Daniel Neelon v. Stan Bharti , 596 F. App'x 532 ( 2014 )


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  •                                                                            FILED
    NOT FOR PUBLICATION                             DEC 26 2014
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    DANIEL P. NEELON,                                No. 12-56958
    Plaintiff - Appellant,             D.C. No. 2:12-cv-00874-R-MAN
    v.
    MEMORANDUM*
    STAN BHARTI; BLAIR KRUEGER;
    FORBES & MANHATTAN, INC.;
    DESERT EAGLE RESOURCES, LTD.,
    DBA Garrison International, Ltd.,
    Defendants - Appellees.
    Appeal from the United States District Court
    for the Central District of California
    Manuel L. Real, District Judge, Presiding
    Argued and Submitted December 9, 2014
    Pasadena, California
    Before: WARDLAW and BERZON, Circuit Judges, and SMITH, District Judge.**
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    **    The Honorable William E. Smith, Chief United States District Judge
    for the District Rhode Island, sitting by designation.
    Daniel P. Neelon (“Neelon”) appeals the district court’s dismissal, on forum
    non conveniens grounds, of his claims against Stan Bharti (“Bharti”) and Forbes &
    Manhattan, Inc. (collectively, “Defendants”). We reverse. Because the parties are
    familiar with the factual and procedural history of this case, it is unnecessary to
    recount it here.
    Neelon argues that the district court abused its discretion by failing to accord
    Neelon’s forum choice proper deference, failing to consider the relevant private
    and public interest factors, and striking an unreasonable balance of the factors that
    were considered.1 We agree.
    The district court offered the following consideration of the private and
    public interest factors:
    The key witnesses for plaintiff and defendants are located in
    Mongolia and Canada. In addition, most documentary evidence will
    have to be collected and shipped from these countries.
    Further, most, if not all, of the allegedly defamatory statements
    were made and disseminated from Canada.
    On balance, the public and private interest factors weigh in
    favor of the Court granting dismissal for forum non conveniens.
    The district court failed to consider several relevant factors.
    1
    Neelon does not challenge the district court’s determination that Canada
    provides an adequate alternative forum for his claims. Accordingly, we do not
    address this aspect of the district court’s ruling.
    2
    First, and most important, the district court failed to consider the residence
    of the parties. Although Neelon, a Massachusetts resident, resides outside of the
    forum, he is a United States citizen. “‘[W]here the plaintiff is a United States
    citizen, the defendant must satisfy a heavy burden of proof,’” Boston Telecomms.
    Grp., Inc. v. Wood, 
    588 F.3d 1201
    , 1207 (9th Cir. 2009) (quoting Lueck v.
    Sundstrand Corp., 
    236 F.3d 1137
    , 1143 (9th Cir. 2001)), and, “‘unless the balance
    is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely
    be disturbed,’” 
    id.
     (quoting Gates Learjet Corp. v. Jensen, 
    743 F.2d 1325
    , 1334-35
    (9th Cir. 1984)).2 The district court did not weigh Neelon’s residency or consider
    the deference due Neelon’s chosen forum.
    2
    At oral argument, Defendants argued that this principle from Boston
    Telecomms. Grp., Inc. v. Wood, 
    588 F.3d 1201
    , 1207 (9th Cir. 2009), applies only
    in cases where the forum has ties to the claims asserted in the litigation; citing
    Lueck v. Sundstrand Corp., 
    236 F.3d 1137
     (9th Cir. 2001), and In re Air Crash
    Over Taiwan Straits on May 25, 2002, 
    331 F. Supp. 2d 1176
     (C.D. Cal. 2004),
    Defendants suggested that these cases hold that the forum choice of a United States
    citizen who is not a forum resident is not entitled to much deference where there is
    no connection between the forum and the underlying facts of the case. This
    argument is meritless. Nothing in Boston Telecomms. limits the deference that
    must be accorded the forum choice of a United States citizen who is not a forum
    resident in the manner suggested by Defendants. Moreover, in Lueck, 
    236 F.3d at 1140
    , all of the plaintiffs were citizens of New Zealand, and in In re Air Crash
    Over Taiwan Straits, 
    331 F. Supp. 2d at 1190
    , the “vast majority” of the plaintiffs
    were not United States citizens.
    3
    Second, the district court failed to consider the forum’s convenience to the
    litigants, a private interest factor for which Defendants provided the district court
    no evidence. Although Bharti executed a brief declaration, it contained no
    allegation that litigation in California would be inconvenient for Defendants.
    Defendants’ only effort to address convenience—both before the district court and
    on appeal—consisted of arguing that Neelon had failed to show that litigation in
    California would be convenient and that it would be inconvenient to litigate in
    Canada or Mongolia. Defendants misapprehend the identity of the party bearing
    the burden in the forum non conveniens inquiry. “[A] plaintiff need not select the
    optimal forum for his claim, but only a forum that is not so oppressive and
    vexatious to the defendant ‘as to be out of proportion to plaintiff’s convenience.’”
    Tuazon v. R.J. Reynolds Tobacco Co., 
    433 F.3d 1163
    , 1180 (9th Cir. 2006)
    (quoting Ravelo Monegro v. Rosa, 
    211 F.3d 509
    , 514 (9th Cir. 2000)). Defendants
    made no effort to shoulder their burden of showing oppressive and vexatious
    inconvenience in litigating in California.
    Finally, the district court failed to explicitly consider any of the public
    interest factors, and, in any event, none of them appears to strongly favor
    dismissal.
    4
    In addition to the district court’s failure to consider relevant factors, the
    district court made several errors in weighing the factors that it did consider. First
    and foremost, the district court erred by focusing solely on the location of the
    witnesses. “[T]he focus for this private interest analysis should not rest on the
    number of witnesses . . . in each locale but rather the court should evaluate the
    materiality and importance of the anticipated . . . witnesses’ testimony and then
    determine their accessibility and convenience to the forum.” Carijano v. Occidental
    Petroleum Corp., 
    643 F.3d 1216
    , 1231 (9th Cir. 2011), cert. denied, 
    133 S.Ct. 1996
    (2013) (quoting Boston Telecomms., 
    588 F.3d at 1209
    ) (internal quotation marks
    omitted). The district court failed to perform the required analysis, and Defendants
    failed to provide enough information to do so. Defendants only provided a list of
    witnesses who resided in either Canada or Mongolia. This showing was
    insufficient to carry Defendants’ burden. See Carijano, 643 F.3d at 1231; Boston
    Telecomms., 
    588 F.3d at 1210
    .
    Additionally, the district court’s determination that “most documentary
    evidence will have to be collected and shipped from” Canada or Mongolia is not
    supported by any evidence in the record. Defendants provided no evidence to the
    district court regarding the location of any documentary evidence. The only
    evidence in the record regarding the location of documents cuts the other way:
    5
    Neelon asserted in his declaration that he possessed several key documents that
    readily demonstrate the falsity of the alleged defamatory statements made by
    Defendants. By disregarding the only record evidence on the location of
    documentary evidence and making a factual finding regarding the location of the
    documentary evidence not supported by the record, the district court abused its
    discretion in weighing the evidence. See Carijano, 643 F.3d at 1224 (explaining
    that district court abuses its discretion when it relies on a clearly erroneous
    assessment of the evidence).
    A district court abuses its discretion in the forum non conveniens context
    “when it fails to hold a party to its ‘burden of making a clear showing of facts
    which establish such oppression and vexation of a defendant as to be out of
    proportion to plaintiff’s convenience,’ or when it ‘fail[s] to consider relevant
    private and public interest factors and misconstrue[s] others.’” Carijano, 643 F.3d
    at 1236 (citations omitted) (quoting Boston Telecomms., 
    588 F.3d at 1212
    ; Gates
    Learjet, 
    743 F.2d at 1337
    ). The district court in this case committed these errors
    with the result that it applied the “‘exceptional tool’” of a forum non conveniens
    dismissal in a case in which the defendants wholly failed to justify such “a drastic
    exercise of the court’s ‘inherent power.’” Id. at 1224 (quoting Dole Food Co. v.
    Watts, 
    303 F.3d 1104
    , 1118 (9th Cir. 2002)). Accordingly, we reverse the order of
    6
    the district court. The record makes abundantly clear that this case should be
    litigated in the district where it was filed.
    REVERSED AND REMANDED.
    7