Global Comm. Trading Grp. v. Beneficio De Arroz Choloma, Sa ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GLOBAL COMMODITIES TRADING No. 18-16026
GROUP, INC.; INSURANCE COMPANY
OF THE STATE OF PENNSYLVANIA, D.C. No.
Plaintiffs-Appellants, 2:16-cv-01045-
TLN-CKD
v.
BENEFICIO DE ARROZ CHOLOMA, OPINION
S.A., a Honduran Company; SADY
FARID ANDONIE REYES; JOYCE
MARY JARUFE DOX, AKA Joyce
Jarufe De Andonie,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Troy L. Nunley, District Judge, Presiding
Argued and Submitted December 4, 2019
San Francisco, California
Filed August 26, 2020
Before: Sidney R. Thomas, Chief Judge, and William A.
Fletcher and Eric D. Miller, Circuit Judges.
Opinion by Judge W. Fletcher
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BENEFICIO DE ARROZ CHOLOMA
SUMMARY*
Personal Jurisdiction / Forum Non Conveniens
The panel reversed the district court’s order dismissing
for lack of personal jurisdiction, vacated its orders on the
parties’ remaining motions, and remanded with instructions
to deny the forum non conveniens motion in an action brought
by Global Commodities Trading Group, Inc. (“Global”), a
California corporation, against Beneficio De Arroz Choloma,
S.A. (“Bachosa”), a Honduran corporation, and two of its
officers to recover losses on contracts.
The panel held that the district court had specific personal
jurisdiction over the corporate defendant, Bachosa. The panel
was guided by the analysis in Burger King Corp. v.
Rudzewicz, 471 U.S. 462 (1985). Interpreting genuine factual
disputes in Global’s favor, the panel held that Global made a
prima facie showing that Bachosa reached out beyond
Honduras to create continuing relationships and obligations
with citizens of California. The panel further held that the
district court erred by considering the parties’ agreements in
isolation, and ignored the business reality in which they were
embedded. The panel concluded that Bachosa maintained
numerous contacts with California during the course of its
years long business relationship with Global.
The panel held that the district court had specific personal
jurisdiction over the individual defendants. The panel noted
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
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BENEFICIO DE ARROZ CHOLOMA
that personal jurisdiction over an individual who acts as an
agent of a third party must be assessed on the individual’s
actions alone. Interpreting genuine factual disputes in
Global’s favor, the panel concluded that the individual
defendants had extensive contacts with California. The panel
held that these contacts were sufficient to support the exercise
of specific jurisdiction over them. The panel also held that
the guaranty signed by the individual defendants provided an
independent basis for personal jurisdiction over them.
The panel exercised its discretion to reach the issue of
dismissal based on forum non conveniens, even though the
district court had declined to consider it. The panel held that
the balance of private and public interest factors did not favor
dismissal. The panel held further that California law would
likely govern key issues is this dispute, including the validity
and enforceability of the parties’ memorandum, note, and
guaranty. In addition, there was a presumption in favor of
Global’s choice of its home forum – California. The panel
held that litigation in the Eastern District of California would
not result in disproportionate inconvenience. The panel
remanded with instructions to deny the forum non conveniens
motion on the merits.
COUNSEL
Michael E. Chase (argued), Boutin Jones Inc., Sacramento,
California, for Plaintiffs-Appellants.
Brant C. Hadaway (argued), Diaz Reus & Targ LLP, Miami,
Florida, for Defendants-Appellees.
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OPINION
W. FLETCHER, Circuit Judge:
From 2008 through 2012, Global Commodities Trading
Group, Inc. (“Global”), sold over fifty million dollars of
agricultural commodities to Beneficio de Arroz Choloma,
S.A. (“Bachosa”). After Bachosa fell behind on its payments
on two contracts, Global brought suit against the corporation
and two of its officers in the United States District Court for
the Eastern District of California. The district court
dismissed Global’s claims for lack of personal jurisdiction
and denied as moot the defendants’ motion to dismiss for
forum non conveniens. We hold that the district court had
personal jurisdiction over both the corporate and individual
defendants and that litigation in the Eastern District of
California would not result in disproportionate
inconvenience. We therefore reverse in part, vacate in part,
and remand with instructions to deny the forum non
conveniens motion on the merits.
I. Facts and Procedural History
Global is a California corporation with its headquarters in
Placer County, California. At the time of the events giving
rise to this action, it was engaged in the business of
international sales of agricultural commodities. Bachosa is a
corporation organized under the laws of Honduras with its
principal place of business in Choloma, Cortés, Honduras. It
is engaged in the business of importing and processing rice
and corn from countries including the United States. Bachosa
has no offices, real property, or employees in California.
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From 2008 through 2012, Bachosa purchased
approximately 137,450 metric tons of agricultural
commodities from Global for more than $50 million pursuant
to hundreds of separately negotiated contracts. The contracts
generally were cost, insurance, freight (“CIF”) contracts,
meaning Global’s contractual performance was considered
complete when the goods were loaded at the point of
shipment. Global and Bachosa primarily negotiated their
contracts by phone and email. Global’s President, Ramiro
Velasquez, stated in his declaration that several Bachosa
employees also made business trips to Global’s office in
California. Those employees included the individual
defendants in this case—Bachosa’s President, Sady Farid
Andonie Reyes (“Andonie”), and Secretary, Joyce Mary
Jarufe Dox (“Jarufe”).
On December 17, 2011, Bachosa entered into a contract
with Global to purchase 14,500 metric tons of U.S. No. 2 or
better long grain rough rice and a separate contract to
purchase 5,000 metric tons of U.S. No. 2 or better white corn.
According to Velasquez’s declaration, Andonie and Jarufe
met with Global employees at Global’s California office in
January 2012 in connection with the contracts. Andonie and
Jarufe represented to Global that they had successfully
extended their Honduran import permits to allow receipt of
the rice and corn under the contracts. Andonie and Jarufe
dispute that such a meeting ever occurred. They claim to
have traveled to California only on two occasions, each for
purposes of tourism.
Following the alleged January meeting in California,
Global arranged for shipment under the contracts. The
United States Department of Agriculture issued an inspection
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certificate for the rice and corn in Woodland, California. The
goods were shipped from the United States from Port of
Darrow, Louisiana to Puerto Cortes, Honduras on the MV
UBC Sacramento on January 19, 2012.
Upon arrival of the Sacramento in Honduras, Honduran
authorities did not allow the goods to be offloaded. Global
alleges that, contrary to the representations Bachosa’s
employees had made in California earlier that month, the
company’s import permits were invalid. While held in port
in Honduras, the Sacramento incurred demurrage charges of
approximately $644,000. Bachosa failed to make timely
payment under its two contracts with Global, which it
attributed to being assessed a 45% import duty on the goods.
After further negotiations, Global and Bachosa entered into
a memorandum of understanding, under which Bachosa
acknowledged that it owed Global $7,073,648 for the goods
and $644,697.92 for the shipping delays, and agreed to pay
those sums. Andonie signed the memorandum as “Owner
and Legal Representative” of the corporation.
Contemporaneously with the execution of the
memorandum, Bachosa executed a promissory note in favor
of Global for $11,000,000, and Andonie and Jarufe executed
a personal guaranty that designated Jarufe a surety of the
note. Although the document purports to bear her signature,
Jarufe stated in her declaration that she “did not sign the
guaranty,” had “never spoken with Global or any of its agents
regarding the guaranty,” and “[n]ever saw the guaranty”
before seeing the complaint in this action. In his declaration,
Andonie claimed that Velasquez told him that he needed the
memorandum, promissory note, and guaranty only so that he
“could have something to show the banks,” and that the
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agreements would not be legally binding. Global provided
the memorandum, note, and guaranty to its bank in order to
maintain its line of credit.
In the spring of 2014, Bachosa defaulted on its obligations
under the memorandum and note, and neither Andonie nor
Jarufe made payment pursuant to the guaranty. Global lost its
line of credit and shuttered its office.
Global and its insurer brought suit in California state
court later that year against Bachosa, Andonie, and Jarufe.
The defendants removed the action to the United States
District Court for the Eastern District of California. Once in
federal court, they moved to dismiss for lack of personal
jurisdiction and for forum non conveniens. The district court
allowed limited jurisdictional discovery. Without holding an
evidentiary hearing, the district court granted the motion to
dismiss for lack of personal jurisdiction. It denied Global’s
motion for leave to amend its complaint to add claims for
fraud related to Jarufe’s purported signature on the guaranty
and denied as moot defendants’ motion to dismiss for forum
non conveniens. The district court reasoned that negotiations
conducted through international communications were
insufficient to support personal jurisdiction when the
defendants were not physically present in the forum state. It
discounted the visits Andonie and Jarufe made to Global’s
California office on behalf of Bachosa because those visits,
if made, dealt with the underlying commodities contracts, not
the subsequently executed memorandum, note, and guaranty.
Global timely appealed.
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II. Standard of Review
“We review de novo a district court’s dismissal for lack
of personal jurisdiction.” Picot v. Weston, 780 F.3d 1206,
1211 (9th Cir. 2015). The plaintiff bears the burden of
demonstrating that personal jurisdiction is proper.
Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797,
800 (9th Cir. 2004). However, “[w]here, as here, the motion
is based on written materials rather than an evidentiary
hearing, ‘the plaintiff need only make a prima facie showing
of jurisdictional facts.’” Id. (quoting Sher v. Johnson,
911 F.2d 1357, 1361 (9th Cir. 1990)). In this posture, we
take as true all uncontroverted allegations in the complaint
and resolve all genuine factual disputes in the plaintiff’s
favor. See id.
III. Discussion
A. Personal Jurisdiction
“‘Federal courts ordinarily follow state law in
determining the bounds of their jurisdiction over persons.’
Because ‘California’s long-arm statute allows the exercise of
personal jurisdiction to the full extent permissible under the
U.S. Constitution,’ our inquiry centers on whether exercising
jurisdiction comports with due process.” Picot, 780 F.3d
at 1211 (internal citations omitted) (quoting Daimler AG v.
Bauman, 571 U.S. 117, 125 (2014)); see Cal. Code Civ. Proc.
§ 410.10.
Federal due process permits a court to exercise personal
jurisdiction over a nonresident defendant if that defendant
has “at least ‘minimum contacts’ with the relevant forum
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such that the exercise of jurisdiction ‘does not offend
traditional notions of fair play and substantial justice.’”
Schwarzenegger, 374 F.3d at 801 (quoting Int’l Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945)). Those contacts may
be so continuous and systematic as to render a defendant
essentially at home in the forum state and amenable to any
suit there. Alternatively, a court may exercise jurisdiction
over “issues deriving from, or connected with, the very
controversy that establishes jurisdiction.” Goodyear Dunlop
Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011).
The Supreme Court has referred to these different bases for
personal jurisdiction as “general” and “specific” jurisdiction.
See, e.g., id.; Bristol-Myers Squibb Co. v. Superior Court of
Cal., 137 S. Ct. 1773, 1779–80 (2017)
Global does not contend that either Bachosa or the
individual defendants have contacts so continuous and
systematic as to render them essentially at home in California
and thus amenable to general jurisdiction. We consider
whether their contacts with the State of California in
connection with this controversy are enough to allow the
exercise of specific jurisdiction.
1. Specific Jurisdiction over Bachosa
We use a three-prong test for analyzing claims of specific
jurisdiction. First, “[t]he non-resident defendant must
purposefully direct his activities or consummate some
transaction with the forum or resident thereof; or perform
some act by which he purposefully avails himself of the
privilege of conducting activities in the forum, thereby
invoking the benefits and protections of its laws.”
Schwarzenegger, 374 F.3d at 802 (quoting Lake v. Lake,
10 GLOB. COMMODITIES TRADING GRP. V.
BENEFICIO DE ARROZ CHOLOMA
817 F.2d 1416, 1421 (9th Cir. 1987)). Second, the claim
must arise out of or relate to the defendant’s forum-related
activities. Id. Finally, the exercise of jurisdiction must be
reasonable. Id. The plaintiff must satisfy the first two prongs
of this test. “If the plaintiff succeeds in satisfying both of the
first two prongs, the burden then shifts to the defendant to
‘present a compelling case’ that the exercise of jurisdiction
would not be reasonable.” Id. (quoting Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 476–78 (1985)).
Under the first prong of the specific-jurisdiction inquiry,
“purposeful availment” and “purposeful direction” are
distinct concepts. Id. at 802. Purposeful availment generally
provides a more useful frame of analysis for claims sounding
in contract, while purposeful direction is often the better
approach for analyzing claims in tort. See id.; Picot, 780 F.3d
at 1212. However, our cases do not impose a rigid dividing
line between these two types of claims. When both contract
and tort claims are at issue, both tests are relevant. See Picot,
780 F.3d at 1212. At bottom, both purposeful availment and
purposeful direction ask whether defendants have voluntarily
derived some benefit from their interstate activities such that
they “will not be haled into a jurisdiction solely as a result of
‘random,’ ‘fortuitous,’ or ‘attenuated’ contacts.” Burger
King, 471 U.S. at 474–75 (quoting Keeton v. Hustler
Magazine, Inc., 465 U.S. 770, 773–74 (1984)).
The Supreme Court’s decision in Burger King guides our
analysis in this case. Burger King Corporation sued a
Michigan franchisee in federal court in Florida—where
Burger King had its principal place of business—for breach
of the franchise agreement. Id. at 466–68. The defendant
franchisee was a Michigan resident with no physical
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connection to Florida. Id. at 479. Indeed, he had never been
to Florida. Nonetheless, the Court held that because Burger
King and the franchisee had agreed to an ongoing business
relationship with foreseeable consequences in Florida, the
franchisee was amenable to suit there. The franchise
agreement was not an isolated or fleeting business contact.
Instead, it was a contract that contemplated a long-term
relationship between the parties and “continuing and wide-
reaching contacts with Burger King in Florida.” Id. at 480.
The Court rejected any sort of “mechanical test[]” based
on “conceptualistic theories of the place or contracting or of
performance.” Id. at 478–79 (internal citations and quotation
marks omitted). Whether performance was to be rendered in
Michigan or in Florida was disputed in the case. See id.
at 476; id. at 488 (Stevens, J., dissenting). Rather than
looking to the place of performance, the Court looked to the
business reality behind the particular contract at issue. The
Court wrote, “[W]e have emphasized the need for a highly
realistic approach that recognizes that a contract is ordinarily
but an intermediate step serving to tie up prior business
negotiations with future consequences which themselves are
the real object of the business transaction. It is these
factors—prior negotiations and contemplated future
consequences, along with the terms of the contract and the
parties’ actual course of dealing—that must be evaluated in
determining whether the defendant purposefully established
minimum contacts within the forum.” Id. at 479 (internal
citations and quotation marks omitted).
Following the lead of the Court in Burger King, we have
emphasized that courts must evaluate the parties’ entire
course of dealing, not solely the particular contract or tortious
12 GLOB. COMMODITIES TRADING GRP. V.
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conduct giving rise to the claim, when assessing whether a
defendant has minimum contacts with a forum. See, e.g.,
Picot, 780 F.3d at 1212; Sher, 911 F.2d at 1363–64;
see also Yahoo! Inc. v. La Ligue Contre Le Racisme Et
L’Antisemitisme, 433 F.3d 1199, 1207–08 (9th Cir. 2006) (en
banc) (per curiam) (collecting cases). In cases where we have
held that a contract between a forum resident and a non-
resident did not give rise to specific jurisdiction in the forum,
we have done so because the business relationship between
the parties was fleeting or its center of gravity lay elsewhere.
See, e.g., Boschetto v. Hansing, 539 F.3d 1011 (9th Cir. 2008)
(holding that a single eBay sale to a California resident did
not give rise to personal jurisdiction there); Thomas P.
Gonzales Corp. v. Consejo Nacional De Produccion De
Costa Rica, 614 F.2d 1247 (9th Cir. 1980) (holding that a
contract resulting from public bidding in Costa Rica did not
give rise to personal jurisdiction in California).
Interpreting genuine factual disputes in Global’s
favor—as we must in this posture—we conclude that Global
has made a prima facie showing that Bachosa “reach[ed] out
beyond [Honduras]” to “create continuing relationships and
obligations with citizens of [California].” Burger King,
471 U.S. at 473. Bachosa sustained a relationship with
Global over several years and hundreds of contracts,
purchasing millions of dollars of goods to be shipped from
the United States. The goods Bachosa purchased were graded
according to American standards, and inspection certificates
were issued in California. Bachosa consistently made
payments on the contracts to Global in California. When
difficulties arose concerning the two contracts at issue here,
Bachosa induced Global to continue doing business with it by
acknowledging its ongoing obligations to make payments in
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California. The promise was made for the purpose of
obtaining benefits from a California corporation. Although
Burger King does not require physical presence, Global
further alleges that Bachosa’s officers came to Global’s office
in California and while there made the promises central to
this dispute.
The district court erred by considering the memorandum,
note, and guaranty in isolation, ignoring the business reality
in which they were embedded. As just described, those
agreements followed a lengthy and ongoing course of
dealing. They recognized a continuing obligation in
connection with past sales on which Bachosa had allegedly
failed to make payments. Moreover, Global’s claims here are
not limited to breach of the memorandum, note, and guaranty.
Global’s complaint also included two claims in indebitatus
assumpsit—“common counts,” in the parlance of California
pleading—alleging, independently of the agreements, that
Bachosa had failed to pay for goods it had received. Those
claims related to the underlying commodities transactions,
not to the subsequently executed memorandum, note, and
guaranty.
In sum, Bachosa maintained numerous contacts with
California during the course of its years-long business
relationship with Global. Those contacts gave rise to this
dispute, and it was reasonable for Bachosa to expect that it
would be haled into court in California to fulfill its
obligations and to account for harm it foreseeably caused
there. We therefore hold that the district court had personal
jurisdiction over Bachosa in this action.
14 GLOB. COMMODITIES TRADING GRP. V.
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2. Specific Jurisdiction over Andonie and Jarufe
Specific jurisdiction over Andonie and Jarufe presents a
different question: when may a court exercise jurisdiction
over individuals based on their contacts with a forum on
behalf of a corporation? Andonie and Jarufe contend that a
court may not consider such contacts at all. Instead, they
argue, a court may consider only the actions they took in an
individual capacity on their own behalf.
Our precedent rejects this limitation on personal
jurisdiction over corporate officers. In Davis v. Metro Prods.,
Inc., 885 F.2d 515 (9th Cir. 1989), employees of a
corporation contended that their actions on behalf of the
corporation could only subject them to jurisdiction in
circumstances that would allow the court to pierce the
corporate veil for purposes of liability. We held that
constitutional due process imposed no such limitation. We
noted that the Supreme Court had allowed the exercise of
specific jurisdiction over employees based on actions they
took on behalf of a corporation. See id. at 521; see, e.g.,
Calder v. Jones, 465 U.S. 783, 790 (1984) (“their status as
employees does not somehow insulate them from
jurisdiction”); Keeton, 465 U.S. at 781 n.13. As a matter of
Arizona law, we held that the state’s long-arm statute allowed
the exercise of personal jurisdiction to the limits of the
federal Constitution, and therefore did not shield corporate
officers from jurisdiction over their persons based on actions
within the scope of their employment. Davis, 885 F.2d at
522.
California’s long-arm statute, like Arizona’s, imposes no
limitations on personal jurisdiction beyond those required by
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due process. See Picot, 780 F.3d at 1211. Andonie and
Jarufe’s actions on behalf on Bachosa, like the actions of the
employees in Davis, Calder, and Keeton, may therefore give
rise to personal jurisdiction over them as individuals.
Although their status as officers of Bachosa does not
foreclose personal jurisdiction over Andonie and Jarufe, their
status also does not guarantee it. Personal jurisdiction over
an individual who acts as an agent of a third party must be
assessed on the individual’s actions alone. See Sher,
911 F.2d at 1366; see also Keeton, 465 U.S. at 781 n.13
(“[J]urisdiction over an employee does not automatically
follow from jurisdiction over the corporation which employs
him. . . .”). We do not impute a corporation’s forum contacts
to each of the corporation’s employees. Instead, we assess
whether each individual had minimum contacts with the
forum such that the exercise of jurisdiction over that
individual would comport with traditional notions of fair play
and substantial justice. Calder, 465 U.S. at 790.
Two of our cases are illustrative. In Davis, we held that
two corporate officers had sufficient contacts with Arizona
when they conducted meetings with clients in Arizona and
ultimately entered into six agreements with Arizona residents
on behalf of the corporation. See Davis, 885 F.3d at 522–23.
In In re Boon Global Ltd., 923 F.3d 643 (9th Cir. 2019), on
the other hand, we suggested that signing a single contract
with a forum resident on behalf of a corporation would not
subject a corporate officer to personal jurisdiction in a claim
for breach of that contract. However, with the limited factual
record before us on a petition for writ of mandamus, we
stopped short of holding in that case that the district court
clearly erred in exercising jurisdiction. See id. at 652.
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Interpreting genuine factual disputes in Global’s favor,
Andonie and Jarufe had extensive contacts with California.
Like the corporate officers in Davis, Andonie and Jarufe met
with Global’s employees in the forum state to negotiate the
commodities transactions at issue in the suit. While in
Global’s office in California, Andonie and Jarufe falsely
assured Global that Bachosa had extended its importation
permits. Further, they had previously traveled to California
on multiple occasions as part of the ongoing business
relationship between Global and Bachosa. We hold that these
contacts are sufficient to support the exercise of specific
jurisdiction over Andonie and Jarufe.
The guaranty signed by Andonie and Jarufe may provide
an independent basis for personal jurisdiction over the
individual defendants. Global contends that in the guaranty
Andonie and Jarufe assumed personal liability for the note.
We have held that a corporate officer who personally
guarantees a corporation’s obligation “interject[s] himself
into the transaction,” subjecting the officer to personal
jurisdiction on like terms as the corporation. Forsythe v.
Overmyer, 576 F.2d 779, 783 (9th Cir. 1978).
Not all of our holding in Forsythe survived the Supreme
Court’s subsequent decisions in Calder and Keeton. Our
statement in Forsythe that “a corporate officer who has
contact with a forum only with regard to the performance of
his official duties is not subject to personal jurisdiction in that
forum,” Forsythe, 576 F.2d at 783–84, is clearly
irreconcilable with the Supreme Court’s decisions subjecting
corporate employees to suit in exactly those circumstances.
See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en
banc); see also Davis, 885 F.2d at 521 (rejecting the fiduciary
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shield doctrine based on Calder and Keeton). However, our
holding in Forsythe that a personal guaranty of a
corporation’s debt may give rise to personal jurisdiction over
a corporate officer remains good law.
Global presented evidence that Andonie and Jarufe were
key players in Bachosa’s years-long business relationship
with Global and that they personally assumed liability for
Bachosa’s obligations under the note. In these circumstances,
they “could have reasonably foreseen that they would be
haled into [California’s] courts” if their actions caused harm
there. Davis, 885 F.2d at 523. We therefore conclude that
the district court had personal jurisdiction over them in this
action.
Because we hold that the district court had personal
jurisdiction over Andonie and Jarufe based on Global’s
claims in its initial complaint, we do not reach the question
whether its proposed amendments to the complaint would
cure any jurisdictional defect.
B. Forum Non Conveniens
“We have discretion to reach forum non conveniens even
if the district court declined to consider it.” Ranza v. Nike,
Inc., 793 F.3d 1059, 1076 (9th Cir. 2015). It is proper to do so
where “the record is sufficiently developed and the issue has
been presented and argued to us.” Id. (quoting Dole Food
Co. v. Watts, 303 F.3d 1104, 1117 (9th Cir. 2002)). The
parties briefed the issue at length and agreed during oral
argument that we should reach it. In the interest of judicial
economy, we exercise our discretion to do so.
18 GLOB. COMMODITIES TRADING GRP. V.
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We decide questions of forum non conveniens as a matter
of federal law even in cases where state or foreign substantive
law governs. Ravelo Monegro v. Rosa, 211 F.3d 509 (9th
Cir. 2000). “To prevail on a motion to dismiss based upon
forum non conveniens, a defendant bears the burden of
demonstrating an adequate alternative forum, and that the
balance of private and public interest factors favors
dismissal.” Ranza, 793 F.3d at 1076 (quoting Carijano v.
Occidental Petroleum Corp., 643 F.3d 1216, 1224 (9th Cir.
2011)). “[F]orum non conveniens [i]s an exceptional tool to
be employed sparingly . . . .” Ravelo Monegro, 211 F.3d
at 514. To succeed, a defendant must make “a clear showing
of facts which . . . establish such oppression and vexation of
a defendant as to be out of proportion to plaintiff’s
convenience.” Id. (alteration in original) (quoting Cheng v.
Boeing Co., 708 F.2d 1406, 1410 (9th Cir. 1983)).
We hold that the balance of private and public interest
factors does not favor dismissal. Both sides identify
witnesses for whom appearance in their home country would
be more convenient. Most of the key documentary evidence,
although originally in Spanish, has already been translated
into English. The defendants contend that evidence related to
Honduran importation permits and the demurrage charges
incurred by the Sacramento would be more easily accessible
in Honduras. However, evidence related to the negotiations
in California would be more easily accessible in California.
That some witnesses would prefer to appear in Honduras falls
well short of a clear showing of facts which establish such
oppression and vexation of a defendant as to be out of
proportion to plaintiff’s convenience. Ravelo Monegro,
211 F.3d at 514. Moreover, Global submitted evidence of
significant safety concerns with travel to Honduras,
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particularly for those who travel to the country for the
purpose of collecting debt owed by Honduran companies.
The defendants contend that the public interest factors
favor dismissal because Honduran law would govern this
dispute. They point to California Civil Code § 1646, which
requires the terms of a contract “to be interpreted according
to the law and usage of the place where it is to be performed;
or, if it does not indicate a place of performance, according to
the law and usage of the place where it is made.” In their
view, the contracts for rice and corn did not indicate the place
of performance. Therefore, in their view, the law of
Honduras would apply, because that is where they contend
they accepted the contracts.
We do not agree with the defendants’ choice-of-law
analysis. Section 1646 governs only the interpretation of
contractual terms. Under California’s choice-of-law rules, all
other issues in a contract dispute, including the validity of a
contract, are governed by governmental interest analysis. See
Frontier Oil Corp. v. RLI Ins. Co., 153 Cal. App. 4th 1436
(Cal. Ct. App. 2007); see, e.g., Bernkrant v. Fowler, 360 P.2d
906 (Cal. 1961) (en banc) (applying governmental interest
analysis to determine which state’s statute of frauds governed
the validity of a contract). California law presumptively
applies under the governmental interest approach unless there
is a true conflict of governmental interests and the foreign
jurisdiction’s interests would be more severely impaired by
the application of California law. See S. A. Empresa De
Viacao Aerea Rio Grandense v. Boeing Co., 641 F.2d 746
(9th Cir. 1981); Kearney v. Salomon Smith Barney, Inc.,
137 P.3d 914 (Cal. 2006). Thus, California law will likely
20 GLOB. COMMODITIES TRADING GRP. V.
BENEFICIO DE ARROZ CHOLOMA
govern key issues in this dispute, including the validity and
enforceability of the memorandum, note, and guaranty.
A plaintiff’s choice of forum—particularly a plaintiff’s
“home forum”—is entitled to considerable deference. Ranza,
793 F.3d at 1076 (quoting Piper Aircraft Co. v. Reyno,
454 U.S. 235, 255 (1981)); see also Ravelo Monegro,
211 F.3d at 512 (noting that dismissal for forum non
conveniens is typically only appropriate where a plaintiff
chooses a forum wholly unrelated to the dispute). This case
presents no more than the ordinary burdens any foreign
defendant will bear when called to defend an action in the
United States against a domestic plaintiff. Those burdens are
insufficient to overcome the presumption in favor of Global’s
choice of its home forum.
Conclusion
We reverse the district court’s order dismissing the action
for lack of personal jurisdiction, vacate its orders on the
parties’ remaining motions, and remand with instructions to
deny the forum non conveniens motion on the merits.
REVERSED in part, VACATED in part, and
REMANDED.