Forum Non Conveniens — Alternate Forum Must Have Jurisdiction over All Defendants — Movant Must Also Establish the Claims and Remedies Available There

From Lans v. Adduci Mastriani & Schaumberg L.L.P, 2011 U.S. Dist. LEXIS 54463 (D.D.C. May 23, 2011):

a. Adequacy of alternative forum

In order to establish that an alternative forum is adequate, the defendant must first establish that an alternative forum is available where the plaintiff may bring his claims. Normally, an alternative forum is considered available when the defendant is "amenable to process" in that forum. Piper Aircraft, 454 U.S. at 241. For the reasons that follow, the Court holds that the defendants have not met their burden of establishing that Sweden is truly an available alternative forum.

The defendants have failed to establish that Sweden is available as an alternative forum as to all defendants. The Delphi Defendants attempt to portray this case as one involving only Swedish parties, conspicuously ignoring the inclusion of AMS [a Washington, D.C. law firm] in this litigation. Delphi Defs.' Mem. at 25 ("This dispute — between Swedish clients and their Swedish lawyers [i.e., Delphi] . . . ."); Delphi Defs.' Reply at 19 ("[The] [p]laintiffs do not contest the declarations establishing that the Delphi Defendants are amenable to jurisdiction in Sweden. . . . [T]herefore[,] . . . Sweden is an adequate alternative forum" (emphasis added)). Moreover, when confronted with their failure to demonstrate that the claims against AMS could be reinstated in Sweden, the Delphi Defendants attempt to persuade the Court that they need not show that all parties are amenable to jurisdiction in Sweden, citing to BPA International, Inc. v. Kingdom of Sweden, 281 F. Supp. 2d 73 (D.D.C. 2003). The Delphi Defendants further state that "the courts have rejected the notion that forum non conveniens is an all-or-nothing doctrine or that an action or part of an action may be dismissed on forum non conveniens grounds only if all the issues can be resolved in a single alternative jurisdiction." Delphi Defs.' Reply at 19 (internal quotation marks and emphasis omitted). In support of this proposition, the defendants cite to dicta in a single Massachusetts Supreme Court case. Id. (quoting United Techs. Corp. v. Liberty Mutual Ins. Co., 555 N.E.2d 224, 225 (Mass. 1990). The Court finds the Delphi Defendants' argument unpersuasive.

This appears to present a dilemma of first impression in the District of Columbia. However, there is wide-ranging consensus among the various Circuits that a dismissal based on forum non conveniens requires that the alternate forum have jurisdiction over all of the moving party's co-defendants. Evolution Online Sys., Inc. v. Koninklijke PTT Nederland N.V., 145 F.3d 505, 510 (2d Cir. 1998); Raytheon, 142 F.3d at 1282; Lacey v. Cessna Aircraft Co., 932 F.2d 170, 180 (3d Cir. 1991); Watson v. Merrell Dow Pharm., 769 F.2d 354, 357 (6th Cir.1985); see also, e.g., In re Air Crash Disaster Near New Orleans, La. on July 9, 1982, 821 F.2d 1147, 1168-69 (5th Cir. 1987) (holding that the case was properly held in the United States because "no other forum could entertain the plaintiffs' actions against all of the defendants" even though the moving defendant assured the court that it would pay "any judgment rendered against it" in the alternate forum, because "it" did not refer to the other defendant and the "[p]laintiffs sought recovery from Pan American [Airlines] and the United States, not one or the other;" therefore, "Pan American's conditional promises simply fail[ed] to make all defendants available to [the] plaintiffs in a Uruguayan forum"); Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 243 F. Supp. 2d 1073, 1095 (C.D. Cal. 2003) (denying the defendant's motion to dismiss based on forum non conveniens because the defendant "made no showing that its non-Australian co-Defendants [were] amenable to suit in Australia or Vanuatu" (internal citations omitted)). In addition, several courts have based their grant of a dismissal for forum non conveniens on the co-defendants' voluntary submission to jurisdiction in the alternate forum. See Dole Food Co. v. Watts, 303 F.3d 1104, 1116 (9th Cir. 2002) (holding that Rotterdam was not an available alternate forum since defendants failed to prove that any single alternative forum had subject-matter and personal jurisdiction over all parties and issues); Jota v. Texaco, Inc., 157 F.3d 153, 159 (2d Cir. 1998) (holding that dismissal for forum non conveniens was not appropriate absent the defendant's willingness to submit to the jurisdiction of the foreign court); In re Air Crash Near Peixoto De Azeveda, Brazil, on September 29, 2006, 574 F. Supp. 2d 272, 282-83 (E.D.N.Y. 2008) (stating that where all defendants except two have signed declarations consenting to jurisdiction in Brazil, the defendants must still demonstrate that a Brazilian court has jurisdiction over the two non-consenting defendants); Stromberg v. Marriot Int'l, Inc., 474 F. Supp. 2d 57, 61 (D.D.C. 2007) (noting that one factor in finding that Mexico was an available alternate forum was that the non-Mexican co-defendant had stipulated to submit to service of process there); Indymac Mortgage Holdings, Inc. v. Reyad, 167 F. Supp. 2d 222, 248 n.33 (D. Conn. 2001) (holding that dismissal on the basis of forum non conveniens was not available since "it is not clear that [the co-defendant] would be subject to personal jurisdiction in California, and thus that state cannot be considered an adequate alternative forum, absent some agreement [by the co-defendant] to submit to jurisdiction there"). Finally, the Delphi Defendants use of BPA International to support their position that they only need to demonstrate that the Delphi Defendants are amendable to process in Sweden is misguided. BPA International held that the defendants met their burden of demonstrating that Sweden was an adequate alternative forum by providing uncontested affidavits showing that the plaintiffs' claims could be brought in Sweden and that Sweden had jurisdiction over all of the defendants. See BPA Int'l, 281 F. Supp. 2d at 85 ("Telia's general counsel avers that BPA International could assert its claims in the courts of Sweden and that each of the defendants are subject to the jurisdiction of the appropriate Swedish courts." (emphasis added and internal quotation marks omitted)). Therefore, absent a showing by the Delphi Defendants that a Swedish court would also have jurisdiction over AMS, or consent by AMS to submit to the jurisdiction of a Swedish court, dismissal on the basis of forum non conveniens is not appropriate.

Furthermore, even if the defendants established that Sweden will be able to exert jurisdiction over AMS or if AMS consented to such jurisdiction, the Delphi Defendants have nonetheless failed to provide sufficient evidence demonstrating that Sweden is an adequate forum for resolution of the disputes in this case. Several courts have agreed that Sweden offers a "well-developed legal system" with "many important procedural safeguards such as the right to present evidence and call witnesses, and the right to appeal." Carlenstolpe v. Merck & Co., 638 F. Supp. 901, 905 (S.D.N.Y. 1986); see also Blimpie Int'l, 1997 WL 143907, at *5. However, this acknowledgement alone is insufficient to demonstrate that Sweden provides an adequate forum in this case. A forum is considered inadequate "where the remedy offered by the other forum is clearly unsatisfactory," such as where the subject matter of the dispute may not be litigated in the alternative forum. Piper Aircraft, 454 U.S. at 254 n.22. Nonetheless, the alternate forum does not need to have identical causes of action or identical remedies to be deemed adequate. Norex Petroleum Ltd. v. Access Industries, Inc., 416 F.3d 146, 158 (2d Cir. 2005); see also Termorio S.A. E.S.P. v. Electrificadora Del Atlantico S.A. E.S.P., 421 F. Supp. 2d 87, 103 (D.D.C. 2006). As such, in civil RICO actions, for example, it is sufficient that the "foreign jurisdiction[] provide alternative legal actions . . . [that] address the wrongdoing encompassed by civil RICO." Norex Petroleum, 416 F.3d at 158. Nor is a court "to place undue weight on the possibility of a change in substantive law" or on the existence of "different adjudicative procedures or general allegations of corruption in the judicial system." Termorio, 421 F. Supp. 2d at 103; accord El-Fadl, 75 F.3d at 678.

The defendants correctly state that "so long as Swedish law provides remedies for the type of conduct alleged in the Complaint[,] . . . Swedish courts supply the requisite 'adequate alternative forum' to allow a forum non conveniens dismissal." Delphi Defs.' Mem. at 21 (emphasis omitted). However, the Delphi Defendants have failed to demonstrate what causes of action or remedies would actually be available in Sweden; instead, merely providing an unsubstantiated claim that "Swedish law [does] provide[] remedies for the type of conduct alleged in the Complaint." Id. This proffer is inadequate to satisfy their burden of proof. See Baris v. Sulpicio Lines, Inc., 932 F.2d 1540, 1550 n.14 (5th Cir. 1991) ("[W]e require a defendant to put forth unequivocal, substantiated evidence presented by affidavit testimony in order for the district court to satisfy the standard enunciated in Gulf Oil Corp. v. Gilbert." (internal citation omitted)); see also Raytheon, 142 F.3d at 1282 & n.11 (expressing skepticism that the defendants demonstrated Panama was an adequate forum because the defendants offered only an unsworn declaration of a Panamanian attorney stating "with no substantiation or citation of Panamanian legal authority, that the Panamanian court would take jurisdiction of the case and that it is familiar with [the type of case at issue] and is experienced in dealing with English-speaking witnesses"); El-Fadl, 75 F.3d at 677 (noting that reversal of a dismissal based on forum non conveniens is appropriate even when the defendant provides an affidavit, but "the affidavit through which [the defendant] attempted to meet its burden contain[ed] substantial gaps" such that "the record before the court [was] so 'fragmentary' that 'it [was] impossible to make a sound determination' of whether an adequate alternative forum exist[ed]" (internal citations omitted)); Lacey, 862 F.2d at 45 (noting that the defendants' "failure to provide any record support for their contentions precluded the district court from scrutinizing the substance of the dispute between the parties" and that the defendants had therefore failed to carry their burden).

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