SARGUS, District Judge.
From December 10, 2007, through December 14, 2007, Moto Diesel Mexicana, S.A. de C.V. ("MDM") issued eight checks totaling $2 million to Casa de Cambio Majapara S.A. de C.V. ("Majapara"). The
Zions brought suit against MDM alleging (1) holder in due course status; (2) conversion; and (3) quantum valebant. In response to the Complaint, MDM filed three motions to dismiss, under F.R. Civ. P. 12(b)(2), (5) and (6). Several months later, before disposition of the pending motions, MDM filed a motion to dismiss on the grounds of forum non conveniens. On April 1, 2009, the district court granted the motion to dismiss on the grounds of forum non conveniens and denied as moot the other pending motions.
Zions thereafter filed a motion for reconsideration, which the district court denied. A timely appeal followed. On appeal, Zions argues that the district court erred in dismissing its claims on forum non conveniens grounds. For the reasons that follow, we VACATE the decision of the district court and REMAND for further proceedings consistent with this Opinion.
We review for clear abuse of discretion a district court's determination that the doctrine of forum non conveniens requires dismissal of a case. Duha v. Agrium, Inc., 448 F.3d 867, 873 (6th Cir.2006).
In determining whether a case should be dismissed on the grounds of forum non conveniens, a district court must apply a strong presumption in favor
In this action, the district court applied the doctrine of forum non conveniens to dismiss all three counts of Zions' complaint based upon a conclusion that the case was not a "local controversy." Zions First Nat'l Bank v. Moto Diesel Mexicana, S.A., No. 08-10528, 2009 WL 910764, at *3 (E.D.Mich. Apr.1, 2009) (internal quotation marks omitted). The district court noted that none of the parties involved in the dispute is located in Michigan, the forum, and that "[t]he only connection to Michigan is that MDM bounced checks drawn on an account here." Id.
In determining that the case should be dismissed on the grounds of forum non conveniens, the district court focused upon two considerations: first, whether an adequate alternative forum exists for adjudicating the dispute; and second, whether public and private interests can be best satisfied by a transfer of the case to an alternative forum. As to the first factor, the district court determined that the courts of Mexico provided an adequate forum. As to the second factor, the district court considered the location of witnesses and evidence. The court found that all of the witnesses for MDM and Majapara resided in Mexico, while Zions' witnesses were in Utah. The court also noted that, although the bank records were located in Michigan, they could be easily transferred to Mexico. The district court, however, did not discuss whether the choice of forum was oppressive or vexatious, nor did the district court conduct a separate analysis of the relevant public and private factors for each distinct set of claims asserted by Zions. We conclude that these omissions require remand.
Our review of this action is guided by Duha, 448 F.3d 867. In Duha, this Court reversed the decision of a district court which had dismissed all claims on the basis of forum non conveniens. The district court, in a manner similar to this case, analyzed two issues regarding an alternative forum. First, the district court found that Argentina, the foreign forum in that case, provided a reasonable and available alternative forum. Id. at 872. Second, the court determined that, while witnesses were scattered among various countries, Argentina provided the most convenient forum. Id.
On appeal, this Court recognized that the decision of the district court was entitled to deference under a clear abuse of discretion review. Id. at 873. Nonetheless, this Court found that the district court erred for three reasons:
Id. All of these reasons are implicated in the case before us. We address each one in turn.
The district court failed to accord the appropriate degree of deference to Zions' selection of Michigan as the forum for prosecuting this action. Indeed, the district court's ruling does not mention, and does not appear to have considered, the deference that a plaintiff's choice of forum is normally accorded, or the fact that it was Zions, a U.S. plaintiff, that made the forum selection. In this appeal, MDM contends that the deference normally given to a plaintiff's choice of a forum does not apply when the forum is not the "home" of the plaintiff. See Piper Aircraft, 454 U.S. at 255-56, 102 S.Ct. 252 (noting that a foreign plaintiff's choice of forum does not carry the same assumption that its choice of forum is convenient as does the choice of a plaintiff bringing suit in its home forum). Zions, a Utah corporation, brought this case in Michigan, where it is not a resident. Unlike the Scottish plaintiff in Piper Aircraft, however, Zions is not a foreign plaintiff. It is a corporation with its principal place of business in Salt Lake City, Utah, and therefore a U.S. plaintiff. Thus, the lesser standard of deference to a plaintiff's choice of forum does not apply.
Moreover, Zions has brought this action in the district in which the claims allegedly arose. If the claim by MDM is that Utah is a more convenient forum, then such matter is addressed under 28 U.S.C. § 1404(a). If the claim is that the case is better suited for disposition in Mexico, then the doctrine of forum non conveniens provides the analysis, which includes the strong presumption in favor of the plaintiff's forum selection.
Although we note that a district court need not make an explicit finding that proceeding with the suit in the United States would be oppressive or vexatious to a defendant, Kryvicky v. Scandinavian Airlines Sys., 807 F.2d 514, 517 (6th Cir. 1986), the forum non conveniens determination must indicate that the district court considered whether any oppression and vexation to a defendant was "out of all proportion to plaintiff's convenience." Koster, 330 U.S. at 524, 67 S.Ct. 828. Here, the district court's opinion does not indicate that it undertook the requisite analysis. Accordingly, the district court erred in failing to accord Zions the strong presumption in favor of its selection of the Eastern District of Michigan as the forum for this case.
The district court's failure to recognize the strong presumption in favor of Zions' choice of Michigan as the forum for this action is evident in its analysis of the relevant Gulf Oil factors. In that respect, the district court erred in according inordinate weight to the cost of travel and obtaining witnesses.
The district court's discussion of the private Gulf Oil factors consisted of the following:
Zions, 2009 WL 910764, at *3.
The cost of travel and of obtaining testimony of witnesses is an appropriate consideration in initially determining whether the forum selected by the plaintiff oppresses the defendant. Here, the district court simply noted the potentially greater logistical difficulty and expense entailed by requiring the parties to travel to Michigan instead of Mexico. Id. Such a conclusion does not establish an oppressive or vexatious burden on the defendant, which used a bank in Michigan to conduct the business at issue in this case. The fact that MDM's witnesses are in Mexico is a consideration, but less so given that the gist of this lawsuit is business activity of MDM in Detroit, Michigan.
With respect to this factor, MDM contends on appeal that Majapara witnesses would resist the giving of testimony in the United States, because the company is allegedly under criminal investigation in Mexico. No such finding was made by the district court, however, and the affidavit cited by MDM indicates only that one officer of the company has been arrested in connection with a criminal investigation, but does not specify whether that officer is actually a witness in this case. (See R. 13 Ex. A. ¶ 5.) As held in Duha, availability of compulsory process, though a consideration, "is less weighty when it has not been alleged or shown that any witness would be unwilling to testify." Duha, 448 F.3d at 877.
Finally, in balancing the convenience of the alternative forums, the district court disregarded a substantial portion of plaintiff's claims. In considering the application of the doctrine of forum non conveniens, a district court must analyze each claim brought, particularly if the causes of action asserted require different types of proof and evidence. Id. at 879. In this case, Zions' claim that it is a holder in due course of a negotiable instrument requires different proof and evidence from its claims for conversion and quantum valebant.
Based upon the foregoing, we conclude that the district court did not state adequately its reasons for dismissing Zions' claims on the grounds of forum non conveniens. Accordingly, the decision of the district court is hereby VACATED and the case REMANDED for further proceedings consistent with this opinion.