Fidelity Bank PLC v. Northern Fox Shipping N.V.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-1299
FIDELITY BANK PLC,
Plaintiff - Appellee,
versus
NORTHERN FOX SHIPPING N.V.; ERES N.V. BELGIUM,
in personam,
Defendants - Appellants,
and
M/T TABORA, her engines, boilers, etc. In rem,
et al.,
Defendant,
and
THE MASTER OF THE M/T TABORA,
Garnishee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District Judge.
(1:05-cv-00871-WDQ)
Argued: January 31, 2007 Decided: July 13, 2007
Before MICHAEL, MOTZ, and KING, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
ARGUED: JoAnne Zawitoski, SEMMES, BOWEN & SEMMES, Baltimore,
Maryland, for Appellants. James Dygert Skeen, SKEEN & KAUFFMAN,
L.L.P., Baltimore, Maryland, for Appellee. ON BRIEF: Alexander M.
Giles, SEMMES, BOWEN & SEMMES, Baltimore, Maryland, for Appellants.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
The defendants Eres N.V. Belgium (Eres) and Northern Fox
Shipping N.V. (Northern Fox) appeal the voluntary dismissal of a
complaint filed by Fidelity Bank PLC (Fidelity) against them for
breach of contract and conversion. Eres and Northern Fox also
appeal the forum non conveniens dismissal of the counterclaim that
they filed against Fidelity. We affirm the Fed. R. Civ. P.
41(a)(2) dismissal of Fidelity’s complaint because we conclude that
dismissal did not cause Eres and Northern Fox to suffer plain legal
prejudice. While we also affirm the forum non conveniens dismissal
of two of the three counts in the counterclaim, we vacate the
district court’s dismissal of the count alleging the wrongful
arrest of the TABORA, a cargo vessel. On the record before us, it
is not possible to determine whether Nigeria provides an adequate
alternative forum for adjudication of this claim. Moreover, the
relevant public and private interest factors with respect to
whether the wrongful arrest counterclaim is subject to a forum non
conveniens dismissal require further consideration and weighing by
the district court.
I.
In September 2002 Eres, a Belgian company, entered into
a contract to sell 25,000 metric tons of bitumen to Chief Pius
Akinyelure of Nigeria. The bitumen was shipped to Nigeria on the
3
TABORA, a vessel owned by Northern Fox, a Netherlands Antilles
company. The sale was financed by Fidelity, a Nigerian bank that
held the bills of lading as security.
On October 30, 2002, the TABORA began unloading the
bitumen by ship-to-ship transfer off the coast of Lagos, Nigeria.
This work was stopped after only 3,740 tons were unloaded,
allegedly because the TABORA and its crew were attacked by armed
marauders. On December 23, 2002, Eres and Northern Fox notified
Fidelity that it was unsafe to discharge the cargo to Lagos and
requested the designation of an alternate port. Because Fidelity
did not name an alternate port, the TABORA sat in international
waters for 118 days. As a result, Eres and Northern Fox contend
that demurrage and cargo heating charges of $32,000 per day
accrued, totaling $3,776,000. Ultimately, Eres and Northern Fox
put a lien on the bitumen and sold it for $2,800,000 in partial
satisfaction of the unpaid charges.
Fidelity disputes the assertion that the TABORA and its
crew were attacked by marauders. Instead, Fidelity contends that
the ship was boarded by the Nigerian police after Chief Akinyelure,
the purchaser of the bitumen, made an allegation of fraud against
members of the TABORA’s crew. According to Fidelity, there is no
reason why any police investigation should have prevented the
TABORA from completing delivery of the bitumen. In any case, on
December 17, 2002, after the TABORA’s full cargo had not been
4
unloaded, Fidelity filed an in rem action in the Federal High Court
of Nigeria, seeking an order of arrest against the ship. Although
an arrest order was issued, it was not served because the ship had
left Nigerian waters. The Nigerian statement of claim (complaint)
also names Eres and Northern Fox as in personam defendants, but
they have never been successfully served.
On March 17, 2005, more than two years after the aborted
delivery, Fidelity had the TABORA arrested in Curacao, Netherlands
Antilles. Eres and Northern Fox had the arrest vacated the next
day after convincing a Netherlands Antilles court that Fidelity’s
claim was barred by the one-year statute of limitations, which was
fixed by a bill of lading provision that incorporates the Hague
Rules (rules adopted by the country from which the cargo was
shipped, the Netherlands Antilles in this case). Specifically, the
court concluded that Fidelity failed to show that it had lawfully
initiated proceedings in Nigeria on its claim for non-delivery of
cargo. After the Netherlands Antilles court vacated the Curacao
arrest of the TABORA, Fidelity attempted to revive its 2002
Nigerian action. On March 23, 2005, Fidelity filed an application
with the Federal High Court in Nigeria seeking reassignment of the
case to a new Justice and the issuance of an order authorizing
substituted service of process.
In the meantime, Fidelity learned that the TABORA had
arrived in the Port of Baltimore. Thus, on March 31, 2005,
5
Fidelity filed a verified complaint in the District of Maryland
seeking a warrant for the arrest of the TABORA. The complaint also
included claims for $8,871,076 in damages against Eres and Northern
Fox for breach of contract and conversion. The warrant was issued
and served on the same day the complaint was filed, but five days
later, on April 5, 2005, the district court vacated the arrest.
The district court concluded, like the Netherlands Antilles court,
that the in rem claim was time-barred because Fidelity had not
offered sufficient proof that it had a pending claim against Eres
and Northern Fox in Nigeria or anywhere else.
On April 8, 2005, three days after the Baltimore arrest
was vacated, the Federal High Court in Nigeria issued an ex parte
order authorizing Fidelity to serve by courier outside the
jurisdiction an amended statement of claim on Eres and Northern
Fox. Fidelity promptly filed a motion asking the district court in
Maryland to reconsider its order vacating the arrest of the TABORA.
Fidelity argued that the recent order of the Nigerian court
conclusively established that the Baltimore arrest had been timely
and should therefore be reinstated. The district court denied
Fidelity’s motion to reconsider on May 11, 2005. Fidelity then
filed an interlocutory appeal that this court dismissed on October
3, 2005.
In the meantime, on the same day (April 8, 2005) that the
Nigerian court had revived Fidelity’s case in that country, Eres
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and Northern Fox answered Fidelity’s complaint in this action and
asserted a counterclaim. In their three-count counterclaim, Eres
and Northern Fox sought a declaratory judgment that Fidelity’s
claims are time-barred, $200,000 in damages for wrongful arrest in
Baltimore, and $1.5 million in demurrage costs on the original 2002
contract of carriage.
No discovery was conducted while this case was pending in
the district court. A pretrial order was submitted that included
lists of lay witnesses, experts, and exhibits. On September 23,
2005, Eres and Northern Fox filed a motion for summary judgment.
While that motion was pending, Fidelity moved on October 12, 2005,
to dismiss its complaint without prejudice pursuant to Fed. R. Civ.
P. 41(a)(2) and to dismiss the entire action under the doctrine of
forum non conveniens. Fidelity made this motion in district court
immediately after this court dismissed its interlocutory appeal.
The district court on December 9, 2005, granted Fidelity’s Rule
41(a)(2) motion to dismiss its complaint. In the same order the
court dismissed Eres and Northern Fox’s entire counterclaim on
forum non conveniens grounds. The district court concluded that
the claims asserted in the counterclaim could be adjudicated in
Nigeria where “Fidelity’s breach of contract claim, involving the
same facts, is currently pending in a Nigerian court.” J.A. 757.
On December 20, 2005, shortly after the district court
dismissed this action, the Nigerian Federal High Court issued an
7
order discharging its earlier order that would have allowed
Fidelity to serve Eres and Northern Fox by courier. The Nigerian
court went on to state (1) that there was no in rem jurisdiction
over the TABORA in Nigeria, and (2) that the original writ of
summons was still valid in personam against Eres and Northern Fox,
but that a further order would be required for service to be
undertaken. On December 23, 2005, Eres and Northern Fox filed a
motion asking the district court in Maryland to reconsider the
dismissal of their counterclaim. They asserted that the Nigerian
court’s December 20, 2005, ruling made clear that Fidelity did not,
as a practical matter, have a case pending in Nigeria because there
was no in rem claim remaining, and Fidelity could not obtain
personal jurisdiction over them in Nigeria. Thus, according to
Eres and Northern Fox, Nigeria does not provide an adequate forum
for the adjudication of their counterclaim against Fidelity. The
district court denied Eres and Northern Fox’s motion for
reconsideration. The court reasoned that because the 2002 writ of
summons in Nigeria is still valid, Fidelity has a claim pending
there, and Nigeria continues to provide an alternate forum for the
resolution of the claims asserted in Eres and Northern Fox’s
counterclaim.
The defendants Eres and Northern Fox appeal the district
court’s orders (1) granting Fidelity’s motion to dismiss its
complaint under Rule 41(a)(2), (2) dismissing on forum non
8
conveniens grounds their counterclaim against Fidelity, and (3)
denying their motion for reconsideration of the dismissal of their
counterclaim.
II.
A.
We first consider Eres and Northern Fox’s argument that
the district court erred in granting Fidelity’s motion to dismiss
its complaint under Fed. R. Civ. P. 41(a)(2).
The rule provides that:
an action shall not be dismissed at the plaintiff’s
instance save upon order of the court and upon such terms
and conditions as the court deems proper. If a
counterclaim has been pleaded by a defendant prior to the
service upon the defendant of the plaintiff’s motion to
dismiss, the action shall not be dismissed against the
defendant’s objection unless the counterclaim can remain
pending for independent adjudication by the court.
Unless otherwise specified in the order, a dismissal
under this paragraph is without prejudice.
Fed. R. Civ. P. 41(a)(2). The purpose of this rule “is freely to
allow a voluntary dismissal[],” Davis v. USX Corp., 819 F.2d 1270,
1273 (4th Cir. 1987), unless there is “plain legal prejudice to the
defendant,” Ellet Bros. v. United States Fid. & Guar. Co., 275 F.3d
384, 388 (4th Cir. 2001). Factors that may bear on whether the
defendant will suffer legal prejudice by a dismissal include, among
others, (1) the plaintiff’s diligence in moving for a voluntary
dismissal, (2) the stage of the litigation, including the
9
defendant’s effort and expense in preparing for trial, and (3) the
adequacy of the plaintiff’s explanation for the need to dismiss.
See, e.g., Phillips USA, Inc. v. Allflex USA, Inc., 77 F.2d 354,
358 (10th Cir. 1996); Zagano v. Fordham Univ., 900 F.3d 12, 14 (2d
Cir. 1990). We review a district court’s grant of Rule 41(a)(2)
dismissal for abuse of discretion. Davis, 819 F.2d at 1273.
The defendants Eres and Northern Fox argue that they were
prejudiced in several ways by the Rule 41(a)(2) dismissal of
Fidelity’s complaint. They also argue that the text of the rule
prohibited the district court from granting a voluntary dismissal
of Fidelity’s complaint in conjunction with granting a dismissal of
their counterclaim on forum non conveniens grounds. As we explain
below, these arguments are not persuasive.
Eres and Northern Fox argue that they were prejudiced
because the dismissal deprived them of a ruling on their pending
motion for summary judgment, which had been fully briefed. These
defendants sought judgment on the grounds that Fidelity’s claims
for non-delivery of cargo and for security for the Nigerian suit
were barred by the one-year statute of limitations contained in the
Hague Rules. To begin with, Rule 41(a)(2), which requires court
approval, only applies when an answer or motion for summary
judgment has been filed. Thus, “the mere filing of . . . a motion
for summary judgment [is] not, without more, [] a basis for
refusing to dismiss without prejudice.” Andes v. Versant Corp.,
10
788 F.2d 1033 n.4 (4th Cir. 1986). Eres and Northern Fox claim
prejudice here because their failure to get a ruling (one they
believe would have been favorable) on their summary judgment motion
places the TABORA at risk for yet another action by Fidelity
seeking the vessel’s arrest. This argument fails because “the
prospect of a subsequent lawsuit does not constitute prejudice for
purposes of Rule 41(a)(2).” Ellet Bros, 275 F.3d at 388-89. Eres
and Northern Fox further claim that the dismissal stripped them of
a viable statute of limitations defense against Fidelity’s claims
for non-delivery of cargo and for security for the Nigerian suit.
These defendants rely on the one-year time bar under the Hague
Rules that were incorporated into the bills of lading. However,
should Fidelity file another action, Eres and Northern Fox would be
free to reassert the limitations defense afforded by the Hague
Rules.
Eres and Northern Fox also claim prejudice from the
dismissal with the argument that Fidelity delayed until the suit
had reached an advanced stage before making its Rule 41(a)(2)
motion, causing them to have spent considerable effort and expense
in preparing for trial. Fidelity was not dilatory in making its
motion; it moved immediately after this court dismissed its
interlocutory appeal. It is true that a pretrial order was filed
by the parties, but that came while Fidelity’s Rule 41(a)(2) motion
was pending. Moreover, no discovery whatsoever had been
11
undertaken. In these circumstances, we will not second guess the
district court’s assessment that the “case [was] at an early stage”
when the Rule 41(a)(2) dismissal order was entered. J.A. 756.
Finally, Eres and Northern Fox assert that the district
court acted contrary to the plain language of Rule 41(a)(2) by not
allowing their “counterclaim [to] remain pending for independent
adjudication by the court.” Fed. R. Civ. P. 41(a)(2). This
argument is without merit. The defendants’ counterclaim did
actually remain pending for independent adjudication after the
district court decided to dismiss Fidelity’s complaint. The court
simply proceeded immediately to consider, and then grant,
Fidelity’s motion to dismiss the defendants’ counterclaim on forum
non conveniens grounds. The court did not err in dismissing both
the complaint and the counterclaim in the same order.
In sum, Eres and Northern Fox have not shown plain legal
prejudice as a result of, and the district court did not abuse its
discretion in entering, the order dismissing Fidelity’s complaint
under Rule 41(a)(2).
III.
Eres and Northern Fox assert that the district court
erred in dismissing their counterclaim under the common law
doctrine of forum non conveniens. (Because the counterclaim
12
contained three counts, we will, for ease of discussion, refer to
the counts as counterclaims.) The district court determined that
the counterclaims could be adjudicated adequately and more
conveniently in the courts of Nigeria. “The common-law doctrine of
forum non conveniens has continuing application in federal courts
only in cases where the alternative forum is abroad, and perhaps in
rare instances where a state or territorial court serves litigation
convenience best.” Sinochem Int’l Co. v. Malay. Int’l Shipping
Corp., 127 S. Ct. 1184, 1190 (2007) (internal quotation marks,
alterations, and citation omitted). In assessing whether dismissal
is appropriate on forum non conveniens grounds, a court must first
“determine whether there exists an alternative forum.” Piper
Aircraft Co. v. Reyno, 454 U.S. 235, 254 n.22 (1981). The
existence of an alternative forum depends on two factors:
availability and adequacy. See In re Air Crash Disaster near New
Orleans, 812 F.2d 1147, 1165 (5th Cir. 1987). “Ordinarily, [the
availability] requirement will be satisfied when the defendant is
‘amenable to process’ in the [foreign] jurisdiction.” Piper
Aircraft, 454 U.S. at 254 n.22 (quoting Gulf Oil v. Gilbert, 330
U.S. 501, 506-07 (1947)). A foreign forum is adequate when “(1)
all parties can come within that forum’s jurisdiction, and (2) the
parties will not ‘be deprived of all remedies or treated unfairly,
even though they may not enjoy the same benefits as they might
receive in an American court.’” Mercier v. Sheraton Int’l, Inc.,
13
935 F.2d 419, 424 (1st Cir. 1991) (quoting In re Air Crash
Disaster, 821 F.2d at 1165)). The burden is on the moving party to
show that an alternative forum exists. Kontoulas v. A.H. Robins
Co., Inc., 745 F.2d 312, 316 (4th Cir. 1984).
If an alternate forum exists, the court must then weigh
the familiar private and public interest factors that the Supreme
Court laid out in Gulf Oil.* At this step of the analysis, the
movant continues to bear the burden to “provide enough information
to enable the District Court to balance the parties’ interests.”
Id. at 258.
We review a district court’s forum non conveniens
decision for abuse of discretion. Id. at 257. “An abuse of
discretion may occur when the district court fails to consider one
or more of the important private or public interest factors, does
*
The private interest factors focus on the litigants and
include the consideration of 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 inexpensive.” Piper
Aircraft, 454 U.S. at 241 n.6 (quoting Gulf Oil, 330 U.S. at 508).
The public interest factors include “the administrative
difficulties flowing from court congestion; the ‘local interest in
having localized controversies decided at home’; the interest in
having 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 conflict of laws, or in the application of
foreign law; and the unfairness of burdening citizens in an
unrelated forum with jury duty.” Id. (quoting Gulf Oil, 330 U.S.
at 509).
14
not hold the [movant] to [its] burden of persuasion on all elements
of the forum non conveniens analysis, or has clearly erred in
weighing the factors the court must consider.” Reid-Walen v.
Hansen, 933 F.2d 1390, 1394 (8th Cir. 1991).
A.
The district court gave two reasons why Nigeria provides
an adequate forum to adjudicate Eres and Northern Fox’s
counterclaims that seek (1) a declaration that Fidelity’s claims
are time-barred, (2) damages for the wrongful arrest of the TABORA
in Baltimore, and (3) demurrage under the original 2002 contract of
carriage. First, the district court stressed that these
counterclaims “involv[e] the same facts” as the breach of contract
claim that Fidelity has “currently pending” in Nigeria. J.A. 757.
Second, the court said, “Although Defendants [Eres and Northern
Fox] have asserted that their witnesses face criminal confinement
and prosecution in that forum, they have provided no evidence
supporting this assertion.” J.A. 757. The district court then
concluded that the relevant private and public interest factors
favor dismissal. According to the court, the following private
interests of the parties favored dismissal: (1) the parties are
all foreign corporations; (2) all relevant events took place within
the jurisdiction of Nigeria; (3) the court cannot compel the
attendance of foreign witnesses; (4) it would be expensive to
litigate the counterclaims in the District of Maryland; and (5) the
15
ability of the court to enforce a judgment is limited. The public
interest factors cited by the court as favoring dismissal were:
(1) the absence of any connection between the district of Maryland,
the parties, and facts of the case and (2) the added burden to the
court in interpreting and applying foreign law.
Eres and Northern Fox contend that the district court
abused its discretion by failing to hold Fidelity to its burden to
establish the adequacy of the alternative forum. Specifically,
they assert that Fidelity’s submissions to the district court
addressed only the adequacy of the Nigerian forum for the
adjudication of Fidelity’s claims; Fidelity’s submissions did not
deal sufficiently with the adequacy of Nigeria as an alternative
forum for the counterclaims of Eres and Northern Fox. Eres and
Northern Fox thus contend that Fidelity has not shown that Nigeria
is an adequate place to litigate their counterclaims, especially
their Baltimore-based wrongful arrest claim. Eres and Northern Fox
argue further that the district court focused too much on the fact
that Fidelity has a claim pending in Nigeria and failed to give
sufficient attention to the central question of whether Nigeria is
an adequate forum for the counterclaims. They also assert that the
district court erred in weighing the public and private interest
factors by failing to acknowledge and address the specific facts
underlying the counterclaim for wrongful arrest in Baltimore.
16
Fidelity concedes that in granting the forum non
conveniens dismissal the district court did not address the
counterclaims with any specificity. However, according to
Fidelity, “a finding that [Fidelity’s claim] can be adequately
adjudicated in Nigeria includes the finding that the Counterclaim
can be adjudicated there as well.” Appellee’s Br. at 26. Along
these lines, Fidelity asserts that two of the three counterclaims
are not independent claims at all: the demurrage claim is
essentially a set-off to Fidelity’s own breach of contract and
conversions claims, and the claim for declaratory relief merely
raises the threshold question of whether Fidelity’s own claims are
time-barred. In addition, Fidelity maintains that the “wrongful
arrest claim is a very small portion of the Counterclaim” and that
its resolution hinges on whether the 2002 Nigerian action
eliminates the defendants’ statute of limitations defense. Id. at
32.
As we explain below, we agree with the district court’s
dismissal of the counterclaims for declaratory relief and
demurrage. The wrongful arrest counterclaim is a different matter,
however. In dismissing that counterclaim, the district court erred
at both steps of the forum non conveniens analysis.
B.
In attempting to establish the adequacy of Nigeria as an
alternative forum, Fidelity submitted an affidavit from its
17
Nigerian counsel, Louis Mbanefo. The Mbanefo affidavit discusses
the action Fidelity filed in 2002 in Nigeria and asserts that
Fidelity’s claims for breach of contract and conversion are best
adjudicated as part of that case. Mbanefo explains that the acts
giving rise to these claims occurred in Nigerian waters. His
affidavit, however, makes only a single, passing mention of one of
the three counterclaims filed by Eres and Northern Fox.
Specifically, he asserts that “the Federal High Court [of Nigeria]
is in the best position to determine . . . [w]hether a vessel which
never berthed in Lagos Port can give Notice of Readiness and claim
demurrage.” J.A. 679. Notwithstanding this cursory treatment, we
agree with Fidelity that the defendants’ counterclaims for
demurrage and declaratory relief are tightly intertwined with
Fidelity’s claims for breach of contract and conversion. As a
result, the Mbanefo affidavit provided the district court with a
sufficient basis to conclude that Nigeria provides an adequate
forum for the adjudication of those two counterclaims.
Eres and Northern Fox’s counterclaim for the wrongful
arrest of the TABORA in the Port of Baltimore is a different
matter, however. The Mbanefo affidavit does not discuss whether
Nigerian law recognizes a claim for wrongful arrest. Moreover,
even if such a claim is cognizable, the affidavit does not explain
whether the Nigerian courts would take jurisdiction over a disputed
arrest that occurred in the United States. We recognize, of
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course, that Eres and Northern Fox did not submit any evidence to
the district court suggesting that the Nigerian courts would not
hear their wrongful arrest claim. But it was Fidelity’s burden to
establish that an adequate alternative forum exists. See Mercier,
935 F.2d at 425. Because “the affidavit through which [Fidelity]
attempted to meet its burden contains substantial gaps, we believe
the district court acted prematurely in finding that [Nigeria] is
an adequate alternative forum” for resolution of the counterclaim
for wrongful arrest. Id. We do not dispute Fidelity’s assertion
that the question of whether the arrest was wrongful may ultimately
turn on questions of foreign law. Instead, we simply conclude that
the record before the district court was so fragmentary as to make
it “impossible to make a sound determination of whether” Nigeria
provides an adequate alternative forum to resolve the wrongful
arrest counterclaim. El-Fadl v. Central Bank of Jordan, 75 F.3d
668, 677 (D.C. Cir. 1996) (internal quotation omitted).
C.
While we find no abuse of discretion in the district
court’s consideration of the public and private interest factors in
regard to the counterclaims for demurrage and declaratory relief,
we do find error in its treatment of these factors with respect to
the wrongful arrest counterclaim. The district court stated that
the “district [of Maryland] has no connection to the parties or the
facts of the case.” J.A. 758. Thus, the district court did not
19
appear to consider that the wrongful arrest counterclaim arose in
Baltimore, where the arrest of the TABORA took place. We offer no
opinion as to the ultimate importance of the place of arrest, but
here it does suggest the possibility of a local interest in the
dispute. See Gulf Oil, 330 U.S. at 509. Accordingly, because the
district court’s analysis of the public and private interest
factors failed to consider the possibility of a local interest in
the adjudication of this claim, those factors should be re-weighed
on remand. See Reid-Walen, 933 F.2d at 1394; Irish Nat’l Ins. Co.
v. Aer Lingus Teoranta, 739 F.2d 90, 92 (2d Cir. 1984).
D.
We conclude that Fidelity did not meet its burden of
showing that Nigeria provides an adequate alternative forum for the
adjudication of Eres and Northern Fox’s counterclaim for wrongful
arrest. Moreover, the district court did not appear to consider
fully the local interest factor in weighing the public and private
interest factors as they relate to the wrongful arrest
counterclaim. We will therefore vacate the district court’s forum
non conveniens order to the extent it dismisses the wrongful arrest
counterclaim and remand that issue for further consideration. See
El-Fadl, 75 F.3d at 679-80 (vacating forum non conveniens dismissal
and remanding for further consideration).
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IV.
Finally, we turn to the district court’s denial of Eres
and Northern Fox’s motion for reconsideration pursuant to Rules
59(e) and 60(b). Our review is for abuse of discretion. Boryan v.
United States, 884 F.2d 767 (4th Cir. 1989). We reject the
defendants’ contention that the December 20, 2005, ruling of the
Nigerian court renders the district court’s forum non conveniens
dismissal of their declaratory relief and demurrage counterclaims
improper. While the December 20, 2005, order of the Nigerian court
did set aside the earlier order relating to service of process, it
also stated that the original writ of summons remains valid. As a
result, the district court did not abuse its discretion in
concluding that the declaratory relief and demurrage counterclaims
could be litigated in connection with Fidelity’s Nigerian action.
The forum non conveniens analysis with respect to Eres and Northern
Fox’s counterclaims is not changed by the fact that these two
parties have not been successfully served in the Nigerian suit.
The Nigerian forum is available to Eres and Northern Fox because
they “can come within that forum’s jurisdiction” by answering
Fidelity’s Nigerian complaint. Mercier, 935 F.2d at 424.
Moreover, there is no question that the defendant for purposes of
the counterclaims, Fidelity, is amenable to process in Nigeria.
See Piper Aircraft, 454 U.S. at 255 n.22 (explaining that a foreign
forum is available “when the defendant is ‘amenable to process’ in
21
the other jurisdiction”) (quoting Gulf Oil, 330 U.S. at 506-07)
(emphasis added). Accordingly, we affirm the district court’s
denial of the motion for reconsideration with respect to the
demurrage and declaratory relief counterclaims. Our conclusion in
part II moots the reconsideration issue with respect to the
wrongful arrest counterclaim.
V.
In sum, while we conclude that Fidelity’s own complaint
and two of the three counterclaims filed against Fidelity were
properly dismissed, we also conclude that the district court abused
its discretion in granting dismissal of the wrongful arrest
counterclaim based on forum non conveniens. The orders of the
district court are therefore affirmed, except that the portion of
the order granting the dismissal of the wrongful arrest
counterclaim is vacated, and the forum non conveniens issue with
respect to that counterclaim is remanded for further consideration.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
22