NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 14 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES R.S. HERBERT and BARBARA No. 14-15760
ELLIS,
D.C. No.
Plaintiffs-Appellants, 1:13-cv-00452-DKW-BMK
v.
MEMORANDUM *
VWR INTERNATIONAL, LLC, a
Delaware corporation, successor Sargent-
Welch Scientific Company,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Hawaii
Derrick Kahala Watson, District Judge, Presiding
Argued and Submitted February 21, 2017
Honolulu, Hawaii
Before: KOZINSKI, HAWKINS, and BEA, Circuit Judges.
James Herbert and Barbara Ellis appeal the district court’s dismissal of their
claims on the basis of forum non conveniens. We have jurisdiction under 28
U.S.C. § 1291 and affirm. Because the parties are familiar with the factual and
procedural history of this case, we repeat only those facts necessary to resolve the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
issues raised on appeal.
Appellant argues that the district court erred in finding that certain private
interest factors which are related to witnesses and evidence favored dismissal
because there was no evidence in the record specifically identifying witnesses and
physical evidence in Indonesia. The Supreme Court and Ninth Circuit have
rejected the notion that evidence in the alternative forum must be identified with a
high degree of specificity. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 258 (1981)
(a high degree of “detail is not necessary…because many crucial witnesses are
located beyond the reach of compulsory process, and thus are difficult to identify
or interview. Requiring extensive investigation would defeat the purpose of their
motion. Of course, defendants must provide enough information to enable the
District Court to balance the parties’ interests”); Carijano v. Occidental Petroleum
Corp., 643 F.3d 1216, 1231 (9th Cir. 2011) (“The proponent of a forum non
conveniens dismissal is not required to identify potentially unavailable witnesses in
exact detail.” (citing Piper, 454 U.S. at 258)); see also Camejo v. Ocean Drilling &
Exploration, 838 F.2d 1374, 1379-80 (5th Cir. 1988) (“The Supreme Court has
held that a moving defendant need not submit overly detailed affidavits to carry its
burden, but it ‘must provide enough information to enable the district court to
balance the parties[’] interests.’” (citation omitted)).
The record contained sufficient information to balance the parties’ interests
2
and the district court did not abuse its discretion by drawing illogical or
implausible conclusions from the record regarding the probable presence of
witnesses and evidence in Indonesia. See United States v. Hinkson, 585 F.3d 1247,
1251 (9th Cir. 2009). An expectation of records located in Indonesia regarding
asbestos-containing products used in his school was supported by Herbert’s own
declaration in which he stated that he would order products through the school
administration’s office. While Herbert declared that the building in which he
taught in Indonesia was demolished, it is undisputed that he lived and worked in
Indonesia from 1983 to 1998, where he alleged the asbestos exposure occurred.
For this reason, it was neither illogical nor implausible for the district court to
expect that documentary and perhaps physical evidence about his former living
quarters or from other school buildings constructed using similar materials at
around the same time as the now-demolished science building could yield evidence
regarding asbestos exposures from sources other than defendant’s products. It was
neither illogical nor implausible to have expected other school employees or
construction workers still in Indonesia to be relevant witnesses as to construction
materials or products used at his school. Such witnesses and documentary and
physical evidence would likely be the only means by which defendant could prove
Herbert’s asbestos exposure from products other than defendant’s. Taken together,
the factual record contained sufficient information for the district court to balance
3
the parties’ interests as to the private interest factors and the district court did not
abuse its discretion in so doing.
Contrary to appellant’s assertions, the district court did not abuse its
discretion in weighing certain public interest factors. First, Indonesia has a greater
interest in this lawsuit because Herbert’s exposure occurred in Indonesia, giving
that forum (unlike Hawaii) an interest in deterring and ensuring compensation for
injuries that occurred in its territory. Second, Bahasa Indonesian (the official
language of Indonesia) will likely be important in this lawsuit, which would burden
local courts and juries in Hawaii given their lack of proficiency in this language.
Finally, based on evidence in the record and official published data the district
court properly found that this civil trial would be resolved more expeditiously in
Indonesia than Hawaii.
The district court properly considered each of the public and private interest
factors. Because a significant majority of them favor Indonesia over Hawaii, even
accounting for the deference owed to the plaintiffs’ choice of their home forum,
the district court did not abuse its discretion in dismissing this case pursuant to
forum non conveniens. See Loya v. Starwood Hotels & Resorts Worldwide, Inc.,
583 F.3d 656, 665-66 (9th Cir. 2009).
The pending motion to substitute Barbara Ellis as legal representative of
James Herbert’s estate in this litigation is GRANTED. Fed. R. App. P. 43.
4
AFFIRMED.
5
FILED
Herbert v. VWR International, No. 14-15760
APR 14 2017
HAWKINS, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
The question before us is whether this case should be tried in Hawaii or
Indonesia. Under the applicable test, Plaintiff Herbert’s choice of Hawaii deserves
substantial deference unless Defendant VWR International establishes
“oppressiveness and vexation . . . out of all proportion to plaintiff’s convenience” in
trying the case there. See Carijano v. Occidental Petroleum Corp., 643 F.3d 1216,
1234 (9th Cir. 2011). Offering no proof that any witnesses or evidence exist in
Indonesia, VWR fails that test. Indeed, from the point of view of its own
convenience, VWR and its very able counsel could defend this case just about
anywhere, including Hawaii. I would reverse and remand for further proceedings in
district court.