HALL, District Judge.
Plaintiffs appeal the district court's decision granting Defendants' motion to dismiss. The question on appeal is whether the district court abused its discretion by dismissing this case on forum non conveniens grounds. Having reviewed the record and the parties' briefs, we affirm.
Plaintiff Peter J. Nygård is a Canadian citizen residing in the Bahamas who owns Plaintiffs Nygård, Inc., a Delaware corporation with its primary headquarters in New York, New York, and Nygård International Partnership, a Canadian business. Plaintiffs design women's clothing which they sell throughout the United States.
The facts of this case largely surround a series of lawsuits that were initiated by and against Mr. Nygård. The first action was filed on March 9, 2016, in the Supreme Court of the Commonwealth of the Bahamas (the "Harassment Action"). The Harassment Action plaintiffs are Bahamian environmentalists, including Louis Bacon, Frederick Smith, and C.B. Moss, who claim that they were attacked by Mr. Nygård and his agents after the plaintiffs protested Mr. Nygård's development of his Bahamian residence, Nygård Cay. Those attacks allegedly came in the form of acts of violence, such as: (1) attacking Mr. Smith in April 2013; (2) fire-bombing Mr. Moss's car in July 2013; and (3) plotting to murder Messrs. Smith and Bacon in February 2014.
In response to the Harassment Action, Mr. Nygård filed a separate lawsuit in the Bahamas on March 29, 2016 (the "Conspiracy Action"), alleging that the Harassment Action plaintiffs, among others, conspired to collect and file perjured testimony in the form of an affidavit that was prepared by Defendant John J. DiPaolo, a private investigator in Florida, and his investigative firm, Defendant the D&R Agency, LLC ("D&R") (the "DiPaolo Affidavit").
On January 16, 2015, Mr. Bacon, who is a plaintiff in the Harassment Action and a defendant in the Conspiracy Action, filed a lawsuit against Mr. Nygård for defamation in the Supreme Court of New York County, New York (the "New York Action"). Mr. Bacon asserted that he was the victim of a smear campaign in the Bahamas that was allegedly orchestrated by Mr. Nygård. On August 10, 2016, the New York Supreme Court dismissed the New York Action on forum non conveniens grounds, finding that the Bahamas was a more suitable forum. That order was subsequently reversed, however.
In the present action, Plaintiffs allege that Mr. Bacon, who is not named as a defendant, hired Mr. DiPaolo and D&R, to find witnesses to provide perjured testimony that could be used in the Harassment and New York Actions. Defendants in turn hired Livingston Bullard and Wisler Davilma, two Bahamian criminals, to make sensational statements that Mr. Nygård had engaged in criminal activities throughout the Bahamas. For example, Messrs. Bullard and Davilma testified that Mr. Nygård "prepared a hit list to murder persons . . . [and] paid Messrs. Bullard and Davilma to burn down a shop and automobile." These statements were used as a foundation for the DiPaolo Affidavit which was then filed in the New York and Harassment Actions. Messrs. Bullard and Davilma subsequently recanted their statements and told Plaintiffs' attorneys that they were hired by Mr. DiPaolo to make false statements against Mr. Nygård.
In addition to the false statements, Plaintiffs allege that Mr. Bacon hired Tazhmoye Lacy-Ann Cummings, Samantha Storr, and Philincia Cleare to extort funds from Plaintiffs. The three allegedly threatened to participate in Mr. Bacon and Defendants' criminal enterprise if they were not each paid between $500,000 and $800,000.
Plaintiffs claim that they have suffered serious financial harm due to Defendants' criminal enterprise. In addition to the litigation costs incurred through the Harassment and New York Actions, Plaintiffs claim that Defendants have damaged Plaintiffs' reputation throughout the United States. The damage to Plaintiffs' reputation led to the loss of a longtime lending partner who severed ties with Plaintiffs, citing the negative media coverage surrounding the allegations against Mr. Nygård in the Harassment Action.
Plaintiffs initiated this action on January 5, 2017, in the United States District Court for the Southern District of Florida, alleging that Defendants have engaged in a criminal enterprise, in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO") 18 U.S.C. § 1962, et seq., with the purpose of spreading false information about Plaintiffs. Defendants subsequently moved to dismiss Plaintiffs' complaint for forum non conveniens, or, in the alternative, for the district court to abstain from hearing this matter while the Harassment and Conspiracy Actions proceed. The district court found that because Defendants agreed to submit themselves to the jurisdiction of the Bahamas, the Bahamas was an adequate alternative forum. The district court then balanced the private and public interest factors and concluded that those factors weighed in favor of dismissal. The district court finally concluded that Plaintiffs would be able to reinstate their complaint in the Bahamas without undue prejudice or inconvenience. Accordingly, on May 22, 2017, the district court granted Defendants' motion to dismiss on forum non conveniens grounds. Plaintiffs appeal the district court's order.
"The forum non conveniens determination is committed to the sound discretion of the trial court. It may be reversed only when there has been a clear abuse of discretion; where the court has considered all relevant public and private interest factors, and where its balancing of these factors is reasonable, its decision deserves substantial deference."
In this appeal, Plaintiffs argue that the district court erred by refusing to allow them to engage in additional discovery, failing to afford substantial deference to their choice of forum, and adopting an overly narrow interpretation of their complaint. Plaintiffs contend that these errors skewed the district court's balance of the private and public interest factors in its forum non conveniens analysis.
Plaintiffs complain that they were not given sufficient opportunity to engage in discovery to develop their claims. Specifically, Plaintiffs insist that additional discovery was needed to reveal information about potential witnesses in the United States, including the location of Defendants' alleged California confederates, who Plaintiffs now claim include private investigators that were tasked with carrying out Defendants' criminal enterprise.
When a motion to dismiss is not confined to the face of the pleadings, the parties are sometimes allowed to engage in limited discovery.
In the instant case, Plaintiffs contend that they served discovery regarding "critical facts" related to forum non conveniens on March 28, 2017, about ten days before Defendants filed their motion to dismiss and two months before the district court entered its order. If Plaintiffs believed Defendants had evidence that was critical to deciding the forum non conveniens issue, it was incumbent upon them to notify the district court about the evidence they sought and its potential impact on deciding Defendants' motion. Yet, beyond a vague reference that there might be witnesses located in California, which was buried in a footnote in Plaintiffs' response in opposition to Defendants' motion to dismiss, Plaintiffs failed to take such action. "The district court, therefore, did not so much deny discovery as it dismissed the case before discovery was taken. We cannot say that the district court erred,"
Moving on to the district court's analysis of the forum non conveniens issue, Plaintiffs contend that the district court failed to afford substantial deference to their choice of forum when it balanced the private interest factors. When a plaintiff sues in his home forum, "it is reasonable to assume that this choice is convenient."
The district court decided that because Plaintiffs, one of which is a United States corporation, were foreign to Florida, their choice of forum was entitled to less deference. Yet, to determine whether a party is suing in his home forum, federal courts focus on the plaintiff's country of origin, not the state in which he resides.
Nevertheless, the district court subsequently explained that "even if Plaintiffs were entitled to substantial deference, the Court would still dismiss this case on forum non conveniens grounds for reasons set forth herein." Plaintiffs contend that the district court merely referenced the correct standard and did not apply substantial deference to Plaintiffs' choice of forum in its analysis. We cannot say that such an error warrants reversal under the facts of this case. In cases where we have reversed the district court for failing to give substantial deference to the plaintiff's choice of forum, the district court failed to even apply a weak presumption in its analysis.
In this case, unlike
The district court proceeded to balance the private interest factors and found those factors weighed in favor of dismissal. Private interest factors "pertain to the interests of the participants in the litigation."
The record supports the district court's decision that access to sources of proof "weighs strongly in favor of dismissal." Plaintiffs complain that the district court adopted an overly narrow construction of their complaint and consequently gave little weight to witnesses who reside in the United States. Plaintiffs insist that according to their theory of the case, the Bahamas is only one part of a larger criminal enterprise that was primarily located in New York and Florida. Yet, the district court reasonably found that much of Defendants' alleged misconduct took place in or was at least directed toward the Bahamas. The Bahamas is where Defendants met and hired Messrs. Wisler and Davilma, who are both Bahamian residents, who provided the statements for the DiPaolo Affidavit. Additionally, the Bahamas is home to other potentially relevant witnesses, including Neil Hartnell, who made an allegedly false statement that was used in the DiPaolo Affidavit, and Messrs. Smith and Moss, who are both plaintiffs in the Harassment Action.
Furthermore, although the district court may have mischaracterized the scope of Plaintiffs' complaint, it did consider the importance of witnesses in the United States, including Defendants, Defendants' employees, Mr. Bacon, Mr. Bacon's lawyers, Jack Palladino, and Sarah Ness.
With the exception of Defendants, who are willing to appear in the Bahamas, the Southern District of Florida lacks the authority to compel the presence of most of the witnesses in this case. Mr. Bacon and his lawyers both reside outside of Florida and the 100 mile bulge prescribed by Federal Rule of Civil Procedure 45(c) as do all of the Bahamian witnesses. Therefore, none of these witnesses are subject to the district court's compulsory process. Plaintiffs protest that any valuable information these witnesses have can be obtained through depositions or interrogatories. As an initial matter, we note the strong preference for live testimony where, as here, fraud and subjective intent are elements of the claim.
The district court also found that the parties would save considerable sums by obtaining testimony from Bahamian witnesses in the Bahamas rather than requiring those witnesses to fly to the United States. Plaintiffs contend that the district court erred by considering this factor because Defendants did not submit evidence regarding travel costs. We find no error in the district court's common sense finding that forcing Bahamian witnesses to travel to the United States would impose a cost that could otherwise be avoided if this dispute is litigated in the Bahamas.
Plaintiffs also claim that the district court was required to consider the cost of requiring witnesses in the United States to travel to the Bahamas as opposed to Florida. The district court did, however, acknowledge that Plaintiffs did not identify any witnesses, besides Defendants, who reside in Florida. Requiring the witnesses in the United States, who are mostly residents of New York, to attend trial in the Bahamas would not impose a substantially greater burden than requiring them to travel to Florida.
The district court briefly considered the value of viewing the premises. It found that the possibility of viewing the premises where Defendants' alleged criminal enterprise engaged in misconduct could be valuable but it did not accord this factor much weight. Plaintiffs maintain that according any weight to this factor was an error because this "is not a tort case where the layout of a particular area may be relevant." Given that the misconduct in this case involved allegations of violence and at least two incidents of property damage, we cannot find that there is zero chance that a view of the premises will be helpful in trying this case. The misconduct that occurred in the United States, by comparison, mostly involved phone calls, bank transfers, court filings, and witness statements, which can most easily be proven by documentary evidence and testimony and would therefore not be helped by a view of the premises. We discern no abuse of discretion in affording some weight to this factor in favor of dismissal.
In addition to the non-exhaustive list of private interest factors identified by the Supreme Court, courts are "free to consider any number of other practical problems that make trial of a case in a particular forum an undue burden upon either party."
Regarding judicial economy, the district court found that the existence of parallel proceedings in the Bahamas weighs in favor of dismissal. As previously mentioned, in the Conspiracy Action, Mr. Nygård alleges that Mr. Bacon, with help from Defendants, conspired to file perjured information in the Harassment Action. Though we accept that Plaintiffs' allegations in this case are not limited to filings in the Harassment Action, Defendants' role in the Conspiracy Action is strikingly similar to its role in the present case. Plaintiffs insist that the existence of parallel litigation is not a relevant factor in a forum non conveniens analysis. Yet we have previously found that concurrent litigation can be a practical problem that is properly considered when balancing the private interest factors.
The district court also found that allowing this case to proceed in the United States would create the possibility of inconsistent results, as the Bahamian court would eventually address the veracity of the DiPaolo Affidavit in the Conspiracy Action. Again, Plaintiffs complain that their case is not limited to the DiPaolo Affidavit and does not require proving that Defendants facilitated perjury. However, one of the two predicate offenses in Plaintiffs' RICO claim is 18 U.S.C. § 1956, a money laundering statute wherein Plaintiffs must demonstrate that Defendants violated Bahamian law. According to Plaintiffs' complaint, one of the laws that Defendants allegedly violated is Bahamian Penal Code Chpt. 84, Title xxvii, §§ 423, 424, which is a perjury statute. Although an inconsistent ruling is not a foregone conclusion, there is a risk that a United States and Bahamian court will reach opposite results on whether statements made in the DiPaolo Affidavit were actually false. Given the inconvenience to Plaintiffs of having to abide by inconsistent rulings, this factor may not be critical but it was not unreasonable to afford it some weight.
Finally, the district court decided that the cost of domesticating a judgment also weighed in favor of dismissal because the Florida Enforcement of Foreign Judgments Act, Florida Statute ("FEFJA") §§ 55.601-607, provides a convenient mechanism for enforcing foreign judgments against Florida residents. According to the FEFJA, once a plaintiff records a foreign judgment "in the office of the clerk of the circuit court of any county [in Florida]," it has the same effect as a judgment issued by a Florida court.
As explained above, the district court considered all of the relevant private interest factors and found that they weighed in favor of dismissal. We do not find that the district court's ultimate conclusion is unreasonable. This is not to say that conclusion was the only reasonable one, or that another court could not have found the United States was the appropriate forum. Instead, we only find that, with the exception of the inconvenience of having to domesticate a foreign judgment, the district court could reasonably find that the private interest factors in this case weigh in favor of dismissal, even after assigning substantial deference to Plaintiffs' choice of forum.
The district court proceeded to balance the public interest factors and found that most of these factors also weighed in favor of dismissal. Public interest factors "pertain to the relative interests of the two fora."
The public interest factors identified by the Supreme Court include:
Regarding court congestion, the district court found that the docket congestion of the Southern District of Florida favored dismissal. The district court did not, however, consider the docket congestion of the Supreme Court of the Commonwealth of the Bahamas. Docket congestion considers the relative speed at which a case will be resolved and therefore necessarily requires a comparison.
Moving on to the second factor, the district court also concluded that the Bahamian interest in this case was greater than the United States without considering the "strong federal interest in making sure that plaintiffs who are United States citizens generally get to choose an American forum for bringing suit."
Despite the district court's erroneous findings with respect to the first and second public interest factors, we nevertheless find that the district court's conclusion that the public interest factors weigh in favor of dismissal was not an abuse of discretion. Although the district court did not consider judicial economy in its analysis of the public interest factors, the possibility of avoiding duplicative litigation is a cognizable interest, distinct from the convenience to the parties, which weighs in favor of dismissal.
For the reasons set forth above, we must affirm the district court's decision to dismiss this case for forum non conveniens. Though the district court made mistakes in its analysis of the private and public interest factors, the cumulative effect of those errors does not rise to the level of an abuse of discretion. Accordingly, the district court's order is
MARTIN, Circuit Judge, dissenting:
I respectfully dissent from the Majority's decision to affirm the District Court's dismissal of the plaintiffs' case on grounds of forum non conveniens. This federal law suit was brought by three plaintiffs, one a U.S. citizen, against two defendants, both of whom appear to be U.S. citizens as well.
The district court failed to give the required strong presumption in favor of plaintiffs' choice of forum.
In this Circuit, the relevant domestic forum for this balancing analysis is "the United States as a whole."
The Majority says reversal is not warranted because the District Court gave "some deference" to the plaintiffs' choice of forum, insofar as that court said more deference would not have changed its decision. Maj. Op. at 12. However, plaintiffs' choice of forum was entitled to more than "some" deference. Courts owe "some" deference to the choice of forum of any plaintiff in a forum non conveniens analysis, regardless of its citizenship.
In giving the proper level of deference and strength of presumption, a court seeking to oust a U.S. citizen from the federal courts faces a high bar.
As I read it, the Majority's own analysis shows why remand is necessary. The Majority opinion revisits nearly every decision the District Court made. It notes errors in the District Court's assessments along the way, then bases its decision on a public interest factor never considered by the District Court. Maj. Op. at 9-24. "[T]he proper role of the court of appeals is not to reweigh the equities or reassess the facts but to make sure that the conclusions derived from those weighings and assessments are [] sound and supported by the record."
I respectfully dissent.