Curtis v. Galakatos ( 2021 )

United States Court of Appeals
For the First Circuit
No. 20-1846
CINDY CURTIS; DEMETRE CAMBOURIS,
Plaintiffs, Appellants,
v.
NICHOLAS GALAKATOS, as owner of the M/V GALANI,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]
Before
Thompson and Lipez, Circuit Judges,
and Torresen,* District Judge.
Thomas P. Giuffra, with whom Brian Keane, Keane Law Group,
P.C., Jeremy Hellman, and Rheingold Giuffra Ruffo & Plotkin LLP
were on brief, for appellants.
Bruce G. Paulsen, with whom David J. Farrell, Jr., David S.
Smith, Farrell Smith O'Connell Aarsheim Aprans LLP, Brian P.
Maloney, and Seward & Kissel LLP were on brief, for appellee.
November 29, 2021
* Of the District of Maine, sitting by designation.
THOMPSON, Circuit Judge. On vacation in Greece, two
U.S. citizens, Cindy Curtis and Demetre Cambouris, were ferrying
along on a small boat, the M/V Marina. That is until another boat,
the M/V Galani, smacked into the Marina and sunk it in the Paros-
Antiparos Strait. On top of the marine wreckage, the crash also
left Curtis with serious personal injuries. So she and her husband
sued the U.S.-citizen owner of the Galani, Nicholas Galakatos, in
federal court in Massachusetts seeking damages. Galakatos,
though, told the district court that this was a suit meant for
Greece--not the United States--and moved to dismiss on the ground
of forum non conveniens. The district court agreed and sent the
parties packing for a Greek court. Ever mindful of our deferential
standard of review in this context, we nonetheless reverse.
THE FACTS
Curtis and Cambouris, spouses, hail from New York. In
the summer of 2018, they crossed the pond to spend time in Greece,
specifically in the area of the Paros-Antiparos Strait. While
there, they (along with one other passenger) took a ride aboard
Cambouris's boat, the M/V Marina, in the Strait.
That same day, Galakatos's M/V Galani, piloted by Greek
citizen Dimitrios Faroupos, was also traveling the Strait.
Faroupos (who we now know is the gardener at Galakatos's summer
residence in Greece) was carrying six others on board the Galani
- 2 -
at the time. When the collision occurred, Galakatos was back home
in Massachusetts.
With Faroupos at the helm, the Galani plowed into the
stern (i.e., the back) of the Marina, traversing its way over the
passenger area before plunging back into the water on the other
side. In the process, the Galani's hull and propellers struck
Curtis. Nearby vessels rescued all three passengers. The Marina,
though, sunk, its wreckage ultimately towed out of the Strait.
After being pulled from the water, Curtis was brought to
the local medical center and shortly thereafter transferred to a
hospital in Athens. Physicians there diagnosed a host of serious
injuries, including: ten broken ribs, eight of which were
fractured front and back; fractures of her shoulder blade,
collarbone, sternum, and lower arm; multiple fractures in her leg;
and massive wounds on her thigh from the propeller blades. Various
surgical procedures kept her in the Intensive Care Unit for about
a month. After being hospitalized a bit longer in Athens, she
made her way home to the United States, where she was admitted to
New York Presbyterian Hospital in New York City. There, she
underwent even more surgical procedures. Curtis has since gone
through months of physical therapy. And more than a year after
the shipwreck, Curtis still required a walker to balance.
Following the crash, the Paros Port Authority
investigated. In that investigation, sworn depositions or
- 3 -
declarations have been provided in Greek by thirteen individuals.
The case was then assigned to the Public Prosecutor by the First
Instance Court of Syros to decide whether to prosecute anyone in
the matter. At some point after the crash, Faroupos was arrested
for provocation of a shipwreck and causing serious personal injury.
He was later released. The criminal case is still ongoing.
About six months after the crash, Curtis and Cambouris
filed suit against Galakatos in the United States. Rather than
sue back in their Empire State, Curtis and Cambouris shipped up to
Boston and filed suit in the federal court of Galakatos's hometown.
They brought claims for maritime negligence, loss of consortium,
and property damage.
Galakatos moved to dismiss the complaint for forum non
conveniens, arguing that Greece, not Massachusetts, is the "most
appropriate venue" for this case. In support of the motion,
Galakatos submitted his own affidavit. In it, he declared that he
was not in Greece at the time of the accident and felt it was
important to proceed in Greece because "nearly all of the
identifiable witnesses to this incident other than the Plaintiffs
reside in Greece." Thus, he reasoned, trying this case in
Massachusetts "would be damaging and prejudicial to [his] ability
to defend the action." He also submitted an affidavit of a Greek
attorney, who gave his opinion on a smattering of Greek-law issues.
Importantly, the attorney also provided a list of names of the
- 4 -
thirteen individuals who gave depositions or declarations to the
Port Authority, which he obtained from Faroupos's attorney. Given
these facts, Galakatos agreed to submit to the jurisdiction of an
appropriate Greek court and to waive any statute-of-limitations
defense.
Persuaded, the district court dismissed the case, and
Curtis and Cambouris now appeal. But before we dig into the issue
raised here, we first get our bearings with the multifaceted law
of forum non conveniens.
THE LAW TO APPLY
Forum non conveniens gives courts the discretion "to
dismiss a case because the chosen forum (despite the presence of
jurisdiction and venue) is so inconvenient that it would be unfair
to conduct the litigation in that place." Nandjou v. Marriott
Int'l, Inc., 985 F.3d 135, 140 (1st Cir. 2021) (quoting Howe v.
Goldcorp Invs., Ltd., 946 F.2d 944, 947 (1st Cir. 1991)).1
Dismissal on that doctrinal basis "reflects a court's assessment
of a 'range of considerations, most notably the convenience to the
parties and the practical difficulties that can attend the
adjudication of a dispute in a certain locality.'" Sinochem Int'l
Co. v. Malay. Int'l Shipping Corp., 549 U.S. 422, 429 (2007)
1 For those who aren't fluent in Latin, forum non conveniens
translates to "an unsuitable court." Forum Non Conveniens, Black's
Law Dictionary (11th ed. 2019).
- 5 -
(quoting Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 723
(1996)). When a district court makes a forum non conveniens
dismissal, the "practical effect" is that the plaintiffs have to
re-file in a more convenient court, Nandjou, 985 F.3d at 140,
perhaps a foreign one, see Sinochem Int'l, 549 U.S. at 430 (noting
that common-law forum non conveniens applies when the alternative
forum is abroad).2
Forum non conveniens is a balancing act. On the one
hand, a plaintiff ordinarily holds a "heavy presumption weigh[ing]
in favor of [her] initial forum choice." Adelson v. Hananel, 510
F.3d 43, 53 (1st Cir. 2007). Her forum choice "will be disturbed
only rarely." Nowak v. Tak How Invs., 94 F.3d 708, 719 (1st Cir.
1996). Still, it is not as though the plaintiff's choice of forum
is "given dispositive weight" such that "dismissal [is]
automatically barred when a plaintiff has filed suit in [her] home
forum." Interface Partners Int'l, Ltd. v. Hananel, 575 F.3d 97,
102 (1st Cir. 2009) (quoting Piper Aircraft Co. v. Reyno, 454 U.S.
235, 254 n.23 (1981)); see also Nandjou, 985 F.3d at 142 (noting
that a U.S. forum is a "home forum" even when the plaintiff is
from another state where the alternative is a non-U.S. court). It
just means that there's a "heavy burden" on a defendant to show
2 If the more convenient forum is another U.S. federal court,
we'd be looking not to common-law forum non conveniens, but the
statutorily codified version of the doctrine. See 28 U.S.C.
§ 1404(a); Sinochem Int'l, 549 U.S. at 430.
- 6 -
why the balance favors vetoing the plaintiff's forum choice.
Nandjou, 985 F.3d at 141 (quoting Adelson, 510 F.3d at 52).
To meet that heavy burden, a defendant must show, on the
other side of the scale, that the plaintiff's chosen forum is "so
inconvenient that transfer is needed to avoid serious unfairness."
See id. (emphasis in original) (quoting Adelson, 510 F.3d at 52).
Indeed, we recognize that a plaintiff's forum choice may "'vex,
harass, or oppress the defendant by inflicting upon [her] expense'
or unnecessary trouble." Id. (quoting Gulf Oil Corp. v. Gilbert,
330 U.S. 501, 508 (1947)). Yet "a real showing of convenience by
a plaintiff who has sued in his home forum will normally outweigh
the inconvenience the defendant may have shown." Id. (quoting
Koster v. (Am.) Lumbermens Mut. Cas. Co., 330 U.S. 518, 524
(1947)). To overcome that presumption, the oppressiveness and
vexation must be "out of all proportion to plaintiff's
convenience," or the administrative and legal problems too much
for the court to bear. Am. Dredging Co. v. Miller, 510 U.S. 443,
447–48 (1994) (quoting Piper, 454 U.S. at 241).
Meeting that heavy burden involves two steps. First,
the defendant has a burden to show that an "adequate alternative
forum exists." Shinya Imamura v. Gen. Elec. Co., 957 F.3d 98, 106
(1st Cir. 2020). "[A]n adequate alternative forum exists when
'(1) all parties can come within that forum's jurisdiction, and
(2) the parties will not be deprived of all remedies or treated
- 7 -
unfairly, even though they may not enjoy the same benefits as they
might receive in an American court.'" Id. (quoting Mercier v.
Sheraton Int'l, Inc. (Mercier I), 935 F.2d 419, 424 (1st Cir.
1991)). If the defendant fails to show there's another suitable
court to hear the plaintiff's case, that's the end of the line for
her forum non conveniens motion. See Nandjou, 985 F.3d at 141.
Second, if there's an adequate alternative forum, the
defendant must also show that a balance of public and private
interest factors "strongly favor litigating the claim in the second
forum." Nandjou, 985 F.3d at 142 (citation omitted) (emphasis in
original). If, on balance, the interest factors are about equal,
that's not enough to surmount the defendant's heavy burden. See
id. at 141.
As for the public interest factors that get thrown onto
the scale, the Supreme Court has taught us this: we are to consider
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.
Piper, 454 U.S. at 241 n.6 (quoting Gulf Oil, 330 U.S. at 509).
The private interest factors require consideration of
the practicalities of litigating a case in a particular forum that
- 8 -
may make it easy and inexpensive, or cumbersome and extra costly.
See Iragorri v. Int'l Elevator, Inc., 203 F.3d 8, 12 (1st Cir.
2000). These 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; [and the] possibility of view of premises, if
view would be appropriate to the action." Id. (alteration in
original) (quoting Gulf Oil, 330 U.S. at 508). As particularly
relevant here, courts must consider "the nature of the plaintiff's
claims and the evidence that would be relied upon to adjudicate
them." Nandjou, 985 F.3d at 142. In doing so, courts ought to
give "particular attention to where the witnesses that the parties
would rely upon are located" and "how burdensome it would be for
them to appear in either the home or the foreign forum." Id.
Additionally, courts must give "due consideration . . . to how
many . . . witnesses are third parties to the litigation and
whether, despite their third-party status, they would be subject
to compulsory process in either the home or the foreign forum."
Id.
This list of public and private interest factors,
though, isn't exhaustive. They're merely a "helpful starting
point." Imamura, 957 F.3d at 107 (quoting Iragorri, 203 F.3d at
12); see, e.g., Nandjou, 989 F.3d at 146 (considering the physical
and emotional toll to witnesses on returning to a location where
- 9 -
they experienced a traumatic experience); Nowak, 94 F.3d at 719(considering as a private interest factor the ability of a
plaintiff to use a contingent-fee arrangement). Indeed,
"flexibility is the watchword" with forum non conveniens cases,
Iragorri, 203 F.3d at 12, as the inquiry ultimately turns on the
unique facts of each case, Piper, 454 U.S. at 249. The "ultimate
inquiry" remains, all in all, "where trial will best serve the
convenience of the parties and the ends of justice." Imamura, 957
F.3d at 107 (quoting Koster, 330 U.S. at 527).
Given this multifaceted and fact-laden inquiry, our
review of a district court's forum non conveniens conclusion is
(as the Supreme Court has put it) only for a "clear abuse of
discretion," Piper, 454 U.S. at 257, which we've since interpreted
to be the same test as abuse-of-discretion review, see, e.g.,
Imamura, 957 F.3d at 106 (calling it "abuse of discretion" and
citing Piper); Mercier I, 935 F.2d at 423 (same). As we've said
in other contexts, though, the abuse-of-discretion standard isn't
a rubber stamp. Colón-Cabrera v. Esso Std. Oil Co. P.R., 723 F.3d
82, 88 (1st Cir. 2013); accord Simon v. Republic of Hungary, 911
F.3d 1172, 1190 (D.C. Cir. 2018) ("While we accord respectful
deference to district courts' forum non conveniens determinations,
we do not rubber stamp them."). An abuse of discretion in deciding
a forum non conveniens motion occurs when a district court has
"(1) failed to consider a material factor; (2) substantially relied
- 10 -
on an improper factor; or (3) assessed the proper factors, but
clearly erred in weighing them." Nandjou, 985 F.3d at 142 (quoting
Interface Partners, 575 F.3d at 101).
OUR TAKE
With that framework in mind, we dive into our analysis.
Curtis and Cambouris say the district court abused its discretion
in concluding "the overall balance" "strongly favors Greece as the
more convenient and efficient forum." Although they now concede
Greece is an adequate alternative forum, they stress that the
district court erred in determining that the public and private
interest factors strongly favor litigating in Greece. As we'll
explain in some detail, we agree that the district court erred in
considering the private interest factors and clearly erred in
striking the overall balance, thus abusing its discretion.
A. The Public Interest Factors
We begin, though, with the public interest factors, as
to which we find no error in the district court's determination
that they weighed in favor of litigating in Greece. The court
recognized the United States' interest in adjudicating the
controversy between three U.S. citizens but determined that
interest was outweighed by the fact that, in totality, the United
States' connection to the events, even if Galakatos resides in
- 11 -
Massachusetts, was "attenuated."3 The court emphasized that the
collision occurred in Greece and presumably "much of the relevant
evidence is located there." "Provided adequate recognition is
accorded 'the substantial public interest in providing a
convenient United States forum for an action in which all parties
are United States citizens and residents,' the trial court may
weigh, as a subsidiary consideration, any attenuated connection
between the particular United States forum and the matter in
litigation." Mercier v. Sheraton Int'l, Inc. (Mercier II), 981
F.2d 1345, 1355 (1st Cir. 1992) (quoting Mercier I, 935 F.2d at
430). It was not error to find that the particular contacts with
Massachusetts were limited and to balance that consideration
against the United States' general interest in deciding disputes
between its citizens. See id.4
Nor did the court err when in its analysis it placed
weight towards dismissal on its unfamiliarity with Greek law. See
3 We note that Curtis and Cambouris filed suit in
Massachusetts, Galakatos's home state, rather than their home
state of New York. But since the alternative forum was a non-U.S.
court, Massachusetts still counted as the plaintiffs' "home
forum"--even though they are New York residents. See Nandjou, 985
F.3d at 142.
4 Our recent decision in Nandjou is not to the contrary.
There, we affirmed that the district court didn't err in concluding
that Massachusetts's interest in the dispute was a "neutral" factor
where a Massachusetts citizen sued not only a U.S.-citizen
defendant, but also a Canadian-citizen defendant, for an accident
that occurred in Canada. See 985 F.3d at 143. But it is not error
for the district court here to come out the other way.
- 12 -
Mercier I, 981 F.2d at 1357 (noting courts may ascribe some weight
to the unfamiliarity with foreign law, but cautioning that they
not give it "undue importance" since "the task of deciding foreign
law is a chore courts must often perform" (cleaned up) (quoting
Manu Int'l, S.A. v. Avon Prods., Inc., 641 F.2d 62, 68 (2d Cir.
1981))).5 Though we note that, in the grand scheme of things, the
court said this factor weighed only "somewhat" toward dismissal.
B. The Private Interest Factors
When it came to the private interest factors, the court
thought those weighed in favor of sending this case to Greece.
The court emphasized that the accident occurring in Greece weighed
heavily in favor of Greece, and that the Greek authorities had
investigated--examining physical evidence and taking sworn
testimony from witnesses. The court concluded that "the vast
majority of key fact witnesses, including eyewitnesses to the
collision, Ms. Curtis'[s] Greek treating physicians, and the pilot
of the Galani, all reside in Greece." And, because "only a Greek
court has the power to compel the testimony of Greek witnesses,"
5 We also note that we reject Galakatos's argument that the
court, under the public interest factors, should consider the
"burden of requiring a Massachusetts jury to interpret and analyze
issues of Greek law." Courts--not finders of fact--interpret and
analyze issues of law. See Fed. R. Civ. P. 44.1 (noting the
court's determination of foreign law is treated as a question of
law); Animal Sci. Prods. v. Hebei Welcome Pharm. Co., 138 S. Ct.
1865, 1873 (2018). Juries determine the facts and apply them to
the law the court provides.
- 13 -
the court thought this weighed toward litigating in Greece.6 But
according to Curtis and Cambouris, Galakatos, contrary to what the
district court found, failed to meet his burden of showing that
the witnesses were both unavailable to testify in the United States
and relevant to this case. In consequence, they say, by failing
to hold Galakatos to his burden, the district court committed legal
error.
Galakatos, for his part, says that he has no burden to
provide detailed information on the identity of witnesses or their
relevance to the case. Regardless, he presses there is evidence
that there were statements from twelve non-U.S. citizens given to
the Greek Port Authority in the initial investigation and that
fact suffices.7 Thus, whatever may be his burden has been met.
In our view, the problem with Galakatos's argument is
that the district court had insufficient evidence to support the
purported residency of these twelve individuals as we'll discuss
in more detail momentarily.8 As for Galakatos's claim that he has
6 This is so because parties lack the "authority to subpoena
a foreign national located in a foreign country." United States
v. Aboshady, 951 F.3d 1, 11 (1st Cir. 2020) (citing Fed. R. Crim.
P. 17(e)(2)); see Fed. R. Civ. P. 45(b)(3) (providing, just as
Fed. R. Crim. P. 17(e)(2), that 28 U.S.C. § 1783 governs service
of subpoenas in a foreign country); see also 28 U.S.C. § 1783(a)
(providing for service in a foreign country only if the witness is
a U.S. national or resident).
7 One of the thirteen statements was from Galakatos, and we
know he's a U.S. citizen.
8 Galakatos claims that the plaintiffs didn't raise any issue
with the sufficiency of the evidence on the witnesses' nationality
- 14 -
no obligation to produce any detailed evidence regarding
witnesses, we think Galakatos may be oversimplifying our case law.
True, we've said before, "there is no 'blanket rule'
that a defendant affirmatively demonstrate, by affidavit, the
unavailability of a foreign witness and the significance of the
witness's testimony." Interface Partners, 575 F.3d at 104 (quoting
Mercier II, 981 F.2d at 1356). Indeed, the Supreme Court has
specifically rejected the contention that defendants seeking forum
non conveniens dismissal must submit detailed "affidavits
identifying the witnesses they would call and the testimony these
witnesses would provide if the trial were held in the alternative
forum." Piper, 454 U.S. at 258. "Such detail," the Court said,
"is not necessary." Id.
On the other hand, though, the Piper Court made clear
that "[o]f course, defendants must provide enough information to
enable the District Court to balance the parties' interests." Id.
(emphasis added). Yet the Court didn't provide much guidance on
what constitutes "enough"--although it found the defendants did
present "enough" in Piper. Id.; see Otto Candies, LLC v.
Citigroup, Inc., 963 F.3d 1331, 1347 (11th Cir. 2020) (noting the
lack of clear guidance from Piper on what is "enough").
below, and thus waived it. But the record makes plain that Curtis
and Cambouris did object to Galakatos's lack of evidence on the
unavailability of witnesses--just apparently not with as much
specificity as Galakatos desires.
- 15 -
So, delving into what the Piper Court deemed sufficient
will be instructive in gleaning a benchmark for what meets the
defendant's evidentiary burden. But before we take a look at the
evidence the Piper defendants offered, some context of the case
will prove helpful.
Piper involved a dispute over a tragic airplane crash.
The airplane, manufactured by U.S.-based Piper Aircraft Co., was
on a flight from Blackpool, England to Perth, Scotland when it
crashed in the Scottish Highlands after a potential failure with
the propeller, manufactured by U.S.-based Hartzell Propeller, Inc.
Piper, 454 U.S. at 238-39. All five passengers--who were all
residents of Scotland--died in the crash. Id. The plane at the
time was owned, maintained, and operated by United Kingdom-based
entities. Id. A U.S. resident, Gaynell Reyno, brought suit in a
U.S. court as the court-appointed administratrix of the estates of
the five Scottish passengers (whom she wasn't in any way related
to). Id. Asserting wrongful-death and strict-liability claims
against the two U.S.-based manufacturers, Reyno admitted that she
filed suit in the U.S. because the applicable laws and available
relief were much more favorable than those in Scotland. Id. at
239–40.
The U.S.-based defendants moved to dismiss for forum non
conveniens. Id. at 240-41. They argued, as relevant to us, that
key witnesses on liability and damages--specifically those who
- 16 -
could testify about the aircraft's maintenance since manufacture,
the training of the pilot, and the investigation of the accident--
were based in the U.K. Id. at 242. The district court agreed,
but the Third Circuit reversed. Id. at 243-44. The Third Circuit
concluded that the defendants hadn't met their burden on witness
inconvenience because they did not specify the witnesses they would
call and the testimony the witnesses would provide. Id. at 244.
The Supreme Court, as we've already hinted, disagreed.
Rejecting the Third Circuit's witness-convenience conclusion, the
Court indicated that "[s]uch detail is not necessary." Id. at
258. Still, as we've noted, the Court made clear that defendants
"[o]f course . . . must provide enough information to enable the
District Court to balance the parties' interests," which the
defendants did there. Id.
In finding that the defendants submitted "enough," the
high Court referred to the affidavits submitted by the defendants,
particularly the one submitted by Piper Aircraft Co. See id. at
258–59 & n.27. In it, Piper Aircraft identified, with some detail,
the individuals it would call as witnesses in a trial. See Aff.
of Charles J. McKelvey, Pet. for Writ of Cert. of Piper Aircraft
Co. at 1f–3f, Piper, 454 U.S. 235 (1981) (No. 80-848). Although
it did not identify individuals by name, Piper Aircraft identified
general groups of people (e.g., individuals from the Scottish
company that owned and operated the aircraft, and individuals from
- 17 -
the aircraft maintenance company) and the general topic of their
testimony. And it submitted that all of these individuals were
residents of Scotland--a fact that the plaintiff never disputed.
See Reyno v. Piper Aircraft Co., 479 F. Supp. 727, 732 (M.D. Pa.
1979) (noting that "[e]ven Plaintiff admits that all witnesses to
damages reside in Scotland" and rejecting her argument "that the
evidence going to legitimately raised defenses is irrelevant").
Rather, because she brought a claim only for strict liability, the
plaintiff in Piper thought the only relevant witnesses were the
U.S.-based manufacturer's employees. See Opp'ns to Pets. for Writs
of Cert., Piper, 454 U.S. 236 (1981) (No. 80-848), 1980 U.S. S. Ct.
Briefs LEXIS 1793, at *9–10. But the manufacturer pressed as a
defense that events in Scotland in the seven years since the
aircraft's assembly could have affected the manufacturer's
liability. See Tr. Oral Arg. at 18–19, Piper, 454 U.S. 236 (1981)
(No. 80-848). And, in furtherance of its request to move the
venue, the manufacturer expressly agreed to bear the burden of
transporting those U.S.-based witnesses to Scotland. See id. at
18.
The evidentiary support Galakatos offered up here is a
far cry from that in Piper. First, it was undisputed in Piper
that all the witnesses the defendant sought to call--save those
U.S.-based-employee witnesses who would travel to Scotland at the
defendant's expense--were located in Scotland. The Piper Court
- 18 -
thus could make the reasonable assumption that a Scottish court
could compel those witnesses to testify. Here, Curtis and
Cambouris have made no similar concession as to the residency of
the witnesses Galakatos has identified. And, though we've scoured
the record, we've found but one piece of evidence from Galakatos
on this subject: Galakatos's statement that "nearly all of the
identifiable witnesses to this incident other than the Plaintiffs
reside in Greece." Further, all we have to explain that allegation
is his counsel's "understanding" (again without any factual basis)
that the eleven individuals with seemingly Greek surnames are
citizens of Greece and not, as Cambouris was, merely vacationers.9
See Duha v. Agrium, Inc., 448 F.3d 867, 879 (6th Cir. 2006)
(holding the district court abused its discretion in giving undue
weight to information about witnesses "asserted in [the
defendant's] brief but not by affidavit or in any other record
evidence"). Without such evidence identifying the witnesses'
residency,10 the district court did not have a sufficient basis to
9 Galakatos argues we can infer these individuals are Greek
residents because the Port Authority report specifies that Curtis
is of "USA Nationality," but doesn't say the same for others. It's
not clear how the Port Authority decided to mark (or not mark)
various nationalities in the report. However, as Curtis and
Cambouris point out, the lack of similar notations of nationality
for other individuals appears to be based off assumptions about
last names. Cambouris (a U.S. citizen and resident of New York)
doesn't have a "USA Nationality" notation after his name.
10 Of course, it could be necessary to know not just the
witnesses' residency but also their citizenship, as the district
court could (so long as other requirements are met) have the
- 19 -
conclude that a Greek court could compel testimony from these
eleven individuals.11 See, e.g., SAS Inst., Inc. v. World
Programming Ltd., 468 F. App'x 264, 266-67 (4th Cir. 2012) (per
curiam) (finding abuse of discretion because the district court
failed to hold the defendant to its burden by relying on a
barebones affidavit stating that witnesses were in the U.K.). Its
finding to the contrary was clear error, and its resulting emphasis
on this factor was erroneous.
Further, putting aside the residency of the witnesses,
the district court again erred when it placed undue weight on a
Greek court's ability, if any, to compel witness testimony. As
the Supreme Court has instructed, courts consider the
"availability of compulsory process for attendance of unwilling
authority to compel the testimony of a U.S. citizen residing
abroad. See 28 U.S.C. § 1783 (providing for service of a subpoena
on a U.S. citizen on international soil if certain findings are
made by the district court); see also Fed. R. Civ. P. 45(b)(3).
Though residency of a non-U.S. citizen, too, would be relevant to
the question of whether witnesses' testimony could be compelled,
since a district court could have the authority to compel the
testimony of a Greek citizen residing in the United States. See
Fed. R. Civ. P. 45(b)(2); Probulk Carriers Ltd. v. Marvel Int'l
Mgmt. & Transp., 180 F. Supp. 3d 290, 292 (S.D.N.Y. 2016)
(concluding subpoena on foreign national temporarily in the United
States enforceable and noting that Fed. R. Civ. P. 45(b)(2) "does
not distinguish between witnesses who are citizens or residents of
the United States and witnesses who are not").
11 Galakatos has provided no legal authority suggesting that
a Greek court could compel the testimony of non-resident Greek
citizens.
- 20 -
. . . witnesses." Gulf Oil, 330 U.S. at 508 (emphasis added).12
Yet Galakatos made no allegations that any of the witnesses would
be unwilling to testify in the United States absent compulsory
process--only (on appeal, without record support) that the
witnesses are "unlikely to travel to Massachusetts to testify."13
See Mercier I, 935 F.3d at 428 (noting the defendant "failed to
establish that these witnesses would be unwilling to come to the
United States"). Unlikely and unwilling do not equate, and the
district court placed undue weight on the availability of
compulsory process. See, e.g., Hefferan v. Ethicon Endo-Surgery
Inc., 828 F.3d 488, 499 (6th Cir. 2016) (the availability of
compulsory process, though a consideration, "receives less weight
'when it has not been alleged or shown that any witness would be
unwilling to testify'" (quoting Duha, 448 F.3d at 877)); DiFederico
v. Marriott Int'l, Inc., 714 F.3d 796, 807 (4th Cir. 2013) (noting
a defendant "must do more than simply point to categories of
witnesses who are outside the court's control" and that "a
generalized assertion that the court cannot compel Pakistani
witnesses to give testimony" doesn't establish unwillingness); cf.
12 Galakatos did not argue that the "cost of obtaining
attendance of willing[] witnesses," see Gulf Oil, 330 U.S. at 508(emphasis added), weighed in favor of litigating in Greece.
13 Indeed, he did not even make any allegation that Faroupos
(the pilot of the Galani and gardener at his vacation home) would
be unwilling--even though the Greek attorney submitting an
affidavit on Galakatos's behalf was in contact with Faroupos's
attorney.
- 21 -
also Iragorri, 203 F.3d at 17 (noting that a "mere suggestion of
greater financial strain is meaningless unless and until the
plaintiff demonstrates the nature and extent of the supposed
limitations").14
Moreover, even assuming the witnesses were outside the
reach of necessary Massachusetts compulsory process, Galakatos
also failed to demonstrate why the proposed witnesses had any
relevance to his case. Looking back to Piper's baseline standard,
we see that the Piper defendant submitted "enough" when it listed
different categories of witnesses and, equally important, the
subjects upon which they were proposed to testify. Further to
explaining what's "enough," we have also recently clarified that
a defendant's long list of potential witnesses, without more, is
not always "enough" to meet its burden on the witnesses factor.
See Nandjou, 985 F.3d at 147. In Nandjou, we faced another tragic
case where a father and son drowned in a hotel pool in Montréal.
Id. at 138. The defendants, as part of their forum non conveniens
14Our circuit's case law hasn't always been crystal clear on
this requirement. After noting in Mercier I that the defendant
didn't establish any witness's unwillingness to come to the United
States, we said subsequently in Mercier II that a defendant need
not, in every case, establish with record evidence that
unwillingness. See 981 F.3d at 1356; see also Interface Partners,
575 F.3d at 104-05 (quoting Mercier II for this proposition). But,
as we'll soon note, the necessary information to surmount a
defendant's burden will vary from case to case. And, as we'll
also soon explain, the concerns driving Mercier II's observation
aren't present here.
- 22 -
motion, contended there were twenty-five witnesses in Canada
(including civilian first responders, police officers, paramedics,
medical personnel, and the coroner) that could not be compelled to
testify in a Massachusetts court. Id. at 144-45. The plaintiffs
countered by identifying three U.S.-based third-party liability
witnesses, multiple U.S.-based third-party damages witnesses, and
two U.S.-based party witnesses--who also happened to be the only
individuals who actually witnessed the drowning at issue. Id. at
145-46. On that record, we said the district court placed undue
weight on the defendants' numeric list because the defendants
"[did] not explain[] why live testimony from all of those witnesses
[was] critical." Id. at 147. Indeed, we said so even where the
defendants offered as evidence reports from many of their list of
twenty-five witnesses, including six of the civilian first
responders, six police officers, and the coroner. Defs.' Renewed
Mot. to Dismiss, Ex. B, at 6-16, 34-44, Nandjou v. Marriott Int'l,
Inc., No. 18-CV-12230-ADB, 2019 WL 5551438 (D. Mass. Oct. 28,
2019), ECF No. 39; id., Ex. C, at 1-9.
Here, though, Galakatos submitted a list of names
omitting any even generalized detail on their role in the
underlying incident (whether eyewitness to the crash, first
responder, or participant in the investigation).15 Yet he bore the
15 The record contains a translated copy of the Port
Authority's report on the incident, which happens to identify the
- 23 -
burden of giving the district court "enough" to evaluate the
relative burdens related to the convenience of witnesses. See Van
Cauwenberghe v. Biard, 486 U.S. 517, 528 (1988) (noting that to
evaluate the access-to-evidence factor, the court must "evaluate
what proof is required, and determine whether the pieces of
evidence cited by the parties are critical, or even relevant, to
the plaintiff's cause of action and to any potential defenses to
the action"). The district court erred in failing to require some
showing from Galakatos as to how the witnesses were relevant. See,
e.g., Nandjou, 985 F.3d at 147; Bos. Telecomms. Grp., Inc. v. Wood,
588 F.3d 1201, 1210 (9th Cir. 2009) (finding abuse of discretion
in weighing witnesses factor where the defendant "provided very
little information that would have enabled the district court to
understand why various witnesses were material to his defense");
cf. Iragorri, 203 F.3d at 17 (emphasizing that "live testimony of
key witnesses" can be essential if the defendant shows how those
witnesses are critical (cleaned up) (quoting Howe, 946 F.2d at
952)).
role that some of these potential witnesses played on the day of
the crash. (Though we note as an aside that, further to
Galakatos's apparent strategy of providing little-to-no
information, it wasn't Galakatos that provided this document--it
was Curtis and Cambouris.) But Galakatos still did not give the
district court enough information to determine that any of the
witnesses actually had relevant testimony to offer.
- 24 -
Contrary to Galakatos's suggestion, our requirement for
more information (about residency, unwillingness, or relevance)
would not, on the facts of this case, "defeat the purpose of the[]
motion" by requiring "extensive investigation." Piper, 454 U.S.
at 258. The Piper Court was obviously concerned with forcing
defendants to bear an impossible burden by identifying the names
and testimony of witnesses in a jurisdiction in which they have no
power to compel information. See id. (noting that defendants "have
moved for dismissal precisely because many crucial witnesses are
located beyond the reach of compulsory process, and thus are
difficult to identify or interview"); see also Mercier II, 981
F.2d at 1356 (noting that a "blanket rule 'would tend to inflict
an impossible burden'" because defendants "cannot compel evidence,
including the evidence necessary to argue for dismissal" (citation
omitted)). But here, Galakatos had easy access to--at the very
least--the location of at least six of the eleven individuals
identified on the list. As the Port Authority's investigation
report makes clear, five of those individuals were aboard the
Galani with Faroupos (the sixth) when the accident occurred. And
although Galakatos stresses in his appellate papers that he is
"not in regular communication with the eyewitnesses," it is clear
Galakatos has at least some access to Faroupos: the Greek attorney
hired by Galakatos's counsel obtained the list of witnesses
directly from Faroupos's attorney in the criminal investigation.
- 25 -
Content to rest on what he believed the bare minimum, Galakatos
apparently made no attempt to utilize the information he could
access to try to shoulder his heavy burden.
Thus, although we today reaffirm that there is no
"blanket rule" that a defendant identify the substance of a
proposed witness's testimony, see Interface Partners, 575 F.3d at
104, we echo, too, the Supreme Court admonition that a defendant
must give the district court enough information to analyze whether
the defendant has shouldered her heavy burden, see Piper, 454 U.S.
at 258; see also Iragorri, 203 F.3d at 17 (making clear that a
"mere suggestion" of burden without evidentiary support showing
the "nature and extent of the supposed limitations" may be
insufficient). Again, "flexibility is the watchword," Iragorri,
203 F.3d at 12, and a defendant may, in some cases, need to show
why the inability to compel certain non-U.S.-based witnesses
strongly outweighs the plaintiff's desire to try her case in her
home forum of choosing, see Lacey v. Cessna Aircraft Co., 862 F.2d
38, 44 (3d Cir. 1988) ("[T]here is no hard and fast rule, and . . .
the amount of information that a defendant must provide depends
upon the facts of the particular case."); In re Air Crash Disaster
near New Orleans, 821 F.2d 1147, 1165 n.28 (5th Cir. 1987) (en
banc) (noting the detail required will vary depending on the issues
that are contested), vacated and remanded on other grounds sub.
nom. Pan Am. World Airways, Inc. v. Lopez, 490 U.S. 1032, 1033
- 26 -
(1989), op. reinstated in relevant part, 883 F.2d 17, 17 (5th Cir.
1989). But a mere reliance upon assumptions--Galakatos assumes
those deposed by Greek officials are in Greece and that all of
them have something relevant to offer--will not do. See Adelson,
510 F.3d at 53; Mercier I, 935 F.2d at 426 ("the district court
mistakenly relieved the moving defendant of its burden" in
"assuming"). All that said, defendants who choose to try to meet
their heavy burden with the bare minimum of what's "enough" do so
at their own peril.
We also believe the district court gave inadequate
consideration to the convenience of the plaintiffs' witnesses, in
particular, the plaintiff herself.16 The district court failed to
take heed of the physical and emotional burden on Curtis in
returning to Greece, as the plaintiffs requested it do. See
Nandjou, 985 F.3d at 146 (noting the district court should have
considered the burden on the plaintiffs who, "if forced to testify
16 Curtis and Cambouris also argue that the district court
erred when it concluded that Curtis's U.S.-based medical
providers' unwillingness to travel to Greece did not weigh against
dismissal. We spy no error, though, because the district court
did consider this fact. It just didn't apply the weight Curtis
and Cambouris would like. Cf. Imamura, 957 F.3d at 106 (reminding
that we won't strike the balance of relevant factors anew). And,
as the district court noted, not only could Curtis and Cambouris
obtain testimony from one of the treating Greek physicians (one of
whom is identified by name and hospital in the record), her U.S.-
based physicians could also submit written testimony. True, U.S.
courts prefer live testimony. See Interface Partners, 575 F.3d at
105. But Greek courts apparently generally rely on written
testimony--a point Curtis doesn't dispute.
- 27 -
in Montreal, would be required to return to the country of their
loved ones' deaths" (citing Guidi v. Inter-Cont'l Hotels Corp.,
224 F.3d 142, 145 (2d Cir. 2000))); see also Guidi, 224 F.3d at
145 (reversing a forum non conveniens dismissal in part because
the district court failed to consider the "emotional burden" it
would impose on the plaintiffs to return to Egypt, where their
loved ones were killed).
Galakatos claims any physical or emotional burden on
Curtis (or her husband for that matter) doesn't need much
consideration because, he claims, Greek courts "rel[y] heavily on
written evidence and only rarely require[] live testimony, so the
likelihood of Plaintiffs being required to travel back to Greece
is very small." Yet the key words in there--even assuming their
accuracy--are "rarely" and "very small" likelihood. Indeed,
although Galakatos avers that "testimony by a litigant party is
not permitted under Greek law," his Greek attorney's testimony on
that point is inconsistent. Although the attorney states that
"litigant parties are not entitled to swear affidavits or be
examined as witnesses," he also states (emphases our own) that
there could be the "rare event that the Court would ask the
Plaintiffs . . . to appear before it in order to be examined," and
that it would be "very unlikely for the Court to ask from any of
the Plaintiffs to travel to Greece in order to be examined." The
district court didn't make any legal conclusion on whether Curtis
- 28 -
could be called to testify in Greece and did not consider at all
how this balanced against the location of the other witnesses. It
should have considered the prejudice to Curtis of possibly--even
if unlikely--having to return to Greece to prosecute her claims.
Cf., e.g., Mercier I, 935 F.2d at 428 (no weight given to witnesses
factor where the burdens between the two sides were "likely to be
about equal").
Curtis and Cambouris do not dispute, though, that the
district court correctly determined that some of the physical
evidence being in Greece weighed in favor of litigating there.
Still, we think that this factor alone cannot weigh "strongly" in
favor of a Greek forum. The district court did not explain why
this factor strongly favored litigating in Greece given that the
documents could be transmitted electronically. Nor are we
convinced by Galakatos's repeated emphasis that the need to
translate these documents counsels strongly toward a Greek court.
The same need for translation exists if this case heads to Greece,
as neither Curtis nor her U.S.-based physicians speak Greek.
C. Putting It All Together
In review, the district court abused its discretion in
failing to hold Galakatos to his burden of showing that the public
and private interest factors displaced the "heavy presumption
weigh[ing] in favor of [Curtis's] initial forum of choice,"
Adelson, 510 F.3d at 53, and that all in all, a trial in Greece
- 29 -
"will best serve the convenience of the parties and the ends of
justice," Imamura, 957 F.3d at 107 (quoting Koster, 330 U.S. at
527). The district court clearly erred in striking the overall
balance, and, in doing so, abused its discretion. See Nandjou,
985 F.3d at 147.
Before we close out, we have one more note. Below,
Galakatos opposed Curtis and Cambouris's cross-motion for targeted
discovery in support of their opposition to the forum non
conveniens motion. Galakatos's position then was that he had given
the district court enough information for it to rule in his favor.17
However, we conclude he did not, and given that it was his heavy
burden to show forum non conveniens, and given his decision below
to advocate against the development of a stronger factual record,
we will leave him to shoulder the burden of the inadequacy of his
evidentiary offerings.18 See Iragorri, 203 F.3d at 17 ("It is
hornbook law that an appellate argument cannot survive the
proponent's failure to supply a sufficient factual predicate for
it."); cf. Dow v. United Bhd. of Carpenters & Joiners, 1 F.3d 56,
61 (1st Cir. 1993) (noting we are loath to "squander judicial
17 Galakatos also says, on appeal, that Curtis and Cambouris
didn't ask for discovery on the witnesses issue. But Curtis and
Cambouris asked for discovery on the "issues raised in the forum
non conveniens motion," which would include his and his counsel's
statements that the witnesses are in Greece.
18 Galakatos has not suggested on appeal that, if we found
insufficient evidence, we should remand for further factfinding.
- 30 -
resources and give parties who . . . plunge headlong into the
merits of a case without pausing to exhaust discovery options a
second bite at the cherry"); Bhatnagar v. Surrendra Overseas Ltd.,
52 F.3d 1220, 1231 (3d Cir. 1995) (holding, without enacting a
blanket rule disfavoring reconsideration of forum non conveniens
motions with new evidence, that reconsideration on an expanded
record should be "limited to exceptional circumstances").
SIGN OFF
Our voyage complete, we reverse the district court's
judgment dismissing this case and remand to allow the case to
proceed in the plaintiffs' chosen forum. Costs to appellants.
Fed. R. App. P. 39(a)(3).
- 31 -