-
USCA1 Opinion
December 22, 1992
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________
____________________
No. 92-1050
No. 92-1050
GEORGE E. MERCIER AND SUSAN Y. MERCIER,
GEORGE E. MERCIER AND SUSAN Y. MERCIER,
Plaintiffs, Appellants,
Plaintiffs, Appellants,
v.
v.
SHERATON INTERNATIONAL, INC., a/k/a
SHERATON INTERNATIONAL, INC., a/k/a
ITT-SHERATON INTERNATIONAL, INC.,
ITT-SHERATON INTERNATIONAL, INC.,
Defendant, Appellee.
Defendant, Appellee.
____________________
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, U.S. District Judge]
[Hon. A. David Mazzone, U.S. District Judge]
___________________
____________________
____________________
Before
Before
Breyer, Chief Judge,
Breyer, Chief Judge,
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O'Scannlain,* Circuit Judge,
O'Scannlain,* Circuit Judge,
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and Cyr, Circuit Judge.
and Cyr, Circuit Judge.
_____________
____________________
____________________
James M. Hartman with whom Mary Ann Snyder and Harris, Beach &
James M. Hartman with whom Mary Ann Snyder and Harris, Beach &
_________________ _______________ ________________
Wilcox were on brief for appellants.
Wilcox were on brief for appellants.
______
David S. Mortensen with whom Lydia J. Luz and Tedeschi, Grasso &
David S. Mortensen with whom Lydia J. Luz and Tedeschi, Grasso &
__________________ _____________ __________________
Mortensen were on brief for appellee.
Mortensen were on brief for appellee.
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____________________
____________________
____________________
____________________
*Of the Ninth Circuit, sitting by designation.
*Of the Ninth Circuit, sitting by designation.
CYR, Circuit Judge. Susan and George Mercier sued
CYR, Circuit Judge.
_____________
Sheraton International, Inc. ["Sheraton"] for breach of contract
and intentional interference with contractual relations in
connection with an alleged agreement to establish and operate a
gambling casino at the Istanbul Sheraton Hotel. Sheraton moved
for dismissal on the ground of forum non conveniens, asserting
that Turkey is the more appropriate forum. The district court
ordered dismissal. Mercier v. Sheraton Int'l, Inc., 744 F. Supp.
_______ ____________________
380 (1990) ["Mercier I"]. On appeal, we concluded that several
_________
factors relevant to the forum selection inquiry had been
misapplied. Mercier v. Sheraton Int'l, Inc., 935 F.2d 419 (1st
_______ ____________________
Cir. 1991) ["Mercier II"]. On remand, the district court again
__________
ordered dismissal, imposing several conditions designed to ensure
the availability of an adequate forum in Turkey.
I
I
BACKGROUND
BACKGROUND
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In approximately 1982, George Bauer, general manager of
the Istanbul Sheraton Hotel, began negotiations with Susan
Mercier for the establishment and operation of a gambling casino
in the hotel. At the time, Mercier, an American citizen, was
operating a cruise ship casino. As foreigners doing business in
Turkey were required to have Turkish partners, Bauer introduced
Mercier to Fethi Deliveli, a Turkish national. Ultimately,
Mercier and her father, George Mercier, formed a partnership with
Deliveli and became stockholders in Lidya Turistik Tesisler
Isletmesi ["Lidya"], a Deliveli family corporation from which the
Merciers acquired the right to operate the proposed casino at the
Istanbul Sheraton.
The casino negotiations continued throughout 1982 and
1983, eventually resulting in the execution of an undated
Memorandum of Understanding among Bauer, Deliveli and the
Merciers, whereby the Merciers and Deliveli would rent casino
space in the Istanbul Sheraton. The agreement was made subject
to the partners' procurement of all necessary permits from the
Turkish government by the Merciers, and to the approval of
Sheraton Corporation, Sheraton's Boston-based parent. Sheraton
asserts that the Turkish permits were never obtained and that the
approval of its parent corporation was never given; the Merciers
disagree.
In March 1984, Bauer and Deliveli (representing Lidya)
signed a Protocol entitling Lidya to install slot machines in the
Sheraton casino space. The Protocol was conditioned on the
Merciers' participation in Lidya and on the approval of gambling
by the Turkish "owning corporation" from which the hotel premises
were leased by Sheraton. The Protocol prescribed that its
interpretation would be "governed by Turkish laws," and
designated Istanbul as the proper forum for the litigation of
disputes arising thereunder. Sheraton now contends that the
Protocol was intended to supersede the earlier Memorandum of
Understanding, and that the Protocol never went into effect
because it was never approved by the Turkish "owning
4
corporation."
Sometime during the summer of 1986, following the
collapse of the Mercier-Deliveli partnership, the Merciers
reconveyed their Lidya shares to Deliveli in return for 101 slot
machines and accession to the rights of Lidya and Deliveli under
their various agreements with Sheraton. The Merciers then began
negotiations with Leisure Investments, P.L.C. ["Leisure"], with a
view to forming a new partnership to operate the casino. At
about this time, Susan Mercier left Turkey in the aftermath of an
altercation with a Turkish national which eventually led to the
issuance of a warrant for her arrest. Leisure broke off negotia-
tions with the Merciers and, in October 1987, Leisure's wholly-
owned subsidiary made a separate agreement with Sheraton,
pursuant to which the Leisure subsidiary commenced casino opera-
tions at the Istanbul Sheraton in 1988.
II
II
PRIOR PROCEEDINGS
PRIOR PROCEEDINGS
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The Merciers filed the present action against Sheraton
in the United States Court for the District of Massachusetts.1
Sheraton answered and moved to dismiss on the ground of forum non
conveniens, contending that the Republic of Turkey was the proper
____________________
1Their earlier lawsuit against Sheraton in the Western
District of New York was dismissed because it mistakenly named
Sheraton Corporation as defendant. Sheraton (a subsidiary of
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Sheraton Corporation), headquartered in Boston with most of its
operations overseas, was not subject to the jurisdiction of the
New York court.
5
forum. In Mercier I, the district court concluded, based on the
_________
affidavit of Dr. Yucel Sayman, a Turkish law professor and
attorney, that the Merciers would be able to raise their claims
in the Turkish courts and that despite Susan Mercier's legal
entanglements Turkey would provide an "adequate available
forum." 744 F. Supp. at 384-85. The court further found that
various "public interest" factors militated in favor of a Turkish
forum, including the difficulty of applying Turkish law, the
relative paucity of ties between the parties' dispute and the
Commonwealth of Massachusetts, and the congestion in the federal
district court docket. Id. at 386.
___
In Mercier II, we concluded that the Sayman affidavit
___________
was too incomplete and conclusory to meet Sheraton's burden of
proving that the Turkish courts were an available "alternative
forum" for the Mercier claims, 935 F.2d at 425-26 and n.7.
Moreover, assuming Turkey's availability as an alternative forum,
____________
we concluded that the adequacy of the Turkish forum had not been
________
demonstrated, in that (1) the Merciers' tort claims might be
time-barred under Turkey's one-year statute of limitations; and
(2) Susan Mercier's testimony which the district court
considered "essential" might not be received. Id. at 426.
___
Finally, we noted several deficiencies in the district court's
forum selection analysis. We noted in particular the apparent
failure to compare the docket congestion in Turkey with the
_______
docket congestion in the forum and the failure to consider the
potential interests of the United States, as well as the District
6
of Massachusetts, in affording a forum for the litigation. See
___
generally id. at 427-430.
_________ ___
We did not suggest that dismissal was foreclosed on
remand, see id. at 430, but rather that the forum determination
___ ___
should be made only after further findings of fact. See
___
generally Baris v. Sulpicio Lines, Inc., 932 F.2d 1540, 1552 (5th
_________ _____ ____________________
Cir.), cert. denied, 112 S.Ct. 430 (1991) (citing In re Air Crash
_____ ______ _______________
Disaster Near New Orleans, Louisiana, 821 F.2d 1147, 1166 n.32
______________________________________
(5th Cir. 1987) (en banc)) (where district court sets forth
insufficient facts in support of its forum determination,
appellate court should not address the issue, but remand to
district court to "begin afresh"); accord, Lacey v. Cessna
______ _____ ______
Aircraft Co., 862 F.2d 38, 43 (3d Cir. 1988); La Seguridad v.
____________ ____________
Transytur Line, 707 F.2d 1304, 1308-10 (11th Cir. 1983). On
_______________
remand, the district court received further evidence, including
detailed supplemental affidavits from Sayman as well as several
experts hired by the Merciers. The second district court
dismissal order was conditioned on (1) acceptance of jurisdiction
by the Turkish courts; (2) Sheraton's submission to Turkish
jurisdiction; (3) Sheraton's waiver of any statute of limitations
defense, and acceptance of the waiver by the Turkish court; and
(4) Sheraton's agreement to satisfy any Turkish court judgment.
III
III
DISCUSSION
DISCUSSION
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The doctrine of forum non conveniens permits
7
discretionary dismissals on a "case by case" basis, Royal Bed &
____________
Spring Co. v. Famossul Industria E Comercio de Moveis Ltda., 906
___________ _____________________________________________
F.2d 45, 47 (1st Cir. 1990), where an alternative forum is
available in another nation which is fair to the parties and
substantially more convenient for them or the courts. Howe v.
____
Goldcorp Invest., Ltd., 946 F.2d 944, 947 (1st Cir. 1991), cert.
_______________________ _____
denied, 112 S.Ct. 1172 (1992). The application of the doctrine
______
of forum non conveniens is committed to the sound discretion of
the trial court, Piper Aircraft, 454 U.S. at 257, whose decision
______________
will not be reversed absent a "clear abuse of discretion." Id.;
___
see also Howe, 946 F.2d at 951; Royal Bed & Spring Co., 906 F.2d
___ ____ ____ ______________________
at 47-48. But since there is a strong presumption in favor of
the plaintiff's forum choice, id. at 241, the defendant must bear
___
the burden of proving both the availability of an adequate
____
alternative forum, see Tramp Oil & Marine, Ltd. v. M/V Mermaid I,
___ ________________________ _____________
743 F.2d 48, 50 (1st Cir. 1984), and the likelihood of serious
unfairness to the parties in the absence of a transfer to the
alternative forum, Koster v. Lumbermen's Mut. Cas. Co., 330 U.S.
______ __________________________
518, 524 (1947); Howe, 946 F.2d at 950 (citing Piper Aircraft,
____ ______________
454 U.S. at 259).
A. Forum Availability
A. Forum Availability
__________________
As we noted in Mercier II, an alternative forum
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generally will be considered "available" provided the defendant
who asserts forum non conveniens is amenable to process in the
alternative forum. 935 F.2d at 424 (citing Gulf Oil, 330 U.S. at
________
8
506-07); see also Piper Aircraft, 454 U.S. at 254 n.22. There
___ ____ _______________
seems to be no question that Sheraton is amenable to process in
the Republic of Turkey. Not only does Sheraton conduct
substantial business in Turkey (i.e., operation of the Istanbul
____
Sheraton Hotel), but any contracts at issue in the present action
were made in Turkey and were to be performed there. See Turk.
___
Code Civ. Proc. Art. 10 (Turkish courts competent to hear
disputes over contracts made or to be performed in Turkey); Art.
21 (Turkish courts exercise jurisdiction over torts committed
within Turkey). Moreover, the 1984 Protocol expressly designates
Istanbul, Turkey, as a valid locus for the litigation of disputes
arising among these parties, and forum selection provisions have
been recognized as a valid basis for jurisdiction under Turkish
law. See generally T. Ansay, American-Turkish Private Interna-
___ _________ _________________________________
tional Law 61 (Parker School of Foreign and Comparative Law,
__________
Columbia University, Bilateral Studies in Private International
Law, No. 16) (1966) ["Columbia Study"]. Finally, the dismissal
______________
of the complaint was expressly conditioned on Sheraton's submis-
sion to the jurisdiction of the Turkish courts and on the Turkish
courts' exercise of that jurisdiction. We therefore conclude
that the Republic of Turkey is an "available" alternative forum
for the present action.
B. Forum Adequacy
B. Forum Adequacy
______________
The adequacy of the alternative forum is a separate
________
inquiry. See Piper Aircraft, 454 U.S. at 254 n.22; In re Air
___ _______________ _________
9
Crash Disaster, 821 F.2d at 1165. An alternative forum may be
______________
inadequate even though the defendant is amenable to process,
Mercier II, 935 F.2d at 424, if "the remedy provided by the
__________
alternative forum is so clearly inadequate or unsatisfactory that
it is no remedy at all," Piper Aircraft, 454 U.S. at 254; Howe,
______________ ____
946 F.2d at 952. For example, an alternative forum is inadequate
if it "does not permit litigation of the subject matter of the
dispute," id. at 254 n.22; Industrial Dev. Corp. v. Mitsui & Co.,
___ _____________________ ____________
671 F.2d 876, 891 (5th Cir. 1982), vacated and remanded on other
_______ ___ ________ __ _____
grounds, 460 U.S. 1007 (1983); or the plaintiff demonstrates
_______
significant legal or political obstacles to conducting the
litigation in the alternative forum, see Menendez Rodriguez v.
___ ___________________
Pan Am Life Ins. Co., 311 F.2d 429 (5th Cir. 1962) (Castro's Cuba
____________________
unavailable to Cuban political refugees as alternative forum),
vacated on other grounds, 376 U.S. 779 (1964); Rasoulzadeh v.
_______ __ _____ _______ ___________
Associated Press, 574 F. Supp. 854 (S.D.N.Y. 1983) (plaintiff
_________________
would be executed were he to attempt to litigate in
postrevolutionary Iran), aff'd without opinion, 767 F.2d 908 (2d
______________________
Cir. 1985).
Sheraton was required to establish that the Turkish
courts offer an adequate alternative forum for the present
action. See Tramp Oil & Marine, 743 F.2d at 50; see also Lacey
___ ___________________ ___ ____ _____
v. Cessna Aircraft Co., 932 F.2d 170, 180 (3d Cir. 1991); Cheng
____________________ _____
v. Boeing Co., 708 F.2d 1406, 1411 (9th Cir.), cert. denied, 464
__________ ____ ______
U.S. 1017 (1983); Schertenleib v. Traum, 589 F.2d 1156, 1159-60
____________ _____
(2d Cir. 1978); but see Vaz Borralho v. Keydril Co., 696 F.2d
___ ___ ____________ ___________
10
379, 393 (5th Cir. 1983) (plaintiff bears burden of proving
inadequacy of defendant's proposed alternative forum). The
primary contention made by the Merciers in Mercier II was that
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Sheraton had not shown that the Turkish forum was adequate in
light of the legal difficulties (risk of arrest) Susan Mercier
would encounter were she to return to Turkey to testify, 935 F.2d
at 427. Although we concluded that these legal difficulties
alone were not sufficient to render Turkey an inadequate
alternative forum, id., on remand the district court was directed
___
to consider whether the Turkish courts would decline to receive
essential affidavit or deposition testimony from Susan Mercier by
reason of her fugitive status. Id. As a Turkish criminal court
___
has exonerated Susan Mercier, and vacated the arrest warrant,
Director of Public Prosecutions v. Mercier, No. 1986/103 (Turkish
_______________________________ _______
First Aggravated Felony Court [Kadikoy], July 7, 1988), currently
there is no legal or political obstacle to the presentation of
Susan Mercier's testimony in the Turkish courts.2
Similarly, we reject the contention that the Merciers
would be handicapped in vindicating their rights before the
Turkish courts due to a "profound bias" against Americans and
____________________
2Although we are sensitive to any personal trepidation with
which Mercier may view her return to Turkey, in light of the fact
that her assailant apparently remains at large, we adhere to the
misgivings expressed in Mercier II: "We . . . doubt[] that Susan
__________
Mercier's personal difficulties with the Turkish system as
________
opposed to a showing of Turkish justice's systematic inadequacy
can provide an appropriate basis for a finding that Turkey is
an inadequate forum." 935 F.2d at 426-27 (emphasis added); cf.
___
Shields v. Mi Ryung Constr. Co., 508 F. Supp. 891, 895 (S.D.N.Y.
_______ ____________________
1981) (alternative (Saudi) forum adequate notwithstanding plain-
tiff's asserted fears for personal safety).
11
foreign women. We noted in Mercier II that the Merciers had
___________
provided no record basis "for us to suspect, much less take
judicial notice of, an American woman's patent inability to
secure basic justice in the Turkish courts." 935 F.2d at 427.
As their offer of proof remained inadequate on remand, it was
rightly disregarded by the district court.3 Moreover, it is not
unfair that a plaintiff's conclusory claims of social injustice
in the foreign nation where she deliberately chose to live, work,
and transact the business out of which the litigation arises
should be accorded less than controlling weight in the selection
of a judicial forum for the related litigation. See Mizokami
___ ________
Bros. of Arizona, Inc. v. Bay-Chem Corp., 556 F.2d 975, 978 (9th
______________________ ______________
Cir. 1977), cert. denied, 434 U.S. 1035 (1978); Shields, 508 F.
_____ ______ _______
Supp. at 894 n.4; cf. Cuba R. Co. v. Crosby, 222 U.S. 473, 480
___ ___________ ______
(1912) (Holmes, J.) (upholding application of foreign law to
plaintiff's tort claim; "it should be remembered that parties do
____________________
3On remand, the Merciers presented the affidavit of an
American professor, relating her impressions of the Turkish legal
system and recounting her personal teaching experiences in the
Republic of Turkey during the periods 1965-1966 and 1980-1982.
The district court did not abuse its discretion in ruling the
affidavit irrelevant to the issues in the present case. The
affiant described her experiences with the Turkish educational
system, not its legal system. The experiences occurred as many
as 25 years ago, and most recently a decade ago while Turkey was
governed by a military regime. Most importantly, the affidavit
addresses the social, not the legal, status of women in Turkey.
_____
With respect to the latter point, we would note that Susan
Mercier's vindication in absentia by the Turkish criminal court,
__ ________
following her dispute with a Turkish male assailant, see Director
___ ________
of Public Prosecutions v. Mercier, supra, would at least tend to
_______________________ _______ _____
undercut her conclusory assertion that "injustice [is] prevalent
in the Turkish legal system when a foreigner (especially a woman)
opposes a Turkish man." Mercier II, 935 F.2d at 427.
__________
12
not enter into civil relations in foreign jurisdictions in
reliance upon our courts. They could not complain if our courts
refused to meddle in their affairs and remitted them to the place
that established and would enforce their rights.").
In a more substantive vein, our remand in Mercier II
__________
required the district court to reconsider whether the Mercier
claims for breach of contract and tortious interference with
contractual relations would be cognizable under Turkish law.4
On remand, Dr. Sayman submitted a more comprehensive affidavit,
setting forth Turkish law. We have reviewed the new Sayman
affidavit, and the Turkish Code of Obligations on which it is
based. Insofar as we have been able to determine, the affidavit
appears to relate an accurate and complete statement of the
relevant governing law.5 The district court did not "clearly"
____________________
4The initial Sayman affidavit was found inadequate to estab-
lish Turkey as an adequate alternative forum. 935 F.2d at 425-26
(citing Lacey, 862 F.2d at 43-44). The initial affidavit stated:
_____
The courts of Istanbul are competent to hear the claims
stated in the complaint filed by the Merciers in the
above-captioned proceeding. In such a civil proceeding
before our courts the litigants are guaranteed the same
sort of procedural safeguards I understand they enjoy
in the United States. They are entitled to be heard,
to present evidence, and to cross-examine their
opponents' witnesses. The judgment of the trial court
is subject to review by an appellate tribunal. . . .
Our constitution grants standing to foreign nationals,
such as the Merciers, to prosecute such commercial
claims in our courts.
5Sayman's affidavit represents that an action for breach of
contract would be recognized under Articles 96-108 of the Turkish
Code of Obligations, and that an action for tortious interference
with contractual relations could be recognized under the Code's
Article 41 (requiring indemnity by "one who knowingly causes
damage to another, as a result of an immoral action"). Sayman
13
abuse its discretion in accepting the Sayman affidavit as a
correct statement of Turkish law. See, e.g., Lockman Foundation
___ ____ __________________
v. Evangelical Alliance Mission, 930 F.2d 764, 768 (9th Cir.
_____________________________
1991) (citing Cheng, 708 F.2d at 1410-11) (moving party may
_____
demonstrate adequacy of alternative forum's law through
affidavits and declarations of experts); accord, Zipfel v.
______ ______
Halliburton Co., 832 F.2d 1477 (9th Cir. 1987), cert. denied, 486
_______________ _____ ______
U.S. 1054 (1988).
For the most part, the remaining objections to the
adequacy of the Turkish forum were satisfactorily addressed by
____________________
also indicated that the statute of limitations in contract
actions is ten years, and that Turkish courts would accept a
waiver of the one-year statute of limitations for tort actions.
The Merciers responded with a lengthy affidavit from their
own expert, A. Nusret Haker, apparently admitting the
availability of an action for breach of contract under Turkish
law, but challenging Sayman's assertion that the Merciers' claim
for tortious interference with contractual relations could be
heard under Article 41. According to Haker, Article 41 defines a
"catch-all type of tort provision" which applies principally to
non-contractual obligations, and does not "perfect[ly] fit" the
claim for tortious interference with contractual relations.
Haker Affidavit at 6(b). Haker conceded that a Turkish court
might utilize Article 41 to facilitate a tort claim under Article
98/II (stating that "liability provisions of tortious acts are
also applicable, by reference, to actions constituting breach of
contract"), but considered this "highly unlikely." Id. Sayman
___
submitted a detailed affidavit in response, criticizing Haker's
challenge to Sayman's analysis of Article 41.
The district court concluded that "the Sayman affidavit
[was] more comprehensive, more reliable, based on more current
information and based on more familiarity and more experience
with the system than Mr. Haker's." We agree. However, even if
Haker's affidavit were to be fully credited, we think it would
not amount to a showing that "the remedy provided by the
alternative forum [Turkey] is so clearly inadequate or
__ _______ __________ __
unsatisfactory that it is no remedy at all." Piper Aircraft, 454
______________ ____ __ __ __ ______ __ ___ ______________
U.S. at 254 (emphasis added); see also Evangelical Alliance
___ ____ _____________________
Mission, 930 F.2d at 768-69.
_______
14
the conditions imposed in the order of dismissal.6 Cf. Piper
___ _____
Aircraft, 454 U.S. at 257 n.25; Ahmed v. Boeing Co., 720 F.2d
________ _____ __________
224, 225 (1st Cir. 1983) (conditional dismissal sufficient to
cure alleged inadequacies in alternative available forum).
Although the Merciers contend that the district court should have
conditioned dismissal on Sheraton's provision of document
translations, see Dahl v. United Technologies Corp., 632 F.2d
___ ____ __________________________
1027, 1031 (3d Cir. 1980), we do not agree. Unlike the situation
in Dahl, where the injured plaintiffs had no control over the
____
place where the instrument of their injury was manufactured or
designed, in the present case the Merciers intentionally bound
themselves to a contract requiring performance in Turkey, thereby
plainly assuming the obvious risk that document translations
might be necessary in any future contract dispute.
We are unable to accept two additional proposals made
by the Merciers, which contemplate, in effect, that Turkish
procedure be brought more in line with the procedures utilized in
American courts, as a condition of dismissal. The first proposal
an amorphous request that Sheraton be required to "facilitate
____________________
6For example, the district court conditioned dismissal on
Sheraton's affirmative waiver of all statute of limitations
defenses:
The defendant shall not assert any defense based upon
any statute of limitations but shall affirmatively
waive any such defense . . . provided that the Courts
of the Republic of Turkey shall give full force and
effect to such waiver.
Sheraton asserts no claim that the waiver requirement is
overbroad.
15
discovery" in the foreign forum was not raised below, either
before or after remand, and must be rejected here. See Kale v.
___ ____
Combined Ins. Co., 861 F.2d 746, 755 (1st Cir. 1987); J & S
__________________ ______
Constr. Co. v. Traveler's Indemn. Co., 520 F.2d 809, 809 (1st
___________ _______________________
Cir. 1975). Turkish courts have their own procedures for compel-
ling discovery. See, e.g., Article 258/I of the Turkish Code of
___ ____
Obligations (compulsory process available to enforce attendance
of witnesses). The case law is clear that an alternative forum
ordinarily is not considered "inadequate" merely because its
courts afford different or less generous discovery procedures
than are available under American rules. See Evangelical
___ ___________
Alliance Mission, 930 F.2d at 768 (Japanese forum held adequate
_________________
although discovery procedures were "not identical to those in the
United States"); Zipfel, 820 F.2d at 1484 (Singapore forum held
______
adequate available forum although depositions were allowed only
in certain circumstances); In re Union Carbide Gas Plant
___________________________________
Disaster, 809 F.2d 195, 205 (2d Cir.), cert. denied, 484 U.S. 871
________ ____ ______
(1987) (Indian forum held adequate although Indian discovery
rules were more limited than United States rules; Indian courts
could voluntarily accept American rules, but this would not
determine propriety of dismissal by American court); see
___
generally Howe, 946 F.2d at 946 ("small differences in standards
_________ ____
and procedural difficulties . . . are beside the point").
The second proposed condition, requiring Sheraton to
waive the "cost bond" commonly imposed on foreign litigants in
Turkish courts, presents a somewhat closer question. It has been
16
noted that an action should not be dismissed on forum non con-
veniens grounds without first considering "the realities of the
plaintiff's position, financial or otherwise, and his or her
ability as a practical matter to bring suit in the alternative
forum." Lehman v. Humphrey Cayman, Ltd., 713 F.2d 339 (8th Cir.
______ ______________________
1983), cert. denied, 464 U.S. 1064 (vacating transfer to Cayman
____ ______
Islands, based in part on indigent plaintiff's inability to post
"cost bond"); see also Macedo v. Boeing Co., 693 F.2d 683, 688,
___ ____ ______ __________
690 (7th Cir. 1982) ("cost bond" requirement may be given weight
in forum balancing process); but see Nai-Chao v. Boeing Co., 555
___ ___ ________ __________
F. Supp. 9, 16 (N.D. Cal. 1982), aff'd, 708 F.2d 1406 (9th Cir.),
_____
cert. denied, 464 U.S. 1017 (1983) ("filing fee" amounting to 1%
____ ______
of recovery sought held not relevant to adequacy of foreign
forum). On the other hand, we perceive no abuse of discretion in
the district court ruling that the burden presented by the "cost
bond" requirement did not rise to a level which would render the
Turkish forum "so clearly inadequate or unsatisfactory that [it
effectively offered] no remedy at all." Piper Aircraft, 454 U.S.
______________
at 254.
The Merciers are not indigent, nor can the Turkish bond
requirement, though substantial, be considered excessive in the
circumstances.7 Its function is to cover court costs and to
____________________
7According to the parties' experts, typically the
plaintiff's bond is set by the Turkish courts at 15% of the
recovery sought, and is a recoverable cost in the event the
plaintiff prevails. Sheraton's expert, Dr. Sayman, suggests that
a Turkish court might waive the bond requirement, or reduce it to
as little as 3% of the monetary recovery sought.
17
ensure the eventual recovery of any damages awarded against the
plaintiff. It therefore safeguards the harmonious operation of
Turkish procedural rules, such as the "cost-shifting" rule
requiring a losing litigant to pay the legal fees and costs of
the winner. Although such broad-scale "cost-shifting" is not in
tune with the "American rule," the disparity provides an
insufficient basis for finding that the district court abused its
discretion. Cf. id. (holding that unfavorable change in forum
___ ___
law is insufficient to preclude forum non conveniens dismissal).
By the same token, the Merciers reasonably sought to
condition the dismissal order on assurances by Sheraton that
witnesses and evidence be made available in Turkey. Sheraton's
corporate headquarters is in Massachusetts. It seems to us
reasonable that the Merciers' choice of the Massachusetts forum
was prompted at least in part by their interest in compelling
production of Sheraton records and subpoenaing Sheraton
witnesses. In these circumstances, we believe it appropriate to
condition the order of dismissal on the availability, in the
Turkish forum, of witnesses and evidence within Sheraton's
control in Massachusetts. See Piper Aircraft, 454 U.S. at 257
___ ______________
n.25; Vaz Borralho, 696 F.2d at 394 (remanding with direction to
____________
impose further condition on dismissal requiring defendants'
agreement to make all necessary witnesses and documents available
in alternative forum); see also DeMelo v. Lederle Labs., Inc.,
___ ____ ______ ____________________
801 F.2d 1058, 1063 (8th Cir. 1986) (upholding conditional
dismissal from original forum where corporate defendant's
18
principal place of business was located on defendant's
agreement to make documents and witnesses available in
alternative available forum); Watson v. Merrell Dow Pharmaceuti-
______ ________________________
cals, Inc., 769 F.2d 354, 356 (6th Cir. 1985) (same).
__________
C. Forum Convenience
C. Forum Convenience
_________________
The availability of an adequate alternative forum is
but the first step in the forum non conveniens analysis. The
more complicated inquiry is whether the alternative forum is
sufficiently more convenient for the parties as to make transfer
necessary to avoid serious unfairness. Howe, 946 F.2d at 950
____
(citing Piper Aircraft, 454 U.S. at 259).
______________
Well-established "public interest" and "private
interest" criteria guide the trial court determination as to the
relative convenience of an alternative forum. See Gulf Oil v.
___ ________
Gilbert, 330 U.S. at 508-09. The "private interest" criteria
_______
include the comparative convenience of the parties' access to
sources of proof; the availability of compulsory process and the
cost of securing the attendance of witnesses; the possibility of
a view of the premises, if a view would be appropriate; and an
evaluation of "all other practical problems that make trial of a
case easy, expeditious and inexpensive." Id. at 508. The
___
"public interest" criteria include the administrative
difficulties resulting from court congestion in the plaintiff's
chosen forum; the "local interest in having localized
controversies decided at home"; the interest in having the trial
19
of a case conducted in a forum that is at home with the governing
law; the avoidance of unnecessary problems in conflict of laws,
or in the application of foreign law; and the unfairness of
imposing jury duty on citizens in an unrelated forum. Piper
_____
Aircraft, 454 U.S. at 241 n.6.
________
In weighing these considerations, the trial court must
favor the plaintiff's choice of forum: "unless the balance is
strongly in favor of the defendant, the plaintiff's choice of
forum should rarely be disturbed." Gulf Oil, 330 U.S. at 509.
________
The deference accorded the plaintiff's choice of forum is
enhanced when the plaintiff has chosen a forum in which the
defendant maintains a substantial presence, see Schertenleib, 589
___ ____________
F.2d at 1164; see also Lony v. E.I. Du Pont de Nemours & Co., 935
___ ____ ____ _____________________________
F.2d 604, 608 (3d Cir. 1991); Mutual Export Corp. v. Westpac
____________________ _______
Banking Corp., 742 F. Supp. 161, 163 (S.D.N.Y. 1990), and when
______________
the plaintiff is an American citizen who has selected an
available American forum, Piper Aircraft, 454 U.S. at 256 n.23;
______________
see also Hoffman v. Goberman, 420 F.2d 423 (3d Cir. 1970); Mobil
___ ____ _______ ________ _____
Tankers Co. v. Mene Grande Oil Co., 363 F.2d 611, 614 (3d Cir.
___________ ____________________
1965), cert. denied, 385 U.S. 945 (1966).
____ ______
Yet no absolute deference is due an American
plaintiff's selection of an available American forum in an action
against an American defendant. See Piper Air, 454 U.S. at 255
___ __________
n.23. Forum non conveniens is a "flexible, practical" doctrine,
Howe, 946 F.2d at 950, not subject to ritualistic application;
____
and "[a]lthough 'a defendant must meet an almost impossible
20
burden in order to deny a citizen access to the courts of this
country,' the cases demonstrate that defendants frequently rise
to the challenge." Contact Lumber Co. v. P.T. Moges Shipping
__________________ ____________________
Co., 918 F.2d 1446, 1449 (9th Cir. 1990) (quoting Mizokami Bros.
___ ______________
of Arizona, Inc. v. Bay-Chem Corp., 556 F.2d 975, 977 (9th Cir.
________________ ______________
1977)); Evangelical Alliance Mission, 930 F.2d at 767; Alcoa S/S
_____________________________ _________
Co. v. M/V Nordic Regent, 654 F.2d 147, 152 (2d Cir.) (en banc),
___ _________________
cert. denied, 449 U.S. 890 (1980). Moreover, as we have noted, a
_____ ______
trial court's determination to transfer a case to an available
foreign forum is reviewable only for a clear abuse of its
discretion.
The Merciers assert that the district court abused its
discretion by (1) improperly minimizing the importance of their
interest in an American forum; (2) continuing to treat the
insubstantial connections between the Commonwealth of
Massachusetts and the present dispute as a relevant factor in its
forum inquiry; (3) assigning excessive weight to its inability to
compel the testimony of Deliveli, a Turkish national; (4)
assigning insufficient weight to the litigation activity already
conducted on the merits in the American forum; (5) exaggerating
the difficulties in applying Turkish law; (6) overstressing the
docket congestion in the forum court; and (7) overemphasizing the
importance of the forum selection clause in the 1984 Protocol.
1. American Plaintiffs' Interest in American Forum
1. American Plaintiffs' Interest in American Forum
_______________________________________________
The district court expressly noted that the Merciers
21
are American citizens, and acknowledged that the court "would
like to resolve [this] matter between America[n] citizens."
Thus, the district court was cognizant of the strong presumption
favoring the American forum selected by American plaintiffs.
Moreover, the district court's extended discussion of the factors
militating in favor of a transfer indicate that the court was
fully aware of the considerable quantum of evidence required to
overcome the presumption. See, e.g., Gulf Oil, 330 U.S. at 509.
___ ____ ________
We are satisfied that the district court neither failed to
consider the Merciers' American citizenship nor assigned their
choice of an American forum perfunctory weight. See Mercier II,
___ __________
935 F.2d at 423.
2. Connection Between the Dispute and the Massachusetts Forum
2. Connection Between the Dispute and the Massachusetts Forum
__________________________________________________________
After noting the presumption of forum adequacy which
arises as a result of the American citizenship of the parties,
the district court intimated that the attenuated connection
between the parties' dispute and the Massachusetts forum
militated in favor of dismissal. See District Court Opinion at
___
24 ("Except for the fact that Susan Mercier and George Mercier
are American citizens, . . . this is not a local controversy.").
The Merciers argue that the district court disregarded our
admonition in Mercier II, that "the Merciers' United States
__________ ______ ______
citizenship and residence plus Sheraton International's
similar citizenship and residence . . . make this a
controversy local to the United States, if not necessarily to
22
Massachusetts." 935 F.2d at 429 (emphasis in original). We
think that the Merciers misapprehend Mercier II.
__________
Contrary to their understanding, Mercier II did not
__________
state that a district court could not recognize, as a factor to
be considered in its forum non conveniens analysis, the
attenuated connection between the matter in litigation and the
particular forum selected within the United States. Rather, we
pointed out that the connection between the matter in litigation
and the particular forum within the United States may not wholly
__________ _____
supplant the dominant transnational comparison required where
________
"the choice facing the district court [is] between two
countries." Id. at 429-30 (emphasis in original). Provided
_________ ___
adequate recognition is accorded "the substantial public interest
in providing a convenient United States forum for an action in
which all parties are United States citizens and residents," id.
___
at 430, the trial court may weigh, as a subsidiary consideration,
any attenuated connection between the particular United States
forum and the matter in litigation. See, e.g., De Melo, 801 F.2d
___ ____ _______
at 1063; Gates Learjet Corp. v. Jensen, 743 F.2d 1325, 1336 (9th
___________________ ______
Cir. 1984), cert. denied, 471 U.S. 1066 (1985); see generally
____ ______ ___ _________
Pain v. United Technologies Corp., 637 F.2d 775, 792 (D.C. Cir.
____ __________________________
1980), cert. denied, 454 U.S. 1128 (1981) ("courts may validly
____ ______
protect their dockets from cases which arise within their
jurisdiction, but which lack significant connection to it; [and]
may legitimately encourage trial of controversies in the
___
localities in which they arise") (emphasis added).
__________
23
3. Witness Availability
3. Witness Availability
____________________
In the district court's view, a very important "private
interest factor" pointing to dismissal was the inability of any
American court to compel the testimony of Fethi Deliveli, the
Merciers' Turkish partner, who played a significant role in
negotiating the two written agreements underlying the Merciers'
claims.8 See Dist. Ct. Opin. at 22-23. In Mercier II, we
___ __________
explicitly recognized the importance of Deliveli's availability:
"While the Merciers have provided a long list of [American]
witnesses who appear to have been party to one or two negotiating
sessions, none appears to have been as central to the
negotiations as Deliveli." 935 F.2d at 428. Moreover, it seems
most likely that Deliveli's credibility would be pivotal to any
judicial resolution of the factual issues at the root of the
parties' dispute. Thus, the fact-finder's opportunity to
evaluate Deliveli's credibility on the basis of in-person
testimony could be crucial to a reliable resolution of these
factual disputes. In these circumstances, deposition testimony
and letters rogatory, even if available to the American court,
would be less than satisfactory substitutes for in-person
____________________
8Deliveli was a principal stockholder in Lidya, the Turkish
corporation through which the Merciers initially hoped to lease
space and operate the casino. On Lidya's (and the Merciers')
behalf, Deliveli signed the 1984 Protocol defining the parties'
prospective roles in the operation of the casino. He was also a
party to the negotiations and a signatory to the earlier
Memorandum of Understanding, which outlined the steps required
for bringing the casino into existence. It seems likely that he
may have been a necessary party to any attempts to obtain the
required permits from the Turkish government.
24
testimony. See Howe, 946 F.2d at 952 ("compulsory process would
___ ____
seem to be especially important where . . . subjective intent [is
an] element[] of the claim.").
In its initial ruling the district court considered the
unavailability of Deliveli and other Turkish witnesses to be "a
problem in theory only," as "there [was] no evidence . . . that
[Sheraton] ha[d] ever asked these witnesses to provide evidence,
let alone that they ha[d] . . . refused to do so." Mercier I,
_________
744 F. Supp. at 385. On remand, however, the district court
concluded that Deliveli's unavailability as a witness threatened
"serious unfairness" at any American trial. See Mercier II, 935
___ __________
F.2d at 950. The significance of Deliveli's role, inter alia, in
_____ ____
negotiating and drafting the agreements confutes the Merciers'
contention that Sheraton was required to demonstrate the content
of Deliveli's testimony or his unavailability absent compulsory
process. As other courts have recognized, there is no "blanket
rule" that a defendant affirmatively demonstrate, by affidavit,
the unavailability of a foreign witness and the significance of
the witness's testimony. See Empresa Lineas Maritimas Argentinas
___ ___________________________________
v. Schichau-Unterweser, A.G., 955 F.2d 368, 372 (5th Cir. 1992)
_________________________
(citing Baris, 932 F.2d at 1550); a blanket rule "would tend to
_____
inflict an impossible burden on defendants who are seeking
dismissal for the very reason that they cannot compel evidence,
including the evidence necessary to argue for dismissal."
Empresa Lineas, 955 F.2d at 372 (citing Piper Aircraft, 454 U.S.
_______________ ______________
at 258). Under the terms of the remand order in Mercier II, 935
__________
25
F.2d at 430 requiring that the factors militating for and
against dismissal be rebalanced there was no clear abuse of
discretion in the district court's finding that the unavail-
ability of Deliveli's testimony would result in "serious
injustice" in the event the case were tried in the District of
Massachusetts.
4. Litigation Activity in Chosen Forum
4. Litigation Activity in Chosen Forum
___________________________________
As a basis for their contention that "the presumption
against dismissal on the grounds of forum non conveniens [has
been] greatly increase[d]," Lony, 935 F.2d at 614, the Merciers
____
point to litigation activity relating to the merits, id. See
___ ___
also Gates Learjet, 743 F.2d at 1335 (citing, as a relevant
____ ______________
"private interest factor," that "parties were ready for trial
_____ ___ _____
when [the court] dismissed the complaint for forum non
conveniens") (emphasis added); but see Empresa Lineas, 955 F.2d
___ ___ ______________
at 372 (rejecting argument that district court acted unreasonably
in dismissing case filed eight years before, in which third-party
claim by moving plaintiff was filed two years earlier). However,
the only "substantial merits discovery" identified by appellants
(except for that incident to the dismissal motion itself)
consisted of the Susan and George Mercier depositions taken by
Sheraton in April and May 1990.
For present purposes, we would observe that the merits
activity in this case simply never approached the level which was
held to preclude dismissal in Lony or to weigh against dismissal
____
26
in Gates. The forum non conveniens dismissals in those cases
_____
were not sought until several years after the defendants filed
their answers and the dismissal motions were based on "allegedly
new facts uncovered in discovery." 935 F.2d at 614.9 Moreover,
we think the "merits activity" in Lony substantially affected the
____
very factors of relative convenience, such as "access to sources
of proof" and "attendance of witnesses," which the Supreme Court
has identified as crucial to the forum non conveniens inquiry.
Gilbert, 330 U.S. at 508. In our view, these factors alter the
_______
balance in favor of dismissal in the present case.
5. Difficulties with Turkish Law
5. Difficulties with Turkish Law
_____________________________
The district court also adverted to the difficulty of
applying Turkish law.10 As appellants note, this factor is not
____________________
9The activity which had taken place to that point in Lony
____
included not only limited discovery on a prior, unsuccessful
forum non conveniens motion, but also six months of continuous
discovery on the merits; document production amounting to several
thousand pages; substantial exchanges of interrogatories; trans-
lation of documents from German into English; and the depositions
of at least five witnesses, including one from overseas. Lony,
____
935 F.2d at 613. Furthermore, the trial court in Lony had
____
achieved a high degree of familiarity with the litigation.
10Although applicable Turkish law is patterned on familiar
European models, notably the Swiss Code of Obligations, and has
been translated into English, see Swiss Federal Code of
___ _________________________
Obligations with Turkish Alterations (G. Wettstein ed. 1928), it
____________________________________
is still subject to Western judges' general lack of familiarity
with civil law principles. Moreover, practical difficulties are
likely to be encountered in applying Turkish law to a dispute in
American courts by reason of the fact that many treatises on
Turkish law are unavailable in English translation, see O.
___
Oehring, Bibliographie zum turkischen Recht and den
______________________________________________________
internationalen Beziehungen der Turkischen Republik (1982), T.
_____________________________________________________
Ansay, "Law of Obligations," in Introduction to Turkish Law, (T.
__ ___________________________
Ansay & D. Wallace eds.; 3d ed. 1987), and that almost no Turkish
27
"dispositive." See Piper Aircraft, 454 U.S. at 260 n.29.
___ _______________
Rather, "the task of deciding foreign law [is] a chore federal
courts must often perform," Manu Int'l, S.A. v. Avon Products,
_________________ ______________
Inc., 641 F.2d 62, 68 (2d Cir. 1981), and the difficulties
____
associated with the application of foreign law should not be
ascribed "undue importance." We do not think the district court
assigned dispositive weight to the problem of applying foreign
law, but cited it as one of several factors "counseling
dismissal." Mercier II, 935 F.2d at 428. See also Piper
__________ ___ ____ _____
Aircraft, 454 U.S. at 260; cf. Traveler's Indem. Co. v. S/S Alca,
________ ___ _____________________ ________
710 F. Supp. 497, 501-02 (S.D.N.Y.), aff'd without opinion, 895
_____ _______ _______
F.2d 1410 (2d Cir. 1989) (difficulty of applying Turkish law
cited as partial basis for dismissal).
6. Docket Congestion
6. Docket Congestion
_________________
The district court found that Turkish civil courts are
significantly less congested than the civil docket of the United
States District Court for the District of Massachusetts, and that
the public and private interests in obtaining an expeditious
resolution of the parties' dispute therefore favored a Turkish
____________________
court decisions are available in English translation, id.
___
Although Turkish court decisions are not binding to the same
extent as American court decisions, "much attention is paid to
them by Turkish writers," and "the lower courts give
consideration to the previous decisions of the Supreme Court
[Yargitay]." Columbia Study, at 12.
______________
28
forum. The district court relied on caseload statistical
reports11 and on the Sayman affidavit, which attests that a
lawsuit of this nature could be heard by the Turkish Court of
Commerce in approximately eighteen months, excluding any
appeal.12 We conclude that the district court's comparative
analysis on remand met the mandate in Mercier II, 935 F.2d at
___________
428-29, directing "a comparative determination of where the case
___________
can most quickly be resolved, rather than simply rely[ing] on the
state of [the district court's] own docket" (emphasis added); see
___
also Gates Learjet, 743 F.2d at 1337 ("real issue is not whether
____ _____________
a dismissal will reduce a court's congestion but whether a trial
may be speedier in another court because of its less crowded
docket").
7. Forum Selection Clause
7. Forum Selection Clause
______________________
The Protocol signed in 1984 by Sheraton and Deliveli
(on behalf of Lidya, in which the Merciers held an important
interest) contained a forum selection clause, providing that "the
____________________
11The Federal Court Management Statistics submitted by
Sheraton showed that as of June 30, 1990, 30.8% of civil cases in
the District of Massachusetts had been pending for more than
three years, by far the highest in the First Circuit, and
approximately 300% higher than the national district court
average of 10.4%. Moreover, the district court pointed out that
diversity cases typically are placed on the slowest track.
Priority is given to criminal cases under the Speedy Trial Act
and to civil cases invoking federal question jurisdiction.
12The Merciers' expert challenged Sayman's representations,
asserting that this case would take approximately three years to
be "fully tried" in Turkey. Haker Affidavit, at A-230. As
noted, however, the district court supportably declined to credit
Haker's affidavit. See supra note 5 and accompanying text.
___ _____
29
agreement will be governed by Turkish laws and the jurisdiction
will [sic] Istanbul, Turkey."13 A mutual forum selection
clause is a factor to be considered in the forum non conveniens
analysis. Royal Bed & Spring, 906 F.2d at 51, 52.
__________________
The Merciers protest that the district court assigned
excessive weight to the forum selection clause. We disagree.
Although their signatures do not appear on the document, the
Protocol was signed in behalf of the Merciers and Lidya by
Deliveli, and pertained to the same business transaction which is
at issue in the present action. Notwithstanding its apparent
typographical omission, the clause is most naturally read to
indicate the parties' choice of Istanbul, Turkey, as the forum
for litigating whatever disputes might arise out of their
business relationship. Indeed, the Merciers' lawsuit is
predicated in part on the validity of the Protocol containing the
forum selection clause. Moreover, the fact that Sheraton asserts
that the Merciers breached the substantive terms of the Protocol
does not alter the appropriateness of honoring the parties'
choice of an adequate and available forum for resolving their
substantive dispute.
____________________
13Forum selection clauses have long been utilized in commer-
cial transactions between citizens of the United States and
Turkey. See, e.g., S/S Alca, 713 F. Supp. at 131-132 (S.D.N.Y.
___ ____ _________
1989); Falcoal, Inc. v. Turkiye Komur Isletmeleri Kurumu, 660 F.
______________ ________________________________
Supp. 1538 (S.D. Tex. 1987) (forum selection clause naming
Turkey); Konstantinidis v. S/S Tarsus, 248 F. Supp. 280, 281
______________ ___________
(S.D.N.Y.), aff'd, 354 F.2d 240 (2d Cir. 1965) (arbitration
_____
clause designating Turkish forum and prescribing application of
Turkish law).
30
III
III
CONCLUSION
CONCLUSION
__________
For the foregoing reasons, the district court order of
dismissal is modified to include the following condition:
Sheraton, its subsidiaries and affiliates,
shall make available in the Republic of
Turkey all evidence within their control,
including testimony of their officers and
employees, at least to the extent that such
evidence would have been available to
plaintiffs in the district court proceedings
in the District of Massachusetts.
The order of dismissal, as modified, is affirmed. So
__________________________________________________ __
ordered.
_______
31
Document Info
Docket Number： 92-1050
Filed Date： 12/22/1992
Precedential Status： Precedential
Modified Date： 9/21/2015