Adelson v. Hananel , 510 F.3d 43 ( 2007 )

United States Court of Appeals
For the First Circuit
Nos. 06-2281, 06-2282
SHELDON G. ADELSON,
Plaintiff-Appellant/Cross-Appellee,
v.
MOSHE HANANEL,
Defendant-Appellee/Cross-Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Reginald C. Lindsay, U.S. District Judge]
Before
Torruella and Lynch, Circuit Judges,
and Fusté,* District Judge.
Andrew H. Schapiro, with whom Philip Allen Lacovara,
Christopher J. Houpt, Mayer, Brown, Rowe & Maw LLP, Franklin H.
Levy, and Duane Morris LLP, were on brief, for appellant/cross-
appellee.
James A. G. Hamilton, with whom Burns & Levinson LLP was on
brief, for appellee/cross-appellant.
December 5, 2007
*
Of the District of Puerto Rico, sitting by designation.
TORRUELLA, Circuit Judge. This is an appeal from the
district court's dismissal of a case for forum non conveniens.
Plaintiff Sheldon Adelson, a United States citizen, is an
international businessman with substantial holdings around the
world, including several casinos and a corporation named Interface
Partners International, Ltd. ("IPI"). IPI is a Delaware
corporation which was established for the purpose of making
business investments in Israel, and has offices in Needham,
Massachusetts, Nevada, and Israel. The defendant, Moshe Hananel,
is a citizen and resident of Israel who was hired in 1995 to serve
as the General Manager of IPI's operations in Israel. Adelson
terminated Hananel's employment with IPI in April 2000, resulting
in several lawsuits in an Israeli labor court. In February 2004,
Adelson filed the instant suit in the United States District Court
for the District of Massachusetts seeking a declaration of the
parties' respective rights pursuant to an oral employment contract
between IPI and Hananel.
After finding that it had personal jurisdiction over the
defendant for the declaratory action, the district court dismissed
the case for forum non conveniens. The court determined that
Israel is an adequate alternative forum and that the balancing of
public and private interest factors weighs in favor of the Israeli
forum. Adelson v. Hananel, No. 04-10357 (D. Mass. July 18, 2006)
(order dismissing the case on grounds of forum non conveniens).
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The plaintiff now appeals, arguing, inter alia, that the district
court failed to afford heightened deference to the plaintiff, a
U.S. citizen, and his choice of forum, and erred in relying on the
pendency of concurrent action in Israel. The defendant cross-
appeals and contends that the district court lacks personal
jurisdiction over him. We affirm the district court's finding of
personal jurisdiction, but reverse the dismissal for forum non
conveniens.
I. Background
Adelson and Hananel enjoyed a social friendship prior to
their decision to become involved in business together. In late
2005, Hananel became aware that IPI's General Manager in Israel
would be vacating that position and he expressed interest in the
job. According to the facts alleged in the complaint, on
December 5, 1995, Adelson, Hananel, and IPI's General Counsel, Paul
Roberts, met in IPI's office in Needham and formally agreed that
Hananel would become a full-time employee of IPI.1 Hananel's
responsibilities were to identify, recruit, and hire business
analysts and portfolio managers who would help IPI search out and
identify opportunities in Israel in the high technology sector.
His agreed salary was $100,000 and twelve percent of the net
profits realized by IPI from any high tech investments which were
1
Although the exact date on which they agreed that Hananel would
begin his employment with IPI is in dispute, he became a full-time
employee by January 1, 1996.
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found, recommended, and made as a result of his efforts. Although
the parties confirmed and finalized the terms of employment and all
three men shook hands, nothing was ever set in writing.2
In the course of Hananel's employment, he and Adelson
stayed in constant communication via daily telephone calls to
discuss IPI business. Although it is unclear whether Adelson was
in Massachusetts during those phone calls, it is undisputed that
the substance of the conversations was IPI-related. Hananel was
also in frequent contact with other IPI officers, such as Chief
Financial Officer Stephen O'Connor and IPI's Treasurer, who were
based in Needham. The Needham office also managed all of the
budgeting and funding for the Israel branch; Hananel submitted his
annual budget to and made all requests for operating funds through
that office because the funds were held in Massachusetts bank
accounts. Various written communications between Hananel and
O'Connor confirm that reporting structure.
On at least one occasion, Hananel went to Massachusetts
to attend a meeting on behalf of an Israeli company, iMD Soft,
Ltd., in which IPI had a substantial investment. As a
representative of IPI, Hananel was a member of iMD's Board of
2
According to an affidavit submitted by Roberts, he offered to
prepare a written contract memorializing the terms of the
employment contract, but Hananel replied that it was unnecessary
because of his personal relationship with Adelson.
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Directors and participated in a meeting with officers from Agilent
Technologies in Andover, Massachusetts.
Hananel's employment was terminated in April 2000,
allegedly for malfeasance. Adelson claims that Hananel did little
to no work for IPI and used IPI's finances and personnel for his
own personal and business purposes. In 2001, Hananel sued Adelson
and IPI in Tel Aviv District Labor Court for compensation which he
alleges he was owed under his oral employment contract. Adelson
countersued in the Israeli court, seeking the return of the
allegedly misused IPI funds. In February 2002, as the parties were
negotiating the severance terms, Hananel demanded twelve percent of
Adelson's shares in a new multi-billion dollar real estate, casino,
resort hotel, and convention project in Macau, China. Hananel
claimed that he had facilitated the venture and, pursuant to his
employment contract, was entitled to a percentage of the shares.
Denied his request, Hananel filed a second suit in the Tel Aviv
District Labor Court alleging that he was entitled to twelve
percent of the stock option shares. The Israeli court soon
thereafter consolidated the two cases.
Adelson filed the instant complaint in federal court on
February 23, 2004, seeking a declaratory judgment regarding
Hananel's alleged interest in the Macau business, injunctive
relief, and damages. The complaint alleges that Hananel harassed
and threatened Adelson and IPI, issuing defamatory claims in press
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releases in Chinese and American news media and threatening other
parties involved in the business project. Adelson contends that
Hananel's claims amount to extortion and that they are inhibiting
his ability to deal freely in his Macau business venture.3
Following jurisdictional discovery, Hananel filed renewed
motions to dismiss for lack of personal jurisdiction and forum non
conveniens.4 The district court referred the motions to the
Magistrate Judge who recommended that the motion to dismiss for
lack of personal jurisdiction be denied as to Count One for
declaratory judgment, but granted as to the other three counts.
The Magistrate Judge also recommended that the motion to dismiss
for forum non conveniens be granted. Rejecting the parties'
various objections to the Magistrate Judge's report, the district
court adopted and accepted both recommendations. Adelson now
appeals the dismissal for forum non conveniens, and Hananel cross-
appeals the denial of his motion to dismiss, for lack of personal
jurisdiction, Count One of the complaint.
3
During his deposition, Hananel asserted that he was entitled to
shares of Adelson's other international investments, beyond the
interests in Macau. Adelson's suit in the District of Massachusetts
refers broadly to investments anywhere in the world, while the
Israeli suit is focused specifically on Macau.
4
Hananel initially filed motions to dismiss for lack of personal
jurisdiction and forum non conveniens in June 2004. After a
hearing, the district court denied, without prejudice, the motion
to dismiss for lack of jurisdiction and ordered that it could be
renewed after jurisdictional discovery. The court also denied,
without prejudice, the dismissal for forum non conveniens until it
could establish that it had jurisdiction over the defendant.
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II. Discussion
A. Personal Jurisdiction
We first review the district court's denial of Hananel's
motion to dismiss Count One for lack of personal jurisdiction.5
Faced with a motion to dismiss for lack of personal jurisdiction,
a district court "may choose from among several methods for
determining whether the plaintiff has met [its] burden." Daynard
v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d 42,
50-51 (1st Cir. 2002). In this case, the district court employed
the most common method, the "prima facie method" or the "prima
facie evidentiary standard," rather than adjudicating the
jurisdictional facts. The district court found that the amount of
detailed and specific evidence provided by the plaintiff weighed in
favor of applying the prima facie standard. Under this standard,
the court need only "consider . . . whether the plaintiff has
proffered evidence that, if credited, is enough to support findings
of all facts essential to personal jurisdiction." Foster-Miller,
Inc. v. Babcock & Wilcox Canada, 46 F.3d 138, 145 (1st Cir.
1995)(quoting Boit v. Gar-Tec Products, Inc., 967 F.2d 671, 675
(1st Cir. 1992)).
We review both the district court's decision to use the
prima facie standard and its conclusion under that standard de
5
Adelson neither objected to nor appeals the district court order
dismissing Counts Two - Four for lack of personal jurisdiction.
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novo. Foster-Miller, 446 F.3d at 147; see also United States v.
Swiss American Bank, Ltd., 274 F.3d 610, 619 (1st Cir. 2001).
Here, the parties do not object to the court's choice of method;
the defendant contends only that it was misapplied.
Applying the prima facie standard, Adelson bears the
burden of establishing that the district court has personal
jurisdiction over Hananel. We "must accept the plaintiff's
(properly documented) evidentiary proffers as true for the purpose
of determining the adequacy of the prima facie jurisdictional
showing." Foster-Miller, 46 F.3d at 145. In fact, we accept those
facts as true, irrespective of whether the defendant disputes them,
and in so doing, "construe them in the light most congenial to the
plaintiff's jurisdictional claim." Mass. Sch. of Law at Andover,
Inc. v. Am. Bar Ass'n, 142 F.3d 26, 34 (1st Cir. 1998). Those
facts put forward by the defendant become part of the mix only to
the extent that they are uncontradicted. Id. at 34.
It is undisputed that Adelson is proceeding under a
theory of specific (rather than general) jurisdiction and,
therefore, must demonstrate that the Massachusetts long-arm statute
grants jurisdiction over Hananel and that the exercise of that
jurisdiction comports with the Due Process Clause of the Fifth
Amendment. See Foster-Miller, 46 F.3d at 144. Under the
Massachusetts statute, "[a] court may exercise personal
jurisdiction over a person, who acts directly or by an agent, as to
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a cause of action in law or equity arising from the person's . . .
transacting any business in this commonwealth." Mass. Gen. Laws
ch. 223A, § 3(a)(2000). In Massachusetts, the Court can "sidestep
the statutory inquiry and proceed directly to the constitutional
analysis" because the state's long-arm statute is coextensive with
the limits allowed by the Constitution. Daynard, 290 F.3d at 52
(citing "Automatic" Sprinkler Corp. of Am. v. Seneca Foods Corp.,
361 Mass. 441 (1972)).
In order for Massachusetts to exercise personal
jurisdiction over Hananel, an out-of-state defendant, the Due
Process Clause requires that Hananel have sufficient minimum
contacts with the state, such that "maintenance of the suit does
not offend 'traditional notions of fair play and substantial
justice.'" Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)
(quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)). For
specific jurisdiction, we have broken the minimum contacts analysis
into three categories -- relatedness, purposeful availment, and
reasonableness:
First, the claim underlying the litigation
must directly arise out of, or relate to, the
defendant's forum-state activities. Second,
the defendant's in-state contacts must
represent a purposeful availment of the
privilege of conducting activities in the
forum state, thereby invoking the benefits and
protections of that state's laws and making
the defendant's involuntary presence before
the state's courts foreseeable. Third, the
exercise of jurisdiction must, in light of the
Gestalt factors, be reasonable.
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Daynard, 290 F.3d at 60 (quoting Foster-Miller, 46 F.3d at 144).
1. Relatedness
Generally, relatedness refers to the requirement that the
underlying claim "arise out of" or be "related to" the activities
within the forum state. The relatedness standard is a "flexible,
relaxed standard," Pritzker v. Yari, 42 F.3d 53, 61 (1st Cir.
1994), which focuses on the "nexus between the defendant's contacts
and the plaintiff's cause of action." Ticketmaster-New York, Inc.
v. Alioto, 26 F.3d 201, 206 (1st Cir. 1994). Count One of the
complaint seeks a judgment declaring the rights and obligations
under Hananel's oral employment contract. We have held that in
contract claims, we may look to and draw inferences from "the
parties' prior negotiations and contemplated future consequences,
along with the terms of the contract and the parties' actual course
of dealing." Daynard, 390 F.3d at 52 (quoting Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 479 (1985)) (internal quotation marks
omitted). Furthermore, where the cause of action is for an alleged
breach of contract, we ask whether the defendant's activity in the
forum state was "instrumental either in the formation of the
contract or its breach." See Phillips Exeter Acad. v. Howard
Phillips Fund, Inc., 196 F.3d 284, 289 (1st Cir. 1999).
At the heart of this declaratory action is a dispute
regarding the specific terms of an oral employment contract; the
district court properly observed that "[n]othing could be more
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instrumental in the formation of a contract than the literal act of
forming the contract itself." The court first found that the
contract between the parties was "formalized and entered into in
Massachusetts" and "subjected Hananel to substantial control and
ongoing connection to Massachusetts in the performance of this
contract." Hananel's appeal urges us to reject Adelson's version
of the events which Adelson alleges transpired on December 5, 1995.
His arguments are unpersuasive; the law makes it clear that under
the prima facie standard, Adelson's evidence is accepted as true
and all inferences are drawn in favor of his jurisdictional claim.
See Mass. Sch. of Law, 142 F.3d at 34. Affidavits from both
Adelson and Roberts recount that the three men finalized the
specific terms of employment which Adelson and Hananel had
informally discussed prior to that meeting. The district court
properly found that the employment contract was formalized and
entered into during Hananel's December 5, 1995 trip to
Massachusetts when he met with Adelson and Roberts. Accordingly,
the instant action arises from and is related to Hananel's
activities within the forum. See Phillips Exeter Acad., 196 F.3d
at 289.
2. Purposeful Availment
Our next inquiry is whether Hananel's contacts with
Massachusetts constitute purposeful availment. This requirement
ensures that jurisdiction is not based on merely "random, isolated
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or fortuitous" contacts with the forum state. Sawtelle v. Farrell,
70 F.3d 1381, 1391 (1st Cir. 1995) (quoting Keeton v. Hustler
Magazine, Inc., 465 U.S. 770, 774 (1984)). The two key focal
points of this concept are voluntariness and foreseeability. Id.,70 F.3d at 1391 (citing Ticketmaster, 26 F.3d at 207). The
contacts must be voluntary and not based on the unilateral actions
of another party. Burger King, 471 U.S. at 475. And, the
defendant's contacts must be such that he could "reasonably
anticipate being haled into court there." World-Wide Volkswagen
Corp. v. Woodson, 444 U.S. 286, 297 (1980).
Here, the district court concluded that the two
requirements were easily met. First, Hananel freely and of his own
volition expressed interest in and obtained employment with IPI and
negotiated and executed his own contract while in Massachusetts.
Second, the court found that the evidence established the
foreseeability of litigation in Massachusetts: (1) his employment
relationship was formalized in Massachusetts with IPI's lawyer, (2)
his business card acknowledged his ongoing relationship with the
state, and (3) all of his budgets and financial funds were
submitted to and obtained through IPI's Needham office. Moreover,
given that it was Hananel who sought this employment contract with
a company whose key officers were all located in Massachusetts and
whose financial accounts were all administered out of
Massachusetts, the court properly concluded that Hananel had
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purposefully availed himself of Massachusetts law. See Burger
King, 471 U.S. at 473 ("[P]arties who 'reach out beyond one state
and create continuing relationships and obligations with citizens
of another state' are subject to regulation and sanctions in the
other State for the consequences of their activities." (quoting
Travelers Health Ass'n v. Virginia, 339 U.S. 643, 647 (1950))).
On appeal, Hananel challenges the district court's
findings on both voluntariness and foreseeability. He contends
that he had traveled to Massachusetts in December 1995 for the
purpose of seeking medical advice on his diabetic condition. While
that may be true, we do not see how it is relevant to the district
court's findings of voluntariness and foreseeability. The district
court did not conclude that the sole purpose of coming to
Massachusetts had been to formalize the agreement; the court simply
concluded that on December 5, Hananel freely met with IPI and
Adelson, and finalized his employment contract. Likewise, the
foreseeability of litigation in Massachusetts was established upon
meeting with IPI and Adelson and agreeing to the terms of the
employment contract. The original purpose of the Massachusetts
visit is inconsequential. Hananel's independent and voluntary
meeting with Adelson and Roberts transformed the relevant portion
of his visit into a business visit.
Furthermore, the district court properly found that the
additional evidence proffered by Adelson demonstrated that
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Hananel's contacts with Massachusetts continued during his
employment. Although he oversaw the Israel office, Hananel
communicated regularly with members of IPI's Needham office
regarding various financial matters. His annual budgets were
submitted to the Needham office and all operational funds were
approved and disbursed through the Needham office. It is clear
that the evidence reviewed by the district court supports a finding
that there existed sufficient ties between Massachusetts and the
employment contract. Hananel knowingly affiliated himself with a
corporate entity which was based primarily in Needham,
Massachusetts and, thus, the possibility of a suit there was amply
foreseeable.
3. Reasonableness
Even after concluding that minimum contacts exist,
personal jurisdiction may only be exercised if it would be
reasonable, pursuant to a series of factors known as the "Gestalt
factors." Foster-Miller, 46 F.3d at 144. Those factors are:
(1) the defendant's burden of appearing, (2)
the forum state's interest in adjudicating the
dispute, (3) the plaintiff's interest in
obtaining convenient and effective relief, (4)
the judicial system's interest in obtaining
the most effective resolution of the
controversy, and (5) the common interests of
all sovereigns in promoting substantive social
policies.
United Elec., Radio and Mach. Workers of Am. v. 163 Pleasant St.
Corp., 960 F.2d 1080, 1088 (1st Cir. 1992) (citing Burger King, 471
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U.S. at 477). The factors, intended to aid the court in achieving
substantial justice, play a larger role in cases where the minimum
contacts question is very close. See Ticketmaster, 26 F.3d at 210("[T]he weaker the plaintiff's showing on the first two prongs
(relatedness and purposeful availment), the less a defendant need
show in terms of unreasonableness to defeat jurisdiction."); see
also Burger King, 471 U.S. at 477 ("[W]here a defendant who
purposefully has directed his activities at forum residents seeks
to defeat jurisdiction, he must present a compelling case that the
presence of some other consideration would render jurisdiction
unreasonable."). The court below found that the Gestalt factors
support the conclusion that jurisdiction is reasonable. We agree.
Admittedly, Hananel lives and works in Israel and is a
legally blind diabetic. While those facts evoke sympathy for the
undeniable burden placed upon Hananel, the district court properly
concluded that no "special or unusual burden" existed here.
Pritzker, 42 F.3d at 64. The court noted that neither his foreign
residence nor his medical condition precluded him from traveling
internationally in the course of his employment or from agreeing to
work for an American company. Furthermore, Adelson, a resident of
the state, has an interest in bringing this action in
Massachusetts, which weighs in favor of a finding of personal
jurisdiction. And, as we noted in an earlier case, Massachusetts
has a "stake in being able to provide a convenient forum for its
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residents to redress injuries inflicted by out-of-forum actors."
Daynard, 290 F.3d at 62 (quoting Sawtelle, 70 F.3d at 1395)
(internal quotation marks omitted). The state's interest in the
case is further heightened by the involvement of IPI's executive
officers who are employed in Massachusetts and of funds which are
held and managed in Massachusetts. Although Hananel casts doubt
upon Adelson's ability to claim that Massachusetts is more
convenient than Israel, he fails to recognize that this factor
requires deference to a plaintiff's choice of forum. See Foster-
Miller, 46 F.3d at 151; see also Ticketmaster, 26 F.3d at 211(recognizing that a plaintiff must be accorded "a degree of
deference in respect to the issue of its own convenience").
Lastly, while the interests of the judicial system in achieving
efficient resolution militate against Adelson because of the prior
suits pending in Israel, the district court properly concluded that
this factor alone was insufficient to tip the constitutional
balance on the facts of this case.
Accordingly, Hananel's contacts with Massachusetts
constitute "minimum contacts" in such a manner that it does not
"offend traditional notions of fair play and substantial justice"
for Adelson to bring this case in the state. Int'l Shoe, 326 U.S.
at 316 (quoting Milliken, 311 U.S. at 463).
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B. Forum Non Conveniens
Adelson appeals from the decision of the district court
to dismiss the suit for forum non conveniens. The decision to
grant or deny a motion to dismiss for forum non conveniens is
generally committed to the district court's discretion. Piper
Aircraft Co. v. Reyno, 454 U.S. 235, 257 (1981). We will find an
abuse of discretion if the district court (1) failed to consider a
material factor; (2) substantially relied on an improper factor; or
(3) assessed the proper factors, but clearly erred in weighing
them. Iragorri v. Int'l Elevator, Inc., 203 F.3d 8, 12 (1st Cir.
2000). Errors of law, however, are reviewed de novo. Id.We begin with the well-known framework for forum non
conveniens outlined by the Supreme Court in a pair of 1947
opinions, Gulf Oil Corp. v. Gilbert, 330 U.S. 501, and Koster v.
Lumbermens Mut. Cas. Co., 330 U.S. 518. Those cases and their
progeny established forum non conveniens as a discretionary tool
for the district court to dismiss a claim, even when it has proper
jurisdiction. See Gilbert, 330 U.S. at 507. That power, however,
is limited by the overarching principle that a "plaintiff's choice
of forum should rarely be disturbed." Id. at 508; see also Howe v.
Goldcorp Invs., Ltd., 946 F.2d 944, 950 (1st Cir. 1991) (forum non
conveniens is intended to "avoid trials in places so 'inconvenient'
that transfer is needed to avoid serious unfairness" (quoting Piper
Aircraft Co., 454 U.S. at 259)). Accordingly, the party moving
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for dismissal bears the heavy burden of establishing that an
adequate alternative forum exists and that "considerations of
convenience and judicial efficiency strongly favor litigating the
claim in the second forum." Iragorri, 203 F.3d at 12 (emphasis
added). Neither party disputes the availability and adequacy of
the Israeli forum. The issue is whether the district court
properly balanced the factors in the second step of the analysis.
In this case, the district court found that the suit was
not vexatious and that no great equity weighed in the defendant's
favor. Yet, because there was already a case pending before the
Israeli court, the district court concluded that the public
interest factors weighed in favor of dismissal. On appeal, Adelson
contends that the district court (1) improperly reversed the burden
of proof, requiring the plaintiff to prove why he could not fairly
litigate his claim in Israel; (2) failed to give proper deference
to a United States plaintiff's choice of forum; and (3) placed
undue significance on the existence of concurrent litigation in the
Israeli court. We agree with Adelson and reverse the district
court's dismissal.
As a starting point, it is undisputed that a plaintiff
enjoys some degree of deference for his original choice of forum.
See Gulf Oil, 330 U.S. at 508. Added to that is the heightened
deference which accompanies a plaintiff's choice of home forum.
See Koster, 330 U.S. at 524 (holding that when the plaintiff has
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chosen his home forum, he should not be deprived of it absent a
"clear showing" of either "oppressiveness and vexation" or evidence
that the chosen forum is "inappropriate"). Although Adelson is not
a Massachusetts domiciliary, the Massachusetts district court is
still deemed a "home forum" where the alternative is foreign. See
Reid-Walen v. Hansen, 933 F.2d 1390, 1394 (8th Cir. 1991) (in a
forum non conveniens case involving a foreign court, "the 'home'
forum for the plaintiff is any federal district in the United
States, not the particular district where the plaintiff lives").
A logical extension of that heightened deference in favor of a
plaintiff's "home forum" applies in cases such as this which
involves a U.S. citizen plaintiff who is seeking to litigate in a
United States forum. While the Supreme Court held that dismissal
is "not automatically barred" in such cases, Piper Aircraft Co.,
454 U.S. at 256 n.23, a heavy presumption weighs in favor of that
plaintiff's initial forum choice.
In the past, we have implicitly recognized the "strong
presumption favoring the American forum selected by American
plaintiffs." Mercier v. Sheraton Int'l Inc., 981 F.2d 1345, 1355
(1st Cir. 1992). Other circuits have more explicitly articulated
the strength of this presumption when the plaintiffs are citizens,
residents, or corporations of this country. See, e.g., SME Racks,
Inc. v. Sistemas Mecánicos Para Electrónica, S.A., 382 F.3d 1097,
1104 (11th Cir. 2004) ("[T]here is a strong federal interest in
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making sure that plaintiffs who are United States citizens
generally get to choose an American forum for bringing suit, rather
than having their case relegated to a foreign jurisdiction."
(quoting Esfeld v. Costa Crociere, S.P.A., 289 F.3d 1300, 1311
(11th Cir. 2002)); Carey v. Bayerische Hypo-Und Vereinsbank AG, 370
F.3d 234, 238 (2d Cir. 2004) (noting the "presumptive validity of
a United States resident's choice of a United States forum");
Raytheon Eng'rs and Constructors, Inc. v. HLH and Assocs. Inc., No.
97-20187, 1998 WL 224531 at *2 (5th Cir. Apr. 17, 1998)
(recognizing the presumption in favor of a plaintiff's choice of
forum, "especially when a United States plaintiff has chosen the
home forum").
While the district court properly observed that Adelson
is a United States citizen and that there is a "heavy presumption"
in favor of his choice of forum, the district court ignored that
presumption because of the existence of the concurrent action in
the Israeli court. Indeed, in its analysis up to that point, the
district court had found that the "private interest factors did not
weigh in favor of either party" and that the public interest was
"also in equipoise between the parties." Moreover, the court also
found that Adelson's suit was neither vexatious nor oppressive.
Thus, it was the existence of concurrent litigation that not only
caused the balance to shift in favor of the foreign forum, but also
eviscerated the presumption in favor of the plaintiff's forum. In
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discussing the Israeli suit, the district court stated, "I see no
reason why Adelson cannot fairly litigate his claim in Israel."
The district court erred in so construing the importance of
concurrent litigation within the forum non conveniens analysis.
Having found the public and private interest factors to
be in equipoise, the district court should have concluded that the
defendant failed to overcome the heavy presumption in favor of the
plaintiff's home forum. It is the defendant who carries the burden
of establishing that the "compendium of factors relevant to the
private and public interests implicated by the case strongly favors
dismissal." Iragorri, 203 F.3d at 12 (emphasis added). Factors
relevant to the public interest analysis include:
administrative difficulties of docket
congestion; the general goal of "having
localized controversies decided at home," and
. . . ease of access to the proceedings on the
part of interested citizens, the trier's
relative familiarity with the appropriate
rules of decision, and the burdens of jury
duty.
Id. (quoting Gilbert, 330 U.S. at 508-509). The existence of
concurrent litigation is not a relevant factor to the analysis;
none of the factors enumerated above invokes a comparison between
the two competing fora. By focusing on the existence of parallel
proceedings in a foreign court, the district court essentially
converted the analysis into a determination of which of the two
pending cases should go forward. In so doing, the court
erroneously lowered the defendant's burden of proving that the
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balance of factors justified dismissal of a suit from a U.S.
plaintiff's choice of home forum.
III. Conclusion
For the foregoing reasons, the judgment of the district
court denying the motion to dismiss for lack of personal
jurisdiction is affirmed, and the judgment dismissing for forum non
conveniens is reversed.
Affirmed in part; and Reversed in part. Costs are taxed
in favor of Sheldon G. Adelson.
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