SAS Institute v. World Programming Limited , 468 F. App'x 264 ( 2012 )


Menu:
  •                              UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 11-1783
    SAS INSTITUTE, INC.,
    Plaintiff - Appellant,
    v.
    WORLD PROGRAMMING LIMITED,
    Defendant - Appellee.
    Appeal from the United States District Court for the Eastern
    District of North Carolina, at Raleigh.   Louise W. Flanagan,
    District Judge. (5:10-cv-00025-FL)
    Submitted:   February 2, 2012              Decided:   February 16, 2012
    Before WILKINSON, MOTZ, and WYNN, Circuit Judges.
    Reversed and remanded by unpublished per curiam opinion.
    Pressly M. Millen, Robert T. Numbers, II, WOMBLE CARLYLE
    SANDRIDGE & RICE, LLP, Raleigh, North Carolina, for Appellant.
    Peter Brown, Dennis O. Cohen, BAKER & HOSTETLER, LLP, New York,
    New York; Mark R. Sigmon, GRAEBE HANNA & WELBORN, PLLC, Raleigh,
    North Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    SAS   Institute,     Inc.        (“SAS”)     appeals    the   district
    court’s    order       granting     World       Programming     Limited’s     (“WPL”)
    motion to dismiss on grounds of forum non conveniens.                         For the
    reasons that follow, we reverse the judgment of the district
    court    and    remand    the   case   for       further    proceedings      in    SAS’s
    chosen forum.
    We eschew a full recounting of the applicable facts,
    which are well-known to the parties.                      On appeal, SAS suggests
    several reasons why the district court erred in its forum non
    conveniens       determination.         Having          thoroughly     reviewed      the
    record,    we    are    convinced    that,       even     assuming    that   the   U.K.
    courts are an adequate and available forum for the claims raised
    by SAS in its North Carolina filing, the district court abused
    its discretion in concluding that WPL met its burden of proving
    that the balance of conveniences weighed in favor of dismissing
    the North Carolina action.
    A federal court may dismiss a case on the ground of
    forum non conveniens “when an alternative forum has jurisdiction
    to hear [the] case, and . . . trial in the chosen forum would
    establish . . . oppressiveness and vexation to a defendant . . .
    out of all proportion to plaintiff’s convenience, or . . . the
    chosen    forum        [is]   inappropriate        because      of    considerations
    affecting the court’s own administrative and legal problems.”
    2
    Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 
    549 U.S. 422
    ,    429   (2007)       (alterations         in       original).            A    trial   court’s
    forum non conveniens determination “may be reversed only when
    there has been a clear abuse of discretion.”                                       Piper Aircraft
    Co. v. Reyno, 
    454 U.S. 235
    , 257 (1981).
    Nevertheless,            “the    Supreme       Court       has       established      an
    analytical framework which, as applied by this court, must guide
    the    district        court’s    analysis”          when    it     is       confronted      with    a
    motion invoking forum non conveniens.                              Jiali Tang v. Synutra
    Int’l, Inc., 
    656 F.3d 242
    , 248 (4th Cir. 2011).                                          Under this
    framework,        a     district        court        “must        determine          whether       the
    alternative forum is:                  1) available; 2) adequate; and 3) more
    convenient        in     light     of     the       public        and        private      interests
    involved.”        
    Id.
          Thus, a district court’s forum non conveniens
    determination may amount to an abuse of discretion if “it failed
    to consider a material factor or clearly erred in evaluating the
    factors before it,” or did not hold the movant to its “burden of
    persuasion        on     all     elements           of    the      forum       non       conveniens
    analysis.”         Galustian v. Peter, 
    591 F.3d 724
    , 731 (4th Cir.
    2010).    See also Piper Aircraft, 454 U.S. at 257.
    A    party    seeking       dismissal          on    grounds          of   forum     non
    conveniens        “ordinarily          bears    a    heavy      burden        in    opposing       the
    plaintiff’s chosen forum.”                     Simochen, 
    549 U.S. at 430
    .                          The
    moving    party        bears     the    burden       not     only       of    showing       that    an
    3
    adequate alternate forum exists, Jiali Tang, 
    656 F.3d at 249
    ,
    but    also    “that    the   balance       of    private       and    public    interest
    factors      favors    dismissal.”         Carijano       v.    Occidental      Petroleum
    Corp., 
    643 F.3d 1216
    , 1224 (9th Cir. 2011).                         Thus, at the second
    stage   of     the    forum   non   conveniens       analysis,         the   movant    must
    “provide      enough    information        to    enable    the      District    Court    to
    balance the parties’ interests.”                  Fidelity Bank PLC v. Northern
    Fox Shipping N.V., 242 F. App’x 84, 91 (4th Cir. July 13, 2007)
    (unpublished) (per curiam) (quoting Piper Aircraft, 454 U.S. at
    258).     Accord Saqui v. Pride Cent. Am., LLC, 
    595 F.3d 206
    , 213
    (5th    Cir.    2010)     (movant        bears   burden        of    showing    that    the
    relevant      factors    weigh      in    its    favor);       Wiwa    v.    Royal     Dutch
    Petroleum Co., 
    226 F.3d 88
    , 100 (2d Cir. 2000) (same).
    Several considerations convince us that the district
    court   did     not    hold   WPL    to    its    burden       of     proving   that    the
    applicable factors weighed in favor of dismissal.                            First, while
    a citizen’s forum choice is not dispositive, Piper Aircraft, 454
    U.S. at 255 n.23, it is nonetheless true that when a domestic
    plaintiff initiates litigation in its home forum, it is entitled
    not only to the degree of deference generally accorded to a
    plaintiff’s choice of forum, but to a “heightened deference”
    based on its status as a citizen seeking a remedy in the courts
    of its own country.           Adelson v. Hananel, 
    510 F.3d 43
    , 53 (1st
    Cir. 2007).
    4
    As a result, a domestic plaintiff’s choice of its home
    forum is presumptively convenient.                 Piper Aircraft, 454 U.S. at
    255-56; Adelson, 510 F.3d at 53.                 Accordingly, “the standard of
    deference for a U.S. plaintiff’s choice of a home forum permits
    dismissal       only     when      the      defendant        ‘establish[es]         such
    oppressiveness and vexation to a defendant as to be out of all
    proportion to plaintiff’s convenience, which may be shown to be
    slight or nonexistent.’”              Duha v. Agrium, Inc., 
    448 F.3d 867
    ,
    873-74 (6th Cir. 2006) (quoting Koster v. Lumbermens Mut. Cas.
    Co.,    
    330 U.S. 518
    ,     524   (1947)).         As    a    practical      matter,
    therefore, “[i]n any balancing of conveniences, 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.”    Koster, 
    330 U.S. at 524
    .
    Unlike the district court, we see no reason to deprive
    SAS of the benefit of this presumption on the facts of this
    case.     See Adelson, 510 F.3d at 53.                 Moreover, we believe the
    district court gave undue weight to the fact that the parties
    were engaged in parallel U.K. litigation.                        While we decline to
    posit   that    a     factor’s    absence       from   the   list    of   private    and
    public interests explicitly enumerated in Gilbert eliminates it
    from    the    realm      of     permissible       considerations,         see     Piper
    Aircraft, 454 U.S. at 241 n.6, we nonetheless observe that the
    mere presence of parallel litigation bears only marginally on
    5
    the touchstone of the forum non conveniens analysis; namely,
    convenience.      See Adelson, 510 F.3d at 54; Guidi v. Inter-Cont’l
    Hotels Corp., 
    224 F.3d 142
    , 148 (2d Cir. 2000).                             The district
    court’s stated concerns over “forum-shopping on an international
    scale” are likewise only marginally relevant to the question of
    convenience      to    the    parties.             Carijano,    643    F.3d     at    1228.
    Instead, such an undue focus on the U.K. litigation in this case
    risked “convert[ing] the analysis” from balancing the respective
    conveniences “into a determination of which of the two pending
    cases should go forward.”               Adelson, 510 F.3d at 54.
    The effect of the court’s insufficient regard for the
    presumptive deference due to SAS’ choice of forum is compounded
    by    its   consideration          of    the   applicable       public      and      private
    interest factors in the almost utter absence of WPL’s production
    of record evidence as to any of them.                    Of course, a case may be
    dismissed for forum non conveniens only when the relevant public
    and    private    interests         “strongly”        favor    an   alternate        forum.
    Gilbert, 
    330 U.S. at 508
    ; Jiali Tang, 
    656 F.3d at 246
    .                                 Thus
    WPL, which held the burden of proof, was required to show that
    the relevant factors weighed in its favor to such a degree that
    they   surmounted       the   significant           presumption       already     weighing
    against it.
    This,     on    any    plausible        reading   of     the   record,      WPL
    failed to do.         Even before this court, WPL fails to identify any
    6
    specific       record    evidence           pertaining     to     any     of        the    relevant
    factors,       other    than      a   single       barebones      declaration             observing
    that most of WPL’s employees and documents are located in the
    U.K.     While a party seeking forum non conveniens dismissal is
    not required to undertake “extensive investigation” in order to
    demonstrate       that       its      private         interests        would     be       adversely
    impacted by the continuance of the litigation,                                 Piper Aircraft,
    454 U.S. at 258-59, a movant must nevertheless produce at least
    some evidence demonstrating that its interests would be unduly
    affected by the challenged litigation.                          See Carijano, 643 F.3d
    at 1231; Duha, 
    448 F.3d at 877
    .                          Even now, WPL can point to
    precious little in the record to support the district court’s
    conclusions that “all or most of the evidence” would be found in
    the U.K., and that there would be “myriad” U.K. witnesses whom
    it     would    be     “cost[ly]”           to    transport       to     testify          in   North
    Carolina, and our review of the record has uncovered nothing
    more.     See also DiRienzo v. Philip Servs. Corp., 
    294 F.3d 21
    , 30
    (2d Cir. 2002) (noting that factors such as the location of
    evidence and witness travel costs are hassles that, absent “a
    satisfactory explanation,” do not demonstrate that “a trial in
    the United States would be so oppressive and vexatious to [the
    defendant]       as     to   be       out    of    all    proportion           to     plaintiffs’
    convenience.”).
    7
    Particularly        when       ranged     against      the        strong
    presumption in favor of SAS’ choice of its home forum, we are
    constrained to conclude that the scant evidence pertaining to
    the inconvenience that would be suffered by WPL as the result of
    the North Carolina forum cannot suffice to meet WPL’s burden of
    tipping the balance of conveniences “strongly” in WPL’s favor.
    Gilbert, 
    330 U.S. at 508
    .           We can only conclude on this record
    that WPL failed to bear its burden and that the district court
    “committed   a   legal    error   by    failing   to   hold   [WPL]    to   [its]
    burden of proof.”        DiRienzo, 294 F.3d at 30.         As a consequence,
    the   district   court     abused      its   discretion    by   “striking      an
    unreasonable balance of [the] relevant factors.”                Carijano, 643
    F.3d at 1234 (quoting Ravelo Monegro v. Rosa, 
    211 F.3d 509
    , 511
    (9th Cir. 2000)); Adelson, 510 F.3d at 54. *
    Accordingly, we reverse the judgment of the district
    court and remand the case for proceedings not inconsistent with
    this opinion and in SAS’s chosen forum.                We dispense with oral
    argument because the facts and legal contentions are adequately
    presented in the material before the court and argument will not
    aid the decisional process.
    REVERSED AND
    REMANDED
    *
    Due to this conclusion, we need not reach                      the    other
    arguments asserted by the parties in this appeal.
    8