UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 06-1299



FIDELITY BANK PLC,

                                              Plaintiff - Appellee,

           versus


NORTHERN FOX SHIPPING N.V.; ERES N.V. BELGIUM,
in personam,

                                           Defendants - Appellants,

           and


M/T TABORA, her engines, boilers, etc. In rem,
et al.,

                                                          Defendant,

           and


THE MASTER OF THE M/T TABORA,

                                                          Garnishee.



Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District Judge.
(1:05-cv-00871-WDQ)


Argued:   January 31, 2007                  Decided:   July 13, 2007


Before MICHAEL, MOTZ, and KING, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.


ARGUED: JoAnne Zawitoski, SEMMES, BOWEN & SEMMES, Baltimore,
Maryland, for Appellants. James Dygert Skeen, SKEEN & KAUFFMAN,
L.L.P., Baltimore, Maryland, for Appellee. ON BRIEF: Alexander M.
Giles, SEMMES, BOWEN & SEMMES, Baltimore, Maryland, for Appellants.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

          The defendants Eres N.V. Belgium (Eres) and Northern Fox

Shipping N.V. (Northern Fox) appeal the voluntary dismissal of a

complaint filed by Fidelity Bank PLC (Fidelity) against them for

breach of contract and conversion.      Eres and Northern Fox also

appeal the forum non conveniens dismissal of the counterclaim that

they filed against Fidelity.     We affirm the Fed. R. Civ. P.

41(a)(2) dismissal of Fidelity’s complaint because we conclude that

dismissal did not cause Eres and Northern Fox to suffer plain legal

prejudice. While we also affirm the forum non conveniens dismissal

of two of the three counts in the counterclaim, we vacate the

district court’s dismissal of the count alleging the wrongful

arrest of the TABORA, a cargo vessel.   On the record before us, it

is not possible to determine whether Nigeria provides an adequate

alternative forum for adjudication of this claim.    Moreover, the

relevant public and private interest factors with respect to

whether the wrongful arrest counterclaim is subject to a forum non

conveniens dismissal require further consideration and weighing by

the district court.



                                I.

          In September 2002 Eres, a Belgian company, entered into

a contract to sell 25,000 metric tons of bitumen to Chief Pius

Akinyelure of Nigeria.   The bitumen was shipped to Nigeria on the


                                 3
TABORA, a vessel owned by Northern Fox, a Netherlands Antilles

company.      The sale was financed by Fidelity, a Nigerian bank that

held the bills of lading as security.

              On October 30, 2002, the TABORA began unloading the

bitumen by ship-to-ship transfer off the coast of Lagos, Nigeria.

This   work    was   stopped   after   only    3,740    tons    were     unloaded,

allegedly because the TABORA and its crew were attacked by armed

marauders.      On December 23, 2002, Eres and Northern Fox notified

Fidelity that it was unsafe to discharge the cargo to Lagos and

requested the designation of an alternate port.                Because Fidelity

did not name an alternate port, the TABORA sat in international

waters for 118 days.        As a result, Eres and Northern Fox contend

that   demurrage     and   cargo   heating    charges   of     $32,000    per   day

accrued, totaling $3,776,000.          Ultimately, Eres and Northern Fox

put a lien on the bitumen and sold it for $2,800,000 in partial

satisfaction of the unpaid charges.

              Fidelity disputes the assertion that the TABORA and its

crew were attacked by marauders.            Instead, Fidelity contends that

the ship was boarded by the Nigerian police after Chief Akinyelure,

the purchaser of the bitumen, made an allegation of fraud against

members of the TABORA’s crew.          According to Fidelity, there is no

reason why any police investigation should have prevented the

TABORA from completing delivery of the bitumen.                 In any case, on

December 17, 2002, after the TABORA’s full cargo had not been


                                        4
unloaded, Fidelity filed an in rem action in the Federal High Court

of Nigeria, seeking an order of arrest against the ship.            Although

an arrest order was issued, it was not served because the ship had

left Nigerian waters.      The Nigerian statement of claim (complaint)

also names Eres and Northern Fox as in personam defendants, but

they have never been successfully served.

              On March 17, 2005, more than two years after the aborted

delivery, Fidelity had the TABORA arrested in Curacao, Netherlands

Antilles.      Eres and Northern Fox had the arrest vacated the next

day after convincing a Netherlands Antilles court that Fidelity’s

claim was barred by the one-year statute of limitations, which was

fixed by a bill of lading provision that incorporates the Hague

Rules (rules adopted by the country from which the cargo was

shipped, the Netherlands Antilles in this case). Specifically, the

court concluded that Fidelity failed to show that it had lawfully

initiated proceedings in Nigeria on its claim for non-delivery of

cargo.   After the Netherlands Antilles court vacated the Curacao

arrest   of    the   TABORA,   Fidelity   attempted   to   revive   its   2002

Nigerian action.      On March 23, 2005, Fidelity filed an application

with the Federal High Court in Nigeria seeking reassignment of the

case to a new Justice and the issuance of an order authorizing

substituted service of process.

              In the meantime, Fidelity learned that the TABORA had

arrived in the Port of Baltimore.             Thus, on March 31, 2005,


                                      5
Fidelity filed a verified complaint in the District of Maryland

seeking a warrant for the arrest of the TABORA.              The complaint also

included claims for $8,871,076 in damages against Eres and Northern

Fox for breach of contract and conversion.               The warrant was issued

and served on the same day the complaint was filed, but five days

later, on April 5, 2005, the district court vacated the arrest.

The district court concluded, like the Netherlands Antilles court,

that the in rem claim was time-barred because Fidelity had not

offered sufficient proof that it had a pending claim against Eres

and Northern Fox in Nigeria or anywhere else.

           On April 8, 2005, three days after the Baltimore arrest

was vacated, the Federal High Court in Nigeria issued an ex parte

order   authorizing   Fidelity    to       serve    by    courier    outside   the

jurisdiction an amended statement of claim on Eres and Northern

Fox. Fidelity promptly filed a motion asking the district court in

Maryland to reconsider its order vacating the arrest of the TABORA.

Fidelity   argued   that   the   recent     order    of    the   Nigerian   court

conclusively established that the Baltimore arrest had been timely

and should therefore be reinstated.                The district court denied

Fidelity’s motion to reconsider on May 11, 2005.                    Fidelity then

filed an interlocutory appeal that this court dismissed on October

3, 2005.

           In the meantime, on the same day (April 8, 2005) that the

Nigerian court had revived Fidelity’s case in that country, Eres


                                       6
and Northern Fox answered Fidelity’s complaint in this action and

asserted a counterclaim.    In their three-count counterclaim, Eres

and Northern Fox sought a declaratory judgment that Fidelity’s

claims are time-barred, $200,000 in damages for wrongful arrest in

Baltimore, and $1.5 million in demurrage costs on the original 2002

contract of carriage.

          No discovery was conducted while this case was pending in

the district court.     A pretrial order was submitted that included

lists of lay witnesses, experts, and exhibits.     On September 23,

2005, Eres and Northern Fox filed a motion for summary judgment.

While that motion was pending, Fidelity moved on October 12, 2005,

to dismiss its complaint without prejudice pursuant to Fed. R. Civ.

P. 41(a)(2) and to dismiss the entire action under the doctrine of

forum non conveniens.    Fidelity made this motion in district court

immediately after this court dismissed its interlocutory appeal.

The district court on December 9, 2005, granted Fidelity’s Rule

41(a)(2) motion to dismiss its complaint.     In the same order the

court dismissed Eres and Northern Fox’s entire counterclaim on

forum non conveniens grounds.     The district court concluded that

the claims asserted in the counterclaim could be adjudicated in

Nigeria where “Fidelity’s breach of contract claim, involving the

same facts, is currently pending in a Nigerian court.”    J.A. 757.

          On December 20, 2005, shortly after the district court

dismissed this action, the Nigerian Federal High Court issued an


                                   7
order   discharging    its   earlier     order   that   would    have    allowed

Fidelity to serve Eres and Northern Fox by courier.              The Nigerian

court went on to state (1) that there was no in rem jurisdiction

over the TABORA in Nigeria, and (2) that the original writ of

summons was still valid in personam against Eres and Northern Fox,

but that a further order would be required for service to be

undertaken.     On December 23, 2005, Eres and Northern Fox filed a

motion asking the district court in Maryland to reconsider the

dismissal of their counterclaim.           They asserted that the Nigerian

court’s December 20, 2005, ruling made clear that Fidelity did not,

as a practical matter, have a case pending in Nigeria because there

was no in rem claim remaining, and Fidelity could not obtain

personal jurisdiction over them in Nigeria.              Thus, according to

Eres and Northern Fox, Nigeria does not provide an adequate forum

for the adjudication of their counterclaim against Fidelity.                  The

district    court   denied    Eres     and   Northern    Fox’s       motion   for

reconsideration.      The court reasoned that because the 2002 writ of

summons in Nigeria is still valid, Fidelity has a claim pending

there, and Nigeria continues to provide an alternate forum for the

resolution of the claims asserted in Eres and Northern Fox’s

counterclaim.

            The defendants Eres and Northern Fox appeal the district

court’s orders (1) granting Fidelity’s motion to dismiss its

complaint   under     Rule   41(a)(2),     (2)   dismissing     on    forum   non


                                       8
conveniens grounds their counterclaim against Fidelity, and (3)

denying their motion for reconsideration of the dismissal of their

counterclaim.



                                       II.

                                       A.

             We first consider Eres and Northern Fox’s argument that

the district court erred in granting Fidelity’s motion to dismiss

its complaint under Fed. R. Civ. P. 41(a)(2).

             The rule provides that:

     an action shall not be dismissed at the plaintiff’s
     instance save upon order of the court and upon such terms
     and conditions as the court deems proper.           If a
     counterclaim has been pleaded by a defendant prior to the
     service upon the defendant of the plaintiff’s motion to
     dismiss, the action shall not be dismissed against the
     defendant’s objection unless the counterclaim can remain
     pending for independent adjudication by the court.
     Unless otherwise specified in the order, a dismissal
     under this paragraph is without prejudice.

Fed. R. Civ. P. 41(a)(2).     The purpose of this rule “is freely to

allow a voluntary dismissal[],” Davis v. USX Corp., 

,

1273 (4th Cir. 1987), unless there is “plain legal prejudice to the

defendant,” Ellet Bros. v. United States Fid. & Guar. Co., 

, 388 (4th Cir. 2001).         Factors that may bear on whether the

defendant will suffer legal prejudice by a dismissal include, among

others, (1) the plaintiff’s diligence in moving for a voluntary

dismissal,    (2)   the   stage   of    the   litigation,   including   the


                                       9
defendant’s effort and expense in preparing for trial, and (3) the

adequacy of the plaintiff’s explanation for the need to dismiss.

See, e.g., Phillips USA, Inc. v. Allflex USA, Inc., 

,

358 (10th Cir. 1996); Zagano v. Fordham Univ., 

, 14 (2d

Cir. 1990).    We review a district court’s grant of Rule 41(a)(2)

dismissal for abuse of discretion. 

.

            The defendants Eres and Northern Fox argue that they were

prejudiced in several ways by the Rule 41(a)(2) dismissal of

Fidelity’s complaint.    They also argue that the text of the rule

prohibited the district court from granting a voluntary dismissal

of Fidelity’s complaint in conjunction with granting a dismissal of

their counterclaim on forum non conveniens grounds.             As we explain

below, these arguments are not persuasive.

            Eres and Northern Fox argue that they were prejudiced

because the dismissal deprived them of a ruling on their pending

motion for summary judgment, which had been fully briefed.              These

defendants sought judgment on the grounds that Fidelity’s claims

for non-delivery of cargo and for security for the Nigerian suit

were barred by the one-year statute of limitations contained in the

Hague Rules.    To begin with, Rule 41(a)(2), which requires court

approval,   only   applies   when   an   answer   or   motion    for   summary

judgment has been filed.     Thus, “the mere filing of . . . a motion

for summary judgment [is] not, without more, [] a basis for

refusing to dismiss without prejudice.”           Andes v. Versant Corp.,

                                    10


n.4 (4th Cir. 1986).           Eres and Northern Fox claim

prejudice here because their failure to get a ruling (one they

believe would have been favorable) on their summary judgment motion

places the TABORA at risk for yet another action by Fidelity

seeking the vessel’s arrest.         This argument fails because “the

prospect of a subsequent lawsuit does not constitute prejudice for

purposes of Rule 41(a)(2).”     Ellet 

.          Eres

and Northern Fox further claim that the dismissal stripped them of

a viable statute of limitations defense against Fidelity’s claims

for non-delivery of cargo and for security for the Nigerian suit.

These defendants rely on the one-year time bar under the Hague

Rules that were incorporated into the bills of lading.             However,

should Fidelity file another action, Eres and Northern Fox would be

free to reassert the limitations defense afforded by the Hague

Rules.

           Eres and Northern Fox also claim prejudice from the

dismissal with the argument that Fidelity delayed until the suit

had reached an advanced stage before making its Rule 41(a)(2)

motion, causing them to have spent considerable effort and expense

in preparing for trial.      Fidelity was not dilatory in making its

motion;   it   moved   immediately   after    this   court   dismissed    its

interlocutory appeal.     It is true that a pretrial order was filed

by the parties, but that came while Fidelity’s Rule 41(a)(2) motion

was   pending.     Moreover,    no    discovery      whatsoever   had    been


                                     11
undertaken.      In these circumstances, we will not second guess the

district court’s assessment that the “case [was] at an early stage”

when the Rule 41(a)(2) dismissal order was entered.             J.A. 756.

              Finally, Eres and Northern Fox assert that the district

court acted contrary to the plain language of Rule 41(a)(2) by not

allowing their “counterclaim [to] remain pending for independent

adjudication by the court.” Fed. R. Civ. P. 41(a)(2).                     This

argument is without merit.           The defendants’ counterclaim did

actually remain pending for independent adjudication after the

district court decided to dismiss Fidelity’s complaint.            The court

simply    proceeded    immediately    to   consider,   and      then   grant,

Fidelity’s motion to dismiss the defendants’ counterclaim on forum

non conveniens grounds.      The court did not err in dismissing both

the complaint and the counterclaim in the same order.

              In sum, Eres and Northern Fox have not shown plain legal

prejudice as a result of, and the district court did not abuse its

discretion in entering, the order dismissing Fidelity’s complaint

under Rule 41(a)(2).




                                    III.

              Eres and Northern Fox assert that the district court

erred    in   dismissing   their   counterclaim   under   the    common     law

doctrine of forum non conveniens.            (Because the counterclaim


                                     12
contained three counts, we will, for ease of discussion, refer to

the counts as counterclaims.)        The district court determined that

the   counterclaims    could    be   adjudicated    adequately      and    more

conveniently in the courts of Nigeria. “The common-law doctrine of

forum non conveniens has continuing application in federal courts

only in cases where the alternative forum is abroad, and perhaps in

rare instances where a state or territorial court serves litigation

convenience best.”      Sinochem Int’l Co. v. Malay. Int’l Shipping

Corp., 

, 1190 (2007) (internal quotation marks,

alterations, and citation omitted). In assessing whether dismissal

is appropriate on forum non conveniens grounds, a court must first

“determine   whether    there   exists    an   alternative    forum.”     Piper

Aircraft Co. v. Reyno, 

, 254 n.22 (1981).                       The

existence    of   an   alternative    forum    depends   on   two    factors:

availability and adequacy.      See In re Air Crash Disaster near New

Orleans, 

, 1165 (5th Cir. 1987).            “Ordinarily, [the

availability] requirement will be satisfied when the defendant is

‘amenable to process’ in the [foreign] jurisdiction.”                     Piper

n.22 (quoting Gulf Oil v. Gilbert, 

, 506-07 (1947)).       A foreign forum is adequate when “(1)

all parties can come within that forum’s jurisdiction, and (2) the

parties will not ‘be deprived of all remedies or treated unfairly,

even though they may not enjoy the same benefits as they might

receive in an American court.’”       Mercier v. Sheraton Int’l, Inc.,


                                     13


, 424 (1st Cir. 1991) (quoting In re Air Crash

)).    The burden is on the moving party to

show that an alternative forum exists.       Kontoulas v. A.H. Robins

Co., Inc., 

, 316 (4th Cir. 1984).

          If an alternate forum exists, the court must then weigh

the familiar private and public interest factors that the Supreme

Court laid out in Gulf Oil.*      At this step of the analysis, the

movant continues to bear the burden to “provide enough information

to enable the District Court to balance the parties’ interests.”

  review   a   district   court’s   forum   non   conveniens

decision for abuse of discretion.         

abuse of

discretion may occur when the district court fails to consider one

or more of the important private or public interest factors, does



     *
      The private interest factors focus on the litigants and
include the consideration of 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 premises, if view would be
appropriate to the action; and all other practical problems that
make trial of a case easy, expeditious and inexpensive.” Piper

n.6 (quoting Gulf 

).
The   public   interest   factors   include   “the   administrative
difficulties flowing from court congestion; the ‘local interest in
having localized controversies decided at home’; the interest in
having the trial of a diversity case in a forum that is at home
with the law that must govern the action; the avoidance of
unnecessary problems in conflict of laws, or in the application of
foreign law; and the unfairness of burdening citizens in an
unrelated forum with jury duty.” 

330 U.S.
at 509).

                                  14
not hold the [movant] to [its] burden of persuasion on all elements

of the forum non conveniens analysis, or has clearly erred in

weighing the factors the court must consider.”             Reid-Walen v.

Hansen, 

, 1394 (8th Cir. 1991).

                                    A.

            The district court gave two reasons why Nigeria provides

an   adequate    forum   to    adjudicate    Eres   and   Northern    Fox’s

counterclaims that seek (1) a declaration that Fidelity’s claims

are time-barred, (2) damages for the wrongful arrest of the TABORA

in Baltimore, and (3) demurrage under the original 2002 contract of

carriage.       First,   the   district     court   stressed   that   these

counterclaims “involv[e] the same facts” as the breach of contract

claim that Fidelity has “currently pending” in Nigeria.          J.A. 757.

Second, the court said, “Although Defendants [Eres and Northern

Fox] have asserted that their witnesses face criminal confinement

and prosecution in that forum, they have provided no evidence

supporting this assertion.”       J.A. 757.     The district court then

concluded that the relevant private and public interest factors

favor dismissal.     According to the court, the following private

interests of the parties favored dismissal:          (1) the parties are

all foreign corporations; (2) all relevant events took place within

the jurisdiction of Nigeria; (3) the court cannot compel the

attendance of foreign witnesses; (4) it would be expensive to

litigate the counterclaims in the District of Maryland; and (5) the

                                    15
ability of the court to enforce a judgment is limited.        The public

interest factors cited by the court as favoring dismissal were:

(1) the absence of any connection between the district of Maryland,

the parties, and facts of the case and (2) the added burden to the

court in interpreting and applying foreign law.

            Eres and Northern Fox contend that the district court

abused its discretion by failing to hold Fidelity to its burden to

establish the adequacy of the alternative forum.           Specifically,

they assert that Fidelity’s submissions to the district court

addressed   only   the   adequacy   of   the   Nigerian   forum   for   the

adjudication of Fidelity’s claims; Fidelity’s submissions did not

deal sufficiently with the adequacy of Nigeria as an alternative

forum for the counterclaims of Eres and Northern Fox.             Eres and

Northern Fox thus contend that Fidelity has not shown that Nigeria

is an adequate place to litigate their counterclaims, especially

their Baltimore-based wrongful arrest claim. Eres and Northern Fox

argue further that the district court focused too much on the fact

that Fidelity has a claim pending in Nigeria and failed to give

sufficient attention to the central question of whether Nigeria is

an adequate forum for the counterclaims. They also assert that the

district court erred in weighing the public and private interest

factors by failing to acknowledge and address the specific facts

underlying the counterclaim for wrongful arrest in Baltimore.




                                    16
            Fidelity      concedes      that     in    granting       the     forum    non

conveniens    dismissal     the       district    court        did   not    address    the

counterclaims      with    any    specificity.            However,         according    to

Fidelity, “a finding that [Fidelity’s claim] can be adequately

adjudicated in Nigeria includes the finding that the Counterclaim

can be adjudicated there as well.”                Appellee’s Br. at 26.               Along

these lines, Fidelity asserts that two of the three counterclaims

are   not   independent     claims      at   all:      the      demurrage      claim    is

essentially a set-off to Fidelity’s own breach of contract and

conversions claims, and the claim for declaratory relief merely

raises the threshold question of whether Fidelity’s own claims are

time-barred.       In addition, Fidelity maintains that the “wrongful

arrest claim is a very small portion of the Counterclaim” and that

its   resolution     hinges      on    whether      the    2002      Nigerian     action

eliminates the defendants’ statute of limitations defense.                        

we explain below, we agree with the district court’s

dismissal     of    the   counterclaims          for   declaratory          relief     and

demurrage. The wrongful arrest counterclaim is a different matter,

however. In dismissing that counterclaim, the district court erred

at both steps of the forum non conveniens analysis.

                                          B.

            In attempting to establish the adequacy of Nigeria as an

alternative    forum,     Fidelity       submitted        an    affidavit      from    its

                                          17
Nigerian counsel, Louis Mbanefo.           The Mbanefo affidavit discusses

the action Fidelity filed in 2002 in Nigeria and asserts that

Fidelity’s claims for breach of contract and conversion are best

adjudicated as part of that case.          Mbanefo explains that the acts

giving rise to these claims occurred in Nigerian waters.                   His

affidavit, however, makes only a single, passing mention of one of

the     three   counterclaims      filed   by   Eres     and   Northern   Fox.

Specifically, he asserts that “the Federal High Court [of Nigeria]

is in the best position to determine . . . [w]hether a vessel which

never berthed in Lagos Port can give Notice of Readiness and claim

demurrage.”     J.A. 679.   Notwithstanding this cursory treatment, we

agree    with   Fidelity    that    the    defendants’    counterclaims    for

demurrage and declaratory relief are tightly intertwined with

Fidelity’s claims for breach of contract and conversion.                  As a

result, the Mbanefo affidavit provided the district court with a

sufficient basis to conclude that Nigeria provides an adequate

forum for the adjudication of those two counterclaims.

            Eres and Northern Fox’s counterclaim for the wrongful

arrest of the TABORA in the Port of Baltimore is a different

matter, however.     The Mbanefo affidavit does not discuss whether

Nigerian law recognizes a claim for wrongful arrest.                Moreover,

even if such a claim is cognizable, the affidavit does not explain

whether the Nigerian courts would take jurisdiction over a disputed

arrest that occurred in the United States.                 We recognize, of

                                      18
course, that Eres and Northern Fox did not submit any evidence to

the district court suggesting that the Nigerian courts would not

hear their wrongful arrest claim.       But it was Fidelity’s burden to

establish that an adequate alternative forum exists.      See 

.   Because “the affidavit through which [Fidelity]

attempted to meet its burden contains substantial gaps, we believe

the district court acted prematurely in finding that [Nigeria] is

an adequate alternative forum” for resolution of the counterclaim

for wrongful arrest.   

dispute Fidelity’s assertion

that the question of whether the arrest was wrongful may ultimately

turn on questions of foreign law. Instead, we simply conclude that

the record before the district court was so fragmentary as to make

it “impossible to make a sound determination of whether” Nigeria

provides an adequate alternative forum to resolve the wrongful

arrest counterclaim.    El-Fadl v. Central Bank of Jordan, 

, 677 (D.C. Cir. 1996) (internal quotation omitted).

                                   C.

           While we find no abuse of discretion in the district

court’s consideration of the public and private interest factors in

regard to the counterclaims for demurrage and declaratory relief,

we   do find error in its treatment of these factors with respect to

the wrongful arrest counterclaim.       The district court stated that

the “district [of Maryland] has no connection to the parties or the

facts of the case.”    J.A. 758.    Thus, the district court did not

                                   19
appear to consider that the wrongful arrest counterclaim arose in

Baltimore, where the arrest of the TABORA took place.         We offer no

opinion as to the ultimate importance of the place of arrest, but

here it does suggest the possibility of a local interest in the

dispute.   See Gulf 

.        Accordingly, because the

district court’s analysis of the public and private interest

factors failed to consider the possibility of a local interest in

the adjudication of this claim, those factors should be re-weighed

on remand.    See 

; Irish Nat’l Ins. Co.

v. Aer Lingus Teoranta, 

, 92 (2d Cir. 1984).

                                    D.

             We conclude that Fidelity did not meet its burden of

showing that Nigeria provides an adequate alternative forum for the

adjudication of Eres and Northern Fox’s counterclaim for wrongful

arrest.    Moreover, the district court did not appear to consider

fully the local interest factor in weighing the public and private

interest     factors   as   they   relate   to     the   wrongful   arrest

counterclaim.    We will therefore vacate the district court’s forum

non conveniens order to the extent it dismisses the wrongful arrest

counterclaim and remand that issue for further consideration.          See

(vacating forum non conveniens dismissal

and remanding for further consideration).




                                    20
                                     IV.

           Finally, we turn to the district court’s denial of Eres

and Northern Fox’s motion for reconsideration pursuant to Rules

59(e) and 60(b).     Our review is for abuse of discretion.           Boryan v.

United States, 

(4th Cir. 1989).                   We reject the

defendants’ contention that the December 20, 2005, ruling of the

Nigerian court renders the district court’s forum non conveniens

dismissal of their declaratory relief and demurrage counterclaims

improper. While the December 20, 2005, order of the Nigerian court

did set aside the earlier order relating to service of process, it

also stated that the original writ of summons remains valid.               As a

result,   the    district    court   did   not   abuse   its   discretion   in

concluding that the declaratory relief and demurrage counterclaims

could be litigated in connection with Fidelity’s Nigerian action.

The forum non conveniens analysis with respect to Eres and Northern

Fox’s counterclaims is not changed by the fact that these two

parties have not been successfully served in the Nigerian suit.

The Nigerian forum is available to Eres and Northern Fox because

they “can come within that forum’s jurisdiction” by answering

Fidelity’s      Nigerian    complaint.      

.

Moreover, there is no question that the defendant for purposes of

the counterclaims, Fidelity, is amenable to process in Nigeria.

See Piper 

n.22 (explaining that a foreign

forum is available “when the defendant is ‘amenable to process’ in


                                      21
the other jurisdiction”) (quoting Gulf 

)

(emphasis added).         Accordingly, we affirm the district court’s

denial of the motion for reconsideration with respect to the

demurrage and declaratory relief counterclaims.               Our conclusion in

part   II   moots   the   reconsideration     issue    with    respect    to   the

wrongful arrest counterclaim.




                                      V.

            In sum, while we conclude that Fidelity’s own complaint

and two of the three counterclaims filed against Fidelity were

properly dismissed, we also conclude that the district court abused

its    discretion   in    granting   dismissal    of    the    wrongful   arrest

counterclaim based on forum non conveniens.                  The orders of the

district court are therefore affirmed, except that the portion of

the    order   granting     the   dismissal      of    the    wrongful    arrest

counterclaim is vacated, and the forum non conveniens issue with

respect to that counterclaim is remanded for further consideration.

                                                              AFFIRMED IN PART,
                                                               VACATED IN PART,
                                                                  AND REMANDED




                                      22