Tuazon v. R.J. Reynolds ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NILO D. TUAZON, 
Plaintiff-Appellee, No. 04-35618
v.
 D.C. No.
CV-03-00929-MJP
R.J. REYNOLDS TOBACCO COMPANY,
a foreign corporation, OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, District Judge, Presiding
Argued and Submitted
October 18, 2005—Seattle, Washington
Filed January 11, 2006
Before: Richard D. Cudahy,* Thomas G. Nelson, and
M. Margaret McKeown, Circuit Judges.
Opinion by Judge McKeown
*The Honorable Richard D. Cudahy, Senior United States Circuit Judge
for the Seventh Circuit, sitting by designation.
213
TUAZON v. R.J. REYNOLDS TOBACCO 217
COUNSEL
Robert F. McDermott, Jr., Jones Day, Washington, D.C.; Paul
S. Ryerson, Jones Day, Washington, D.C.; Karen O. Houri-
gan, Jones Day, San Francisco, California, for the defendant-
appellant.
Jon P. Ferguson, Jon Ferguson Law Group, PLLC, Bainbridge
Island, Washington, for the plaintiff-appellee.
OPINION
McKEOWN, Circuit Judge:
This case calls for us to decide whether R.J. Reynolds
Tobacco Company (“Reynolds”), a North Carolina-based cor-
poration that has operated in Washington for more than half
a century, may be sued in Washington for its alleged partici-
pation in a worldwide conspiracy to deny the addictive and
harmful effects of smoking. Nilo D. Tuazon was diagnosed
with a chronic lung disorder in 2003 in his native Philippines.
The same year, Tuazon established residence in Washington
state and brought suit against Reynolds for its alleged conduct
that led to his current illness. Reynolds appeals the district
court’s denial of its motion to dismiss for lack of personal
jurisdiction and on grounds of forum non conveniens.
BACKGROUND
Nilo D. Tuazon, who was born and lived in the Philippines,
started smoking Salem cigarettes at age seventeen and
smoked continually for more than forty years. Ten to fifteen
218 TUAZON v. R.J. REYNOLDS TOBACCO
years ago, Tuazon began to experience a chronic cough that
left him weak and dizzy, a condition he suspected was
smoking-related. Drawing on his own background as a lawyer
and businessman, Tuazon began researching cases brought
against tobacco companies in the United States.
Tuazon was diagnosed with chronic obstructive pulmonary
disorder in 2003. Later that year, he immigrated to the United
States on a petition supported by his daughter, a U.S. citizen,
and settled with cousins in Renton, Washington. Soon after
his arrival, doctors confirmed his diagnosis. Tuazon’s treat-
ment continues under the supervision of doctors in the Seattle
area.
Reynolds, originally incorporated in New Jersey in 1899,
maintains its headquarters in North Carolina. Reynolds has
been licensed to do business in Washington since 1940 but
has no manufacturing or production facilities in the state.
Since at least 1998, Reynolds has maintained an office and up
to forty full-time employees in the state. This presence has
allowed Reynolds to do substantial business in Washington.
From 1998-2002, Reynolds enjoyed a privileged position in
the Washington market; it sold between 2.5 and 3 million cig-
arettes to distributors in Washington annually, generating
$145-240 million in net sales each year. Also during this
period, Reynolds’ market share in Washington was 29-31%,
while its national market share was 23-24%. This dominant
sales position resulted from a long history of targeting Wash-
ington consumers with marketing and advertising campaigns.
Since at least 1949, Reynolds has advertised in purely local
publications, including the Seattle Times, the Spokane
Spokesman Review, and the Tacoma News-Tribune.
Over time, Reynolds’ efforts in Washington expanded to
include political activity, more extensive market analysis, and
sponsored research at the University of Washington. By the
1970s and 80s, Reynolds was conducting sophisticated market
research, including focus groups and direct telephone surveys
TUAZON v. R.J. REYNOLDS TOBACCO 219
of smokers in several Washington cities, and providing hun-
dreds of thousands of dollars to the University of Washington
to support research into the health-related effects of smoking.
In the 1990s, Reynolds organized local opposition to city and
state legislation that would have banned or limited smoking
and cigarette advertising. More recently, Reynolds identified
Washington as a priority market and launched renewed efforts
targeted at Washington consumers, spending more than
$200,000 in local advertising and giving away more than
200,000 packs of free promotional cigarettes each year.
In addition to its domestic operations, Reynolds has been
active overseas through a former affiliate, R.J. Reynolds
International, Inc. In the Philippines, Reynolds licensed For-
tune Tobacco International, Ltd. (“Fortune Tobacco”) to dis-
tribute Reynolds brand cigarettes, including Tuazon’s
preferred brand, Salem.
Tuazon’s complaint alleges that Reynolds participated in a
global conspiracy to suppress information regarding the
addictive and health-related effects of cigarettes. The litiga-
tion of similar claims has a long and well-known history in
the United States over the past decade. See, e.g., Strawser v.
Atkins, 290 F.3d 720, 725 (4th Cir. 2002) (“In the 1990s,
nearly all the states sued major tobacco companies for harm
arising from the deliberate concealment of the health risks
posed by tobacco.”).1 Tuazon alleges that the conspiracy
involving major tobacco companies originated in the United
States and, by the 1970s, had moved abroad. Working through
affiliates and subsidiaries, such as the Asian Tobacco Council,
1
As the Fourth Circuit noted in Strawser, the states and tobacco compa-
nies involved in each case varied. See 290 F.3d at 725 n.2. It is not neces-
sary to summarize the history of tobacco litigation here. Information on
tobacco-related litigation and the master settlement agreement is made
available by the National Association of Attorneys General, at http://
www.naag.org/backpages/naag/tobacco. Reynolds also maintains a data-
base on tobacco-related litigation at http://www.rjrt.com/legal/
litOverview.aspx.
220 TUAZON v. R.J. REYNOLDS TOBACCO
the Philippines Tobacco Institute, and Fortune Tobacco, Tua-
zon claims that Reynolds was able to suppress information
regarding tobacco’s addictive and corrosive health effects. As
a result, Tuazon continued smoking for decades despite grow-
ing health problems and warnings from friends and family.
Reynolds moved to dismiss Tuazon’s complaint for lack of
personal jurisdiction and on grounds of forum non conve-
niens. The district court denied the motion and Reynolds now
appeals. The district court certified the question for immediate
appeal and we granted Reynolds permission to appeal the dis-
trict court’s order.
ANALYSIS
I. PERSONAL JURISDICTION
We review de novo a district court’s decision to exercise
personal jurisdiction. Dole Food Co. v. Watts, 303 F.3d 1104,
1108 (9th Cir. 2002). Tuazon bears the burden of showing
that jurisdiction is appropriate. Id. (citing Sher v. Johnson,
911 F.2d 1357, 1361 (9th Cir. 1990)). Where, as here, the
decision was based on written submissions only, without an
evidentiary hearing, Tuazon must only make a prima facie
showing of facts that would support jurisdiction. Id. (citing
Caruth v. Int’l Psychoanalytical Ass’n, 59 F.3d 126, 128 (9th
Cir. 1995)).
Exercise of in personam jurisdiction over an out-of-state
defendant is limited by the Due Process Clause of the Four-
teenth Amendment. Helicopteros Nacionales de Colombia,
S.A. v. Hall, 466 U.S. 408, 413-14 (1984) (citing Pennoyer v.
Neff, 95 U.S. 714 (1878)). The cornerstone of the due process
inquiry is an analysis of the defendant’s contacts with the
selected forum. The famous International Shoe case requires
“certain minimum contacts with [the forum] such that the
maintenance of the suit does not offend ‘traditional notions of
TUAZON v. R.J. REYNOLDS TOBACCO 221
fair play and substantial justice.’ ” International Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945).
[1] A court may exercise specific jurisdiction where the suit
“arises out of” or is related to the defendant’s contacts with
the forum and the defendant “purposefully avails itself of the
privilege of conducting activities within the forum State, thus
invoking the benefits and protections of its laws.” Burger
King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985); see also
Helicopteros, 466 U.S. at 414 n.8. In contrast, in a contro-
versy unrelated to a defendant’s contacts with the forum, a
court may exercise general jurisdiction only where “continu-
ous corporate operations within a state [are] thought so sub-
stantial and of such a nature as to justify suit against [the
defendant] on causes of action arising from dealings entirely
distinct from those activities.” International Shoe, 326 U.S. at
318; accord Helicopteros, 466 U.S. at 414 n.9. The standard
for general jurisdiction is high; contacts with a state must “ap-
proximate physical presence.” Bancroft & Masters, Inc. v.
Augusta Nat’l Inc., 223 F.3d 1082, 1086 (9th Cir. 2000). Put
another way, a defendant must not only step through the door,
it must also “[sit] down and [make] itself at home.” Glencore
Grain Rotterdam B.V. v. Shivnath Rai Harnarain Co., 284
F.3d 1114, 1125 (9th Cir. 2002).
The parties agree that Tuazon’s claim arises from Reyn-
olds’ conduct outside of Washington. Consequently, we must
decide whether Reynolds’ contacts with Washington suffice
to support the exercise of general jurisdiction. To this end, we
follow a two-step process, asking first, whether Washington’s
jurisdictional statute confers jurisdiction over Reynolds, and
second, whether the exercise of jurisdiction comports with
federal due process requirements. Amoco Egypt Oil Co. v.
Leonis Navigation Co., 1 F.3d 848, 850 (9th Cir. 1993).
222 TUAZON v. R.J. REYNOLDS TOBACCO
A. WASHINGTON’S JURISDICTION STATUTE
[2] Washington courts apply the service of process statute,
rather than the long-arm statute, to determine whether general
jurisdiction applies. Rev. Code Wash. § 4.28.080(10). The
statute confers general jurisdiction over a corporation that is
“doing business” in the state. Crose v. Volkswagenwerk AG,
558 P.2d 764, 765-66 (Wash. 1977). A company is doing
business in Washington when it participates continuously and
substantially in the state’s markets. Id. at 766. The Washing-
ton Supreme Court has no rigid or formulaic test for determin-
ing when a company is “doing business” in Washington, and
instead conducts a fact-intensive, case-by-case analysis. Id. at
767.2
In Crose and more recent cases, Washington courts have
set guideposts to aid our inquiry. Crose involved a products
liability lawsuit filed by a Washington resident against Volks-
wagen, a German corporation, arising from an injury in Cali-
fornia. Volkswagen did not sell its products directly to Wash-
ington consumers, but only to an Oregon distributor. Despite
this attenuated relationship, the Washington Supreme Court
held that there was general jurisdiction under 4.28.080(10)
because Volkswagen generated substantial revenue from a
“well-organized, fully-integrated worldwide chain of distribu-
tion.” Id.More recent cases have relied on other factors in finding
2
In broad terms, the Crose analysis looks to five factors, including: (1)
the interest of the state in providing a forum for its residents, (2) the ease
with which the plaintiff could access another jurisdiction, (3) the amount,
kind, and continuity of activities by the defendant in the state, (4) the sig-
nificance of the economic benefits flowing from the defendant’s in-state
activities, and (5) the foreseeability of injury resulting from the use of the
defendant’s products. Crose, 558 P.2d at 768; see also Hartley v. Ameri-
can Contract Bridge League, 812 P.2d at 109, 112-13 (Wash. Ct. App.
1991). Washington courts regularly consider only the third factor in deter-
mining whether to exercise general jurisdiction. Id. at 113.
TUAZON v. R.J. REYNOLDS TOBACCO 223
substantial and continuous contacts. In Hartley v. American
Contract Bridge League, 812 P.2d 109 (Wash. Ct. App.
1991), the defendant’s contacts were deemed continuous and
substantial where it sold and transported goods to support
bridge tournaments it organized in Washington and collected
fees and dues from Washington residents. Id. at 112. The
defendant’s contacts also met the standard in Hein v. Taco
Bell, 803 P.2d 329 (Wash. Ct. App. 1991); the defendant had
been registered to do business in Washington for more than
twenty years, owned a chain of restaurants, and depended on
local markets and government infrastructure to support its
business. Id. at 330-31.
[3] In contrast, where in-state activity is singular, passive,
or collateral to a business’s principal efforts, Washington
courts have refused jurisdiction. For example, one court held
that a company’s limited efforts to solicit visits to Opryland
(Tennessee), commission payments to Washington-based
travel brokers, and occasional broadcasts of music were not
“continuous and substantial” contacts sufficient to subject the
defendant to general jurisdiction in Washington. Banton v.
Opryland U.S.A., Inc., 767 P.2d 584, 588-89 (Wash. Ct. App.
1989), overruled on other grounds by Shute v. Carnival
Cruise Lines, 783 P.2d 78, 82 (Wash. 1989). In Osborne v.
Spokane, the court found that deriving revenue from sales in
Washington that accounted for less than 1% of the company’s
regional revenue was insufficient to justify the exercise of
general jurisdiction over a Canadian insurance brokerage firm
because that revenue was not accompanied by indicia of other
systematic and continuous contacts. 738 P.2d 1072, 1074-75
(Wash. Ct. App. 1987), rev’d on other grounds, Scott Fetzer
Co. v. Weeks, 786 P.2d 265, 267 (Wash. 1990).
[4] Close cases exist, but this is not one of them. Taken
together, Reynolds’ activities are very close to those of the
defendants in Hartley and Hein. Unlike the defendants in
Banton and Osborne, Reynolds does not attract customers or
generate revenue on the basis of limited or passive contacts.
224 TUAZON v. R.J. REYNOLDS TOBACCO
As in Hartley and Hein, Reynolds does business in Washing-
ton with a long-established presence that generates substantial
revenue and reaches many in-state consumers.
[5] We are not convinced by Reynolds’ argument that its
contacts in Washington were “continuous” but not “substan-
tial.” Reynolds has been licensed to do business in Washing-
ton for decades, maintains an office and a staff of permanent
employees, advertises in purely local media, targets Washing-
ton consumers, and derives $145-240 million in annual reve-
nues from sales in Washington. In short, we hold that
Reynolds’ activities in Washington constitute “doing busi-
ness” within the meaning of the Washington service of pro-
cess statute.
B. DUE PROCESS ANALYSIS
[6] Our inquiry does not end with the Washington statute.
The Due Process Clause allows in personam jurisdiction to be
exercised over a non-resident corporate defendant only if it
has “certain minimum contacts” with the forum state such that
“the maintenance of the suit does not offend ‘traditional
notions of fair play and substantial justice.’ ” Helicopteros,
466 U.S. at 414 (citing International Shoe, 326 U.S. at 316).
In applying this standard, we employ yet another familiar
two-part test: whether Reynolds has sufficient contacts with
Washington and whether the exercise of jurisdiction is reason-
able in this case. Asahi Metal Indus. Co., Ltd. v. Superior Ct.
of Cal., 480 U.S. 102 (1987).
1. MINIMUM CONTACTS
[7] In the context of general jurisdiction, minimum contacts
exist where a defendant has “substantial” or “continuous and
systematic” contacts with the forum state, even if the case is
unrelated to those contacts. Helicopteros, 466 U.S. at 415.
The reach of general jurisdiction is defined, in the first
instance, by the Supreme Court’s decisions in Perkins v.
TUAZON v. R.J. REYNOLDS TOBACCO 225
Benguet Consol. Mining Co. et al., 342 U.S. 437 (1952), and
in Helicopteros.
In Perkins, the Court sketched for the first time a vision of
personal jurisdiction that did not arise from the occurrence of
the cause of action in the forum state. Id. at 446 (“The instant
case takes us one step further to a proceeding in personam to
enforce a cause of action not arising out of the corporation’s
activities in the state of the forum”) (quoting International
Shoe, 326 U.S. at 318-19 (“[T]here have been instances in
which the continuous corporate operations within a state were
thought so substantial and of such a nature as to justify suit
against it on causes of action arising from dealings entirely
distinct from those activities”)). During World War II, the
president of a Philippine mining company established an
office in Ohio during the Japanese occupation of the Philip-
pines. At his office-in-exile in Ohio, the president:
kept company files and held directors’ meetings in
the office, carried on correspondence relating to the
business, distributed salary checks drawn on two
active Ohio bank accounts, engaged an Ohio bank to
act as transfer agent, and supervised policies dealing
with the rehabilitation of the corporation’s properties
in the Philippines.
Helicopteros, 466 U.S. at 415 (citing Perkins, 342 U.S. at
438, 445). Applying the principles of International Shoe, the
Supreme Court upheld the exercise of jurisdiction by an Ohio
court in a cause of action unrelated to the mining company’s
activities there.
At the other end of the spectrum, the Court deemed the
defendant’s contacts insufficient to justify the exercise of gen-
eral jurisdiction in Helicopteros. 460 U.S. at 418-19. Defen-
dant Helicopteros faced a wrongful death suit in state court in
Texas arising from a helicopter crash in Peru. Helicopteros’s
contacts with Texas consisted of one meeting in Houston by
226 TUAZON v. R.J. REYNOLDS TOBACCO
its president to discuss a contract, significant purchases of hel-
icopters, spare parts and accessories, training sessions for
pilots and managers, and limited banking activities over a
seven-year period. Id. at 410-11. At the time of the lawsuit,
the company had never:
been authorized to do business in Texas . . . had an
agent for the service of process . . . performed heli-
copter operations in Texas or sold any product that
reached Texas, . . . solicited business in Texas, . . .
signed any contract in Texas, . . . had any employee
based there, . . . recruited an employee in Texas . . .
owned real or personal property in Texas . . . main-
tained an office or establishment there . . . main-
tained . . . records in Texas and [had] no
shareholders in that State.
Id. at 411. On these facts, the Court rejected the Texas
Supreme Court’s conclusion that Helicopteros had sufficient
contacts with Texas, holding that “purchases and related trips,
standing alone, are not a sufficient basis for a State’s assertion
of jurisdiction.” Id. at 417.
Navigating the territory between Perkins and Helicopteros
requires us to balance the facts of each case. Cf. Kulko v.
Superior Ct. of Cal., 436 U.S. 84, 92 (1978) (“[T]he ‘mini-
mum contacts’ test of International Shoe is not susceptible to
mechanical application; rather, the facts of each case must be
weighed to determine whether the requisite ‘affiliating cir-
cumstances’ are present.”). In evaluating general jurisdiction,
we have not developed a precise checklist or articulated a
definitive litany of factors. We consider, among other factors,
“whether the defendant makes sales, solicits or engages in
business in the state, serves the state’s markets, designates an
agent for service of process, holds a license, or is incorporated
there.” Bancroft & Masters, 223 F.3d at 1086. It is the nature
and extent of the contacts that determines whether they are
“substantial” or “continuous and systematic.” Longevity, con-
TUAZON v. R.J. REYNOLDS TOBACCO 227
tinuity, volume, economic impact, physical presence, and
integration into the state’s regulatory or economic markets are
among the indicia of such a presence.
Although courts have been understandably reluctant to
exercise general jurisdiction, cf. Amoco Egypt, 1 F.3d at 851
n.3 (noting that “[t]he Supreme Court has upheld general
jurisdiction only once”), the requisite showing has been sus-
tained in a number of cases. For example, the Federal Circuit
held that the Due Process Clause was satisfied for purposes of
general jurisdiction where a defendant employed multiple dis-
tributors in the state and generated millions of dollars in
annual revenues from in-state sales. LSI Indus. v. Hubbell
Lighting, Inc., 232 F.3d 1369, 1375 (Fed. Cir. 2000). In Lakin
v. Prudential Securities, 348 F.3d 704 (8th Cir. 2003), the
defendant was a federally-chartered savings bank with its
principal place of business in Georgia, but haled to court in
Missouri to face claims arising from a multi-million dollar,
multi-state fraud. The Eighth Circuit held that Georgia-based
Prudential’s contacts with Missouri were continuous and sub-
stantial based on the fact that its $10 million home-equity loan
portfolio in the state implied multi-year lending relationships
with “hundreds, if not thousands of Missouri residents.” Id. at
709. Noting also that the home-equity market was central to
Prudential’s business, the court remanded for additional juris-
dictional discovery. Id. at 709-710; see also Provident Nat’l
Bank v. Lehman Mgmt. Co., 819 F.2d 434, 438 (3d Cir. 1987)
(holding general jurisdiction proper where the defendant had
no property in Pennsylvania and conducted no advertising and
only a small percentage of its business in the state, but “the
nature of [defendant’s] contacts with Pennsylvania . . . was
central to the conduct of its business.”).
Yet another example of general jurisdiction is found in
Metropolitan Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d
560 (2d Cir. 1996). Over a four-year period, the defendant’s
contacts with Vermont, the forum state, included sales of $4
million, ongoing relationships with five authorized dealers for
228 TUAZON v. R.J. REYNOLDS TOBACCO
its products in the state, product support for its dealers,
national advertising that reached Vermont, direct marketing to
at least three Vermont firms, and more than one hundred vis-
its by employees to Vermont. Id. at 570. The defendant
owned no property in Vermont and did not control its autho-
rized dealers there. Id. at 572.
The Second Circuit acknowledged that any one of these
facts alone might have been an insufficient contact, but held
that “when taken together, [the contacts] are sufficient to
establish general jurisdiction.” Id. at 570 (emphasis in origi-
nal). The court nevertheless dismissed the case because juris-
diction would have been unreasonable where neither the
plaintiff nor the defendant resided in Vermont, the state of
Vermont had no discernable interest in the case, and the plain-
tiff’s only interest in Vermont as a forum seemed to be a gen-
erous statute of limitations. Id. at 574. Tuazon’s case is
strikingly different in terms of the reasonableness analysis, as
noted below.
As this review of cases illustrates, determining whether a
corporate defendant’s contacts in a particular case are sub-
stantial and continuous turns on the “economic reality of the
defendants’ activities rather than a mechanical checklist.”3
Gates Learjet Corp. v. Jensen, 743 F.2d 1325, 1331 (9th Cir.
1984). Generally, an isolated contact with the forum state,
among those identified in Bancroft & Masters, will not sup-
port general jurisdiction. See, e.g., Glencore Grain Rotterdam
B.V. v. Shivnath Rai Harnarain Co., 284 F.3d 1114, 1124-25
3
Although there is a lively academic debate about the contours of gen-
eral jurisdiction, see e.g., Mary Twitchell, The Myth of General Jurisdic-
tion, 101 Harv. L. Rev. 610 (1988); Patrick J. Borchers, The Problem with
General Jurisdiction, 2001 U. Chi. Legal F. 119 (2001), the lower courts
have hewed to the principles set out as bookends by the Supreme Court
and filled in the middle ground through a case-by-case review of individu-
alized circumstances. Although it may be frustrating to some commenta-
tors that no formula has emerged, the circumstances vary so widely that
a mechanical application of factors and principles would be unprincipled.
TUAZON v. R.J. REYNOLDS TOBACCO 229
(9th Cir. 2002) (holding that there was no general jurisdiction
where a defendant’s only contacts with California amounted
to sixteen shipments of rice sold through an independently
employed sales agent); Congoleum Corp. v. DLW Aktienge-
sellschaft, 729 F.2d 1240, 1242 (9th Cir. 1984) (noting that
“no court has ever held that the maintenance of even a sub-
stantial sales force within the state is a sufficient contact to
assert jurisdiction in an unrelated cause of action”); Bancroft
& Masters, 223 F.3d at 1086 (concluding that “occasional,
unsolicited sales of tournament tickets and merchandise to
California residents” and maintenance of a small number of
license agreements with California vendors was insufficient to
support general jurisdiction).
[8] Reynolds’ contacts in Washington are perhaps less than
the wartime “home away from home” involved in Perkins, yet
far more substantial than the defendant’s limited contacts with
Texas in Helicopteros. In analyzing the breadth and depth of
Reynolds’ contacts with Washington, we begin by noting that
Reynolds’ sales in Washington are not limited or occasional.
Reynolds has had a serious presence in Washington for more
than a half-century and generates enormous revenues from
Washington—hundreds of millions of dollars in annual net
sales in recent years. Cf. LSI Indus., 232 F.3d at 1374 (general
jurisdiction exists where, among other factors, the defendant
generated several millions of dollars in annual sales in the
forum state); Metropolitan Life Ins. Co., 84 F.3d at 570 (gen-
eral jurisdiction appropriate where defendant sold nearly $4
million in products in the forum state over a four-year period).
Reynolds’ long and successful operations are not acciden-
tal. The company did not hide in its North Carolina home,
passively trickling a small supply of cigarettes to Washington.
See, e.g., Sandstrom v. Chemlawn Corp., 904 F.2d 83, 88 (1st
Cir. 1990) (no substantial and continuous contacts where
defendant’s presence in forum state was limited to being
licensed to do business and purchasing limited advertise-
ments); Consolidated Dev’t Corp. v. Sherritt, Inc., 216 F.3d
230 TUAZON v. R.J. REYNOLDS TOBACCO
1286, 1292 (11th Cir. 2000) (no substantial and continuous
contacts where defendant’s presence in the United States was
limited to capital market transactions, appointing an agent for
service of process, and sales of products through a subsid-
iary). The magnitude of Reynolds’ operations and sales in
Washington reflects an undeniable presence in the state; it has
held a license to do business there since 1940, has advertised
in purely local publications since at least the 1950s, has
engaged in local political activity to protect its market, and
maintains a permanent office and workforce in the state. Cf.
Schreiber v. Allis-Chalmers Corp., 611 F.2d 790, 793 (10th
Cir. 1979) (reversing the district court’s dismissal for lack of
general personal jurisdiction where the defendant had been
licensed to do business in the forum state for almost forty
years, had conducted sales and sales promotions, and had
recently established a factory there).
[9] Selling cigarettes is Reynolds’ core business, in Wash-
ington and elsewhere. Cf. Lakin, 348 F.3d at 709; Provident
Nat’l Bank, 819 F.2d at 438. Indeed, with the exception of
incorporation, each factor identified in Bancroft & Masters is
present in abundance. See 223 F.3d at 1086. It is also signifi-
cant that the essence of Tuazon’s complaint—a worldwide
coverup regarding tobacco risks—cannot be characterized as
“dealings entirely distinct” from Reynolds’ business in Wash-
ington. International Shoe, 326 U.S. at 319. The tobacco liti-
gation, in which Washington state was a major player,
centered around some of these same allegations. Even after
the global settlement, Reynolds participated in a court chal-
lenge in Washington involving state regulation of smoking.
See Aviation West Corp. v. Dep’t of Labor and Indus., 980
P.2d 701 (Wash. 1999).
Reynolds urges that it is conducting business “with” Wash-
ington in some way that is meaningfully distinct from doing
business “in” the state. Reynolds describes the former as
“merely interacting with a limited number of customers or
suppliers” in a state. See Bancroft & Masters, 223 F.3d at
TUAZON v. R.J. REYNOLDS TOBACCO 231
1086 (holding that a company that “continues to have license
agreements with two television networks and a handful of
California vendors” was “doing business with California, but
. . . not . . . doing business in California”). Although limited
sales and licensing arrangements alone may be insufficient to
establish general jurisdiction, Reynolds’ decades long pres-
ence and its integration into Washington’s markets can hardly
be characterized as “mere” interaction with the state.
Finally, we are not persuaded by Reynolds’ argument that
affirming the district court would obliterate the distinction
between general and specific jurisdiction. Although general
jurisdiction is infrequently exercised, to conclude that it exists
here does not mean that every case of failed specific jurisdic-
tion will lead to the grant of general jurisdiction. The determi-
nation simply depends upon the nature and extent of the
contacts. It is abundantly clear that a corporation does not
necessarily submit to general jurisdiction in every state in
which it merely sells a product. But, jurisdiction here is not
predicated on sales, or even the notion of substantial sales,
alone. The minimum contacts are established by the conflu-
ence of Reynolds’ physical, economic, and political presence
and the company’s myriad other activities in the state.
[10] In short, we hold that Reynolds’ continuous and sub-
stantial contacts are sufficient to support the exercise of gen-
eral jurisdiction.
2. REASONABLENESS
[11] In the second step of our inquiry, we determine
whether the exercise of general jurisdiction in this case is reason-
able.4 Here, the burden is the defendant’s to “ ‘present a com-
4
Reynolds objects that the district court did not recite the five Asahi fac-
tors, arguing that the consequences of this absence are “profound.” We
acknowledge Reynolds’ concern but do not share its conclusion. The dis-
trict court stated that the due process analysis did not end with minimum
contacts and went on to discuss other factors generally recognized as rea-
sonableness factors. It is also well-established that we may affirm a district
court decision “on any basis supported by the record.” Amoco Egypt, 1
F.3d at 851 n.3.
232 TUAZON v. R.J. REYNOLDS TOBACCO
pelling case’ that the exercise of jurisdiction would, in fact, be
unreasonable.” Amoco Egypt, 1 F.3d at 852; accord Burger
King, 471 U.S. at 477. In accord with the Supreme Court’s
guidance in Asahi, we consider five factors: (1) the burden on
the defendant, (2) the forum state’s interest in the dispute, (3)
the importance of the chosen forum to the plaintiff’s interest
in obtaining relief, (4) the most efficient forum for judicial
resolution of the dispute, and (5) the “shared interest of the
several States in furthering fundamental substantive social poli-
cies.”5 480 U.S. at 113. Balancing these factors, we conclude
that Reynolds has failed to meet its burden of demonstrating
a compelling case of unreasonable jurisdiction. The exercise
of jurisdiction here is reasonable and satisfies the require-
ments of the Due Process Clause.
[12] We look first to the burden on the defendant of litigat-
ing in the chosen forum. Reynolds does not identify any spe-
cific hardship or otherwise comment on this factor, thus
abdicating its burden on this point. Evaluation of this burden
often contemplates a foreign, as in non-U.S., defendant haled
to court in the United States. In such cases, “[t]he unique bur-
dens placed upon one who must defend oneself in a foreign
legal system should have significant weight in assessing the
reasonableness of stretching the long arm of personal jurisdic-
tion over national borders.” Asahi, 480 U.S. at 114. Surely the
5
The Ninth Circuit considers two other factors in assessing the reason-
ableness of jurisdiction: the extent of purposeful interjection and the exis-
tence of an alternative forum. Amoco Egypt, 1 F.3d at 851. The first factor
is the extent of Reynolds’ purposeful interjection into Washington. This
inquiry “parallels the question of minimum contacts.” Id. at 852. Because
Reynolds has minimum contacts with Washington, this factor weighs in
favor of jurisdiction. The second factor asks whether an adequate alterna-
tive forum exists for the resolution of the dispute. This question is at the
heart of the forum non conveniens analysis and is discussed in the next
section. Although, as discussed below, Reynolds arguably has met its bur-
den with respect to establishing the Philippines as an available alternative
forum, this single factor would not trump the other factors so as to compel
a different conclusion.
TUAZON v. R.J. REYNOLDS TOBACCO 233
burden on Reynolds of litigating in the Philippines would be,
by degrees of magnitude, greater than litigating in Washing-
ton state. Reynolds does not suggest that the burden is one to
be weighed between Washington and North Carolina. With its
long history and substantial business in the state, litigating in
Washington would not be an onerous burden for Reynolds.
Cf. Bancroft & Masters, 223 F.3d at 1082 (determining juris-
diction to be reasonable when a Georgia corporation demon-
strated no hardship in litigating in California); Harris Rutsky
& Co. Ins. Svcs. Inc. v. Bell & Clements Ltd., 328 F.3d 1122,
1132-33 (9th Cir. 2003) (observing that litigating in Califor-
nia posed only a limited burden to a London-based company,
where its employees traveled there regularly for business).
[13] The second factor, a state’s interest in providing a
forum for its residents, weighs in favor of reasonableness.
Tuazon lawfully immigrated to Washington and has taken up
residence there; Washington rightfully takes an interest in his
well-being and in this dispute. See Dole Food, 303 F.3d at
1116-17. Reynolds argues that Washington’s interest is lim-
ited because Tuazon arrived with a fully mature claim result-
ing from conduct and harm entirely outside of Washington.
Reynolds also impugns Tuazon’s motives for moving to
Washington, despite the long immigration process and the
presence of his family in Washington. This argument begs the
question—Tuazon now lives in Washington as a legal resi-
dent. Reynolds’ theory not only ignores the fact of our mobile
society but would create a novel jurisdictional hurdle by
requiring the suit to be brought where the disease matures.
[14] The third factor favors a forum that can provide conve-
nient and effective relief for the plaintiff. It is easy for Tuazon
to litigate his claim where he resides—Washington. The
potential inconvenience of litigating in the Philippines (the
only alternative that has been suggested) is mitigated by Tua-
zon’s long history and deep connections with his country of
origin. Although a plaintiff’s choice of home forum is entitled
to deference in a forum non conveniens analysis, Piper Air-
234 TUAZON v. R.J. REYNOLDS TOBACCO
craft Co. v. Reyno, 454 U.S. 235, 257 (1981), we are less def-
erential when determining reasonableness under personal
jurisdiction. Core-Vent Corp. v. Nobel Indus. AB, 11 F.3d
1482, 1490 (9th Cir. 1993) (“A mere preference on the part
of the plaintiff for its home forum does not affect the balanc-
ing”); but see Asahi, 480 U.S. at 114 (“When minimum con-
tacts have been established, often the interests of the plaintiff
and the forum in the exercise of jurisdiction will justify even
the serious burdens placed on the alien defendant.”). On the
other hand, it is significant that Reynolds has not seriously
argued that litigating in Washington is more of a burden than
being in the Philippines. Thus, this factor is hardly a basis to
support a finding of unreasonableness.
[15] The fourth factor requires us to consider the most effi-
cient judicial resolution for this case. “The site where the
injury occurred and where evidence is located usually will be
the most efficient forum.” Pacific Atl. Trading Co. v. M/V
Main Express, 758 F.2d 1325, 1331 (9th Cir. 1985). No clear
winner emerges in this category, although we credit the dis-
trict court’s findings that, on balance, Washington state pro-
vides an efficient and viable forum to resolve Tuazon’s
claims. Even though Tuazon’s injury occurred in the Philip-
pines, his claim will require the presentation of evidence and
testimony from far-flung regions, including Reynolds’ head-
quarters in North Carolina and other sites where the alleged
conspiracy was nurtured (such as New York), as well as
Manila and perhaps other locales in the Philippines, and in
Washington itself, where Tuazon has been treated by local
doctors since his arrival in 2003. Resolving Tuazon’s claims
may require a court to apply the law of the Philippines to
some or all of the substantive dispute. Admittedly, these fac-
tors may present some difficulties for a court in Washington,
but it is not significantly easier for any other court to hear this
case. For instance, it would not be a simple matter for a civil
tribunal in the Philippines to exercise compulsory process
upon Reynolds executives in North Carolina. It is neither
TUAZON v. R.J. REYNOLDS TOBACCO 235
impractical nor unreasonable for Washington to exercise
jurisdiction.
The fifth factor calls for us to consider the shared interest
of the several states in advancing social policy. While the
“minimum-contacts analysis presupposes that two or more
States may be interested in the outcome of a dispute,” the con-
flict of one forum’s interests with the “fundamental substan-
tive social policies” of another state may usually be handled
through choice-of-law analysis rather than rejecting jurisdic-
tion. Burger King, 471 U.S. at 477, 483 n.26. What is missing
here is evidence of any real or purported conflict.
Reynolds struggles to cast this controversy as one implicat-
ing high diplomacy and the sovereignty of a foreign nation,
arguing that the district court erred in failing to consider the
interest of the Republic of the Philippines. True, this factor
often involves conflicts with the sovereignty of foreign
nations, but usually when the foreign country is home to the
defendant. See, e.g., Amoco Egypt, 1 F.3d at 852 (“Where, as
here, the defendant is from a foreign nation rather than
another state, the sovereignty barrier is high and undermines
the reasonableness of personal jurisdiction.”). Reynolds
attempts to sidestep this distinction by arguing that it would
be unfair to the Philippines to prevent Tuazon’s case from
being adjudicated there. Yet, it is Tuazon, a Philippine citizen,
who decided to bring suit in the United States seeking per-
sonal damages from an alleged worldwide conspiracy. Con-
trary to Reynolds’ assertions, it is difficult to see how an
American court tramps on the sovereignty of the Philippines
by exercising jurisdiction over an American company on a
claim by an American resident.
[16] From the standpoint of social policy, Washington has
an interest in a suit involving an alleged coverup by a tobacco
company. Not only is Tuazon a Washington resident, Wash-
ington was a key participant in the global tobacco settlement,
which involved related health policy issues. This is not to say
236 TUAZON v. R.J. REYNOLDS TOBACCO
that the Philippines has no social policy interest in the issues
raised by the suit. Nonetheless, a weighing of factors does not
tip this factor in favor of the Philippines.
[17] Taking the factors together, we have no difficulty con-
cluding that the exercise of jurisdiction in Washington is rea-
sonable.
II. FORUM NON CONVENIENS
[18] Reynolds also sought relief on the basis of forum non
conveniens. “A district court has discretion to decline to exer-
cise jurisdiction in a case where litigation in a foreign forum
would be more convenient for the parties.” Lueck v. Sund-
strand Corp., 236 F.3d 1137, 1142 (9th Cir. 2001). In exercis-
ing this discretion, a court will consider whether an adequate
alternate forum exists and whether the balance of public and
private interests favors a different forum. Id.Reynolds faces a doubly difficult task in appealing the dis-
trict court’s rejection of the forum non conveniens challenge.
As an initial hurdle, the plaintiff’s choice of forum is entitled
to deference.6 Piper Aircraft, 454 U.S. at 257. And “where the
court has considered all relevant public and private interest
factors, and where its balancing of these factors is reasonable,
its decision deserves substantial deference.” Lueck, 236 F.3d
at 1143. We will reverse the district court’s determination
only where “there has been a clear abuse of discretion.” Id.6
Reynolds’ argument that Tuazon should not enjoy this deference
because he is a foreign citizen is at odds with the Supreme Court’s direc-
tion on this issue. In the context of forum non conveniens analysis, a resi-
dent alien such as Tuazon is entitled to the same deference as a citizen.
Piper Aircraft, 454 U.S. at 256 n.23 (“Citizens or residents deserve some-
what more deference than foreign plaintiffs . . .”) (emphasis added). In
assessing convenience, the distinction is between resident or citizen plain-
tiffs (Tuazon’s category) and foreign plaintiffs. Id. Tuazon is not a “for-
eign” plaintiff.
TUAZON v. R.J. REYNOLDS TOBACCO 237
A. ADEQUATE ALTERNATIVE FORUM
Reynolds bears the burden of demonstrating that an alterna-
tive forum exists and that it is adequate. Jones v. GNC
Franchising, Inc., 211 F.3d 495, 499 n.22 (9th Cir. 2000).
Generally, an alternative forum is available where the defen-
dant is amenable to service of process and the forum provides
“some remedy” for the wrong at issue. Lueck, 236 F.3d at
1143 (quoting Piper Aircraft, 454 U.S. at 254 n.22). This test
is easy to pass; typically, a forum will be inadequate only
where the remedy provided is “so clearly inadequate or unsat-
isfactory, that it is no remedy at all.” Lockman Found. v.
Evangelical Alliance Mission, 930 F.2d 764, 768 (9th Cir.
1991) (quoting Piper Aircraft, 454 U.S. at 254).
The district court determined that Reynolds failed to show
that the Philippines was an adequate alternative forum on two
counts—failure to submit to service of process and failure to
counter evidence of corruption in the Philippine court system.
Before the district court, Reynolds sought primarily dismissal
without conditions, but also argued in the alternative that if
conditions were imposed, the court should not require waiver
of “all defenses . . . available . . . at the time plaintiff origi-
nally filed this action.” Although there may have been some
ambiguity, purposeful or otherwise, in Reynolds’ position, the
acceptance of jurisdiction need not be absolute. A careful
reading of the record confirms Reynolds’ consent to service
of process in the Philippines. A moving party does not forfeit
its consent to service by seeking accommodations as part of
the dismissal. With ample discretion to tailor any conditions
of dismissal, the district court in this case could have done so.
See Contact Lumber Co. v. P.T. Moges Shipping Co., 918
F.2d 1446, 1450 (9th Cir. 1990) (holding the Philippines was
an available forum where the district court granted a motion
to dismiss “on the express condition that [defendant] consent
to the jurisdiction of the Philippine courts”). Accordingly, we
conclude that Reynolds established its voluntary submission
to service of process.
238 TUAZON v. R.J. REYNOLDS TOBACCO
The district court also found that Reynolds failed to bear its
burden in establishing the Philippines as an adequate forum.
This showing requires the defendant to establish that the for-
eign forum’s laws provide potential redress for the injury
alleged; the fact that the substantive law may be less favorable
is relevant only if it would completely deprive plaintiffs of
any remedy or would result in unfair treatment. Piper Air-
craft, 454 U.S. at 255; Creative Tech., Ltd. v. Aztech Sys.
PTE, Ltd., 61 F.3d 696, 701-02 (9th Cir. 1995).
[19] To meet its burden, Reynolds offered an extensive
affidavit by a former Justice of the Philippine Court of
Appeals, detailing background about the Philippines and its
court system, the availability of contract and tort relief, the
discovery process, and procedural formalities. Under our pre-
cedent, this showing is sufficient. Lueck, 236 F. 3d at 1143(the district court, in deciding a forum non conveniens
motion, is required to ask “whether [the alternative forum]
offers a remedy for their losses”).
In response, Tuazon argued that the Philippine courts are
too corrupt and plagued with delays to provide an adequate
forum. Tuazon’s assertions about the court system rest pri-
marily on his own experience as a lawyer and businessman in
the Philippines. He concedes that he prefers a U.S. court
because damages in the Philippines are “niggardly,” a ground
that we have rejected in the forum non conveniens analysis.
Lueck, 236 F.3d at 1144 (rejecting argument that lower dam-
ages would render a forum inadequate).
In his deposition, Tuazon referred to lengthy delays of up
to thirty years in civil proceedings that would make any rem-
edy essentially meaningless. Cf. Bhatnagar v. Surrendra
Overseas Ltd., 52 F.3d 1220, 1228 (3d Cir. 1995) (“Wherever
the line might be drawn separating tolerable delay from
intolerable—that is, delay that does not vitiate a remedy and
that which does—delays of up to a quarter of a century fall
on the intolerable side of that line.”). Notably, however, he
TUAZON v. R.J. REYNOLDS TOBACCO 239
failed to mention a single episode that he directly observed or
of which he has personal knowledge. His corruption claims
face the same evidentiary void. Indeed, it is difficult to square
Tuazon’s testimony about his satisfaction with the court sys-
tem in several actions that he litigated in the Philippines,
some all the way to the Supreme Court, with the general alle-
gations in his brief about corruption. Tuazon’s anecdotal evi-
dence of corruption and delay provides insufficient basis for
the district court’s dramatic holding that the courts of the Phil-
ippines are an inadequate forum in this civil case.
With no personal testimony on corruption, Tuazon instead
offers State Department Country Reports that reference cor-
ruption, judicial bias and inefficiency, and the potentially
improper influence that corporate defendants wield over the
judicial process. Without diminishing the gravity of such con-
cerns, we note that the reports are focused on human rights in
the Philippines, and the criminal justice system in particular.
As with Tuazon’s testimony on delay, such a general indict-
ment provides insufficient substance to condemn the ade-
quacy of Philippine courts in the face of the expert evidence
offered by Reynolds.
A litigant asserting inadequacy or delay must make a pow-
erful showing. Cf. Eastman Kodak Co. v. Kavlin, 978 F. Supp.
1078, 1084 (S.D. Fla. 1997) (noting that the argument that
“[t]he ‘alternative forum is too corrupt to be adequate’ . . .
does not enjoy a particularly impressive track record.”) (col-
lecting cases). A close reading of this case, relied on by both
Tuazon and Reynolds, is instructive. The court held that cor-
ruption and delay in the Bolivian courts made a fair trial
impossible. The proof offered was both specific and sordid,
unlike the evidence here. The plaintiff offered statements by
the Minister of Justice that Bolivian courts were instruments
of extortion, detailed affidavits by two experts in Bolivian
legal and political affairs, and an affidavit by a former legal
counsel to the Bolivian legislature observing that “corruption
is endemic to the judicial system of Bolivia.” Id. at 1085. We
240 TUAZON v. R.J. REYNOLDS TOBACCO
are aware of only one other federal case to hold that an alter-
native forum was inadequate because of corruption. See Bhat-
nagar, 52 F.3d at 1226-27, 1235 (affirming the district court’s
determination that India was an inadequate forum and noting
reliance on two expert affidavits stating that the Indian legal
system was in “virtual collapse” and suffered delays of 15-20
years on average).
[20] Indeed, in a particular case, the evidence may well
support the conclusion that a legal system is so fraught with
corruption, delay and bias as to provide “no remedy at all”;
but the paltry evidence offered by Tuazon does not defeat
Reynold’s showing of adequacy.7 In summary, this record
does not support the district court’s finding of inadequacy and
we hold that Reynolds satisfied its burden to demonstrate the
existence of an adequate alternative forum in the Philippines.
B. THE BALANCE OF PUBLIC AND PRIVATE INTEREST
FACTORS
Even when an adequate alternative forum exists, we will
not disturb the plaintiff’s original choice of forum “unless the
‘private interest’ and the ‘public interest’ factors strongly
favor” dismissal. Lueck, 236 F.3d at 1146 (citing Gulf Oil
Corp. v. Gilbert, 330 U.S. 501, 509 (1947)). As we explained
recently, a plaintiff need not select the optimal forum for his
claim, but only a forum that is not so oppressive and vexa-
tious to the defendant “as to be out of proportion to plaintiff’s
convenience.” Ravelo Monegro v. Rosa, 211 F.3d 509, 514
7
In a long list of cases in this and other circuits, the Philippines has been
found to be an adequate forum. See, e.g., Contact Lumber, 918 F.2d at
1450; Cruz v. Maritime Company of the Philippines, 549 F. Supp. 285,
289 (S.D.N.Y. 1982); Quintero v. Klaveness Ship Lines, 914 F.2d 717,
728 (5th Cir. 1990); Transunion Corp. v. Pepsico, Inc., 604 F. Supp. 1211,
1216-20 (S.D.N.Y. 1986); Cuevas v. Reading & Bates Corp., 577 F. Supp.
462, 476 (S.D. Tex. 1983); Jose v. M/V Fir Grove, 801 F. Supp. 349, 352-
53 (D. Ore. 1991). Although these cases are not dispositive as to the evi-
dence here, they are certainly illustrative.
TUAZON v. R.J. REYNOLDS TOBACCO 241
(9th Cir. 2000) (reversing forum non conveniens dismissal,
without discussing adequacy or availability of alternate
forum, because the private interest factors weighed heavily
against dismissal).8 With this principle in mind, we turn to
examine the weight of the private and public interest factors
implicated by Tuazon’s lawsuit.
Having already navigated several two-part tests and various
multi-part tests in the jurisdictional analysis, we now tackle a
seven-part test to evaluate private interest factor consider-
ations: (1) the residence of the parties and witnesses, (2) the
forum’s convenience to the litigants, (3) access to physical
evidence and other sources of proof, (4) whether unwilling
witnesses can be compelled to testify, (5) the cost of bringing
witnesses to trial, (6) the enforceability of the judgment,
(7) any practical problems or other factors that contribute to
an efficient resolution. Lueck, 236 F.3d at 1145 (citing Gulf
Oil, 330 U.S. at 508). In applying these factors, “[t]he district
court should look to any or all of the above factors which are
relevant to the case before it, giving appropriate weight to
each.” Id. This guidance grants the district court the broadest
possible discretion.
8
See also Lony v. E.I. Du Pont de Nemours & Co., 935 F.2d 604, 608,
615 (3d Cir. 1991) (reversing the district court’s forum non conveniens
dismissal where Germany offered an adequate alternative forum, but the
private and public interest factors, while “relatively close,” were “not suf-
ficient to overcome the strong ground for retention of jurisdiction”); In re
Ford Motor Co. and Bridgestone/Firestone North American Tire, LLC,
344 F.3d 648, 652-53 (7th Cir. 2002) (on deferential mandamus review
upholding denial of forum non conveniens motion where at least one alter-
native forum was adequate and the district court did not err in concluding
that private and public interest factors favored venue in the United States);
SME Racks, Inc. v. Sistemas Mecanicos Para Electronica, S.A., 382 F.3d
1097, 1100 n.9, 1104 (11th Cir. 2004) (reversing forum non conveniens
dismissal where the district court failed to grant proper deference to the
plaintiff’s choice of forum, even though the adequacy of Spain as an alter-
nate forum was not at issue).
242 TUAZON v. R.J. REYNOLDS TOBACCO
The district court found that dismissal was not warranted
because “it is not more convenient to try the case in the Phil-
ippines” based on the private interest factors. Neither party is
a resident of the Philippines; both reside in the United States.
Most importantly, Tuazon is a resident of Washington, a more
convenient forum for both sides than the Philippines. It is nei-
ther unimaginable nor unreasonable that Reynolds, having
operated in the state for a half-century, should defend a law-
suit there.
The third and fourth private interest factors, concerning the
location and availability of evidence and witnesses, present
closer questions. Reynolds makes much of the lack of com-
pulsory process to secure key witnesses and documents in the
Philippines. In response, Tuazon argues that the bulk of evi-
dence regarding the alleged conspiracy is likely in the United
States. The crucial focus is not on “the number of witnesses
or quantity of evidence in each locale,” but rather “the materi-
ality and importance of the anticipated [evidence and] wit-
nesses’ testimony and then determine[ ] their accessibility and
convenience to the forum.” Lueck, 236 F.3d at 1146 (quoting
Gates Learjet, 743 F.2d at 1335-36).
As the district court observed, evidence will be drawn from
both sides of the Pacific. Proof of Reynolds’ participation in
a global conspiracy likely will be in North Carolina and other
United States locations. Proof of Tuazon’s medical condition
is in Washington. Evidence of Tuazon’s medical history and
smoking habits, as well as Reynolds’ activities in the Philip-
pines and relationship with Fortune Tobacco, will be in the
Philippines. Key witnesses from Reynolds and, of course,
Tuazon himself, live in the United States.
Although the Philippines is not a party to the Hague
Convention on the Service Abroad of Judicial and Extra
Judicial Documents in Civil or Commercial Matters, 20
U.S.T. 361 (1965), evidence there may be obtained through
voluntary deposition or compelled by letters rogatory. See
TUAZON v. R.J. REYNOLDS TOBACCO 243
United States Department of State, Philippines Judicial Assis-
tance, available at http://travel.state.gov/law/info/judicial/
judicial_660.html. Also, Tuazon has offered to help Reynolds
obtain documents personal to him that are located in the Phil-
ippines. Any court, whether in the United States or in the
Philippines, will necessarily face some difficulty in securing
evidence from abroad. The administrative challenges faced by
the district court in Washington are not so great as to justify
dismissal. Thus, the third and fourth factors weigh in favor of
Washington.
[21] On balance, the economics of bringing a few witnesses
from the Philippines to Washington will be less costly than
moving the trial apparatus, including both parties and wit-
nesses, from all over the United States to the Philippines.
Finally, the district court noted that no evidence had been
presented about the enforceability of a Philippine judgment in
the United States,9 and that trial in the Philippines would face
a lengthy delay. We agree with the district court that the com-
bination of all of these factors counsels in favor of Washing-
ton, not the Philippines.
In addition to the private interest factors, we must consider
five public interest factors: (1) the local interest in the lawsuit,
(2) the court’s familiarity with the governing law, (3) the bur-
den on local courts and juries, (4) congestion in the court, and
(5) the costs of resolving a dispute unrelated to a particular
forum. Lueck, 236 F.3d at 1147.
Reynolds makes much of the first factor, showing magnani-
mous concern that “an American jury—culturally and politi-
cally remote from the Philippines—should pass judgment on
the social, political and economic issues that are implicated by
plaintiff’s claims.” The backhanded indictment of the jury
9
On appeal, Reynolds offered to satisfy any judgment in the Philippines.
This offer was not before the district court and it comes too late to be fac-
tored into our analysis of the district court’s exercise of its discretion.
244 TUAZON v. R.J. REYNOLDS TOBACCO
system is not compelling. Juries routinely address subjects
that are totally foreign to them, ranging from the foreign lan-
guage of patent disputes to cases involving foreign compa-
nies, foreign cultures and foreign languages. Tuazon resides
in Washington, which has a strong interest in ensuring the
welfare of its residents, U.S. citizens and non-citizens alike.
Piper Aircraft, 454 U.S. at 257. No doubt the Philippines also
has an interest in the alleged conspiracy and its effect on pub-
lic health. This equipoise of interests favors neither jurisdic-
tion. However, with this interest factor, we ask only if there
is an identifiable local interest in the controversy, not whether
another forum also has an interest.
The second public interest factor concerns the choice of
law that will govern Tuazon’s substantive claims. Both parties
seem to believe that Philippine law will apply. We need not
say now whether it does—the choice of law inquiry is better
left to the district court. An analysis of Philippine law, assum-
ing it applies, would be a burden and would support dismissal,
as the district court acknowledged. This fact alone is not,
however, determinative. Piper Aircraft, 454 U.S. at 260 n.29
(holding that the need to apply foreign law “alone is not suffi-
cient to warrant dismissal”).
[22] All the other public interest factors favor Washington
as a forum. The district court noted it had the resources to
hear Tuazon’s case and “is not overburdened or congested.”
Cf. Bhatnagar, 52 F.3d at 1225 (“Given the incentives that
press our district courts to reduce their caseload, we should
take particular care before second-guessing a district court
that rejects a forum non conveniens motion after considering
the factors that we and the Supreme Court have deemed rele-
vant.”). The district court also found that there will be no cost
in resolving a case unrelated to the forum—the case is related
to Washington because Tuazon resides there. Reynolds’ brief-
ing offers no comment on these three factors and nothing in
the record supports reversal of the district court’s determina-
tion that the public interest factors favor Washington. Reyn-
TUAZON v. R.J. REYNOLDS TOBACCO 245
olds has not met its burden to overcome Tuazon’s choice of
Washington as the forum for his lawsuit.
CONCLUSION
In this global and mobile age, we should expect to face
controversies arising from activities originating in the United
States but played out in distant lands. We should also expect
to face more frequently difficult jurisdictional issues based on
complicated cross-border factual scenarios. Nonetheless, Tua-
zon’s claim represents an application of settled principles of
personal jurisdiction. The debate over whether the public and
private factors favor the Philippines or Washington as a forum
is intensely fact-specific. Our role is not to second guess the
district court’s conclusions when the record supports its anal-
ysis of the forum non conveniens factors. The district court
did not abuse its discretion in determining that these factors
favored keeping the case in Washington.
AFFIRMED.