Stroitelstvo Bulgaria Limited v. Bulgarian-American Enterprise ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1753
S TROITELSTVO B ULGARIA L IMITED,
Plaintiff-Appellant,
v.
B ULGARIAN-A MERICAN E NTERPRISE F UND, ET AL.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 08 C 3056—Ruben Castillo, Judge.
A RGUED S EPTEMBER 10, 2009—D ECIDED D ECEMBER 14, 2009
Before M ANION, S YKES, and T INDER, Circuit Judges.
T INDER, Circuit Judge. Stroitelstvo Bulgaria Ltd.
(“Stroitelstvo”), a Bulgarian construction company,
entered into a loan contract with the Bulgarian-
American Credit Bank (“Bank”). The Bank later claimed
that Stroitelstvo breached the contract and demanded
the full amount due on the loan. Stroitelstvo denied any
breach but eventually settled by paying a large chunk
of the Bank’s claim. The execution of the contract,
2 No. 09-1753
alleged breach, and settlement payment all took place
in Bulgaria.
Then, Stroitelstvo came to U.S. federal court and sued
the Bank and its Chicago-based parent, the Bulgarian-
American Enterprise Fund (“BAEF”), for the Bank’s
alleged predatory lending practices. Now the question
arises, why should a U.S. district court decide this
dispute over a Bulgarian loan contract? The district court
couldn’t find a good answer and so dismissed Stroitelstvo’s
case on the ground of forum non conveniens. Because
we agree with the district court that Bulgaria is a better
forum than the United States to resolve this dispute,
we affirm.
I. Background
The facts, as alleged in Stroitelstvo’s complaint, describe
a classic predatory lending scheme. In March, 2005,
Stroitelstvo entered into a loan contract with the Bank
to finance a residential construction project in Sofia,
Bulgaria. The contract required the Bank to disburse a
total of about 1.9 million euros to Stroitelstvo through
various stages of the project. Several months into the
loan, when the Bank had disbursed only 361,000 of the
total 1.9 million euros, the Bank asserted that
Stroitelstvo breached the loan contract by, among other
things, failing to turn over certain advance payments
on residential units. The Bank suspended Stroitelstvo’s
credit and claimed a right to recover 970,438 euros, equal
to the 361,000 euros already disbursed plus the total
interest and fees due under the loan.
No. 09-1753 3
According to Stroitelstvo, the Bank’s claimed breach
was pretextual and designed to pressure Stroitelstvo
into paying the Bank more than it deserved under the
loan contract. The Bank went to the Sofia City Court
ex parte and obtained a judgment in the amount of
the 970,438 euros purportedly owed, a judgment that the
Bank used to freeze Stroitelstvo’s assets. With its
assets frozen, Stroitelstvo couldn’t afford to wait two or
three years while it pursued a separate action in
Bulgarian court to overturn the Bank’s judgment. So
instead, Stroitelstvo agreed to pay the Bank 563,000 euros,
less than the 970,438 euros claimed by the Bank but
more than what Stroitelstvo thought that it owed under
the contract.
In April, 2007, Stroitelstvo sued the Bank and BAEF, the
Bank’s Chicago-based parent, in the U.S. District Court
for the District of Columbia. Stroitelstvo claimed that
BAEF and the Bank had conducted a scheme to extort
and blackmail several Bulgarian businesses, including
Stroitelstvo, and that this scheme was a “racketeering
activity” giving rise to a civil remedy under the Racketeer
Influenced and Corrupt Organizations (“RICO”) Act. 18
U.S.C. §§ 1962, 1964. Stroitelstvo’s complaint also con-
tained several contract and tort claims, most based in
American law, but one alleging a violation of the
Bulgarian Obligations and Contracts Act.
The defendants successfully moved the D.C. District
Court to transfer the case to the Northern District of
Illinois, as BAEF is headquartered in Chicago. The N.D. Ill.
district court then took up the defendants’ motion to
4 No. 09-1753
dismiss based on, among other things, the doctrine of
forum non conveniens, in which the defendants argued
that Bulgaria was a more convenient forum than the
United States to resolve the parties’ dispute. The parties
offered the testimony of experts in Bulgarian law, who
addressed the adequacy of the Bulgarian courts to ad-
judicate Stroitelstvo’s claims. Stroitelstvo’s experts,
Maria Slavova and Vladimir Skochev, generally doubted
that Bulgarian law would provide adequate substitutes
for all of the American-law claims raised in Stroitelstvo’s
complaint. They also described a public perception of
corruption in the Bulgarian legal system. The defendants’
expert, Silvy Chernev, thought that Bulgarian law
would provide a remedy for all of the conduct alleged
in Stroitelstvo’s complaint, even though not all of
Stroitelstvo’s American-law claims had exact Bulgarian
equivalents. Chernev also acknowledged problems of
judicial corruption but nonetheless insisted that the
Bulgarian courts were generally adequate.
After carefully considering the expert testimony and
Stroitelstvo’s arguments against dismissal, the district
court granted the defendants’ motion to dismiss on
forum non conveniens grounds. The court thought that
resolving Stroitelstvo’s case in Bulgaria, rather than in
the United States, would better serve the convenience
of the parties and the ends of justice. Stroitelstvo appeals,
which it may, since a forum non conveniens dismissal is a
final, appealable judgment even though it does not end
the litigation. Abad v. Bayer Corp., 563 F.3d 663, 665 (7th
Cir. 2009).
No. 09-1753 5
II. Analysis
The common law doctrine of forum non conveniens
allows a federal district court to dismiss a suit over
which it would normally have jurisdiction in order to
best serve the convenience of the parties and the ends of
justice. Clerides v. Boeing Co., 534 F.3d 623, 627-28 (7th Cir.
2008) (citing In re Bridgestone/Firestone, Inc., 420 F.3d
702, 703 (7th Cir. 2005)). We review the district court’s
dismissal of a case on forum non conveniens grounds for
an abuse of discretion. Abad, 563 F.3d at 665.
A. The Adequacy of Bulgaria as an Alternative Forum
A threshold requirement for any forum non conveniens
dismissal is the existence of an alternative forum that is
both “available” and “adequate.” Kamel v. Hill-Rom Co.,
Inc., 108 F.3d 799, 802 (7th Cir. 1997). An alternative
forum is “available” if all of the parties are amenable to
process and within the forum’s jurisdiction. Id. at 803.
Stroitelstvo does not dispute that Bulgaria is an
available forum. The Bank, which operates in Bulgaria,
and BAEF, which maintains an office in Sofia, are both
amenable to process and within the Bulgarian courts’
jurisdiction. Moreover, BAEF has consented to the Bulgar-
ian courts’ jurisdiction as a condition of forum non
conveniens dismissal.
The adequacy of a Bulgarian forum, on the other hand,
is the central dispute in this appeal. An alternative
forum is adequate if it provides the plaintiff with a fair
hearing to obtain some remedy for the alleged wrong. Id.6 No. 09-1753
It is not necessary that the forum’s legal remedies be as
comprehensive or as favorable as the claims a plaintiff
might bring in an American court. See id. Instead, the test
is whether the forum provides some potential avenue
for redress for the subject matter of the dispute. See id.At least some substantial expert testimony in this case
indicated that Stroitelstvo could expect a fair hearing in
the Bulgarian courts. As the experts recognized,
Bulgaria gained admission to the European Union in
2007, and one requirement for EU membership is that the
nation have a stable legal system that guarantees the
rule of law. The defendants’ expert, Chernev, also
stated that Bulgaria has an independent judiciary that
provides full and fair consideration of commercial dis-
putes.
It is true that all of the experts lamented a public percep-
tion of corruption in the Bulgarian courts, and Skochev,
Stroitelstvo’s expert, even claimed that the Bulgarian
legal system was incapable of providing a fair hearing.
Still, the experts made no attempt to quantify this pur-
ported corruption or document particular plaintiffs or
claims that were treated unfairly. Their generalized,
anecdotal complaints of corruption are not enough for a
federal court to declare that an EU nation’s legal system
is so corrupt that it can’t serve as an adequate forum.
See Tuazon v. R.J. Reynolds Tobacco Co., 433 F.3d 1163, 1179
(9th Cir. 2006) (finding the plaintiff’s “anecdotal evidence
of corruption and delay” in the Philippine courts insuffi-
cient to show inadequacy); In re Arbitration between
Monegasque de Reassurances S.A.M. v. Nak Naftogaz of Ukr.,
No. 09-1753 7
311 F.3d 488, 499 (2d Cir. 2002) (refusing “to pass value
judgments on the adequacy of justice and the integrity of
Ukraine’s judicial system on the basis of no more than . . .
bare denunciations and sweeping generalizations”);
Leon v. Millon Air, Inc., 251 F.3d 1305, 1312 (11th Cir. 2001)
(requiring the plaintiff to substantiate allegations of
serious corruption or delay with “significant evidence
documenting the partiality or delay . . . typically
associated with the adjudication of similar claims”).
The expert testimony also showed that Bulgarian law
provides some remedy for the subject matter of this
dispute, the Bank’s alleged breach of the loan contract
and predatory lending practices. Chernev cited several
provisions of the Bulgarian Obligations and Contracts
Act that enforce contractual obligations and provide for
damages against a commercial party who fails to act in
good faith. Although Stroitelstvo’s experts disagreed
with Chernev on the full scope of remedies available
under Bulgarian law, it was undisputed that the Act
would support a breach of contract action and damages
remedy against the Bank for the conduct alleged in
Stroitelstvo’s complaint.
To be sure, Bulgarian law might not support the full
array of legal claims spelled out in Stroitelstvo’s federal-
court complaint. In particular, the experts agreed that
Bulgaria has no equivalent to Stroitelstvo’s RICO claim.
That is neither surprising, since RICO is a uniquely Ameri-
can effort to target organized crime, see Kempe v. Ocean
Drilling & Exploration Co., 876 F.2d 1138, 1143-44 (5th Cir.
1989), nor problematic, since federal courts have
8 No. 09-1753
routinely held that the loss of a RICO claim does not by
itself preclude a forum non conveniens dismissal, Yavuz v.
61 MM, Ltd., 576 F.3d 1166, 1177 n.6 (10th Cir. 2009)
(citing cases).
The experts battled over whether Bulgarian law would
recognize Stroitelstvo’s other tort claims, or otherwise
provide adequate substitutes for those claims and the
RICO claim. Chernev, the defendants’ expert, was confi-
dent that Bulgarian law could address in some form all of
the legal issues raised by Stroitelstvo’s complaint. He
also thought that the general tort provision of the Obliga-
tions and Contracts Act would allow Stroitelstvo to seek
tort damages from the defendants. Stroitelstvo’s experts
were, predictably, less optimistic. Slavova disagreed with
Chernev’s prediction that the Obligations and Contracts
Act would support Stroitelstvo’s tort claims, since the Act
permits tort liability against only natural persons, not
“legal entities” like the Bank and BAEF. Skochev essen-
tially agreed with Slavova, testifying that a Bulgarian
company may be liable in tort under the Act only if the
plaintiff identifies a specific, natural person who com-
mitted the tort while working for the company. Skochev
further testified that Bulgarian law could provide only
partial remedies for the complex commercial issues
raised by Stroitelstvo’s complaint.
We think that this dispute over the range of legal claims
that Stroitelstvo can pursue in a Bulgarian court merely
demonstrates “the possibility of an unfavorable change
in the law,” which ordinarily does not carry substantial
weight in the forum non conveniens analysis. Piper Aircraft v.
No. 09-1753 9
Reyno, 454 U.S. 235, 249 (1981). Although Stroitelstvo’s
experts characterized the relief available under Bulgarian
law as partial and incomplete, their testimony does not
show that this relief is “so clearly inadequate or unsatis-
factory that it is no remedy at all.” Id. at 254. As for the
possible loss of Stroitelstvo’s tort claims against these
corporate defendants, it is undisputed that Stroitelstvo
would retain a claim for contract damages under the
Obligations and Contracts Act. In that sense, this case
is like Kamel, in which we concluded that the availability
of a breach of contract action made the forum ade-
quate, despite the plaintiff’s argument that the forum
would not recognize his tort claims. 108 F.3d at 803. Of
course, each forum non conveniens case is fact-specific, and
we do not say that an alternative forum is necessarily
adequate to resolve a tort plaintiff’s claims simply
because the defendant can point to some conceivable
contract remedy. Here, though, the contractual remedies
available under Bulgarian law go to the heart of this
dispute, a loan contract between Stroitelstvo and the Bank.
In an attempt to prove that its experts are correct that
the Bulgarian courts cannot adjudicate its claims,
Stroitelstvo has already filed a complaint identical to the
one that it filed in federal court in a Bulgarian district
court. Sure enough, the Bulgarian court dismissed
Stroitelstvo’s complaint for presenting a combination of
contractual and tort claims in a manner inconsistent
with Bulgarian law. Still, this dismissal hardly demon-
strates that the Bulgarian court is inadequate to resolve
Stroitelstvo’s dispute, for the court simply ordered
Stroitelstvo to re-prepare its complaint in accordance
10 No. 09-1753
with Bulgarian, not American, law. It would be re-
markable if any foreign court were to accept Stroitelstvo’s
Am erican-law c om p laint without change, and
Stroitelstvo’s argument that the Bulgarian court’s refusal
to do so makes it inadequate is unpersuasive.
Slightly more persuasive is Stroitelstvo’s argument that
Bulgarian law is incapable of providing relief against
one of two parties in this case, BAEF. With respect to this
defendant, Stroitelstvo raises only tort claims, not
contract claims. So if Stroitelstvo’s experts are correct that
Bulgarian law will not support tort claims against corpo-
rate defendants like BAEF, dismissing this case to
Bulgaria will cause Stroitelstvo to lose all of its claims
against BAEF. Stroitelstvo submits that this loss of a
defendant from its case, as opposed to the mere loss of
particular legal claims, is so significant as to leave
Stroitelstvo with no remedy at all.
Initially, we reiterate that it is not beyond dispute that
Stroitelstvo would be unable to sue BAEF in tort under
Bulgarian law. Chernev thought that provisions of the
Obligations and Contracts Act would support tort claims
against a corporate defendant like BAEF, although
Slavova and Skochev disagreed. More importantly, we
think that Stroitelstvo’s argument about losing a
defendant is more or less the same as its argument about
losing its preferred American-law tort claims. It is an
overstatement to say that a forum non conveniens
dismissal will cause Stroitelstvo to “lose” BAEF as a
defendant; BAEF is a defendant in this case that has
consented to the jurisdiction of the Bulgarian courts. In
No. 09-1753 11
our view, Stroitelstvo’s real concern is that any Bulgarian-
law substitutes that it might come up with for its
complex American-law claims against BAEF will ulti-
mately fail. It is possible that Stroitelstvo’s prediction
will prove true and BAEF will win a dismissal, causing
Stroitelstvo to effectively “lose” BAEF from the case. It is
also possible that the Bulgarian courts will interpret the
Obligations and Contracts Act to extend tort liability to
BAEF under these circumstances, or that Stroitelstvo
will identify a natural person whose tortious acts may
be imputed to BAEF, or that Stroitelstvo will assert a
contractual claim cognizable against a corporate
defendant like BAEF. We need not be certain that
Stroitelstvo would succeed in its claims against BAEF in
order to find Bulgaria an adequate forum. See In re
Factor VIII or IX Concentrate Blood Prods. Litig., 484 F.3d
951, 957-58 (7th Cir. 2007) (noting that the U.K. approach
to the plaintiff’s claim was uncertain but finding the
forum adequate). It is enough to conclude that, whatever
the chances of any particular claim against either defen-
dant in this case, Bulgarian law gives Stroitelstvo some
potential avenue for redress.
In addition to an arguably less favorable substantive
law, the Bulgarian legal system has certain procedural
requirements that Stroitelstvo would prefer to avoid. In
order to file a lawsuit in Bulgaria, a plaintiff must pay a
filing fee equal to 4% of the damages claimed, a fee that
is recoverable if the plaintiff prevails. For the (strikingly
large) $30 million damages demanded in Stroitelstvo’s
complaint, the fee would be $1.2 million, much more
than what Stroitelstvo’s director said the company could
afford.
12 No. 09-1753
Although the financial hardship of requiring a plaintiff
to sue outside of the chosen forum is relevant to the
forum non conveniens analysis, see Macedo v. Boeing Co., 693
F.2d 683, 690 (7th Cir. 1982), we conclude that Bulgaria’s
filing fee does not preclude dismissal. Federal courts
have declined to find foreign forums inadequate based
on filing fees similar to the 4% fee required here. See
Altmann v. Republic of Austria, 317 F.3d 954, 972-73 (9th Cir.
2002) (concluding that Austria’s 1.2% court fee was not
oppressive in the context of the plaintiff’s resources); Satz
v. McDonnell Douglas Corp., 244 F.3d 1279, 1283 (11th Cir.
2001) (per curiam) (“The plaintiffs’ concerns about Argen-
tine filing fees . . . do not render Argentina an
inadequate forum.”); Mercier v. Sheraton Int’l, Inc., 981 F.2d
1345, 1353 & n.7 (1st Cir. 1992) (characterizing the
Turkish courts’ cost bond of up to 15% of the recovery
sought as non-excessive under the circumstances). More
importantly, the district court in this case did not
simply ignore the impact of the filing fee on Stroitelstvo’s
ability to sue in Bulgaria. Cf. Macedo, 693 F.2d at 690(reversing a forum non conveniens dismissal based in part
on the district court’s failure to consider the financial
hardship to the plaintiffs of litigating in Portugal); Lehman
v. Humphrey Cayman, Ltd., 713 F.2d 339, 345-47 (8th Cir.
1983) (finding that the district court failed to consider
the plaintiff’s practical ability to litigate claims in the
Cayman Islands, where lawyers did not take cases on a
contingent-fee basis and foreign litigants had to pay a
cost bond). The court noted that the large $1.2 million
filing fee was driven by Stroitelstvo’s $30 million
damages claim, which in turn resulted from Stroitelstvo’s
No. 09-1753 13
demand for treble damages under RICO. See 18 U.S.C.
§ 1964(c). Since Bulgaria has no equivalent to RICO,
Stroitelstvo’s damages claim, and hence the filing fee,
would probably be lower upon converting Stroitelstvo’s
complaint to claims cognizable under Bulgarian law. The
district court did not abuse its discretion in concluding
that Bulgaria’s filing fee, typical for a civil law country,
Altmann, 317 F.3d at 972, and driven in size only
by Stroitelstvo’s complaint, did not make Bulgaria an
inadequate forum.
B. The Balance of Private and Public Interest Factors
If an adequate alternative forum exists, the district court
should consider whether a forum non conveniens dismissal
would serve the private interests of the parties and the
public interests of the alternative forums. Kamel, 108 F.3d
at 803. The Supreme Court has identified several private
and public interest factors that guide this analysis:
The private interest factors that a court may con-
sider include “the relative ease of access to sources
of proof; availability of compulsory process for
attendance of unwilling, and the cost of obtaining
attendance of willing, witnesses; possibility of view
of premises, if view would be appropriate to the
action; and all other practical problems that make
trial of a case easy, expeditious and inexpen-
sive.” . . . The public interest factors include the
administrative difficulties stemming from court
congestion; the local interest in having localized
disputes decided at home; the interest in having
14 No. 09-1753
the trial of a diversity case in a forum that is at
home with the law that must govern the action; the
avoidance of unnecessary problems in conflicts of
laws or in the application of foreign law; and the
unfairness of burdening citizens in an unrelated
forum with jury duty.
Clerides, 534 F.3d at 628 (citing Gulf Oil Corp. v. Gilbert,
330 U.S. 501, 508-09 (1947)).
The district court acted well within its discretion in
concluding that the relevant private and public interest
factors favored dismissal. As for the private interest
factors, the court determined that the witnesses and
documents pertaining to the loan contract are located in
Bulgaria. It follows that most of the discovery in this
case will take place in Bulgaria, and transporting all of the
evidence and witnesses to Chicago would be unneces-
sarily expensive. See U.S.O. Corp. v. Mizuho Holding Co., 547
F.3d 749, 751 (7th Cir. 2008) (describing the burden of
dragging witnesses and documents from Japan to Chi-
cago); Clerides, 534 F.3d at 629 (noting that most of the
evidence and witnesses were located in the foreign
forum). Translating all of the Bulgarian discovery docu-
ments into English for a U.S. court would also be costly.
See U.S.O. Corp., 547 F.3d at 751 (citing the unnecessary
translation costs that would result from trying the case
in Chicago rather than in Japan).
Regarding the public interest factors, the district
court found that court congestion was essentially a
wash; the 30-month average time to trial in the Northern
District of Illinois is comparable to the two to three years
No. 09-1753 15
that Stroitelstvo’s complaint alleged it would take to try
a case against the Bank in Bulgarian court.
More strongly favoring dismissal is the local interest
factor. The Northern District of Illinois has little interest
in the Bulgarian loan contract at the heart of this dis-
pute. The American defendant, BAEF, is a peripheral
player who didn’t even know about the underlying loan
transaction prior to Stroitelstvo’s lawsuit. Since this loan
is so unrelated to the local forum, calling Chicago-area
citizens for jury duty on this case would be asking a lot.
See id. at 755 (“[T]o burden Americans with jury duty to
resolve an intramural Japanese dispute would be gratu-
itous.”).
Stroitelstvo points out that BAEF receives federal funds
under the Support for East European Democracy (“SEED”)
Act, 22 U.S.C. §§ 5401-95, which it uses to support the
Bank’s activities. According to Stroitelstvo, U.S. taxpayers
have an interest in ensuring that BAEF uses its
SEED Act funding for the proper purpose of promoting
entrepreneurship in Bulgaria, not for the improper
purpose of extorting Bulgarian businesses. Perhaps, but
we think that Bulgaria has an equal if not greater
interest in guarding against the extortion of its own
businesses. See Abad, 563 F.3d at 668 (observing no real
“national interest” in either regulating American compa-
nies or resolving the tort claims of Argentine citizens);
Clerides, 534 F.3d at 630 (finding that the U.S. interest in
regulating a domestic airline company was matched by
the interests of Greece and Cyprus in regulating the use
of allegedly defective planes within their borders).
16 No. 09-1753
The application of foreign law also slightly favors
dismissal to Bulgaria. The loan contract has a Bulgarian
choice-of-law provision, and the Bulgarian Obligations
and Contracts Act would govern at least one of
Stroitelstvo’s claims if the case were tried in the United
States. See Abad, 563 F.3d at 670 (noting the superior
competence of the Argentine courts to decide claims
governed by Argentine law); U.S.O. Corp., 547 F.3d at 751(“[T]he law applicable to the issues in the case is
almost certainly Japanese law, with which American
judges have little familiarity.”).
In sum, we agree with the district court that the crux of
this case is two Bulgarian companies’ dispute over a
Bulgarian loan contract, so the balance of private and
public interest factors favor resolving the case in Bulgaria.
III. Conclusion
After carefully considering Stroitelstvo’s arguments
concerning the adequacy of the Bulgarian legal system, the
district court concluded that Bulgaria was an available,
adequate forum to resolve this dispute over a Bulgarian
loan contract. The court then balanced all of the relevant
private and public interest factors, which strongly favored
Bulgaria as the more convenient forum. The decision to
dismiss the case on forum non conveniens grounds
was not only well within the court’s discretion, but also,
we think, correct as a matter of common sense.
A FFIRMED.
12-14-09