[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
____________________________ ELEVENTH CIRCUIT
January 30, 2003
THOMAS K. KAHN
No. 01-14141 CLERK
____________________________
D. C. Docket No. 96-02600-CV-WMH
MICHAEL E.A. FORD,
Plaintiff-Appellee,
versus
ROBERT WINSTON BROWN,
EXXON CORPORATION,
Defendants-Appellants.
_________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(January 30, 2003)
Before TJOFLAT, COX and BRIGHT*, Circuit Judges.
____________________________________
*Honorable Myron H. Bright, United States Circuit Judge for the Eighth Circuit, sitting by
designation.
TJOFLAT, Circuit Judge:
The Castle Peak “B” Power Station,1 located in Hong Kong, exploded on
August 28, 1992, killing two people and injuring nineteen others. The event
spawned the following proceedings: (1) a Coroner’s Inquest in Hong Kong; (2) a
Hong Kong Bar Association disciplinary proceeding against Michael Ford
(“Plaintiff”); (3) a Hong Kong civil suit against Ford; (4) a law suit in Texas
instigated by Plaintiff against Exxon Corp. and Robert Brown (“Defendants”); and
(5) this litigation – a law suit filed in the United States District Court for the
Southern District of Florida by Plaintiff against Defendants.
After Plaintiff brought this action, Defendants moved to dismiss it on
doctrines of comity and forum non conveniens, and for failure to state a claim for
relief. The district court denied their motion, and certified its ruling for
interlocutory appeal pursuant to 28 U.S.C. § 1292(b). We granted Defendants
application for permission to take the appeal, and now reverse, concluding that the
district court abused its discretion in failing to dismiss the case pursuant to the
1
The Castle Peak Power Station was owned by Castel Peak Power Co., Ltd. (“CAPCO”),
a Hong Kong limited liability company with its principal place of business in Hong Kong. The
station was operated by China Light & Power (“CLP”), another Hong Kong limited liability
company with its principal place of business in Hong Kong. CAPCO was owned forty percent by
CLP and sixty percent by Exxon Energy Ltd. (“EEL”), yet another Hong Kong limited liability
company with its principal place of business in Hong Kong. EEL is a wholly owned subsidiary
of Esso Eastern, Inc., which is, in turn, a wholly owned subsidiary of the Texas-based Exxon
Corp.
2
forum non conveniens doctrine.2 Because this conclusion disposes of the case, we
decline to reach the other issues pressed by Defendants.3
I.
Soon after the power station exploded, an Inquest into the cause of the
accident was convened by the Hong Kong Coroner.4 CLP and CAPCO retained
the London firm of Holman, Fenwick & Willan (“HFW”).5 One of HFW’s
solicitors, Guy Hardaker, retained Plaintiff as the barrister for the Castle Peak
Inquest.6 In the course of his work on the Castle Peak Inquest, Plaintiff became
acquainted with Defendant Robert Brown, who worked as an in-house legal
2
Plaintiff contends that we lack jurisdiction to entertain this appeal. Plaintiff has
apparently overlooked the case of Van Cauwenberghe v. Biard, 486 U.S. 517, 108 S. Ct. 1945,
100 L. Ed. 2d 517 (1988), which held that interlocutory review of the denial of a motion to
dismiss based upon the forum non conveniens doctrine is available pursuant to 28 U.S.C. §
1292(b), and that “[a] court of appeals may then, in its discretion, determine whether the order
warrants prompt review.” Id. at 530, 108 S. Ct. at 1953. Because the district court certified its
nonfinal order for interlocutory review pursuant to 28 U.S.C. § 1292(b), and we thereafter
granted Defendants’ application for permission to appeal, Plaintiff’s argument is frivolous.
3
Defendants contend that the district court erred when it failed to dismiss the case for
reasons of comity and because Plaintiff bases his claims, at least in part, on his improper
disclosures of client confidences. Although we do not reach either of these issues independently,
both are ultimately intertwined with the forum non conveniens calculus discussed infra.
4
The recitation of the facts in this part is based upon Plaintiff’s complaint, unrebutted
affidavits, and two Hong Kong judicial opinions.
5
HFW has an office in Hong Kong.
6
The plaintiff was (and continues to be) a British citizen who worked as a barrister in
Hong Kong.
3
counsel to EEL in Hong Kong.7 (Plaintiff alleges that although Brown purported
to serve at the behest of EEL, Brown was in fact an agent of Defendant Exxon
Corp.)
While Plaintiff was preparing for the Inquest, he became suspicious that
Exxon Corp. and Brown (both in the United States), in conjunction with other
parties working on behalf of CLP and CAPCO, were orchestrating a cover-up
designed to hide the cause of the explosion from the Coroner. The motive for this
deception, Plaintiff contends, was to prevent charges of gross negligence and
manslaughter against those responsible for the accident. Plaintiff claims, for
example, that CLP created a so-called “Red Report,” a false report which listed the
cause of the explosion as “water entrapment,” whereas, in reality, the cause of the
explosion was “the jamming of the inner cup of the gas holder, which had not been
inspected internally since its installation in 1995.”8 At this point, Plaintiff claims
that he contacted the Hong Kong Bar Association for guidance about how to
proceed with his representation in the face of an ethical dilemma, and that the Bar
7
Brown currently lives and works in Florida.
8
The real story was, according to Plaintiff, reflected by CLP’s original “Blue Report.”
Plaintiff alleges that the “Blue Report” was substituted with the “Red Report” during the
Coroner’s Inquest.
4
Association instructed him to withdraw from the case.9 Before he could withdraw
from his representation of CLP and CAPCO, Plaintiff asserts that he was fired by
Hardaker (at the direction of Exxon and Brown) in a public fashion, thereby
embarrassing him and causing tremendous financial harm and emotional grief.
Plaintiff contends that this conduct, combined with a series of public statements to
the Hong Kong press and Hong Kong legal community,10 constitutes several
actionable torts (discussed infra).
Defendants have a different story. First, they contend that they had nothing
to do with the events that transpired in Hong Kong. They had no influence over
the hiring or firing of Plaintiff, nor were they part of the legal team comprised of
CLP and CAPCO lawyers. Second, they argue that Plaintiff’s “cover-up” theory is
a lie. Rather, Plaintiff was not sufficiently prepared to represent CLP and CAPCO
at the Inquest, and he invented the cover-up story in order to cease his
representation without harm to his reputation. Defendants also point to another
9
Plaintiff now denies that he ever told CLP and CAPCO that the Hong Kong Bar
Association instructed him to withdraw from the Coroner’s Inquest. As we discuss infra, the
Hong Kong Bar Association disagreed; it ultimately sanctioned Plaintiff for falsely telling his
clients that the Bar Association compelled Plaintiff to withdraw from his representation of CLP
and CAPCO.
10
At first blush, the complaint appears to allege that Exxon Corp. and Brown fired
Plaintiff and made the allegedly false statements themselves, with no intermediary. Upon closer
scrutiny, however, it becomes clear that agents of CLP and CAPCO committed the allegedly
tortious acts. Plaintiff claims, in short, that these agents were, in fact, working at the behest of
(and in conspiracy with) Exxon Corp. and Brown.
5
reason for firing Plaintiff: he allegedly lied about being instructed by the Hong
Kong Bar Association to cease his participation in the Inquest. Defendants point to
various affidavits from officials with the Hong Kong Bar Association that the
Association never instructed Plaintiff to withdraw from his representation of CLP
and CAPCO.
After he was fired, Plaintiff retained several documents relating to his
representation of CLP and CAPCO. Plaintiff refused to hand over the documents,
and CLP and CAPCO filed suit, alleging conversion and breach of Plaintiff’s duty
of attorney-client confidentiality. CLP and CAPCO obtained a preliminary
injunction from the Supreme Court of Hong Kong.11 This injunction enjoined
Plaintiff from releasing to third parties any of the documents or information that
Plaintiff obtained in the course of his representation of CLP and CAPCO in the
Castle Peak Inquest. The litigation continued in Hong Kong (while the Texas case,
discussed infra, was pending), and the Supreme Court of Hong Kong eventually
awarded damages to CLP and CAPCO and made the injunction permanent.12 In
response to Plaintiff’s cover-up theory, the court found that no such conspiracy
11
The Supreme Court is the trial court in Hong Kong.
12
Commenting on Plaintiff’s decision to instigate proceedings in the United States, the
court stated that it was “perfectly satisfied that those proceedings were commenced utilising
either original, or copy documents, obtained from [CLP and CAPCO]” and that “[i]t would
appear, therefore, ‘prima facie’, that Mr. Ford is in contempt of this Court.”
6
existed and that Plaintiff’s actions were “disgraceful.” On appeal, the Hong Kong
Court of Appeal similarly noted that Plaintiff’s retention of the documents was not
“legally justified,” and that the allegations of a conspiracy were “unfounded in
terms of any real evidence.”
While under the preliminary injunction,13 Plaintiff filed suit in Texas state
court using the documents and information retained from his representation of CLP
and CAPCO during the Coroner’s Inquest. Plaintiff eventually dismissed his case
in Texas and refiled it in Florida.14 In 1994 – after Plaintiff filed suit in Texas but
prior to the Florida litigation – the Supreme Court of Hong Kong entered the final
judgment against Plaintiff (discussed supra). In a similar vein, the Hong Kong Bar
Association instituted disciplinary proceedings against Plaintiff. The Bar
Association ultimately suspended Plaintiff from practicing law as a barrister in
Hong Kong for four years.15
13
Plaintiff contends that he and his attorney were unaware of the injunction when they
filed suit in Texas four days after the injunction was issued.
14
Plaintiff first filed suit in Circuit Court for Miami-Dade County, and Defendants
removed to federal court. The district court remanded the case; it was refiled in the district court
on September 12, 1996 pursuant to the court’s diversity jurisdiction.
15
Plaintiff was suspended for two years due to his misuse of confidential client
information relating to his representation of CLP and CAPCO in the Inquest. He was suspended
an additional two years for misrepresenting to his client that the Hong Kong Bar Association had
instructed him to withdraw from his representation of CLP and CAPCO during the Coroner’s
Inquest.
7
As a result of his public termination from the Castle Peak investigation and a
host of public statements, Plaintiff claims that his reputation as a barrister in Hong
Kong was destroyed. He brought suit pursuant to the district court’s diversity
jurisdiction, 28 U.S.C. § 1332, asserting the following torts: intentional
interference with business relations, intentional infliction of emotional distress, and
defamation.16 Defendants moved to dismiss, arguing that the doctrine of forum
non conveniens dictates that the case be heard in Hong Kong or England rather
than Florida. Plaintiff, on the other hand, argued that Defendants should be
sanctioned for allegedly deceiving the district court.17 The district court denied
both motions, declining to sanction Defendants while simultaneously refusing to
dismiss the case.
II.
A.
The doctrine of forum non conveniens “authorizes a trial court to decline to
exercise its jurisdiction, even though the court has venue, where it appears that the
convenience of the parties and the court, and the interests of justice indicate that
16
The causes of action appear, respectively, in counts one, two, and three of Plaintiff’s
complaint. Plaintiff also requested a jury trial, which would have been unavailable in Hong
Kong or England.
17
Plaintiff contended that the conduct on which the lawsuit focused – an alleged cover-up
conspiracy regarding the cause of the Castle Peak explosion – constituted a fraud on the court.
8
the action should be tried in another forum.” Sibaja v. Dow Chem. Co., 757 F.2d
1215, 1218 (11th Cir. 1985). Justice Jackson’s articulation of the doctrine
describes the balancing test as follows:
An interest to be considered, and the one likely to be most
pressed, is the private interest of the litigant. Important considerations
are the relative ease of access to sources of proof; availability of
compulsory process for attendance of unwilling, and the cost of
obtaining attendance of willing, witnesses; possibility of view of the
premises, if view would be appropriate to the action; and all other
practical problems that make trial of a case easy, expeditious and
inexpensive. There may also be questions as to the enforcibility of a
judgment if one is obtained. The court will weigh relative advantages
and obstacles to fair trial. It is often said that the plaintiff may not, by
choice of an inconvenient forum, “vex,” “harass,” or “oppress” the
defendant by inflicting upon him expense or trouble not necessary to
his own right to pursue his remedy. But unless the balance is strongly
in favor of the defendant, the plaintiff’s choice of forum should rarely
be disturbed.
Factors of public interest also have a place in applying the
doctrine. Administrative difficulties follow for courts when litigation
is piled up in congested centers instead of being handled at its origin.
Jury duty is a burden that ought not to be imposed upon the people of
a community which has no relation to the litigation. In cases which
touch the affairs of many persons, there is reason for holding the trial
in their view and reach rather than in remote parts of the country
where they can learn of it by report only. There is a local interest in
having localized controversies decided at home. There is an
appropriateness, too, in having the trial of a diversity case in a forum
that is at home with the state law that must govern the case, rather
than having a court in some other forum untangle problems in conflict
of laws, and in law foreign to itself.
Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09, 67 S. Ct. 839, 843, 91 L. Ed.
1055 (1947).
9
This court has provided additional glosses on the forum non conveniens
doctrine that are especially relevant to this case. For example, we recently
concluded that “the bias towards the plaintiff’s choice of forum is much less
pronounced when the plaintiff is not an American resident or citizen.” Esfeld v.
Costa Crociere, S.P.A., 289 F.3d 1300, 1312 n.15 (11th Cir. 2002). In the same
case, we maintained that “foreign relations are implicated in the forum non
conveniens calculus.” Id. at 1313. Thus, “federal courts necessarily must analyze
the interest that the foreign country has in the dispute, an analysis that may raise
issues of international comity.” Id. We also recently emphasized the importance
of the choice-of-law factor, concluding that it is “[f]ar better that the case be tried
in [a foreign country] by one or more jurists as familiar with [foreign] law as we
are unfamiliar with it.” Magnin v. Teledyne Cont’l Motors, 91 F.3d 1424, 1430
(11th Cir. 2002). Finally, we described the procedure district courts must typically
follow when they dismiss a case on forum non conveniens grounds: “In order to
avoid unnecessary prejudice to [plaintiffs],” the district court can attach conditions
to a dismissal with which the defendants must agree. Id. at 1430. In Magnin, for
example, we observed that “the defendants agreed to submit to the jurisdiction of
the French court, waive any statute of limitations or jurisdictional defenses, and
satisfy any final judgment.” Id.
10
B.
We review the district court’s denial of Defendants’ motion to dismiss for
abuse of discretion. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257, 102 S. Ct.
252, 266, 70 L. Ed. 2d 419 (1981). “[T]he court abuses its discretion when it fails
to balance the relevant factors.” C.A. La Seguridad v. Traysytur Line, 707 F.2d
1304, 1308 (11th Cir. 1983). We conclude that the district court overlooked some
highly relevant factors, and that it ultimately struck a balance that was an abuse of
discretion.
Perhaps the most important “private interest” of the litigants is access to
evidence. Applying the factors suggested by Justice Jackson in Gilbert – access to
proof, availability of compulsory process for attendance of unwilling witnesses, and
the cost of obtaining witnesses – it becomes apparent that the balance weighs
strongly against adjudicating this dispute in Florida. A correct “private interest”
analysis begins with the elements of the plaintiff’s causes of action. The court must
then consider the necessary evidence required to prove and disprove each element.
Lastly, the court should make a reasoned assessment as to the likely location of
such proof. See Van Cauwenberghe v. Biard, 486 U.S. 517, 528, 108 S. Ct. 1945,
1953, 100 L. Ed. 2d 517 (1988) (“To examine ‘the relative ease of access to sources
of proof,’ and the availability of witnesses, the district court must scrutinize the
11
substance of the dispute between the parties to evaluate what proof is required, and
determine whether the pieces of evidence cited by the parties are critical, or even
relevant, to the plaintiff’s causes of action and to any potential defenses to the
action.”) (citation omitted).
In this case, all of the alleged acts occurred in Hong Kong. Moreover, the
acts occurred in the course of Plaintiff’s representation of Hong Kong clients in an
Inquest on the subject of an explosion that occurred in Hong Kong.18 Based upon
these facts alone, it is apparent that much of the evidence is likely to be in Hong
Kong (unless, of course, documents and witnesses have moved19). A trial on
defamation and interference with business relations will necessarily focus on
Plaintiff’s reputation in the Hong Kong community – both before and after the
alleged acts – as well as other factors that might have sparked a decline in his
18
The facts surrounding the Castle Peak explosion are an integral part of Plaintiff’s
complaint, which places the allegedly defamatory statements in the context of a broad scheme to
deceive tribunals throughout the world regarding the true cause of the plant explosion. The
details of the explosion and subsequent Inquest must therefore be established with evidence.
The documents relating to the maintenance of the Power Station and explosion are located in
Hong Kong. Documents relating to the subsequent investigation and Plaintiff’s termination are
also located in Hong Kong – specifically, in the files of CLP and CAPCO, the Hong Kong
Coroner’s files, and the files of CLP/CAPCO lawyers.
19
Several key witnesses who formerly lived in Hong Kong have moved to England over
the last few years. None of them, however, have moved to the United States (much less Florida).
We note that the district court did not make a factual determination that documentary evidence is
unavailable in Hong Kong. Rather, it merely speculated that some of the evidence might have
disappeared, concluding that “neither the parties nor the Court have any guarantee that
documents that were once in Hong Kong still remain there.”
12
business (e.g., the impact of Hong Kong’s reversion to China in 1997). The
damages stage of the trial will similarly focus on the effect of the firing upon
Plaintiff’s law practice – a practice that revolved around a Hong Kong client base.
The circumstances surrounding the false statements that Defendants allegedly made
to the Hong Kong press must also be established with evidence that can be found
only in Hong Kong. In short, this litigation entails a Hong Kong-centered dispute,
and most of the evidence therefore exists in Hong Kong.20
Plaintiff, like the district court, pointed to the alleged “conspiracy theory”
and the fact that Defendants reside in the United States, not Hong Kong. But these
points are relevant only to the “who” question – i.e., who, precisely, committed the
alleged acts of defamation, intentional infliction of emotional distress, and
interference with business relations? Were these acts committed only by the direct
purveyors of the allegedly defamatory statements (i.e., agents of CLP and
CAPCO)? Or were the statements made at the behest of powerful executives at
Exxon Corp.? Thus, the only way the United States is implicated in this litigation at
all is that Defendants might have worked “behind the scenes” to achieve the goal of
the alleged conspiracy (namely, a cover-up of the true cause of the explosion),
20
One of Defendants’ affidavits lists ninety-five potential witnesses, nearly all of whom
reside outside of the United States.
13
including the silencing of potential whistleblowers by destroying their careers.21
While the “who” question is no doubt important, it is only one of the many facts
that must be proved in this case. Moreover, to the extent that the corporate
connectedness between Exxon Corp. and Castle Peak is relevant, the evidence of
this connectedness exists primarily in Texas, not Florida. Of the sixteen Exxon
employees appearing on Plaintiff’s proffered witness list, one has died and eleven
live in Texas, not Florida. Indeed, all of the witnesses, with the exception of
defendant Brown, live outside of Florida. In short, most of the evidence in this
litigation is in Hong Kong, while some witnesses are in England and others are in
Texas. Florida is relevant only because one alleged Exxon employee, defendant
Brown, happened to live in Florida at the time Plaintiff took a notion to sue. Of all
possible forums, Florida is unquestionably the worst.
On the “public interest” side of the equation, the district court overlooked
important comity concerns that are implicated by its decision to entertain this suit.22
21
Unlike criminal law, a conspiracy in the civil law context is not actionable; rather, a
conspiracy is simply a means of creating vicarious liability. That is, a tort must actually be
committed by someone in the conspiracy. If Defendants are liable, it is because the principal
defamers made the defamatory comments pursuant to an agreement with Defendants. Thus,
Plaintiff must first prove that acts of defamation actually took place. And that is why the vast
majority of evidence is in Hong Kong. Hong Kong is also the place where the fallout from the
allegedly defamatory acts – highly relevant in a defamation case – must be assessed.
22
Because our forum non conveniens analysis removes the necessity of having to reach
other issues in this case, we do not address Defendants’ argument that comity considerations
independently require dismissal. Rather, we feel it appropriate to include comity as a factor in
14
See Esfeld, 289 F.3d at 1312. Plaintiff essentially wants the district court to
contradict the conclusion of the Hong Kong courts and the Hong Kong Bar
Association that there was no conspiracy. He also asks the district court to enable
him to use confidential client information – a tactic that would not be available in
Hong Kong in light of the permanent injunction. The district court is, in short,
being asked to overlook the respect that a foreign sovereign is due. See Societe
Nationale Industrielle Aerospatiale v. United States Dist. Court for S.D. Iowa, 482
U.S. 522, 534 n.27, 107 S. Ct. 2542, 2556 n.27, 96 L. Ed. 2d 461 (1987) (“Comity
refers to the spirit of cooperation in which a domestic tribunal approaches the
resolution of cases touching the laws and interests of other sovereign states.”);
Turner Entm’t Co. v. Degeto Film GmbH, 25 F.3d 1512, 1518 (11th Cir. 1994)
(emphasizing the importance of a “proper level of respect for the acts of our fellow
sovereign nations . . . .”). As a corollary, Hong Kong has a strong interest in
adjudicating this dispute, which implicates the conduct of a member of the Hong
Kong Bar and an event that took place in Hong Kong. Finally, we note that Hong
Kong law provides the rule of decision in this case,23 which Magnin holds is a very
the forum non conveniens calculus.
23
The district court held that Hong Kong law provides the rule of decision, and all of the
parties agree that this holding was correct.
15
important factor.24
The public and private interest factors point to only one conclusion: this case
should not be litigated in Florida. The district court’s analysis was flawed in three
respects. First, the court did not consider the elements of the causes of action (e.g.,
the harm to reputation that must be proved in a defamation claim) and the likely
sources of proof. Instead, it focused solely upon one issue – whether Defendants in
fact played a role in the allegedly tortious acts.
Second, the district court concluded that Hong Kong is an unavailable
forum,25 even though Defendants waived defenses based upon jurisdiction and the
statute of limitations. In Magnin, 91 F.3d at 1430-31 (11th Cir. 1996), we approved
of conditional dismissals, in which the district court dismisses the case only if the
defendant waives jurisdiction and limitations defenses, and only if it turns out that
another court ultimately exercises jurisdiction over the case. We never indicated
that a defendant must have an affidavit from a lawyer in the foreign jurisdiction
24
The district court focused on the fact that Hong Kong tort law somewhat overlaps with
American tort law. We think, however, that tort law (like all areas of the law) is rife with
nuances that are not consistently found throughout all jurisdictions. Therefore, the foreign
country is ordinarily the best place to litigate a dispute revolving around a foreign rule of
decision.
25
The district court must engage in a two-part inquiry, considering first the availability
and adequacy of the alternative fora before engaging in the public interest/private interest
balancing test. See C.A. La Seguridad v. Transytur Line, 707 F.2d 1304, 1307 (11th Cir. 1983)
(“As a prerequisite, the court must establish whether an adequate alternative forum exists which
possesses jurisdiction over the whole case.”).
16
predicting that the foreign tribunal will ultimately assert jurisdiction over the case
and recognize any limitations waiver.26 Since the district court’s dismissal is
conditional, it may reassert jurisdiction in the event that the foreign court refuses to
entertain the suit. There would be little point in approving of this device while
simultaneously requiring proof that the foreign jurisdiction will reach the merits of
the case. In a similar vein, the Second Circuit agreed that affidavits attempting to
predict what a foreign jurisdiction will do have little value. See Schertenleib v.
Traum, 589 F.2d 1156, 1163 (2d Cir. 1978). Although the district court in that case
did receive expert testimony that Geneva would accept jurisdiction, the Second
Circuit assessed the evidence as follows: “If, moreover, contrary to the expert
testimony relied on by [the district judge] in this case, Geneva refuses jurisdiction
notwithstanding defendant’s consent, plaintiff is still protected by the conditional
nature of the dismissal. Thus, further inquiry into the foreign jurisdictional law
26
The cases cited by the Plaintiff do not support such a proposition. In Mercerier v.
Sheraton Int’l, Inc., 935 F.2d 419, 426 (1st Cir. 1991), the court appeared to place the burden of
proof on the plaintiff: “[E]ven given a willingness on [the defendant’s] part to abandon [a statue
of limitations defense], the [plaintiff] must be given an opportunity to question whether Turkish
courts would accept such a waiver – and, if they would not, to argue the effect of such a refusal
to the court deciding the forum non conveniens motion.” Id. Similarly, our decision in Republic
of Panama v. BCCI Holdings (Lux.) S.A., 119 F.3d 935 (11th Cir. 1997), appears to require the
plaintiff to rebut the defendant’s assertion that a foreign jurisdiction will reach the merits of the
case. See id. at 951 (“Because Panama has never contested the BCCI defendants’ assertion that
they are amenable to process in the liquidation proceedings, we may reverse the district court’s
initial determination only if we conclude that these liquidation proceedings are clearly
unsatisfactory.”). At the very least, neither case requires the defendant to produce an affidavit
like the one Plaintiff contends is necessary.
17
really is needless since it is so easily obviated by the use of the typical conditional
dismissal device.” Id. We conclude that the district court erred when it held that
Hong Kong was an unavailable forum solely because Defendants did not present
evidence that the Hong Kong courts would ultimately accept waivers of any
jurisdiction and limitations defenses.
Third, the district court erred in its assessment of the location of the relevant
evidence. Not only did it fail to use Plaintiff’s causes of action as a guidepost, it
also looked to facts that are of no consequence. Consider, for example, the district
court’s conclusion that Defendants “undermined their original argument that
positively everything having to do with the instance case occurred in, and can be
found in, Hong Kong” when they argued that five of the key witnesses (including
Plaintiff) live in England. The fact that prominent witnesses are located in England
only underscores the point that Florida is an inappropriate forum. Indeed,
Defendants were willing to submit to the jurisdiction of England, too. It is perfectly
reasonable to argue that although Hong Kong is the best forum, England is the
second best forum. Taken together, these two propositions establish that there is
little to be said for Florida. Yet the district court somehow believed that the fact
that some witnesses live in England dilutes the attractiveness of Hong Kong such
that neither forum is superior to Florida. We find this conclusion puzzling.
18
We also find it troubling that the district court gave so much weight to
Defendants’ ability to produce evidence at the joint hearing on sanctions and the
forum non conveniens motions. Under this theory, if the Defendants produce
evidence, they risk losing their forum non conveniens battle because they have
shown that it is not too difficult to gather the needed evidence; if they do not
produce evidence, they will lose because they have the burden of proof of
establishing that the forum non conveniens balancing test weighs in favor of
dismissal. The law does not put to defendants this Hobson’s choice.
III.
For the foregoing reasons, the district court’s order is REVERSED and the
case is REMANDED with the instruction that the district court conditionally
dismiss the case.
SO ORDERED.
19
BRIGHT, Circuit Judge, concurring:
I agree with the majority that the district court erred in concluding that Hong
Kong was an unavailable forum. The district court should have conditionally
dismissed Ford's claims in favor of jurisdiction in Hong Kong.
As the majority explains above,1 the district court misread the decision in
Magnin v. Teledyne Cont'l Motors, 91 F.3d 1424 (11th Cir. 1996). Supra at 16-17.
Instead, the district court concluded that Hong Kong was not an available forum
because the defendants failed to "provide any evidence to support the assertion that
Hong Kong is an available forum." Dist. Ct. Op. at 16. Had the district court
properly applied the law in Magnin, it might have concluded that Hong Kong was
an available forum.
I add some additional comments about the litigation. In examining the public
interest factors, I do not believe the district court's choice of Florida over England
would have been irrational or improper. The district court stated in reference to
1
The majority comments:
We never indicated that a defendant must have an affidavit from a lawyer in the
foreign jurisdiction predicting that the foreign tribunal will ultimately assert
jurisdiction over the case and recognize any limitations waiver. Since the district
court's dismissal is conditional, it may reassert jurisdiction in the event that the
foreign court refuses to entertain the suit. There would be little point in
approving of this device while simultaneously requiring proof that the foreign
jurisdiction will reach the merits of the case.
Supra at 16-17 (footnote omitted).
20
retaining jurisdiction in the United States District Court for the Southern District of
Florida:
When "extensive pretrial discovery and proceedings have
already taken place over a period of" years in the current forum, that
current forum would not be significantly more overburdened and
inconvenienced were it to continue exercising jurisdiction over the
case. Schexnider, 817 F.2d at 1163. This factor most definitely
weighs in favor of Plaintiffs, as this Court has presided over nearly a
dozen days of evidentiary hearing on just the forum non conveniens
and motions for sanctions issues. The sheer volume of evidence and
the parties' filings relating to these issues alone is larger than that of
most of the cases currently pending before this Court. Moreover, not
only has this Court engaged in serious deliberation regarding the
instant case, but also Magistrate Judge Dubé has worked diligently on
several case management and discovery issues. Clearly, this factor
weighs in favor of the Court retaining jurisdiction over the instant case.
Dist. Ct. Op. at 27-28. The district court spent a significant amount of time and
energy in weighing whether it should retain jurisdiction over Ford's case.
Finally, I disagree with the majority's statement that "[o]f all possible forums,
Florida is unquestionably the worst." Supra at 14. In regard to whether Florida had
an interest in retaining jurisdiction over the case, the district court commented:
Depending on how one conceives of the instant case, the
controversy may invoke the "local interests" of Hong Kong and/or the
United States. The basis of Plaintiff's Complaint involves events that
occurred, in substantial part, or at least took effect in Hong Kong.
However, Plaintiff's theory of his case is that employees of Defendant
Exxon engaged in decisions in Texas that impacted Plaintiff in Hong
Kong. In this way, the controversies directly at issue here involve an
American defendant taking action in the United States. These
decisions, due to the ease with which business is increasingly
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conducted globally, came to fruition in Hong Kong. In short, an
American jury has an interest in deciding controversies involving
domestic Defendants who acted both at home and abroad.
Dist. Ct. Op. at 28. The district court gave the issues in this case careful
consideration during an eleven-day hearing.
The trial court erred in construing the applicable law. Thus, its assessment of
the facts, based on its erroneous view of the law, also became flawed. I would
agree that Hong Kong is the preferred forum under the applied law as construed by
this court. Thus, I concur in the result.
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