 U.S. at 204, 97
S.Ct. at 2579. There must be “some act by which the defendant
purposefully avails itself of the privilege of conducting
activities within the forum State, thus invoking the benefits and
protections of its laws.” Hanson v. Denckla, 357 U.S. 235, 253, 78
S.Ct. 1228, 1239-40 (1958). The “purposeful availment” element
“ensures that a defendant will not be haled into a jurisdiction
solely as a result of ‘random,’ ‘fortuitous,’ or ‘attenuated’
contacts, ... or of the ‘unilateral activity of another party or a
third person.’” Burger King Corp., 471 U.S. at 475, 105 S.Ct. at
2183.
Dickson maintains that the repair arrangement with Panalpina
Gabon represents and establishes sufficient contacts to warrant
7
specific jurisdiction. Notably, however, there is no evidence in
the record of a written or formalized contract between Panalpina
Gabon and Dickson for the repair of the DICKSON IV. The record
shows that a Dickson representative contacted the office of
Panalpina-N.J. in New Orleans which contacted Air Sea which
assisted Dickson in contracting with Panalpina Gabon for the repair
of Dickson’s vessel in Gabon. Employees of Dickson traveled to
Gabon to inspect the facilities and to receive an estimate of
repair. Panalpina Gabon began the repairs in Gabon, but there is
a dispute as to whether Dickson actually accepted Panalpina Gabon’s
offer.
In any event, the existence of a contractual relationship,
although relevant, does not automatically establish sufficient
minimum contacts. Burger King, 471 U.S. at 478, 105 S.Ct. at 2185.
A contract is merely an intermediate step serving to tie up prior
consequences which themselves are the real object of the business
transaction. Id. The factors of prior negotiations and
contemplated future consequences, along with the terms of a
contract and the parties’ actual course of dealing, must be
evaluated in determining whether the defendant purposefully
established minimum contacts within the forum. Id. Thus,
regardless of whether an actual written contract existed, we must
look to the prior negotiations, contemplated future consequences of
the agreement, and the actual course of dealing between the parties
to determine if minimum contacts existed between Panalpina Gabon
and Louisiana.
8
In attempting to show sufficient minimum contacts, Dickson
presents a three-part argument. First, Dickson assumes that Air
Sea made enough contacts with Louisiana, related to the repair
contract between Dickson and Panalpina Gabon, to subject Gabon to
Louisiana jurisdiction if those contacts are attributable to Gabon.
The facts in the record, however, do not support Dickson’s initial
assumption.
The bulk of the negotiations to repair the DICKSON IV occurred
in Gabon, Africa and Basel, Switzerland. The arrangement called
for its performance in Gabon and contemplated only minimal contacts
between Dickson and either Panalpina Gabon or Air Sea in Louisiana.
Essentially, the transaction was a contract of repair between
Dickson and Panalpina Gabon entered into in Gabon. The parties
contemplated that once Panalpina Gabon repaired the vessel in Gabon
and Dickson made payment, all contacts created by the arrangement
would cease. Moreover, no portion of the performance was to occur
in Louisiana. The sole place of performance was to be on the coast
of Africa in Gabon. See Petty-Ray Geophysical, 954 F.2d at 1068.
Dickson sought out Air Sea and Panalpina Gabon for the repairs;
neither employees nor agents of Panalpina Gabon or Air Sea came to
Louisiana to solicit the repairs of the specific vessel DICKSON IV.
As the Supreme Court has stated, the “unilateral activity of those
who claim some relationship with a nonresident defendant cannot
satisfy the requirement of contact with the forum state.” Hanson
v. Denckla, 357 U.S. at 253, 78 S.Ct. at 1239-40. Because the
repairs on the DICKSON IV created only limited contacts with
9
Louisiana, were performed entirely outside of Louisiana, were
negotiated for primarily in Gabon, and were initiated by Dickson,
the contacts with Louisiana created by the repair contract or
arrangement were not sufficient to establish the minimum contacts
with the forum as required by due process.
Second, Dickson nevertheless attempts to prove that the
contacts of Air Sea can be attributed to Panalpina Gabon, asserting
that Air Sea acted as Panalpina Gabon’s agent or that Air Sea was
the alter-ego of Panalpina Gabon. Dickson’s argument fails because
it cannot demonstrate that Panalpina Gabon exercised control over
Air Sea.
Courts have long presumed the institutional independence of
related corporations, such as parent and subsidiary, when
determining if one corporation’s contacts with a forum can be the
basis of a related corporation’s contacts. See Cannon Mfg. Co. v.
Cudahy Packing Co., 267 U.S. 333, 45 S.Ct. 250 (1925). This
presumption of corporate separateness, however, may be overcome by
clear evidence. Donatelli v. National Hockey League, 893 F.2d 459,
465 (1st Cir. 1990). Invariably such clear evidence requires an
additional or a “plus” factor, “something beyond the subsidiary’s
mere presence within the bosom of the corporate family.” Id.
There must be evidence of one corporation asserting sufficient
control to make the other its agent or alter ego. Id., 893 F.2d at
465-66. See also Walker v. Newgent, 583 F.2d 163, 167 (5th Cir.
1978); Wells Fargo & Co. v. Wells Fargo Exp. Co., 556 F.2d 406, 420
(9th Cir. 1977). Moreover, the burden of making a prima facie
10
showing of such symbiotic corporate relatedness is on the proponent
of the agency/alter ego theory. Product Promotions, Inc. v.
Cousteau, 495 F.2d 483, 492-93 (5th Cir. 1974), overruled on other
grounds, Insurance Corporation of Ireland v. Compagnie des Bauxites
de Guinee, 456 U.S. 694, 702-03, 102 S.Ct. 2099, 2104-05 (1982), as
stated in Burstein v. State Bar of California, 693 F.2d 511, 518 n.
12 (5th Cir. 1982).
It is undisputed that Air Sea frequently has benefited
Panalpina Gabon by assisting maritime companies in contracting with
Panalpina Gabon for services in Gabon. But there is no evidence in
the record that Panalpina Gabon controlled Air Sea. The record
shows that Air Sea is a “middleman” who assists vessel owners in
contracting with Panalpina World subsidiaries in countries on the
West coast of Africa for maritime service. These facts alone are
not enough evidence to establish a prima facie case of control.
Dickson has not alleged concrete facts or introduced any evidence
to show that Air Sea had any actual or apparent authority to bind
Panalpina Gabon, or that Air Sea and Panalpina Gabon have
disregarded corporate formalities to the point of Air Sea being an
alter ego of Panalpina Gabon.
In Hargrave v. Fibreboard Corporation, 710 F.2d 1154 (5th Cir.
1983), this Court set out factors to be considered in deciding
whether a parent company can be held amenable to personal
jurisdiction because of the acts of a subsidiary. Id. at 1159.
There is only a sibling corporate relationship between Air Sea and
Panalpina Gabon by virtue of Panalpina World’s ownership of a
11
majority interest in each. Thus, it could be argued that an even
stronger showing under the Hargrave factors should be required.
Application of the Hargrave factors by analogy, however, fails to
demonstrate, even minimally, that Panalpina Gabon controlled Air
Sea or was an alter ego of Air Sea.
The Hargrave factors are (1) amount of stock owned by the
parent of the subsidiary; (2) did the two corporations have
separate headquarters; (3) did they have common officers and
directors; (4) did they observe corporate formalities; (5) did they
maintain separate accounting systems; (6) did the parent exercise
complete authority over general policy; (7) did the subsidiary
exercise complete authority over daily operations. Id. at 1160.
There is little evidence that any of the Hargrave factors tug
in favor of finding that Panalpina Gabon controlled Air Sea. No
business was done outside of Gabon by Panalpina Gabon; Panalpina
Gabon’s principal place of business is in Gabon and Air Sea’s is in
Switzerland; Panalpina Gabon did not dictate policy to Air Sea;
Panalpina Gabon did not own any Air Sea stock; and neither
controlled the other’s daily operations. As this Court stated in
Hargrave, the mere fact that a corporate relationship exists is not
sufficient to warrant the assertion of jurisdiction over a related
corporate entity. Hargrave, 710 F.2d at 1159. Therefore we are
convinced that Dickson failed to carry the burden of establishing
a prima facie showing of sufficient control to establish an alter-
ego or agency relationship between Air Sea and Panalpina Gabon.
In conclusion, Disckson’s argument falters at every turn:
12
Dickson assumes without adequately demonstrating that sufficient
specific contacts were made with Louisiana to subject Panalpina
Gabon to personal jurisdiction if Air Sea’s acts as an intermediary
can be imputed to Panalpina Gabon; Dickson asserts that Air Sea
acted as Panalpina Gabon’s agent, but fails to adduce facts showing
that Panalpina Gabon controlled Air Sea; and Dickson contends that
Panalpina Gabon’s corporate affiliation with Air Sea is sufficient
evidence of corporate control, but does not set forth facts to
demonstrate control or alter ego status under the Hargrave factors.
B.
Unlike the specific jurisdiction analysis, which focuses on
the cause of action, the defendant and the forum, a general
jurisdiction inquiry is dispute blind, the sole focus being on
whether there are continuous and systematic contacts between the
defendant and the forum. Helicopteros, 466 U.S. at 414, 104 S.Ct.
at 1872. See Mary Twitchell, The Myth of General Jurisdiction, 101
Harv.L.Rev. 610 (1988). Due process requires that “continuous and
systematic” contacts exist between the State and the foreign
corporation to exercise general personal jurisdiction because the
forum state does not have an interest in the cause of action.
Helicopteros, 466 U.S. at 415-16, 104 S.Ct. at 1872-73.
Despite the factually intensive nature of determining whether
a defendant has “continuous and systematic” contacts, the Supreme
Court has only addressed two cases that have directly dealt with
general jurisdiction: Perkins v. Benquet Consolidated Mining
13
Company, 342 U.S. 437, 72 S.Ct. 413 (1952) and Helicopteros
Nacionales De Colombia, S.A. v. Hall.
In Perkins v. Benquet Consolidated Mining Company, Benquet
Consolidated Mining Co. (“Benquet Mining”) was forced to halt its
mining operations due to the Japanese occupation of the Philippine
Islands during World War II. While the company was exiled from the
Philippines, Benquet Mining’s president, general manager, and
principal stockholder returned to his home in Ohio. There he
conducted the company’s business, which included drawing salary
checks, using two Ohio banks to hold company funds, holding several
directors’ meetings, and reestablishing business in the Philippines
after the occupation. The president of Benquet Mining essentially
“carried on in Ohio a continuous and systematic supervision of the
necessarily limited wartime activities of the company.” Perkins,
342 U.S. at 448, 72 S.Ct. at 419. Finding personal jurisdiction
over Benquet Mining in Ohio, the Court held that these continuous
and systematic contacts with Ohio were sufficient to hold them
subject to personal jurisdiction in Ohio. Id., 342 U.S. at 448, 72
S.Ct. at 420.
In Helicopteros Nacionales De Colombia, S.A. v. Hall, a
helicopter accident occurred in Peru that killed American citizens.
The relatives of those citizens sued the foreign defendant,
Helicopteros, in Texas state court. The Court concluded that
because the accident did not arise out of or relate to the foreign
corporation’s activities in the forum state, specific personal
jurisdiction did not apply.
14
With respect to whether there was general personal
jurisdiction, the Court found that Helicopteros had never been
authorized to do business in Texas, never had an agent for service
of process in Texas, never solicited business in Texas, never
signed a contract in Texas (although it did contract with residents
of Texas several times), never had any employee based in Texas,
never owned any real property in Texas, never maintained an office
in Texas, did not maintain any records in Texas, and did not have
any shareholders in Texas. Helicopteros, 466 U.S. at 411-12, 104
S.Ct. at 1870-71.
Helicopteros, however, did have numerous contacts with Texas.
For seven years, Helicopteros purchased helicopters, spare parts,
and accessories from Bell Helicopters in Texas; Helicopteros sent
prospective pilots to Texas training; and management and
maintenance personnel of Helicopteros visited Bell in Texas.
Helicopteros, 466 U.S. at 411, 104 S.Ct. at 1870.
Notwithstanding the contacts Helicopteros had with Texas, the
Court held that the contacts did not “constitute the kind of
continuous and systematic general business contacts the Court found
to exist in Perkins.” Helicopteros, 466 U.S. at 416, 104 S.Ct. at
1873. “[P]urchases and related trips, standing alone, are not a
sufficient basis for a State’s assertion of jurisdiction.” Id.,
466 U.S. at 417, 104 S.Ct. at 1874.
Dickson attempts to show that Air Sea, along with Panalpina
World and Panalpina-N.J., are the agents or alter egos of Panalpina
Gabon in an effort to attribute continuous and systematic contacts
15
with Louisiana to Panalpina Gabon. Dickson alleges that Panalpina
Gabon, through Air Sea, Panalpina World and Panalpina-N.J.,
solicited business in Louisiana, contracted with Louisiana
residents, and advertised in Louisiana. Dickson attempts to
establish an agency/alter-ego relationship by introducing volumes
of exhibits, affidavits, and depositions into the record that
purportedly show how Panalpina World, Air Sea, and Panalpina-N.J.
disregarded corporate formalities with respect to Panalpina Gabon
bringing about continuous and systematic contacts with Louisiana.
As we previously stated, the mere fact that a corporate
relationship exists is not sufficient evidence to warrant the
assertion of jurisdiction over a related corporate entity.
Hargrave, 710 F.2d at 1159. There must be control exerted by the
principal over the agents. Donatelli, 893 F.2d at 465-66.
Although there is ample evidence of the Panalpina corporations
having many dealings with each another, there is no evidence in the
record of Panalpina Gabon exercising any control over Air Sea,
Panalpina World, or Panalpina-N.J. These companies are separate
entities organized under the laws of separate sovereigns. Indeed,
the parties do not dispute that Panalpina Gabon does not have any
offices, shareholders, or employees located in Louisiana, and that
contracts with Louisiana companies were always performed in Gabon.
The record shows that Panalpina Gabon simply exercised its right to
structure its affairs in a manner calculated to shield it from the
general jurisdiction of forums other than Gabon. Bearry v. Beech
Aircraft Corp., 818 F.2d 370, 375-76 (5th Cir. 1987). Furthermore,
16
Panalpina Gabon has not afforded itself the benefits and
protections of the laws of Louisiana but has calculatedly avoided
them. Id. at 376. In sum, because the alleged agency or alter ego
relationship does not exist, Air Sea’s actions in Louisiana could
not and did not establish any contacts, much less “continuous and
systematic” contacts, between Panalpina Gabon and Louisiana as
required by due process to subject Panalpina Gabon to general
personal jurisdiction in Louisiana. Helicopteros, 466 U.S. at 416,
104 S.Ct. at 1873.
C.
Dickson also argues that in personam jurisdiction over
Panalpina Gabon should be established as a sanction for the failure
to participate in good faith discovery.
In Insurance Corporation of Ireland, Limited v. Compagnie des
Bauxites de Guinee, 456 U.S. 694, 102 S.Ct. 2099 (1982), the
Supreme Court held that the failure to comply with discovery
requests “may amount to a legal submission to the jurisdiction of
the court, whether voluntary or not.” Id., 456 U.S. at 704-05, 102
S.Ct. at 2105. The Court stated:
The expression of legal rights is often subject to
certain procedural rules: The failure to follow those
rules may well result in a curtailment of the rights.
Thus, the failure to enter a timely objection to personal
jurisdiction constitutes, under Rule 12(h)(1), a waiver
of the objection. A sanction under Rule 37(b)(2)(A)
17
consisting of a finding of personal jurisdiction has
precisely the same effect.
Id.
After a review of the record, we agree with the district court
that Dickson’s argument is “without merit and disingenuous.”
Panalpina Gabon participated in good faith discovery. The record
reveals that Panalpina Gabon allowed a deposition to be taken of an
employee in New Orleans and the employee brought records requested
by Dickson from Gabon. Unlike Baxuites where the defendant did
nothing to cooperate with the plaintiff’s requests for discovery or
the district court’s orders, it is clear that Panalpina Gabon has
cooperated sufficiently. Therefore, we affirm the district court’s
denial of sanctions under Rule 37(b)(2).
V.
After the district court dismissed Panalpina Gabon, the
remaining defendant, Air Sea, sought dismissal on the grounds of
forum non conveniens, which the district court granted.
An appellate court cannot reverse a district court’s granting
of a motion to dismiss for forum non conveniens unless the district
court abused its discretion. Reyno, 454 U.S. at 255, 102 S.Ct. at
265. “[W]here the court has considered all relevant public and
private interest factors, and where its balancing of these factors
is reasonable, its decision deserves substantial deference.” Id.,
454 U.S. at 257, 102 S.Ct. at 266.
In discussing the abuse of discretion standard of review, the
18
Supreme Court stated that “[t]he question, of course, is not
whether this Court, or whether the Court of Appeals, would as an
original matter have dismissed the action; it is whether the
District Court abused its discretion in so doing.” National Hockey
League v. Metropolitan Hockey Club, 427 U.S. 639, 642, 96 S.Ct.
2778, 2780 (1976). Although a list of examples of abuses of
discretion is difficult to formulate, generally, a district court
abuses its discretion when it grants a motion to dismiss without
oral or written reasons or if it fails to address and balance the
relevant principles and factors. In re Air Crash Disaster, 821
F.2d at 1166. We will review the district court’s decision under
these established principles of appellate review.
The doctrine of forum non conveniens was “crystallized” in
Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 67 S.Ct. 839 (1947)
and its companion case Koster v. (American) Lumbermans Mutual
Casualty Company, 330 U.S. 518, 67 S.Ct. 828 (1947). Reyno, 454
U.S. at 248 n. 13, 102 S.Ct. at 262 n. 13. The general principle
of the doctrine “is simply that a court may resist imposition upon
its jurisdiction even when jurisdiction is authorized.” Gilbert,
330 U.S. at 507, 67 S.Ct. at 842. The doctrine of forum non
conveniens presupposes at least two forums where the defendant is
amendable to process and simply furnishes criteria for choice
between them. Id., 330 U.S. at 506-07, 67 S.Ct. at 842.
Therefore, once an adequate and available alternate forum is
identified, several “private” and “public” interest factors must be
balanced in order to determine if dismissal is warranted. Id., 330
19
U.S. at 508, 67 S.Ct. at 843. The “private” interest factors are:
[T]he relative ease of access to sources of proof;
availability of compulsory process for attendance of
unwilling, and the cost of obtaining attendance of
willing, witness; possibility of view of premises, if
view would be appropriate to the action; and all other
practical problems that make trial of a case easy,
expeditious and inexpensive.
Id.
The “public” interest factors are:
[T]he administrative difficulties flowing from court
congestion; the “local interest in having localized
controversies decided at home”; the interest in having
the trial of a diversity case in a forum that is at home
with the law that must govern the action; the avoidance
of unnecessary problems in conflict of laws, or in the
application of foreign law; and the unfairness of
burdening citizens in an unrelated forum with jury duty.
Reyno, 454 U.S. at 241 n. 6, 102 S.Ct. at 258 n. 6, quoting
Gilbert, 330 U.S. at 509, 67 S.Ct. at 843.
The Court has emphasized that no one private or public
interest factor should be given conclusive weight, and that the
plaintiff’s initial choice of forum should usually be respected.
In Re Air Crash Disaster, 821 F.2d at 1163. The central focus of
the forum non conveniens inquiry, however, is convenience. Reyno,
454 U.S. at 249, 102 S.Ct. at 262.
20
A.
The case law is clear that an alternate forum is adequate and
available when the entire case and all of the parties come within
the jurisdiction of that forum. Syndicate 420 at Lloyd’s London v.
Early American Ins. Co., 796 F.2d 821 (5th Cir. 1986). As the
district court observed, Dickson and its hull underwriters have
previously brought an action against Air Sea in Switzerland,
displaying that an adequate and available alternate forum exists in
Switzerland. Although the substantive law governing the action may
be different, the differences in substantive law should not be
given conclusive weight in a forum non conveniens inquiry. Reyno,
454 U.S. at 248-49, 102 S.Ct. at 262. Notably, however,
Switzerland does recognize causes of action for both contract and
tort, and Dickson and its hull underwriters have adequately
preserved their legal rights against Air Sea with the filing of the
Zahlungsbefehlen.
The district court’s conditional dismissal complies with In re
Air Crash Disaster Near New Orleans, Louisiana, 821 F.2d 1147 (5th
Cir. 1987), in which this Court stated that a district court must
“ensure that a plaintiff can reinstate his suit in the alternative
forum without undue inconvenience or prejudice and that if the
defendant obstructs such reinstatement in the alternative forum
that the plaintiff may return to the American forum.” Id. at 1166.
B.
In balancing the private interest factors, the district court
21
correctly concluded that the focal point of the litigation against
Air Sea is in Switzerland. Although the suit arose out of the
damage to the DICKSON IV, which occurred off the coast of Africa,
the allegations of Dickson necessitate an inquiry into the
negotiations and brokering of the deal between Dickson and
Panalpina Gabon. The transaction was negotiated and brokered in
Switzerland and Gabon, the majority of the witnesses and employees
that handled the matter are located in Switzerland, and documents
and other evidence of the negotiation and brokering is located in
Switzerland and Gabon. Furthermore, because Air Sea is based in
Switzerland, it is amenable to service of process, and any judgment
levied against Air Sea will be enforceable in Switzerland. Taking
all of the private interests into consideration, we agree with the
district court that they weigh heavily in favor of Switzerland as
the most convenient forum.
Dickson maintains, on the other hand, that the appropriate
forum should be either Louisiana or Gabon because the capsize of
the vessel occurred in Gabon. We, however, do not focus solely on
the capsize of the vessel to determine the most convenient place
for the litigation between Dickson and Air Sea. The alleged
negligence of Air Sea involves the coordination of services and the
recommendation of Panalpina Gabon as the entity to repair the
vessel. Indeed, the facts and evidence surrounding the capsize of
the DICKSON IV, though relevant, are not of great consequence to a
determination of Air Sea’s alleged negligence.
Applying the public interest factors, the district court found
22
that the administrative burdens will be no greater on a court in
Switzerland than on a court in Louisiana, that Gabonese or Swiss
law must be applied, but that courts in Louisiana have an interest
in this litigation because the plaintiffs are residents of
Louisiana. Although the district court concluded that the public
interest factors might point slightly toward Louisiana as the
appropriate forum, the private interest factors favoring the
Switzerland forum outweighed the public interest factors.
We do not find that the district court abused its discretion
in granting Air Sea’s motion to dismiss for forum non conveniens.
Because the district court has considered all relevant public and
private interest factors, and the balancing of the factors was
reasonable, we will not disturb its judgment. Reyno, 454 U.S. at
257, 102 S.Ct. at 266.
VI.
For the reasons assigned, we conclude that Panalpina Gabon is
not subject to in personam jurisdiction in Louisiana and that the
district court did not abuse its discretion in dismissing the claim
against Air Sea for forum non conveniens. Therefore, we affirm the
orders of the district court.
AFFIRMED.
23