Delta Brands Inc v. Danieli Corporation , 99 F. App'x 1 ( 2004 )


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  •                                                        United States Court of Appeals
    Fifth Circuit
    F I L E D
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT                   May 5, 2004
    Charles R. Fulbruge III
    Clerk
    No. 03-11052
    Summary Calendar
    DELTA BRANDS INC
    Plaintiff - Appellant
    v.
    DANIELI CORPORATION; DANIELI & C SPA; SSAB TUNNPLAT AB
    Defendants - Appellees
    Appeal from the United States District Court
    for the Northern District of Texas
    No. 3:02-CV-81-N
    Before KING, Chief Judge, and DeMOSS and STEWART, Circuit Judges.
    PER CURIAM:*
    Delta Brands, Inc. (“Delta”), a Texas Corporation, brought
    suit against SSAB Tunnplåt AB (“SSAB”), a Swedish Corporation,
    Danieli Corporation (“Danieli Corp.”), a Delaware Corporation,
    and Danieli & C Officine Meccaniche SpA (“Danieli & C”), an
    Italian Corporation.    The three defendants sought dismissal on
    various grounds.   After finding that Delta had failed to
    *
    Pursuant to 5TH CIR. R. 47.5, the court has determined
    that this opinion should not be published and is not precedent
    except under the limited circumstances set forth in 5TH CIR. R.
    47.5.4.
    1
    establish a prima facie case of personal jurisdiction over SSAB
    or Danieli Corp., the district court granted their motions to
    dismiss.       The district court granted Danieli & C’s motion to
    dismiss on the basis of forum non conveniens, upon determining
    that the relevant private and public interests favored Italy,
    rather than Texas, as the appropriate forum.        Delta appeals the
    district court’s dismissal of its claims against SSAB, Danieli &
    C, and Danieli Corp.       We affirm.
    I.   BACKGROUND
    Delta, a Texas corporation that designs and manufactures
    steel-processing equipment, contacted SSAB, a sheet-steel
    manufacturer based in Sweden, in an effort to market its product
    to SSAB.       Fortuitously, at that time, SSAB was soliciting bids
    for two cut-to-length lines.1      SSAB invited Delta to submit a
    bid, and Delta complied by sending a bid and layout drawings to
    SSAB.       Five companies besides Delta responded to SSAB’s bid
    request, including Danieli & C, an Italian company.
    At SSAB’s invitation, Delta flew to Sweden to discuss its
    bid.       During its meeting with Delta in Sweden, SSAB expressed an
    interest in viewing Delta’s equipment in operation.        Once Delta’s
    representatives returned to the United States, SSAB again
    requested to view Delta’s equipment.        The parties agreed that
    1
    Cut-to-length lines perform a variety of functions
    including uncoiling coils of steel, leveling the steel, cutting
    the steel to a specific length, and stacking the cut pieces.
    2
    SSAB would visit the United States.   SSAB thus flew to the United
    States, inspected Delta’s equipment in Tennessee and Indiana, and
    met with Delta representatives at Delta’s headquarters in Irving,
    Texas.   Throughout the trip, SSAB praised Delta’s technology.
    Danieli Corp.,2 the North American representative of Danieli
    & C,3 telephoned Delta to inquire about the possibility of having
    Delta work as a subcontractor for Danieli & C on the SSAB
    project.   Employees at Danieli Corp. and Delta exchanged several
    phone calls and emails on this subject, but Danieli & C and Delta
    ultimately decided to pursue separate bids.
    SSAB subsequently invited Delta, Danieli & C, and one other
    company back to Sweden for final bidding and negotiations.   After
    completion of these meetings, SSAB informed Delta that it had not
    been chosen for the project.   Delta telephoned SSAB to inquire
    who had been chosen; SSAB replied that Danieli & C was to provide
    its cut-to-length lines.   During this call, SSAB told Delta that
    it had asked Danieli & C to provide a rotary shear like Delta’s.
    At SSAB’s suggestion, Delta contacted Danieli & C, through
    Danieli Corp., about possibly subcontracting on SSAB’s project.
    According to Delta, Danieli Corp. opened a dialogue between Delta
    2
    Danieli Corp. is organized under the laws of Delaware
    and its principal place of business is in Cranberry Township,
    Pennsylvania.
    3
    Danieli Corp. is wholly owned by Danieli Holdings,
    Inc., which, in turn, is wholly owned by Industrielle
    Betellingung SA, which, in turn, is 90% owned by Danieli & C.
    3
    and Danieli & C.   Danieli Corp. also forwarded technical
    information from Delta to Danieli & C.    These discussions
    culminated in Delta submitting an offer to Danieli & C.     When
    Danieli & C did not immediately respond to the offer, Delta
    contacted Danieli & C to check the status of its bid.
    Danieli & C telephoned Delta in Texas and asked Delta to
    send a delegation to Buttrio, Italy to finalize the agreement.
    Delta’s representatives thus traveled to Italy.    In Italy,
    Danieli & C executed a confidentiality agreement with Delta and
    was provided with confidential documents regarding Delta’s rotary
    shear and its electromagnetic stacker.    Danieli & C, however,
    declined to finalized the subcontracting agreement while Delta
    was in Italy; Danieli & C told Delta that the agreement would be
    finalized upon Delta’s return to Texas.
    Delta’s representatives returned to Texas, but Delta was not
    contacted by Danieli & C as planned.   Delta telephoned Danieli &
    C repeatedly to check on the status of its bid.    Danieli & C
    eventually emailed Delta that its price was too high.    When Delta
    telephoned Danieli & C, Danieli & C warned that if Delta would
    not provide its rotary shear and its electromagnetic stacker at a
    lower price, then Danieli & C would have them manufactured by
    someone else.
    Delta brought suit against Danieli & C and Danieli Corp. in
    federal district court in Texas, alleging that the companies had
    both breached their confidentiality agreement with Delta and
    4
    misappropriated Delta’s trade secrets.    Delta later amended its
    complaint to add causes of action for fraud, conspiracy, and
    negligent misrepresentation, and to include SSAB as a defendant.
    Upon various motions by the defendants, the district court
    dismissed Delta’s suit against Danieli & C under the doctrine of
    forum non conveniens, dismissed Delta’s suit against SSAB for
    lack of personal jurisdiction, and ordered Delta to amend its
    complaint to state its allegations against Danieli Corp. more
    specifically.   Delta’s Second Amended Complaint alleges that
    Danieli Corp. conspired with Danieli & C to misappropriate
    Delta’s trade secrets by misrepresenting Danieli & C’s intent to
    use Delta as a subcontractor and then breaching its
    confidentiality agreement with Delta.    After Delta submitted its
    Second Amended Complaint, Danieli Corp. moved to dismiss for lack
    of personal jurisdiction.    The district court granted Danieli
    Corp.’s motion and entered a final judgment against Delta.    Delta
    timely appeals the dismissal of its claims against SSAB, Danieli
    & C, and Danieli Corp.
    II.     PERSONAL JURISDICTION
    We review a district court’s decision to dismiss for lack of
    personal jurisdiction de novo.     Stripling v. Jordan Prod. Co.,
    
    234 F.3d 863
    , 869 (5th Cir. 2000).     Where, as here, the district
    court did not conduct an evidentiary hearing, the party seeking
    to assert personal jurisdiction is required only to present
    5
    sufficient facts to make out a prima facie case.       
    Id. The court
    will accept as true any uncontroverted allegations contained the
    party’s complaint and will resolve all factual conflicts arising
    out of the parties’ affidavits in favor of the party seeking
    jurisdiction.   
    Id. The court
    need not, however, accept “merely
    conclusory” allegations as true.       Cent. Freight Lines Inc. v. APA
    Transp. Corp., 
    322 F.3d 376
    , 380 (5th Cir. 2003).
    A federal court sitting in diversity may exercise personal
    jurisdiction over a nonresident defendant if (1) the state long-
    arm statue permits an exercise of jurisdiction and (2) an
    exercise of jurisdiction would comport with the requirements of
    the Due Process Clause of the Fourteenth Amendment.          Religious
    Tech. Ctr. v. Liebreich, 
    339 F.3d 369
    , 373 (5th Cir. 2003); see
    also FED. R. CIV. P. 4(e)(1), 4(h)(1), 4(k)(1).     Because the
    requirements of Texas’s long-arm statute are coextensive with the
    requirements of the Due Process Clause, the sole inquiry in this
    case is whether the district court’s exercise of personal
    jurisdiction over the defendants would be consistent with due
    process.   Religious Tech 
    Ctr., 339 F.3d at 373
    .
    The exercise of jurisdiction over a nonresident defendant is
    proper, under the Due Process Clause, when two requirements have
    been met: (1) the defendant has established “minimum contacts”
    with the forum state and (2) exercising jurisdiction does not
    offend “traditional notions of fair play and substantial
    6
    justice.”   Int’l Shoe Co. v. Washington, 
    326 U.S. 310
    , 316
    (1945); Alpine View Co. v. Atlas Copco AB, 
    205 F.3d 208
    , 214-15
    (5th Cir. 2000).   A defendant has minimum contacts with a forum
    if it has “purposefully avail[ed] itself of the privilege of
    conducting activities within the forum State, thus invoking the
    benefits and protections of its laws.”   Hanson v. Denckla, 
    357 U.S. 235
    , 253 (1958).   The minimum-contacts requirement ensures
    that “the defendant’s conduct and connection with the forum State
    are such that he should reasonably anticipate being haled into
    court there.”   World-Wide Volkswagen Corp. v. Woodson,   
    444 U.S. 286
    , 297 (1980).
    Personal jurisdiction may be specific or general.    A court
    may exercise specific personal jurisdiction over a defendant if
    the suit arises out of or is related to the defendant’s
    purposeful contacts with the forum.   Helicopteros Nacionales de
    Colombia, S.A. v. Hall, 
    466 U.S. 408
    , 414 n.8 (1984); Alpine View
    
    Co., 205 F.3d at 215
    .   By contrast, if a suit is unrelated to the
    defendant’s activities in the forum, a court may exercise general
    personal jurisdiction over the defendant if the defendant’s
    contacts with the forum state are substantial and “continuous and
    systematic.”    
    Helicopteros, 466 U.S. at 414-15
    ; Alpine View 
    Co., 205 F.3d at 215
    .
    With these general principles in mind, we now consider
    whether the district court properly found that it did not have
    personal jurisdiction over either SSAB or Danieli Corp.
    7
    1.   SSAB
    SSAB is organized under the laws of Sweden.   SSAB’s
    principal place of business is Borlänge, Sweden; it has no
    subsidiaries or branch offices in the United States.   SSAB does
    not have employees, servants, or agents in Texas, nor does it own
    or lease any property in Texas.   Nonetheless, Delta contends that
    SSAB’s contacts with Texas are sufficient to support general
    personal jurisdiction because (1) SSAB Swedish Steel (“Swedish
    Steel”), which is wholly owned by SSAB’s parent corporation, SSAB
    Svenskt Stal AB, maintains a Pittsburgh office and sells products
    in Texas; (2) one of Swedish Steel’s employees resides in Texas;
    (3) 0.04% of SSAB’s steel products were shipped by third parties
    into Texas; and (4) SSAB’s representatives visited Delta’s Texas
    facility on one occasion.   We agree with the district court that
    these contacts are insufficient to give rise to general personal
    jurisdiction over SSAB.
    As noted by the district court, Swedish Steel’s contacts
    with Texas may not be imputed to SSAB because the evidence
    demonstrates that SSAB and Swedish Steel, though owned by the
    same parent corporation, are separate and distinct entities.     See
    Alpine View 
    Co., 205 F.3d at 218-19
    ; Bearry v. Beech Aircraft
    Corp., 
    818 F.2d 370
    , 372-73 (5th Cir. 1987).   Furthermore, that a
    small portion of SSAB’s products were shipped by third parties
    into Texas does not establish that SSAB availed itself of the
    8
    benefits and protections of Texas law.   See 
    Bearry, 818 F.2d at 373
    , 375-76 (holding that “[t]he laws of Texas neither protected
    nor benefitted” the defendant even though nearly $250 million of
    the defendant’s manufactured products flowed to independent
    dealers in Texas over a five-year period).   Finally, SSAB’s lone
    trip to Texas for the purpose of visiting Delta’s headquarters is
    not a substantial contact and certainly does not constitute
    “continuous and systematic” contacts with Texas.   In sum, the
    flow of SSAB’s goods into Texas through third parties, combined
    with one visit by SSAB to Delta’s Texas facility, are
    insufficient contacts with Texas to give rise to general personal
    jurisdiction.
    Delta also contends, however, that SSAB has contacts with
    Texas that support specific personal jurisdiction because (1)
    SSAB made misrepresentations to Delta, some of these
    misrepresentations were made in Texas, and it was foreseeable
    that the effects of SSAB’s misrepresentations would be felt by
    Delta in Texas and (2) SSAB was part of a conspiracy to acquire
    and to misappropriate Delta’s confidential information.
    Delta correctly notes that this court has held that tortious
    actions performed outside of Texas may be sufficient, for
    purposes of minimum-contacts analysis, if the actions “had
    foreseeable effects in the forum and were directed at the forum.”
    Wien Air Alaska, Inc. v. Brandt, 
    195 F.3d 208
    , 212 (5th Cir.
    9
    1999).   But Delta has not shown that SSAB directed its actions at
    Texas.   Rather, the evidence shows that Delta sought out SSAB’s
    business, first by telephoning SSAB in Sweden, and then by
    traveling to Sweden to meet with SSAB representatives.    In fact,
    SSAB ultimately declined to create an ongoing business
    relationship with Delta, opting instead to do business with
    Danieli & C, an Italian Corporation.   Contact initiated by Delta
    is insufficient to show that SSAB purposefully directed its
    actions at Texas.   
    Hanson, 357 U.S. at 253
    (“The unilateral
    activity of those who claim some relationship with a nonresident
    defendant cannot satisfy the requirement of contact with the
    forum State.”).
    Furthermore, Delta has not alleged that SSAB made
    misrepresentations to Delta while SSAB was in Texas; nor has
    Delta alleged that SSAB made misrepresentations in telephone
    calls, faxes, or emails to Delta personnel in Texas.4    Cf. Wien
    Air Alaska, 
    Inc., 195 F.3d at 212
    (holding that the defendants
    had purposefully directed their actions at Texas by making
    fraudulent misrepresentations to the plaintiff in telephone calls
    4
    SSAB did allegedly comment, during a phone call with a
    Delta employee in Texas, that “the rotary shear and temper mill
    in [Delta’s] material were very novel and interesting,” but,
    presumably, Delta does not consider this to be a false statement.
    In any case, this statement cannot form the basis for a
    fraudulent-misrepresentation claim, because, under Texas law,
    statements of opinion or judgment do not ordinarily support
    claims of fraud. Fina Supply, Inc. v. Abilene Nat’l Bank, 
    726 S.W.2d 537
    , 540 (Tex. 1987); Ryan v. Collins, 
    496 S.W.2d 205
    , 210
    (Tex. Civ. App.--Tyler 1973, writ ref’d n.r.e.).
    10
    to the plaintiff in Texas and in letters and faxes sent to the
    plaintiff in Texas).   Thus, Delta has not shown that SSAB
    purposefully availed itself of the privilege of conducting
    business within Texas or invoked the benefits and protections of
    Texas’s laws.   Consequently, we conclude that Delta has failed to
    establish a prima facie case of specific personal jurisdiction
    based on SSAB’s alleged misrepresentations.    See Panda Brandywine
    Corp. v. Potomac Elec. Power Co., 
    253 F.3d 865
    , 869 (5th Cir.
    2001).
    Delta also contends that specific personal jurisdiction can
    be based on SSAB’s alleged participation in a conspiracy to
    obtain Delta’s confidential information.   To establish its prima
    facie case of specific personal jurisdiction, Delta was required
    to demonstrate that SSAB individually, and not as part of the
    conspiracy, had minimum contacts with Texas.   Guidry v. United
    States Tobacco Co., 
    188 F.3d 619
    , 625 (5th Cir. 1999).     Thus,
    Delta was required to show that either the alleged conspiracy or
    SSAB’s alleged misrepresentations were related to or arose out of
    SSAB’s contacts with Texas.
    Delta’s First Amended Complaint states that “Defendants SSAB
    and Danieli have conspired together . . . to acquire and
    misappropriate [Delta]’s confidential and proprietary
    information” by making material misrepresentations to Delta.       In
    this section of its complaint, however, Delta makes no reference
    to the state of Texas.   Delta has provided no other evidence that
    11
    the conspiracy was related to SSAB’s contacts with Texas.
    Furthermore, as explained above, there is no evidence that SSAB’s
    alleged misrepresentations were directed at Texas.    Therefore,
    Delta has not established a prima facie case of specific personal
    jurisdiction over SSAB based on its alleged participation in a
    conspiracy against Delta.
    As Delta has presented neither a prima facie case of general
    personal jurisdiction nor a prima facie case of specific personal
    jurisdiction, the district court correctly dismissed Delta’s suit
    against SSAB.
    2.   Danieli Corp.
    Delta contends that Danieli Corp. has minimum contacts with
    Texas based on Danieli Corp.’s breach of Delta’s confidentiality
    agreement, its fraudulent misrepresentations to Delta, and its
    conspiracy with Danieli & C to acquire Delta’s confidential
    information.    We agree with the district court, however, that
    Delta has not presented a prima facie case of specific personal
    jurisdiction related to any of these claims.
    In its appellate brief, Delta argues that specific personal
    jurisdiction is proper based on the confidentiality agreement,
    because, by entering into the agreement, Danieli Corp. “created
    continuing obligations between it and [Delta], a Texas
    resident[,] and has availed itself of the privilege of conducting
    business in Texas.”    Delta’s argument is unpersuasive.   As Delta
    12
    admitted in its Second Amended Complaint, “Danieli [Corp.] and
    Danieli & C are separate and distinct legal entities.”   The
    uncontradicted evidence shows that Danieli Corp. never agreed to
    be bound by the confidentiality agreement between Delta and
    Danieli & C.   Notwithstanding that Danieli & C promised on behalf
    of itself and “any other party affiliated with it [to]
    maintain . . . the strict confidentiality of [Delta’s]
    Confidential Information,” only Danieli & C signed the agreement.
    Danieli Corp. did not know about the confidentiality agreement,5
    let alone agree to be bound by it.   It is far-fetched indeed to
    assert that Danieli Corp. should have anticipated being haled
    into Texas court in connection with a contract it did not know
    about, that was executed in Italy by its affiliate, and that was
    allegedly breached by its affiliate in Italy.   Consequently, we
    hold that Delta has failed to establish a prima facie case of
    specific personal jurisdiction related to its contract claim
    against Danieli Corp.
    Delta also contends that specific personal jurisdiction
    exists based on Danieli Corp’s fraudulent misrepresentations.    In
    its brief on appeal, Delta argues that Danieli Corp., like SSAB,
    made misrepresentations to Delta that it knew or should have
    known would cause harm to Delta in Texas.   Delta, however, never
    5
    According to an affidavit submitted by Danieli Corp.
    and uncontradicted by Delta, Danieli Corp. was unaware of the
    confidentiality agreement until it received Delta’s original
    complaint in this case.
    13
    alleged in its Second Amended Complaint that Danieli Corp.
    actually misrepresented any material facts.   Delta merely alleged
    that misrepresentations were made, but the complaint is ambiguous
    about who allegedly made them: Danieli & C, Danieli Corp., or
    both.6   Since Danieli Corp. and Danieli & C are different
    corporations, only misrepresentations made by Danieli Corp.
    itself can be used to measure Danieli Corp.’s contacts with
    Texas; Danieli & C’s contacts cannot be imputed to Danieli Corp.
    See Alpine View 
    Co., 205 F.3d at 219
    .
    Furthermore, even if we interpreted Delta’s complaint as
    alleging that Danieli Corp. made material representations to
    Delta and that it was foreseeable to Danieli Corp. that the
    effects of the misrepresentations would felt by Delta in Texas,
    we would still find that Delta has not established a prima facie
    case of jurisdiction over Danieli Corp.   As with SSAB, Delta has
    failed to show that Danieli Corp.’s misrepresentations had any
    connection to Texas, other than that the effects of the
    misrepresentations would be felt by Delta there.   Critically,
    Delta has not shown that Danieli Corp. purposefully directed its
    actions at Texas.   See Panda Brandywine 
    Corp., 253 F.3d at 869-70
    (holding that the foreseeability of causing injury in Texas is
    6
    Delta’s complaint alleges that, “The unlawful means
    employed [by Danieli & C and Danieli Corp. to gain access to
    Delta’s confidential information] was the misrepresentation to
    [Delta] with respect to Danieli & C’s intent to utilize [Delta]
    as a subcontractor.” Thus, it is unclear who actually made the
    misrepresentations.
    14
    insufficient for specific personal jurisdiction, and that the
    plaintiff must also show that the defendant purposefully directed
    its efforts towards the forum state).    Delta has not, for
    example, alleged that Danieli Corp.’s misrepresentations arose
    out of contacts initiated by Danieli Corp., rather than contacts
    initiated by Delta.7    Nor has Delta alleged that Danieli Corp.’s
    misrepresentations occurred in telephone calls, emails, or faxes,
    to Delta in Texas.     Cf. Wien Air Alaska, 
    Inc., 195 F.3d at 212
    .
    Because there has been no showing that Danieli Corp. purposefully
    availed itself of the privilege of conducting business within
    Texas, we find that Delta’s allegations do not support a prima
    facie case of specific personal jurisdiction over Danieli Corp.
    Finally, Delta argues that it properly established a prima
    facie case of specific personal jurisdiction based on Danieli
    Corp.’s alleged participation in a conspiracy with Danieli & C.
    In its Second Amended Complaint, Delta alleges that Danieli Corp.
    conspired with Danieli & C to misappropriate Delta’s confidential
    information and that the “means employed [to accomplish this
    goal] was the misrepresentation to [Delta] with respect to
    Danieli & C’s intent to utilize [Delta] as a subcontractor [and]
    the breach of the Confidentiality Agreement.”    According to
    7
    We note that, after losing the SSAB contract to Danieli
    & C, Delta initiated contact with Danieli Corp. to inquire about
    subcontracting. But, of course, contacts initiated by Delta do
    not show that Danieli Corp. purposefully availed itself of the
    privilege of conducting business within Texas. 
    Hanson, 357 U.S. at 253
    .
    15
    Delta, its allegations of conspiracy were sufficient, under
    Mandelkorn v. Patrick, 
    359 F. Supp. 692
    (D.D.C. 1973), to
    establish a prima facie case because Danieli Corp. never denied
    that it participated in a conspiracy with SSAB and Danieli & C.
    We note, first, that Mendelkorn, a district court case from the
    District of Columbia, is not binding authority.     Even if we
    agreed with the analysis contained in Mandelkorn, however,
    Delta’s argument fails because, in his affidavit, Mark Brandon,
    the President of Danieli Corp., explicitly “denie[d] that
    [Danieli Corp.] conspired in any way with SSAB . . . and/or
    Danieli & C to acquire any information from Delta.”     In any
    event, as explained above, Delta has failed to show how the
    alleged conspiracy between the defendants had any connection to
    the state of Texas.
    Because Delta has not established a prima facie case of
    specific personal jurisdiction over Danieli Corp., the district
    court correctly dismissed Delta’s claims against Danieli Corp.
    for lack of personal jurisdiction.
    III.   FORUM NON CONVENIENS
    We review for clear abuse of discretion a district court’s
    decision to dismiss a suit under the doctrine of forum non
    conveniens.   Piper Aircraft Co. v. Reyno, 
    454 U.S. 235
    , 255
    (1981); Baumgart v. Fairchild Aircraft Corp., 
    981 F.2d 824
    , 835
    (5th Cir. 1993).   “Where the district court ‘has considered all
    16
    relevant public and private interest factors, and where its
    balancing of these factors is reasonable, its decision deserves
    substantial deference.’” 
    Baumgart, 981 F.2d at 835
    (quoting Piper
    
    Aircraft, 454 U.S. at 257
    ).
    There is a “strong presumption in favor of the plaintiff’s
    choice of forum.”   Piper 
    Aircraft, 454 U.S. at 254-5
    .
    Nonetheless, this presumption may be overcome when an alternate,
    adequate forum is available and private and public interests
    “clearly point towards trial in the alternate forum.”      
    Id. at 255
    & n.22.   The relevant private interest factors include:
    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.”
    
    Id. at 242
    n.6 (quoting Gulf Oil Corp. v. Gilbert, 
    330 U.S. 501
    ,
    508 (1947)).   The district court should also consider the
    following public interest factors:
    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 
    Corp., 330 U.S. at 509
    ).   Although citizen
    plaintiffs are given “somewhat more deference” in their choice of
    forum than foreign plaintiffs, dismissal is still appropriate “if
    17
    the balance of conveniences suggest that trial in the chosen
    forum would be unnecessarily burdensome for the defendant or the
    court.”   
    Id. at 255
    n.23.   The defendant bears the burden of
    showing that dismissal on this basis is warranted.    Robinson v.
    TCI/US W. Cable Communications Inc., 
    117 F.3d 900
    , 907 (5th Cir.
    1997).
    Delta has not challenged the district court’s determination
    that Italy is an available and adequate alternative forum for its
    suit against Danieli & C.    Instead, Delta claims that the
    district court erred in its evaluation of the public and private
    interests at stake.   Regarding the private interests, Delta
    argues that it is no easier to access sources of proof in Italy
    than in Texas and that the cost of obtaining the attendance of
    willing witnesses would be no higher if the suit were tried in
    Texas than it would be if the suit were tried in Italy.
    Furthermore, Delta argues that as important documents are in
    English, its personnel speaks only English, and the key meetings
    were conducted in English, a trial in Italy would require
    extensive translation.
    In considering the private interest factors, the district
    court addressed all of these arguments.    Although recognizing
    that most of Delta’s documents and witnesses are located in
    Texas, the district court concluded that Italy would provide
    better overall access to sources of proof because most of the
    information and witnesses necessary for trial are located in
    18
    Italy and Europe.    Furthermore, because it found that almost all
    of the relevant testimony would be provided by European
    witnesses, the district court concluded that the cost of
    obtaining attendance of willing witnesses would be lower if the
    case were tried in Italy.    Finally, the district court determined
    that language barriers would be more problematic in Texas than in
    Italy, as more witnesses and documents are located in Italy than
    in Texas.8    We find that the district court’s analysis of these
    factors was reasonable.
    Delta also contends that the district court erred in finding
    that the existing public interests weighed against trial in
    Texas.   First, Delta claims that this is a localized controversy
    and, thus, that Texas has an interest in having the case heard in
    its courts.    Second, Delta argues that Texas law applies to the
    dispute and, therefore, that courts in Texas will be most
    familiar with the law to be applied.    Third, because the law of
    Texas applies, according to Delta, there would be no problems of
    conflict of laws or the application of foreign law if the case
    were tried in Texas.
    The district court disagreed with Delta’s analysis of the
    public interests present in this suit.    The district court found
    8
    Certain factors, according to the district court, did
    not weigh in favor of dismissal. Specifically, the district
    court found that Danieli & C had not shown that witnesses would
    be unavailable if the case were tried in Texas or that the
    viewing of premises in Italy would be necessary.
    19
    that this is fundamentally an Italian dispute, rather than a
    Texas dispute, because the presentation and negotiations of the
    confidentiality agreement were conducted during Delta’s trip to
    Italy, the confidentiality agreement was executed there, and
    Danieli & C’s alleged breach of the agreement occurred there.
    According to the district court, even though Texas has an
    interest in hearing a case brought by one of its citizens, Italy
    has a stronger interest in having the case heard in Italy because
    of its interest in regulating corporations that operate within
    its boundaries.   Furthermore, the court concluded that, under a
    “most significant contacts” analysis, Italian law would apply;
    thus, Italian courts would be most at home with the law and
    trying the case in Italy would avoid unnecessary problems in the
    application of foreign law.   Finally, the district court
    concluded that it would be unfair to burden Texas citizens with
    jury duty, since this is basically an Italian dispute.9
    We find no clear abuse of discretion in the district court’s
    analysis of the public interest factors.    Specifically, we hold
    that the district court did not err in concluding that Italian
    law, rather than Texas law, applies to the dispute.    Since this
    diversity case comes to us from a district court in Texas, we
    apply Texas choice-of-law rules.     Klaxon Co. v. Stentor Elec.
    9
    Because neither Danieli & C nor Delta addressed the
    administrative difficulties flowing from court congestion, the
    district court did not include this factor in its analysis.
    20
    Mfg. Co., 
    313 U.S. 487
    , 496 (1941).    Texas follows the “most
    significant relationship” test for contract cases.     Jackson v. W.
    Telemktg. Corp. Outbound, 
    245 F.3d 518
    , 523 (5th Cir. 2001).
    Under this test, the court looks at the quality, rather than the
    quantity, of the parties’ contacts with a particular
    jurisdiction.   
    Id. Because Danieli
    & C is domiciled in Italy and
    the confidentiality agreement between Delta and Danieli & C was
    negotiated, executed, and allegedly breached in Italy, we find
    that the district court was correct in holding that Italian law
    applies.   See Maxus Exploration Co. v. Moran Bros., Inc., 
    817 S.W.2d 50
    , 53-54 (Tex. 1991) (outlining the factors that a court
    should consider in determining which jurisdiction has the most
    significant relationship to the parties and the transaction).
    Because the district court carefully considered the relevant
    private and public factors, and its analysis was reasonable, we
    hold that the district court did not abuse its discretion in
    dismissing the suit against Danieli & C under the doctrine of
    forum non conveniens.
    IV.   CONCLUSION
    For the foregoing reasons, the judgment of the district
    court is AFFIRMED.
    21
    

Document Info

Docket Number: 03-11052

Citation Numbers: 99 F. App'x 1

Judges: Demoss, King, Per Curiam, Stewart

Filed Date: 5/5/2004

Precedential Status: Non-Precedential

Modified Date: 8/1/2023

Authorities (21)

Jackson v. West Telemarketing Corp. Outbound , 245 F.3d 518 ( 2001 )

Guidry v. United States Tobacco Co. , 188 F.3d 619 ( 1999 )

Central Freight Lines Inc. v. APA Transport Corp. , 322 F.3d 376 ( 2003 )

Religious Technology Center v. Liebreich , 339 F.3d 369 ( 2003 )

Gertrude Baumgart v. Fairchild Aircraft Corporation and ... , 981 F.2d 824 ( 1993 )

Dorothy Bearry v. Beech Aircraft Corporation , 818 F.2d 370 ( 1987 )

Klaxon Co. v. Stentor Electric Manufacturing Co. , 61 S. Ct. 1020 ( 1941 )

Alpine View Co Ltd v. Atlas Copco AB , 205 F.3d 208 ( 2000 )

Wien Air Alaska, Inc. v. Brandt , 195 F.3d 208 ( 1999 )

Panda Brandywine Corp. v. Potomac Electric Power Co. , 253 F.3d 865 ( 2001 )

j-r-stripling-rosson-exploration-company-william-g-bowen-brookhaven-pump , 234 F.3d 863 ( 2000 )

International Shoe Co. v. Washington , 66 S. Ct. 154 ( 1945 )

fed-sec-l-rep-p-99495-alan-robinson-v-tcius-west-communications , 117 F.3d 900 ( 1997 )

Mandelkorn v. Patrick , 359 F. Supp. 692 ( 1973 )

Fina Supply, Inc. v. Abilene National Bank , 726 S.W.2d 537 ( 1987 )

Maxus Exploration Co. v. Moran Bros., Inc. , 817 S.W.2d 50 ( 1991 )

World-Wide Volkswagen Corp. v. Woodson , 100 S. Ct. 559 ( 1980 )

Gulf Oil Corp. v. Gilbert , 330 U.S. 501 ( 1947 )

Hanson v. Denckla , 78 S. Ct. 1228 ( 1958 )

Helicopteros Nacionales De Colombia, S. A. v. Hall , 104 S. Ct. 1868 ( 1984 )

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