Filed: Jan. 20, 2011
Latest Update: Feb. 21, 2020
Summary: NOT PRECEDENTIAL IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ NOs. 10-2131, 10-2132, 10-2133, 10-2134 and 10-2135 _ CAMERON B. AUXER, an individual; FIONA HELEN BLAKE, an individual; MARIE PATRICIA CATTACH, an individual; ANTHONY CHARLES FORDHAM, an individual; EDWARD CHARLES STUART-HERRING, an individual and as Executor of THE ESTATE OF GLENYS JOY HERRING, deceased; MIRANDA JO MILLSTEED, an individual; IAN ROBERT YOUNG, an individual; FRANCESCO ANTONIO ANZELLINO, an individual
Summary: NOT PRECEDENTIAL IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ NOs. 10-2131, 10-2132, 10-2133, 10-2134 and 10-2135 _ CAMERON B. AUXER, an individual; FIONA HELEN BLAKE, an individual; MARIE PATRICIA CATTACH, an individual; ANTHONY CHARLES FORDHAM, an individual; EDWARD CHARLES STUART-HERRING, an individual and as Executor of THE ESTATE OF GLENYS JOY HERRING, deceased; MIRANDA JO MILLSTEED, an individual; IAN ROBERT YOUNG, an individual; FRANCESCO ANTONIO ANZELLINO, an individual A..
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NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________________
NOs. 10-2131, 10-2132, 10-2133, 10-2134 and 10-2135
______________________
CAMERON B. AUXER, an individual; FIONA HELEN
BLAKE, an individual; MARIE PATRICIA CATTACH,
an individual; ANTHONY CHARLES FORDHAM, an
individual; EDWARD CHARLES STUART-HERRING,
an individual and as Executor of THE ESTATE OF GLENYS
JOY HERRING, deceased; MIRANDA JO MILLSTEED, an
individual; IAN ROBERT YOUNG, an individual;
FRANCESCO ANTONIO ANZELLINO, an individual
Appellants in No. 10-2131
v.
ALCOA, INC.
________________________
ANGELINA FERRARO ANGI, et al.
Appellants in No. 10-2132
v.
ALCOA, INC.
_________________________
TERRANCE APLIN; KEVIN ANTHONY ATKINS;
MAUREEN BOLTON, Trustee ad litem on behalf of
PAUL BOLTON, Deceased; JAROSLAV BOUSKA;
STAVROULLA CADWALLENDER, Executor of the
Estate of HAROLD JOSEPH MARTIN CADWALLENDER,
Deceased; KINSLEY DREW; RAYMOND FAMLONGA;
LEN FARMER; ROGER WALTER FROUD; JAMES HAGAN;
ANTHONY WILLIAM HALDEN; GARY HARROWER;
MICHAEL JAMES JENKIN; NORMAN JOHNSON; LESLIE
KINSELLA; GEORGE MACFARLANE; RAYMOND MCDONALD;
DERRICK NICHOLS; ERIC PEGG; AUDREY PHILLIPS,
Trustee ad litem on behalf of JOHN RONALD PHILLIPS,
Deceased; DAVID THOMPSON
Appellants in No. 10-2133
v.
ALCOA, INC.
_______________________________
FRANK BELLAIRS; GARY ECCLES; GINO FERRARO;
ALEXANDER JOVANOVICH; KEVIN MCDONALD; MERVYN
MCDONALD; FRANK RHYS MCGINNIS; FRANK MELIA;
SANDRA MUTCH; GRAEME NEWTON; PATRICIA NEWTON;
WAYNE NICHOLSON; VINCENT PISCIONERI; VINCENT
PUCCIO; DAVID KENNETH PUZEY; PETER STAMPONE;
PHILIP STEWART; LIONEL EDWARD TURNER;
VINCENT MICHAEL VALLI,
Appellants in No. 10-2134
v.
ALCOA, INC.
________________________________
CLIVE BARRADEEN; DAVID AUBREY COLLINS; BRENDEN HATTON;
CLIVE LUNN; LEONARD PERKINSON; JAMES RALPH; GREGORY E.
SUDHOLZ,
Appellants in No. 10-2135
v.
ALCOA, INC.
___________________________
On Appeal from the United States District Court
For the Western District of Pennsylvania
(D.C. Civil Nos. 2-09-cv-00995, 2-09-cv-01429,
2-09-cv-01430, 2-09-cv-01431, 2-09-cv-01438)
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District Judge: Hon. David Stewart Cercone
_________________________
Argued December 13, 2010
BEFORE: SLOVITER, GREENAWAY, JR., and
STAPLETON, Circuit Judges
___________________________
(Opinion Filed January 20, 2011)
__________________________
William R. Caroselli (Argued)
Kelly L. Enders
Susan A. Meredith
Caroselli, Beachler, McTiernan & Conboy
20 Stanwix Street – 7th Floor
Pittsburgh, PA 15222
Attorneys for Appellants
Neil K. Gilman
Hunton & Williams
1900 K Street, N.W. – Suite 1200
Washington, DC 200
and
Lori E. Jarvis
Thomas R. Waskom
Hunton & Williams
951 East Byrd Street
13th Floor, East Tower, Riverfront Plaza
Richmond, VA 23219
and
Thomas M. Reiter (Argued)
Richard W. Hosking
James C. Swetz
K&L Gates
210 Sixth Avenue
Pittsburgh, PA 15222
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and
Rene P. Tatro
Tatro, Tekosky & Sadwick
333 South Grand Avenue – Suite 4270
Los Angeles, CA 90071
Attorneys for Appellee
__________________________
OPINION OF THE COURT
__________________________
STAPLETON, Circuit Judge:
These five consolidated cases involve 244 plaintiffs who claim to have suffered
personal injuries caused by their exposure to emissions from three alumina refineries in
Western Australia. With one exception, all plaintiffs live in Australia. One plaintiff
moved to Pennsylvania shortly before he filed suit. These refineries are owned and
operated by Alcoa of Australia, Ltd. (“AAL”), which is sixty percent owned by a
subsidiary of the sole defendant, Alcoa, Inc. (“Alcoa”). The District Court granted
Alcoa’s motion to dismiss without prejudice on forum non conveniens grounds. These
appeals followed.
While plaintiffs acknowledge that their exposure, injuries, diagnoses, and medical
treatment all occurred exclusively in Western Australia and that none of the operative
facts material to causation, injuries, diagnoses and treatments occurred in Pennsylvania,
they insist that the “witnesses and documentary evidence necessary for the plaintiffs to
prove liability are located at defendant’s corporate headquarters in Pittsburgh.”
Appellants’ Br. at 2. They contend that the District Court’s dismissal must be overturned
because it ignored the evidence they submitted in support of this proposition. They also
4
maintain that the District Court did not “hold the defendant to [its] burden of persuasion
on all elements of the [forum non conveniens] analysis.” Id. at 12.
We conclude that the District Court did not abuse its discretion in concluding that
these matters should go forward in Western Australia and that its thorough opinion
reflects an appropriate supporting analysis. Accordingly, we will affirm the District
Court’s order. Because we write primarily for the parties who are familiar with the
record and the proceedings, we will address only the concerns raised by the plaintiffs.
Plaintiffs acknowledge that the District Court’s opinion addresses the proper
issues to be considered in reaching a decision on the appropriate forum: (1) what degree
of deference is to be given the plaintiffs’ choice of forum, (2) whether there is an
adequate alternative forum, (3) whether a balancing of the private factors weighs in favor
of dismissal, and (4) whether a balancing of public factors weighs in favor of dismissal.
See, e.g., Lacey v. Cessna Aircraft Co., 862 F.2d 38, 43 (3d Cir. 1988). Plaintiffs
challenge the District Court’s treatment of issues (2) through (4), and we will address
each in turn.
1. Adequate Alternative Forum
Plaintiffs initially argue that Alcoa did not prove that Western Australia was an
adequate alternative forum. To the contrary, plaintiffs say, the record reveals that an
Australian forum would not be adequate because it (1) would not provide for pretrial
depositions (a fact which they assert the District Court did not address), (2) it would
prohibit contingent fee arrangements, and (3) it would require any plaintiff who lost to
pay the cost of the defense.
5
As the District Court pointed out, Alcoa submitted an affidavit of a qualified
Western Australia attorney which explains that (1) Alcoa is registered to do business and
subject to service of process in Western Australia, (2) the courts of Western Australia
have jurisdiction over cases of this kind and recognize theories of liability for negligence,
reckless conduct, and “damage caused by hazardous activities,” and (3) the applicable
court rules provide inter alia for discovery of documents, interrogatories, and the
compelling of the attendance of witnesses and production of documents at trial by court
ordered subpoenas. App. III at B-1607-1613. There is also evidence that trial witnesses
would be required to provide pretrial statements.
The District Court’s opinion provided in part:
To establish Australia as an available forum, Alcoa
must first show that it is amenable, or that it will agree to
submit, to process in Australia. Alcoa admits, however, that
it is subject to the jurisdiction of the courts of Western
Australia with regard to the consolidated litigations.
Moreover, it appears that Alcoa is subject to process in
Western Australia based upon Australian legal authority.
Notwithstanding Alcoa’s admission and the averments of Mr.
Allanson’s affidavit, this Court shall require that Alcoa
submit to the jurisdiction of the appropriate court as a
condition of the dismissal based upon forum non conveniens.
***
There is no dispute that Australian [sic] recognizes the
tort of negligence as part of its common law. Moreover, the
Court finds Plaintiffs’ arguments regarding the inadequacies
of Australian procedure and remedy to be without merit.
Disparities between the laws of the chosen and alternative
forums, similar to those referenced by Plaintiffs, do not
render the alternate forum inadequate.
***
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Plaintiffs also contend that Australian pretrial
procedure is inadequate because of the unavailability of a
general discovery deposition process. The taking of
depositions from a party, or an expert or lay witness is not
used by courts in Western Australia other than for medical
witnesses, when examining on relatively non-controversial
matters, who are unavailable to attend trial or for plaintiffs
who are dying. All parties though are subjected to the same
restrictions, therefore there is no prejudice. A restriction on
pretrial discovery does not make Australia an inadequate
forum.
Neither the fee-shifting, i.e. loser pays, arrangement in
Australia jurisprudence nor its lack of contingency fee
agreements render Australia inadequate as an alternative
forum. The potential for taxation of attorney’s fees against
the losing party acts as a double-edged sword. Although such
arrangements are a risk to a plaintiff who loses, it nonetheless
provides an avenue for successful plaintiffs to recover their
attorney’s fees. Moreover, the Supreme Court specifically
mentioned fee shifting and contingent fee agreements as
reasons American courts are so attractive to foreign plaintiffs
and why dismissal might be appropriate to prevent further
congestion in the United States courts. See Piper Aircraft Co.
v. Reyno, 454 U.S. [235,] 252 n.18 [1981] (“unlike most
foreign jurisdictions, American courts allow contingent
attorney fees, and do not tax losing parties with their
opponents’ attorney’s fees.”). Other appellate decisions have
viewed the contingent fee argument to be of little significance
in making the forum non conveniens determination. See[,]
e.g.[,] Coakes v. Arabian American Oil Co., 831 F.2d 575
(5th Cir. 1987); Dowling v. Richardson-Merrill, Inc.,
727
F.2d 608 (6th Cir. 1984).
App. at A-31-34 (internal citations and footnotes omitted).
As the District Court pointed out, numerous federal courts have found Australia to
be an adequate alternative forum and dismissed on grounds of forum non conveniens.
Some have specifically held that the absence of pretrial depositions does not render an
alternative forum inadequate, see, e.g., In re Carbide Corp. Gas Plant Disaster, 809 F.2d
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195 (2d Cir. 1987), and we have found no case concluding to the contrary. We find no
fault with the District Court’s treatment of this issue. It clearly did not abuse its
discretion.
2. Balance of Private Factors
Plaintiffs urge that the District Court “engaged in a one-sided evaluation” when
assessing the private interest and public interest factors, dismissing “with little or no
discussion factors which favored retaining jurisdiction in the U.S. forum.” Appellants’
Br. at 14. Plaintiffs correctly note that the District Court focused on the difficulties Alcoa
would have in accessing the evidence it would need to defend itself if the cases go
forward in Pennsylvania. They insist that it ignored their evidence that they would have
very limited access to Pittsburgh witnesses and documents if relegated to the pretrial
process in Western Australia. Once again, we believe the District Court did the
appropriate balancing and reached a conclusion well within the scope of its discretion.
After pointing out Alcoa’s need for “access to non-party witnesses regarding the
alleged injuries, medical treatment, prognoses, local climatic anomalies, refinery
operations, and Western Australia environmental and public health regulations,” the
District Court directly addressed plaintiffs’ contention “that there are important witnesses
and/or documents located in Pennsylvania that are critical to establishing liability.” App.
at 35. It found, however, that Pennsylvania evidence from a party would be much more
accessible to plaintiffs for trial in a Western Australian forum than Western Australian
evidence from non-parties would be for Alcoa for trial in a Pennsylvania forum. Because
of this distinction between access to party and non-party witnesses and documents and
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the primary importance of a party’s being able to present its case at trial, the District
Court concluded that this factor weighed heavily in favor of dismissal.
Plaintiffs understandably would prefer to have the pretrial process available in
Pennsylvania. However, we do not understand plaintiffs to challenge the conclusion of
the Court regarding the relative access of the parties to evidence for trial or the primary
importance of access to evidence for trial. While plaintiffs’ brief faults the District Court
for relying on a party/non-party distinction, it does so on the ground that it “overlooks the
fact that the Australian legal system has very different procedural rules related to pretrial
discovery,” Appellants’ Br. at 15 (emphasis added), and the ensuing portion of that
argument in the brief, with one exception,1 is addressed to the disparity in pretrial
discovery regimes. Plaintiffs’ brief does not dispute that Alcoa as a party would be
required to produce documents and witnesses within its control for plaintiffs’ use at trial
in Australia and, indeed, Alcoa’s counsel acknowledged before us that Alcoa shared the
understanding of the District Court with respect to its obligation as a party to produce
relevant witnesses and documents should these matters be tried in Australia.
With respect to balancing the private interests of the parties concerning the
disparity in pretrial discovery rules, the District Court, in addition to finding that the
absence of pretrial depositions did not render Western Australia an inadequate forum,
1
Plaintiffs’ brief does identify one potential, non-party witness who could not be
compelled to testify in an Australian court, Paul O’Neill, a former CEO of Alcoa but no
longer employed by it. They assert that Mr. O’Neill’s “testimony can be important to
plaintiffs’ claims.” Appellants’ Br. at 21. In the absence of some indication as to how
that testimony can be important and of some reason to believe similar testimony is not
available from party witnesses, we cannot fault the District Court for failing to regard the
unavailability of this one witness as of controlling importance.
9
understandably concluded that “[a]ll parties . . . are subject[] to the same restrictions [on
pretrial discovery]” and “therefore, there is no prejudice.” App. at A-33. 2
In Dahl v. United Technologies Corp., 632 F.2d 1027 (3d Cir. 1980), we sustained
the dismissal of a Delaware suit in favor of a Norwegian forum in similar circumstances.
3. Balance of Public Factors
Plaintiffs insist that the District Court wrongfully disregarded Pennsylvania’s
“interest in insuring that [its] corporations do not engage in tortuous [sic]conduct which
results in injury to anyone, regardless of whether those individuals reside in a foreign
country or in the U.S.” Appellants’ Br. at 24. Plaintiffs correctly point out that this
Court took note of that interest in Windt v. Qwest Communs. Int’l., Inc., 529 F.3d 183,
193-94 (3d Cir. 2008). We do not agree, however, that the District Court’s opinion
evidences a failure to take that interest into account. The Court was fully aware that
plaintiffs alleged culpable conduct in Pennsylvania and expressly recognized at the outset
of its public interest factor discussion that it “must consider the locus of the alleged
culpable conduct . . . and the connection of that conduct to plaintiff’s chosen forum.”
App. at A-38 (quoting from Lony v. E.I. Du Pont de Nemours & Co.,
935 F.2d 604, 612
(3d Cir. 1991). The District Court’s conclusion was not that Pennsylvania lacked a
2
Plaintiffs also fault the Court for not considering as a private interest factor the
facts that Australia prohibits contingent fee agreements and has a “loser pay system.” As
earlier noted, the District Court did consider these matters in determining whether
Western Australia was an adequate alternative forum. Our Court has debated whether
various matters should be addressed as relating to the private interest or adequacy of the
alternative forum analysis. See Lacey v. Cessna Aircraft Co., 932 F.2d 170, 190-91 (3d
Cir. 1991). Suffice it to say that the District Court took these matters into account.
10
relevant interest, but rather that it had no interests “comparable” to those of Australia.
App. at A-60.
Even if the District Court had failed to take this interest of Pennsylvania into
account, however, it would not alter the outcome of these appeals. Clearly, neither Windt
nor any other case suggests that, where culpable conduct takes place in a mass tort case in
both jurisdictions and injury in only one, the interests of the two are “comparable.” This
issue is not a close call. A public interest balancing analysis which concluded in favor of
Pennsylvania here would be an abuse of discretion. The District Court’s conclusion was
not.
4. Conclusion
The judgment of the District Court will be affirmed.
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