Gov't of Marinduque v. Placer Dome, Inc.

131 Nev., Advance Opinion 35
IN THE SUPREME COURT OF THE STATE OF NEVADA
PROVINCIAL GOVERNMENT OF No. 57956
MARINDUQUE,
Appellant, FILED
vs.
PLACER DOME, INC.; AND BARRICK JUN 1 1 2015
GOLD CORPORATION,
Respondents.
Appeal from a district court order granting a motion to dismiss
for forum non conveniens Eighth Judicial District Court, Clark County;
Valerie Adair, Judge.
Affirmed.
Snell & Wilmer L.L.P. and Patrick G. Byrne, Las Vegas; Snell & Wilmer
L.L.P. and Neil Peck and Jessica E. Yates, Denver, Colorado; Diamond
McCarthy, L.L.P., and James D. McCarthy, Walter J. Scott, David
Ammons, and Reda Hicks, Dallas, Texas,
for Appellant.
Morris Law Group and Steve L. Morris and Rex D. Garner, Las Vegas;
Arnold & Porter LLP and Edward Han, Washington, D.C.; Arent Fox LLP
and Martin F. Cunniff, Washington, D.C.,
for Respondents.
BEFORE THE COURT EN BANC.'
OPINION
By the Court, PARRAGUIRRE, J.:
In this appeal, we are asked to determine whether the district
court abused its discretion by dismissing a complaint for forum non
'The Honorable Kristina Pickering, Justice, voluntarily recused
herself from participation in the decision of this matter.
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conveniens when the events giving rise to the complaint occurred in the
Republic of the Philippines and the alternative fora are in Canada.
Because this matter has no bona fide connection to this state, we conclude
that the district court properly exercised its discretion by granting the
motion to dismiss for forum non conveniens. We further conclude that the
district court imposed appropriate conditions to ensure the adequacy of the
alternative fora without requiring appellant to proceed in any particular
forum. Accordingly, we affirm.
FACTS AND PROCEDURAL HISTORY
Appellant, the Provincial Government of Marinduque (the
Province), is a political subdivision of the Republic of the Philippines.
Respondent Placer Dome, Inc. (PDI), was incorporated under the laws of
British Columbia, Canada. Beginning in the 1950s, a predecessor of PDI
formed Marcopper Mining Corporation to undertake mining activities in
the Province. This predecessor, and later PDI, held a substantial minority
of the shares of Marcopper. According to the Province, PDI and its
predecessor controlled all aspects of Marcopper's operations. During the
course of Marcopper's operations, several incidents occurred that caused
significant environmental degradation and health hazards to the people
living in the Province, who are known as Marinduqueiios.
These incidents and the harms resulting therefrom were
investigated by several organizations, including United States Geological
Survey (U.S.G.S.) teams. U.S.G.S. documents regarding the disasters are
located in Colorado and Virginia, and U.S.G.S. team members reside
throughout the United States. Several participants in medical missions to
the Province also reside across the United States. Many witnesses whose
testimony would be material to the Province's claims live in the
Philippines. Many individuals named in the Province's operative
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complaint as being involved with Marcopper or PDI live in Canada, but
some live in the United States. Few, if any, material witnesses reside in
Nevada.
At the time the Province filed its complaint in the district
court, PDI subsidiaries owned mining operations in Nevada. Shortly
thereafter, PDI and another business entity amalgamated under the laws
of Ontario, Canada, to form respondent Barrick Gold Corporation.
Barrick's subsidiaries have continued substantial mining operations in
Nevada. Barrick and PDI contend that only their subsidiaries conduct
business in Nevada and personal jurisdiction is therefore lacking. The
Province responds that the corporate veils may be pierced to establish
personal jurisdiction in Nevada over both Barrick and PDI.
Barrick and PDI moved to dismiss for forum non conveniens,
arguing that either British Columbia, where PDI was incorporated, or
Ontario, where Barrick was formed, would provide a better forum for this
litigation. The Province opposed this motion and alternatively asked the
district court to condition dismissal on Barrick's and PDI's consent to
jurisdiction in the Philippines. Because the Province is a foreign plaintiff,
the district court gave the Province's choice of a Nevada forum "little
deference." The district court found that the Philippines would be the best
forum for this litigation and stated that the Province could file a complaint
there, but the court refused to condition dismissal on Barrick's and PDI's
consent to jurisdiction in the Philippines The district court further found
that either British Columbia or Ontario provided an adequate alternative
forum. After analyzing several public and private interest factors, the
district court found that dismissal for forum non conveniens was
warranted. The district court conditioned dismissal on Barrick's and PDI's
(1) waiver of personal jurisdiction, statute of limitations, and forum non
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conveniens arguments in British Columbia and Ontario; and (2) stipulation
that both monetary and injunctive relief would be available in British
Columbia and Ontario. Because Banick and PDI agreed to these
conditions, the district court dismissed the action without prejudice. The
Province now appeals.
DISCUSSION
We review a district court's order dismissing an action for
forum non conveniens for an abuse of discretion. Payne v. Eighth Judicial
Dist. Court, 97 Nev. 228, 229, 626 P.2d 1278, 1279 (1981), overruled on
other grounds by Pan v. Eighth Judicial Dist. Court, 120 Nev. 222, 228, 88
P.3d 840, 844 (2004).
When deciding a motion to dismiss for forum non conveniens, a
court must first determine the level of deference owed to the plaintiffs
forum choice. Pollux Holding Ltd. v. Chase Manhattan Bank, 329 F.3d 64,
70 (2d Cir. 2003). Next, a district court must determine "whether an
adequate alternative forum exists." Lueck v. Sundstrand Corp., 236 F.3d
1137, 1142 (9th Cir. 2001) (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235,
254 n.22 (1981)). If an adequate alternative forum does exist, the court
must then weigh public and private interest factors to determine whether
dismissal is warranted. Id. Dismissal for forum non conveniens is
appropriate "only in exceptional circumstances when the factors weigh
strongly in favor of another forum." Eaton v. Second Judicial Dist. Court,
96 Nev. 773, 774-75, 616 P.2d 400, 401 (1980), overruled on other grounds
by Pan, 120 Nev. at 228, 88 P.3d at 844.
The Province's choice of a Nevada forum was entitled to less deference
Generally, a plaintiffs choice of forum is entitled to great
deference, but a foreign plaintiffs choice of a United States forum is
entitled to less deference. Pollux Holding, 329 F.3d at 71. While the law
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recognizes the validity of a foreign plaintiffs selection of a United States
forum in order to obtain jurisdiction over a defendant, a foreign plaintiffs
choice will be entitled to substantial deference only where the case has
bona fide connections to and convenience favors the chosen forum. Id. at
74.
First, the Province contends that the district court should not
have reduced the level of deference owed to its forum choice because it
selected a Nevada forum to obtain personal jurisdiction over PDI. Even
with this legitimate reason for choosing a foreign forum, the Province's
choice is only entitled to additional deference to the extent that this case
has bona fide connections to this state and convenience favors litigating
this case in Nevada. See id. Because the Province only argues that
personal jurisdiction is proper in Nevada through piercing Barrick's and
PDI's corporate veils, the link between the Province's forum choice and its
stated reason for that choice—establishing personal jurisdiction—is
tenuous. See id. Moreover, Barrick's and PDI's subsidiaries' business
activities are the only connection that this litigation appears to have with
this state. This is not the type of bona fide connection that justifies giving
a foreign plaintiffs forum choice substantial deference. See id.
Accordingly, we conclude that the district court properly gave reduced
deference to the Province's forum choice. See Piper Aircraft, 454 U.S. at
255-56; Pollux Holding, 329 F.3d at 74.
Second, the Province argues that the district court applied the
wrong level of deference by stating that the Province's forum choice was
entitled to "little deference." The district court also quoted Piper Aircraft,
454 U.S. at 256, however, to state that "a foreign plaintiffs choice [of
forum] deserves less deference." Because the district court referred to the
appropriate "less deference" standard, we conclude that using the word
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"little," although unusual in this context, does not indicate an abuse of
discretion. See Payne, 97 Nev. at 229, 626 P.2d at 1279. We therefore
conclude that the district court properly gave less deference to the
Province's choice of a Nevada forum. 2 Piper Aircraft, 454 U.S. at 255-56.
The district court did not abuse its discretion by finding that the public and
private interest factors favored dismissal for forum non conveniens
The Province does not argue on appeal that British Columbia
and Ontario are inadequate alternative fora. Therefore, we now turn to
the district court's analysis of the public and private interest factors. See
Lueck, 236 F.3d at 1142.
The district court did not abuse its discretion in its analysis of the
public interest factors
The Province argues that the district court abused its
discretion by finding that the public interest factors favored dismissal for
forum non conveniens. We disagree.
Relevant public interest factors include the local interest in the
case, the district court's familiarity with applicable law, the burdens on
local courts and jurors, court congestion, and the costs of resolving a
dispute unrelated to the plaintiffs chosen forum. Lueck, 236 F.3d at 1147
(citing Piper Aircraft, 454 U.S. at 259-61).
2 The Province further argues that it is not a foreign plaintiff whose
forum choice may be given less deference because it is suing as parens
patriae and some Marinduquerios reside in Nevada. Because the Province
fails to further explain its argument or cite any authority in support of it,
we decline to address this argument. See Edwards v. Emperor's Garden
Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006) (stating that
this court need not consider claims that are not cogently argued or
supported by relevant authority).
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As to the local interest in this case, the district court concluded
that either Canadian forum had more interest in this matter than Nevada.
The Province contends that some Marinduquenos living in Nevada may be
interested in this litigation, but that does not mean that Nevada, or even
Clark County, as a whole has an interest in this lawsuit. Barrick is
incorporated and headquartered in Ontario, Barrick and PDI claim that
only their subsidiaries have conducted business activities in Nevada, and
no events related to this litigation occurred in Nevada. Thus, this case
lacks any genuine connection to this state, and the district court did not
abuse its discretion by finding that there would be only minimal local
interest in this litigation. See id.; Payne, 97 Nev. at 229, 626 P.2d at 1279.
The district court also noted that neither it nor Canadian
courts would be familiar with the laws of the Philippines governing the
Province's claims, but Canadian law might govern some issues. The
Province has not demonstrated that the district court abused its discretion
by weighing this factor slightly in favor of dismissal. Payne, 97 Nev. at
229, 626 P.2d at 1279.
It cannot be disputed that this complicated case will impose
heavy burdens on any court. The events giving rise to this litigation span
several decades, and extensive expert testimony will undoubtedly be
necessary to prove the Province's claims and damages. Thus, the district
court did not abuse its discretion by finding that the burdens and costs of
resolving this matter, which lacks any real connection to this state, support
dismissal. See Lueck, 236 F.3d at 1147. Similarly, the district court did
not abuse its discretion by finding that severe court congestion in the
Eighth Judicial District favored dismissal. See id.
Moreover, the district court did not abuse its discretion by
concluding that the weight of these factors favoring dismissal is
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compounded by the fact that the parties continue to dispute whether
personal jurisdiction is proper in Nevada. Where "personal jurisdiction is
difficult to determine, and forum non conveniens considerations weigh
heavily in favor of dismissal," a court may properly dismiss a complaint for
forum non conveniens without first deciding whether it has personal
jurisdiction over the defendant Sinochem Int'l Co. Ltd. v. Malaysia Int?
Shipping Corp., 549 U.S. 422, 436 (2007). Where a genuine dispute as to
personal jurisdiction exists, a district court may properly consider this
dispute in the forum non conveniens analysis. See id. at 435-36.
As the district court stated, resolving the preliminary issue of
personal jurisdiction alone "would likely entail extensive discovery,
briefing, and multiple court hearings." It is undisputed that Barrick's and
PDI's subsidiaries conducted business in Nevada, but the Province alleges
that Barrick and PDI ignored corporate formalities, such that the corporate
veils may be pierced to establish personal jurisdiction. See Viega GmbH v.
Eighth Judicial Dist. Court, 130 Nev., Adv. Op. 40, 328 P.3d 1152, 1157
(2014) (stating that subsidiaries' contacts with a forum may support
personal jurisdiction over a parent if the corporate veil is pierced).
Whether a corporate veil should be pierced is a question of fact involving
several factors. LFC Mktg. Grp., Inc. v. Loomis, 116 Nev. 896, 904, 8 P.3d
841, 846-47 (2000). Thus, whether personal jurisdiction is proper in
Nevada under the alter ego doctrine could only be determined after
significant discovery regarding the corporate practices of Barrick, PDI, and
their subsidiaries. Accordingly, the existence of this dispute weighs
heavily in favor of dismissal for forum non conveniens, and the district
court properly considered Barrick's and PDI's personal jurisdiction
objections in its analysis. See Sinochem, 549 U.S. at 435-36.
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The district court did not abuse its discretion by finding that the
private interest factors favored dismissal for forum non conveniens
We also conclude that the district court properly exercised its
discretion in its analysis of the private interest factors. Relevant private
interest factors may include the location of a defendant corporation, access
to proof, the availability of compulsory process for unwilling witnesses, the
cost of obtaining testimony from willing witnesses, and the enforceability of
a judgment. Lueck, 236 F.3d at 1145; see also Eaton, 96 Nev. at 774, 616
P.2d at 401.
The district court found that no parties or witnesses reside in
Nevada, whereas some witnesses reside in Canada, and compulsory
process is available throughout Canada. Although the Province contends
that Barrick and PDI failed to demonstrate the materiality of these
witnesses' testimony, many of these witnesses were named in the
Province's operative complaint, indicating that the Province believed their
testimony could be material. Thus, the district court did not abuse its
discretion by concluding that these factors favored dismissal. See Lueck,
236 F.3d at 1145-46.
We note that the district court's order did not mention U.S.G.S.
documents located in Virginia and Colorado, U.S.G.S. witnesses residing
throughout the United States, or witnesses residing in the United States
who participated in medical missions to Marinduque. The fact remains,
however, that none of these documents or witnesses is in Nevada, the
Province's chosen forum. Therefore, even though the district court did not
mention this evidence, the district court did not abuse its discretion by
concluding that the ease of bringing witnesses and evidence to trial favored
dismissal for forum non conveniens. See id.
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Finally, the district court concluded that a judgment could be
more readily enforced against Barrick in Canada than in Nevada. Because
Barrick is incorporated under the laws of Ontario and headquartered
there, we cannot conclude that this finding amounted to an abuse of
discretion. See id.
Taking all of the public and private interest factors together,
we conclude that the district court did not abuse its discretion by
dismissing the Province's complaint for forum non conveniens. See id.;
Payne, 97 Nev. at 229, 626 P.2d at 1279.
Finding that litigating in Nevada would not harass, oppress, or vex
Barrick and PDI did not require the district court to deny the motion
to dismiss for forum non conveniens
Finally, the Province contends that because the district court
found that litigating in Nevada would not subject Barrick and PDI "to
harassment, oppression, or vexatiousness," the district court could not
grant dismissal for forum non conveniens as a matter of law. We disagree.
We have stated that in addition to the factors discussed above,
a district "court should also consider whether failure to apply the doctrine
would subject the defendant to harassment, oppression, vexatiousness or
inconvenience." Eaton, 96 Nev. at 774, 616 P.2d at 401 (emphasis added).
Thus, we have treated the issues of harassment, oppression, and
vexatiousness as factors to be considered in the forum non conveniens
analysis, not the dispositive talismans that the Province holds them out to
be. See id. The Province has not suggested any compelling reason to
depart from this approach, and we decline to do so. See Miller v. Burk, 124
Nev. 579, 597, 188 P.3d 1112, 1124 (2008) (stating that this court will not
overturn precedent "absent compelling reasons"). Therefore, the district
court was not required to deny the motion to dismiss simply because it
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found that litigating this matter in Nevada would not harass, oppress, or
vex Barrick and PDI.
The district court properly exercised its discretion in imposing conditions on
dismissal for forum non conveniens
A district court has discretion to impose conditions on a forum
non conveniens dismissal to ensure that the case may be heard in an
alternative forum. See, e.g., In re Union Carbide Corp. Gas Plant Disaster
at Bhopal, India in Dec., 1984, 809 F.2d 195, 203-04 (2d Cir. 1987); see also
Tuazon v. R.J. Reynolds Tobacco Co., 433 F.3d 1163, 1178 (9th Cir. 2006).
The Province argues that the district court should have
conditioned dismissal on Barrick's and PDI's submission to jurisdiction in
the Philippines. The Province relies on Cortec Corp. v. Erste Bank Ber
Oesterreichischen Sparkassen AG, 535 F. Supp. 2d 403 (S.D.N.Y. 2008). In
Cortec, the defendant offered Croatia as an alternative forum, and the
district court sua sponte considered Austria as an alternative forum Id. at
407, 411. The defendant in Cortec did not object to Austrian jurisdiction,
see id. at 411, and the district court imposed conditions on dismissal to
ensure that the case could be heard in either Croatia or Austria, id. at 409,
413. Here, Barrick and PDI consent to jurisdiction in either British
Columbia or Ontario, but continue to object to Philippine jurisdiction. We
note that nothing in the district court's order prevents the Province from
filing this action in the courts of the Philippines—the district court simply
declined to condition dismissal on Barrick's and PDI's submission to
jurisdiction in the Philippines The Province has not cited and we have not
found any authority stating that a district court may condition forum non
conveniens dismissal on a defendant's submission to jurisdiction in a single
forum that the defendant opposes. Moreover, adopting such a position
would encourage plaintiffs to file lawsuits in Nevada that have no
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connection to this state, in the hope that district courts would condition
forum non conveniens dismissals on defendants' submission to jurisdiction
in other fora that the defendants opposed. We decline to turn the courts of
this state into mere conduits for lawsuits that belong elsewhere.
To the extent that Barrick and PDI oppose the conditions
imposed by the district court, we conclude that any such opposition lacks
merit. An alternative forum is adequate if "the defendant is amenable to
process in the other jurisdiction," Piper Aircraft, 454 U.S. at 254 n.22
(internal quotation marks omitted), and the alternative forum "provide[s]
the plaintiff with some remedy for his wrong," Lueck, 236 F.3d at 1143. A
forum is inadequate "if a statute of limitations bars the bringing of the case
in that forum." Bank of Credit & Commerce Ina Ltd. a. State Bank of
Pakistan, 273 F.3d 241, 246 (2d Cir. 2001). "District courts are not
required to impose conditions on forum non conveniens dismissals, but it is
an abuse of discretion to fail to do so when there is a justifiable reason to
doubt that a party will cooperate with the foreign forum." Carijano v.
Occidental Petroleum Corp., 643 F.3d 1216, 1234 (9th Cir. 2011) (internal
quotation marks omitted).
Here, the district court conditioned dismissal on Barrick's and
PDI's (1) waiver of personal jurisdiction, statute of limitations, and forum
non conveniens arguments in Ontario and British Columbia; and (2)
stipulation that monetary and injunctive relief are available in either
Canadian forum. These conditions merely ensured that Barrick and PDI
would be amenable to suit in the alternative fora and the Province would
have some remedy. Therefore, these conditions guaranteed the availability
and adequacy of an alternative forum, see Piper Aircraft, 454 U.S. at 254
n.22; Bank of Credit & Commerce Ina, 273 F.3d at 246; Lueck, 236 F.3d at
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1143, and the district court did not abuse its discretion by imposing these
conditions, see Carijano, 643 F.3d at 1234.
CONCLUSION
We conclude that the district court properly gave less deference
to the Province's choice of a Nevada forum Applying this less deference
standard, the district court did not abuse its discretion by dismissing the
Province's complaint for forum non conveniens because, among other
reasons, this case lacks any bona fide connection to this state, adequate
alternative fora exist, and the burdens of litigating here outweigh any
convenience to the Province, Finally, we hold that the district court
imposed appropriate conditions on dismissal to ensure the existence of an
adequate alternative forum for this litigation. Therefore, we affirm the
district court's order dismissing the complaint for forum non conveniens.
I cx..A.A4A---azsar J.
Parraguirre
We concur:
,C. J.
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