JAMES LAWRENCE KING, District Judge.
In the Motion, Defendant argues that Plaintiffs' First Amended Complaint (the "Complaint"), (DE 13), filed on August 26, 2013, ought to be dismissed based on, inter alia, the doctrine of forum non conveniens and principles of international comity. As the Court is in agreement with Defendant that this action should be dismissed based on forum non conveniens, the Court declines to address the various other grounds for dismissal raised in the Motion.
The three-count Complaint states claims against Microsoft Corporation ("Microsoft") for violation of 18 U.S.C. § 1964 (the "Racketeer Influenced Corrupt Organizations Act" or "RICO"), fraud, and unjust enrichment. DE 13. Plaintiffs are three related Guatemalan corporations whose business offices occupy seven stories of a prominent commercial building located at 7-73 Fourth Street (Zone Nine) in Guatemala City, Guatemala. Id., ¶¶ 8-10, 36. Plaintiff Seguros Universales, S.A. ("Seguros") is the fourth largest insurance company in Guatemala by revenues; Plaintiff Fianzas Universales, S.A. ("Fianzas"), an affiliate of Seguros, is the second largest surety company in Guatemala by revenues; and Plaintiff Ordenadores, S.A. ("Ordenadores"), an affiliate of both Seguros and Fianzas, is the provider of internal information and telecommunications services to Seguros and Fianzas, as well as the title-holder of Seguros and Fianzas' computer servers. Id. Defendant Microsoft is a corporation
In sum, the Complaint alleges that Microsoft, Microsoft de Guatemala, S.A. ("Microsoft Guatemala"), and a third co-conspirator, Business Software Alliance ("BSA"), colluded to provide false information in tandem to a Guatemalan special prosecutor in order to obtain a fraudulently-procured seizure order against Plaintiffs from the Guatemalan courts.
Plaintiffs allege that the seizure order, which was executed on Plaintiffs on April 27, 2012, was procured as a result of inter alia, the following series of frauds upon the Guatemalan courts and/or attorney general: 1) in its complaint requesting the seizure order, Microsoft misrepresented to the Guatemalan attorney general "that [Microsoft] had conducted a reasonable investigation [which uncovered] Plaintiffs' copyright infringement," 2) Microsoft knowingly directed BSA to misrepresent to the Guatemalan attorney general that BSA's review of Microsoft's sales records did not reflect volume purchases of Microsoft's software which Plaintiff was using, and 3) Microsoft knowingly submitted the fraudulent testimony of a licensed software expert, who testified that Plaintiffs were operating unlicensed software, in support of its request for the seizure order. Plaintiffs allege that each of the above representations was fraudulent, because Plaintiffs "have documented valid licenses for at least 98% of their Microsoft software." See id., ¶¶ 18-35.
The Complaint further alleges that Microsoft directed and coordinated this plan to defraud the Guatemalan justice system, and to extort Plaintiffs, from the United States. See id., ¶ 63. Thus, the allegations purport to state claims against Microsoft for its operation of a "worldwide criminal enterprise to wrongfully extort monies from innocent licensees under the guise of Microsoft's worldwide intellectual property enforcement programs." Id., ¶ 51 Based on these allegations, Plaintiffs filed the instant action in the Southern District of Florida.
"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 the action should be tried in another forum.'" Ford v. Brown, 319 F.3d 1302, 1306-07 (11th Cir.2003) (citing Sibaja v. Dow Chem. Co., 757 F.2d 1215, 1218 (11th Cir.1985)). In considering a motion for dismissal on grounds of forum non conveniens:
La Seguridad v. Transytur Line, 707 F.2d 1304, 1307 (11th Cir.1983) (citing Pain v. United Techs. Corp., 637 F.2d 775, 784-85 (D.C.Cir.1980) (emphasis in original)). In Gilbert, the Supreme Court explained the factors to be considered in balancing the public and private interests, as follows:
Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09, 67 S.Ct. 839, 91 L.Ed. 1055 (1947) (Jackson, J.).
The Eleventh Circuit has also provided "additional glosses" on the forum non conveniens doctrine of which this Court must be mindful:
Ford, 319 F.3d at 1307 (Tjoflat, J.). Thus, the Eleventh Circuit holds that a forum non conveniens dismissal is not appropriate unless:
Aldana v. Del Monte Fresh Produce N.A., Inc., 578 F.3d 1283, 1290 (11th Cir.2009) (citing Del Campo Bacardi v. de Lindzon, 845 So.2d 33, 36 n. 1 (Fla.2002)).
Defendant moves to dismiss Plaintiffs' action based on the doctrine of forum non conveniens and principles of international comity. Plaintiffs argue that their choice of forum should not be disturbed because Defendant has waived its ability to raise a forum non conveniens argument by failing to raise the argument in its first Motion to Dismiss, (DE 10). Plaintiffs also argue that Defendant has failed to carry its burden of proving that Guatemala is an adequate alternate forum or that the private and public interest factors weigh in favor of disturbing Plaintiffs' choice of forum. Finally, Plaintiffs assert that principles of international comity are not implicated by this action as there is neither a pending foreign action between the parties to which this Court should defer nor does this action constitute a challenge to any foreign judgment or order. Plaintiffs' arguments miss the mark.
Plaintiffs contend that the Motion must be denied because Microsoft waived its ability to raise a forum non conveniens argument by failing to raise it in their initial motion for dismissal based on Rule 12 of the Federal Rules of Civil Procedure. See Fed.R.Civ.P. Rule 12(h)(1)(A, B) ("A party waives any defense listed in Rule 12(b)(2)-(5) by: (A) omitting it from a motion in the circumstances described in Rule 12(g)(2); ...."); see also Fed R. Civ. P. Rule 12(g)(2)("[A] party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion."). However, "[u]nlike objections to venue or personal jurisdiction, an objection on forum non conveniens grounds is not waived by a defendant failing to raise the issue in its first responsive pleading." Yavuz v. 61 MM, Ltd., 576 F.3d 1166, 1173 (10th Cir. 2009).
The Court will now analyze whether this action should be dismissed based on the four requirements laid out by the Eleventh Circuit in Aldana. See Part III supra.
The first step in determining the appropriateness of a forum non conveniens dismissal is to determine whether an "adequate alternate forum exists which possesses jurisdiction over the whole case." Aldana. This question is actually a two-part inquiry; the Court must determine whether the alternate forum is "available" and "adequate." Leon v. Millon Air, Inc., 251 F.3d 1305, 1311 (11th Cir.2001). The only requirement for a forum to be "available" is that the foreign forum be able to assert jurisdiction over the action to be dismissed. Id.; Lisa, S.A. v. Gutierrez Mayorga, 441 F.Supp.2d 1233, 1236-37 (S.D.Fla.2006) (finding "available" prong was satisfied where "defendant is amenable to process in the other jurisdiction"), aff'd, 240 Fed.Appx. 822, 823-24 (11th Cir. 2007). The only requirement for a forum to be "adequate" is that it be able to grant some meaningful remedy. See Aldana, 578 F.3d at 1290. Indeed, the Eleventh Circuit has held, "it is only in `rare circumstances' where `the remedy offered by the other forum is clearly unsatisfactory,' that the alternative forum may be regarded as inadequate." Id. (quoting Satz v. McDonnell Douglas Corp., 244 F.3d 1279, 1283 (11th Cir.2001)). Moreover, adequacy of forum does not require the availability of identical causes of action. See Republic of Panama v. BCCI Holdings, S.A., 119 F.3d 935, 952 (11th Cir.1997) ("[A] plaintiff's inability to assert a RICO claim in the foreign forum does not preclude forum non conveniens dismissal.") (emphasis added).
The "availability" prong is easily satisfied in this case because Defendant has agreed to stipulate to the jurisdiction of the Guatemalan courts for the purpose of defending itself against any claim for relief Plaintiffs may assert in that forum. DE 18 at 12. Likewise, the "adequacy" prong, which is generally not an impediment in any event, is no impediment in this case because it is undisputed that Plaintiffs can bring a claim for damages in Guatemala based on Defendant's alleged conduct. See generally Skinner-Klee Decl, DE 18-2; see also Aldana, 578 F.3d at 1290-92 (finding Guatemala was an adequate alternate forum); see also Lisa, 441 F.Supp.2d at 1237-38 (same). Plaintiffs counter that Guatemala is not an adequate forum based on the unavailability of a
Accordingly, based on Defendant's stipulation that it will submit to the jurisdiction of a Guatemalan court,
Having found Guatemala to be an adequate alternate forum, the Court must weigh the private interest factors against the strong presumption that Plaintiffs' choice of forum ought not to be disturbed. The private interest factors to be considered include:
Gilbert, 330 U.S. at 508, 67 S.Ct. 839. The most important of the private interests of the litigants "is access to evidence." Ford, 319 F.3d at 1308. Plaintiffs contend that this case centers around a conspiracy fomented in, and executed from, the United States, and that Defendant and its co-conspirators' alleged extortion of Plaintiffs at their headquarters in Guatemala City was only a small part of the global criminal enterprise which this action seeks to prove the existence of. The Court disagrees. The only substantive part of Plaintiffs' Complaint concerns an alleged fraud perpetrated in Guatemala, and the only way the United States is implicated at all in this action is through pure speculation that the plan to defraud and extort Plaintiffs must have originated in the United States.
Indeed, the alleged harm suffered in this action was inflicted upon Guatemalan corporations at their headquarters in Guatemala and the allegedly extorted payments were made from Guatemala. Moreover, it seems that the vast bulk of the evidence related to the alleged fraud and extortion is located in Guatemala, including witnesses over whom the Court lacks jurisdiction to compel attendance at trial (and whose presence would come with the steep costs of international travel, in any event). For example, 1) Rodolfo Estuardo Varela Martinez, the attorney who submitted Defendant's "fraudulent" criminal complaint seeking a seizure order from the Guatemalan attorney general, is a Guatemalan attorney located in Guatemala,
Finally, just as in Lisa, the language barrier in this case favors dismissal. Lisa, 441 F.Supp.2d at 1240. While it is certainly possible that some or all of the Guatemalan individuals identified above are fluent English speakers, every piece of documentary evidence attached to the Complaint required the services of a certified translator because everything is in Spanish (and this is presumably indicative of any evidence remaining to be discovered in this action). Thus, the additional costs which would flow from trying this action in the United States also weigh in favor of an alternate forum.
The private interest factors are overwhelmingly in favor of dismissal. However, weighing heavily against the private interests identified by this Court is the strong presumption against disturbing Plaintiffs' choice of forum. See La Seguridad, 707 F.2d at 1307. Taking the presumption into account, and granting a liberal allowance for any unidentified private interest factors which may weigh against dismissal, the Court concludes that, on balance, the private interest factors are at or near "equipoise." Id. Accordingly, the Court must consider "whether or not factors of public interest tip the balance in favor of trial in a foreign forum." Id.
With respect to the public interests, the Court must take into account any principles of international comity which are implicated by this action. See Esfeld, 289 F.3d at 1313 ("[F]ederal courts necessarily must analyze the interest that the foreign country has in the dispute, an analysis that may raise issues of international comity."). Additionally, the Court must consider the appropriateness of taking on the administrative burden of trying this case in the United States, the rationale behind imposing the burden of jury duty upon members of this community, and the "local interest in having localized controversies decided at home." Gilbert, 330 U.S. at 508-09, 67 S.Ct. 839.
The relief requested by Plaintiffs in this case would necessarily require this Court to question and second guess the integrity, viability, and propriety of the Guatemalan justice system. As such, the international comity implications of this action are inescapable. And, if Plaintiffs' allegations are true, and Defendant did, in fact, successfully defraud the Guatemalan justice system, it stands to reason that Guatemala has a paramount interest in the subject of this action. Indeed, Guatemala's
Accordingly, the public interest factors are also overwhelmingly in favor of dismissal, and their weight is sufficient to tip the balance in favor of trial in an alternate forum.
The Court would be remiss in dismissing this action if it did not ensure that Plaintiffs will be able to reinstate this action in the proposed alternate forum. Defendant has already stipulated to the jurisdiction of the alternate forum. However, Plaintiffs argue that they may be unable to reinstate this action because Defendant has not stipulated that it will waive any statute of limitations defenses which may be available to it. Accordingly, to ensure that Plaintiffs can reinstate this action, the Court need only impose the additional condition that Defendant shall waive any available statute of limitations defense.
Based on the foregoing analysis, it is apparent to the Court that this action should not be litigated in the United States. Accordingly, upon due consideration, it is
