Lavera Skin Care North America, Inc. v. Laverana GMBH & Co. KG ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 25 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LAVERA SKIN CARE NORTH No. 15-35174
AMERICA, INC., A Washington
corporation; VICTOR TANG, an individual, D.C. No. 2:13-cv-02311-RSM
Plaintiffs-Appellants,
MEMORANDUM*
v.
LAVERANA GMBH & CO. KG, a German
limited partnership,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, Chief Judge, Presiding
Submitted July 13, 2017**
Seattle, Washington
Before: TASHIMA, McKEOWN, and NGUYEN, Circuit Judges.
Lavera Skin Care North America, Inc. and Victor Tang appeal the district
court’s dismissal of their suit against Laverana GMBH & Co., KG. We have
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
jurisdiction under 28 U.S.C. § 1291, and we affirm.
The district court did not clearly abuse its discretion by dismissing the suit
on the basis of forum non conveniens. Bos. Telecomm. Grp., Inc. v. Wood, 588
F.3d 1201, 1206 (9th Cir. 2009). The parties dispute whether the forum-selection
clause in the distribution contract, which states that “[t]he place of jurisdiction
shall be Hanover, Germany,” is controlling under Atlantic Marine Construction
Company v. United States District Court for the Western District of Texas, 134 S.
Ct. 568 (2013). We do not need to resolve this issue because if it is controlling,
then the proper forum is Germany. If it is a permissive provision, nevertheless, the
district court correctly found that Germany is the proper forum under the
traditional forum non conveniens test. The result is the same either way.
The district court considered all the relevant private and public interest
factors, including Lavera’s Washington citizenship and Tang’s Washington
residency. Bos. Telecomm. Grp., Inc., 588 F.3d at 1206. However, it concluded
that the presumption in favor of the domestic plaintiffs’ choice of forum was
outweighed by several key factors, including: (1) the court’s familiarity with the
governing law, given that the operative distribution contract was written in German
and governed by German law; (2) the relative convenience of the competing fora,
given that Lavera’s owner was a German citizen and spoke fluent German, while
Laverana’s principal representatives spoke only limited English; and (3) the
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enforceability of the judgment, given that there were uncertainties as to the
interpretation of the German-language jurisdictional clause under German law.
The district court also found that all but one of the remaining factors were either
neutral or slightly favored Germany. Accordingly, it was not an abuse of
discretion for the district court to conclude that the balance of the factors favored
dismissal. Lueck v. Sundstrand Corp., 236 F.3d 1137, 1142, 1148 (9th Cir. 2001).
AFFIRMED.
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