Boston Telecommunications Grou v. Robert Wood ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BOSTON TELECOMMUNICATIONS  No. 08-16358
GROUP, INC.; RODERICK MARSHALL,
Plaintiffs-Appellants, D.C. No.
v.  3:02-CV-05971-
JSW
ROBERT WOOD,
OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of California
Jeffrey S. White, District Judge, Presiding
Argued and Submitted
October 8, 2009—San Francisco, California
Filed December 9, 2009
Before: J. Clifford Wallace, David R. Thompson and
Sidney R. Thomas, Circuit Judges.
Opinion by Judge Wallace
16017
BOSTON TELECOMMUNICATIONS v. WOOD 16021
COUNSEL
Steven M. Cowley, Esq., Boston, Massachusetts, for
plaintiffs-appellants Boston Telecommunications Group, Inc.
and Roderick Marshall.
Susan K. Jamison, Esq., San Francisco, California, for
defendant-appellee Robert Wood.
OPINION
WALLACE, Senior Circuit Judge:
Plaintiffs-appellants Boston Telecommunications Group,
Inc. (BTG) and Roderick Marshall (collectively, Marshall)
appeal from the judgment of dismissal of claims against
defendant-appellee Robert Wood arising out of an allegedly
16022 BOSTON TELECOMMUNICATIONS v. WOOD
fraudulent business venture. The district court dismissed the
action on forum non conveniens grounds. We have jurisdic-
tion over Marshall’s appeal pursuant to 28 U.S.C. § 1291, and
we reverse.
I.
The following are facts as alleged in Marshall’s first
amended complaint, except where otherwise stated. In late
1995 and early 1996, Marshall, a United States citizen, was
living and working in Bratislava, Slovakia, providing legal
services to various Slovak entities. During much of this time,
he shared office space with Deloitte & Touche Slovakia, s.r.o.
(Deloitte Slovakia), an entity providing consulting, auditing
and other professional services. Marshall became acquainted
with another American citizen, Robert Wood, who was then
managing partner of Deloitte Slovakia.
Around April 1996, Wood began soliciting Marshall to
invest in a business venture being pursued by a Deloitte Slo-
vakia client, Global Cable Systems, Inc. (GCS), a Canadian
company. Wood told Marshall that GCS was planning to
acquire two Bulgarian cable television companies (the Bul-
garian Venture), but needed funds to consummate the pur-
chases. Wood further represented that GCS had signed a joint
venture agreement (the Joint Venture) with a handful of other
companies (United & Phillips Communications BV, itself a
joint venture between an American company and a subsidiary
of a Dutch company; Tevel Israel International Communica-
tions, Ltd., an Israeli corporation; and Bezeq Israel Telecom-
munications Company, Ltd., another Israeli company)
pursuant to which those companies would pay GCS for the
Bulgarian cable television companies.
Wood told Marshall that Deloitte Slovakia was assisting
GCS with certain tasks related to the acquisition, but that
financing for GCS’s purchase of the Bulgarian cable televi-
sion companies had fallen through and without a replacement
BOSTON TELECOMMUNICATIONS v. WOOD 16023
investor, Wood might lose his job. Wood told Marshall that
if Marshall invested $250,000 in the Bulgarian Venture,
Deloitte Slovakia would give Marshall business referrals,
offer Marshall future partnership in Deloitte Slovakia, guaran-
tee the value of the Bulgarian Venture, and loan Marshall the
amount of his investment. Wood provided various documents
related to the Bulgarian Venture, including a valuation report
prepared for GCS by Deloitte Slovakia (the Deloitte Valua-
tion) and a copy of the signed Joint Venture agreement.
Initial discussions between Wood and Marshall apparently
took place in Slovakia, and another meeting was held in
Israel, attended by Wood, Marshall, GCS’s chief executive
officer George Mainas, and others, to discuss certain aspects
of the proposed transactions. On Mainas’s invitation, Mar-
shall and Wood traveled to Vancouver and San Francisco to
negotiate Marshall’s investment. Mainas lived and worked in
the San Francisco area and GCS was based in Vancouver. In
opposition to Wood’s renewed motion to dismiss on grounds
of forum non conveniens, Marshall alleged that GCS was
operated, in substantial part, from Mainas’s offices in Califor-
nia. At these meetings in June 1996, Wood “reiterated” his
previous representations, and in reliance on these and other
representations, Marshall agreed to invest $250,000. In order
to carry out the contemplated transactions, Marshall formed
plaintiff BTG, which would enter into a partnership (the Part-
nership) with a subsidiary of GCS.
Upon their return to Slovakia, Marshall and Wood arranged
for financing, through a Slovakian bank, of Marshall’s
$250,000 investment. During the Summer of 1996, Marshall
and Avraham Zimmerman, a shareholder of GCS, engaged in
various negotiations on behalf of the Partnership for the pur-
chase of the Bulgarian cable television companies. By late
August 1996, Marshall believed that the Partnership agree-
ment had been finalized, that one of the target Bulgarian cable
television companies had been purchased, and that an agree-
ment had been reached with the seller as to the other one.
16024 BOSTON TELECOMMUNICATIONS v. WOOD
In September 1996, at Mainas’s invitation, Marshall
returned to Vancouver for a GCS meeting. Mainas asked Mar-
shall for an additional investment, allegedly because the Bul-
garian Venture was undervalued and it would appear to GCS
shareholders that Mainas had sold half of GCS’s business
opportunity to Marshall at a fraction of its value. Mainas,
Wood, Marshall and Zimmerman then traveled to San Fran-
cisco and, over the course of about three days, negotiated an
arrangement pursuant to which BTG would invest an addi-
tional $250,000 in the Partnership. During these negotiations,
Wood repeated many of the same representations he had
already made. Based on those representations, Marshall
agreed to invest the additional funds, and subsequently
obtained financing for that investment through the same Slo-
vakian bank.
By July 1997, however, Marshall learned that Mainas, GCS
and its subsidiary had not taken certain necessary steps to
complete the purchases of the two Bulgarian cable television
companies. Marshall threatened litigation against GCS, but
Wood continued, throughout the rest of 1997 and early 1998,
to reassure Marshall that the necessary steps would be taken
and that in any event, Marshall’s investment was protected
because Deloitte Slovakia had guaranteed it. In the Spring of
1999, Wood was transferred to a job in Yugoslavia with a dif-
ferent Deloitte entity, but the parties continued to communi-
cate by telephone. Wood also continued to represent that he
and Deloitte Slovakia were working toward completing the
Bulgarian Venture. In reliance on Wood’s representations,
Marshall did not sue GCS.
In 2000, Wood returned to Deloitte Slovakia. Wood’s sub-
sequent conduct led Marshall to believe that Wood was trying
to intimidate him, so that he would not seek to enforce
Deloitte Slovakia’s guarantee of his investment or investigate
the matter further. By the end of 2002, Marshall obtained
information that caused him to conclude that Wood had
knowingly or recklessly made a number of fundamental fac-
BOSTON TELECOMMUNICATIONS v. WOOD 16025
tual misrepresentations, including: that some of the documen-
tation Marshall had received in connection with his
investment was fraudulent; that the Joint Venture had been
dissolved long before Wood convinced Marshall to invest;
that the Joint Venture agreement contained a forged signature
or had been terminated at the time Wood convinced Marshall
to invest; that Wood, Mainas and others had acted to deceive
Marshall for their own benefit; and that Deloitte Slovakia had
never intended to guarantee Marshall’s investment.
II.
In December 2002, Marshall filed an action in the Northern
District of California against Wood, Mainas, GCS (under the
name “Consolidated Global Cable Systems, Inc.”), and “De-
loitte Touche Tohmatsu,” which he characterized as a Swiss
Verein with a United States headquarters and operations in
approximately 90 countries, including Slovakia, through its
“affiliate and agent” Deloitte Slovakia. The complaint was
amended in March 2003 to add Deloitte Slovakia and a hand-
ful of other Deloitte-related entities as defendants.
The defendants moved to dismiss the complaint on several
grounds. Wood moved for dismissal pursuant to Federal Rule
of Civil Procedure 12(b)(5), arguing that he had not been
served properly. The Deloitte entities moved to dismiss for
lack of personal jurisdiction, and Wood later attempted to
“join” those motions. Mainas and GCS moved to dismiss on
the grounds that there was a mandatory arbitration clause in
the Partnership agreement between GCS and BTG. All defen-
dants moved to dismiss on forum non conveniens grounds.
In 2003, the district court dismissed the claims against
Mainas and GCS in favor of arbitration, and in 2004 dis-
missed the claims against the Deloitte entities and Wood for
lack of personal jurisdiction. Having dismissed all claims, the
district court did not address the forum non conveniens issue.
16026 BOSTON TELECOMMUNICATIONS v. WOOD
Marshall appealed and we affirmed the dismissals of
Mainas, GCS and the Deloitte entities, but reversed the dis-
missal of Wood, reasoning that Wood had waived any per-
sonal jurisdiction defense by failing to raise it at the same
time he brought his Rule 12(b)(5) motion. The case was
remanded to the district court, with Wood the sole remaining
defendant.
On remand, Wood renewed his motion to dismiss on forum
non conveniens grounds. Marshall opposed that motion. The
district court granted Wood’s motion to dismiss on the condi-
tions that (1) the courts of Slovakia accept the parties’ agree-
ment to toll the statute of limitations and (2) Wood accept
service of process in Slovakia. Marshall now appeals.
III.
[1] We have held that a district court considering a motion
for dismissal on the ground of forum non conveniens must
decide
whether defendants have made a clear showing of
facts which establish such oppression and vexation
of a defendant as to be out of proportion to plaintiff’s
convenience, which may be shown to be slight or
nonexistent. Forum non conveniens is an exceptional
tool to be employed sparingly, not a doctrine that
compels plaintiffs to choose the optimal forum for
their claim.
Dole Food Co. v. Watts, 303 F.3d 1104, 1118 (9th Cir. 2002)
(internal quotation marks, citations and alterations omitted).
[2] A party seeking dismissal of an action on forum non
conveniens grounds “must show two things: (1) the existence
of an adequate alternative forum, and (2) that the balance of
private and public interest factors favors dismissal.” Loya v.
Starwood Hotels & Resorts Worldwide, Inc., 583 F.3d 656,
BOSTON TELECOMMUNICATIONS v. WOOD 16027
664 (9th Cir. 2009) (internal quotation marks and citation
omitted). Here, Marshall does not question the district court’s
determination that Slovakia provides “an adequate alternative
forum” for the case, and thus we will not address that portion
of the district court’s ruling.
[3] Marshall urges, instead, that the district court incor-
rectly concluded that the balance of relevant private and pub-
lic interest factors favored dismissal. In weighing the relevant
private and public interest factors, “[o]rdinarily, a plaintiff’s
choice of forum will not be disturbed unless the ‘private inter-
est’ and the ‘public interest’ factors strongly favor trial in a
foreign country.” Lueck v. Sundstrand Corp., 236 F.3d 1137,
1145 (9th Cir. 2001).
We review the district court’s dismissal in this action with
the understanding that a determination of forum non conve-
niens “is committed to the sound discretion of the trial court”
and “may be reversed only when there has been a clear abuse
of discretion; where the court has considered all relevant pub-
lic and private interest factors, and where its balancing of
these factors is reasonable, its decision deserves substantial
deference.” Creative Tech., Ltd. v. Aztech Sys. Pte., Ltd., 61
F.3d 696, 699 (9th Cir. 1995) (internal quotation marks and
citation omitted); see also Piper Aircraft Co. v. Reyno, 454
U.S. 235, 257 (1981).
IV.
[4] We turn first to the private interest factors at issue in
this case. The private interest factors to be weighed in a forum
non conveniens inquiry are:
(1) the residence of the parties and the 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)
16028 BOSTON TELECOMMUNICATIONS v. WOOD
the enforceability of the judgment; and (7) all other
practical problems that make trial of a case easy,
expeditious and inexpensive.
Lueck, 236 F.3d at 1145 (internal quotation marks and cita-
tions omitted).
With regard to the residence of the parties, BTG is a Dela-
ware corporation with its principal place of business in Mas-
sachusetts; Marshall is a United States citizen who resides in
New Hampshire; and Wood is a United States citizen. In
2003, in support of his initial motion to dismiss on forum non
conveniens grounds, Wood averred that he had been working
in Eastern Europe, particularly in Bratislava, since 1992. In
February 2008, in support of his renewed motion to dismiss
on forum non conveniens grounds, Wood stated that he was
living in Albania and that his wife and children, although liv-
ing in North Carolina, intended to move to Slovakia later that
year. Wood averred he would divide his time between Slova-
kia and Albania after his family’s relocation.
The district court held that the private interest factor of the
parties’ residences was neutral because the parties resided in
neither of the potential forums (California or Slovakia). Mar-
shall argues that the district court failed to give proper defer-
ence to his choice of forum. Although California is not
Marshall’s “home” forum, as he is a New Hampshire resident,
Marshall is a United States citizen and resident suing in a
United States forum. In that sense, Marshall asserts, he is
suing in his “home” forum.
We have held that the mere “presence of American plain-
tiffs . . . is not in and of itself sufficient to bar a district court
from dismissing a case on the ground of forum non conve-
niens.” Cheng v. Boeing Co., 708 F.2d 1406, 1411 (9th Cir.
1983). Moreover, in Gemini Capital Group, Inc. v. Yap Fish-
ing Corp., 150 F.3d 1088 (9th Cir. 1998) (Gemini Capital),
we held that a United States citizen’s decision to sue in
BOSTON TELECOMMUNICATIONS v. WOOD 16029
Hawaii, even though he was not a Hawaii resident, was prop-
erly accorded less deference than if Hawaii had been his true
“home” forum. Id. at 1090-91; see also Contact Lumber Co.
v. P.T. Moges Shipping Co., 918 F.2d 1446, 1449 (9th Cir.
1990). Even if Marshall’s choice of forum was due “less” def-
erence than if he had been a California resident, Gemini Capi-
tal did not disturb our earlier admonitions that, “where the
plaintiff is a United States citizen, the defendant must satisfy
a heavy burden of proof,” Lueck, 236 F.3d at 1143, and that
“ ‘unless the balance is strongly in favor of the defendant, the
plaintiff’s choice of forum should rarely be disturbed.’ ”
Gates Learjet Corp. v. Jensen, 743 F.2d 1325, 1334-35 (9th
Cir. 1984), quoting Manu Int’l, S.A. v. Avon Prods., Inc., 641
F.2d 62, 65 (2d Cir. 1981). Gemini Capital did not hold that
an American citizen suing in a state other than his state of res-
idence deserves no more deference than a truly “foreign”
plaintiff (i.e., someone who is not a United States citizen or
resident). Indeed, even as to such quintessentially foreign
plaintiffs, it is clear that “less deference is not the same thing
as no deference.” Ravelo Monegro v. Rosa, 211 F.3d 509, 514
(9th Cir. 2000).
[5] Here, the district court acknowledged that it had an
obligation to afford Marshall’s choice of forum “the deference
it is due,” but proceeded to hold that the private interest factor
of the parties’ residences was neutral. Although Marshall
would stand in a stronger position were he a California resi-
dent, Marshall is a citizen and resident of the United States
and his choice of forum is therefore entitled to more deference
than that shown by the district court.
[6] Turning to the next private interest factor, the forum’s
convenience to the litigants, Wood argued that defending an
action in California would be “extraordinarily burdensome
and expensive” for him given the difficulty communicating or
meeting with his legal counsel, the expense and time required
to travel between Europe and California, and the possibility
that he may have to retain two sets of counsel. These same
16030 BOSTON TELECOMMUNICATIONS v. WOOD
considerations would apply, however, if Marshall were to
bring his case in Slovakia. The district court properly con-
cluded that this factor was neutral.
We next compare the ease of access to physical evidence
and other sources of proof if this case is litigated in California
versus Slovakia. Wood argues that he has no control over the
documents that he intends to use in his defense, because those
documents are in the custody of Deloitte Slovakia, which no
longer employs him. Wood also asserts that his defense
requires access to documents located in Slovakia or nearby
European countries, such as documents allegedly held by
other Deloitte entities and by the Slovakian bank that pro-
vided financing to Marshall.
[7] But if this case proceeds in California, Wood may seek
these documents through procedures for international third-
party discovery, such as those under the Hague Convention on
Taking of Evidence Abroad in Civil or Commercial Matters,
23 U.S.T. 2555 (1968). “Any court . . . will necessarily face
some difficulty in securing evidence from abroad,” but these
complications do not necessarily justify dismissal. Tuazon v.
R.J. Reynolds Tobacco Co., 433 F.3d 1163, 1181 (9th Cir.
2006). Moreover, Marshall points out that many of the docu-
ments to which Wood refers were prepared by Deloitte Slova-
kia on behalf of its client, GCS. It is reasonable to assume that
many of such documents exist in the files of GCS or its CEO,
Mainas, who is a California resident. Although GCS was
incorporated in Canada, Marshall alleges that GCS’s business
was effectively operated from Mainas’s California offices.
Other key documents are in Marshall’s custody, including the
documents given to Marshall containing representations about
the transaction; these documents may be obtained wherever
Marshall’s action proceeds. Other documents pertaining to the
Joint Venture — relevant to Marshall’s claims that Wood
misrepresented the status of the Joint Venture — are likely in
the custody of the other purported parties to the Joint Venture.
Those companies, according to Marshall, were based in Colo-
BOSTON TELECOMMUNICATIONS v. WOOD 16031
rado, the Netherlands and Israel. The difficulty of obtaining
those documents for a lawsuit in Slovakia is likely to be equal
to, or perhaps even greater than, the difficulty of obtaining
them for purposes of an action in California. Overall, Wood
has not made a strong showing that this private interest factor
favors dismissal. The comparative difficulties presented by
litigation in either of the two potential jurisdictions are, at
best, in equipoise.
The next private interest factor to be weighed deals with the
potential witnesses in the case. Here, we look to where wit-
nesses reside, whether unwilling witnesses can be compelled
to testify, and the cost of bringing witnesses to trial. For effi-
ciency, we will consolidate our discussion of all of the private
interest factors related to witnesses — the first, fourth and
fifth factors outlined in Lueck.
Marshall argues that “the two most important non-party
witnesses” are George Mainas and Avraham Zimmerman,
who attended the California meetings at which Wood alleg-
edly made the fraudulent representations to Marshall. Mainas
is a California resident and could be compelled to testify in
a California court. Zimmerman is a resident of Israel. Zim-
merman submitted a declaration to the district court stating
that he would not testify in Slovakia, out of fear for his physi-
cal safety, but that he would travel to California to testify vol-
untarily in this case.
Marshall also lists other key witnesses: (1) representatives
of the United States and Israeli corporations involved in the
Joint Venture, who are believed to be located in Colorado or
Israel; (2) Stuart Rogers, a board member of GCS, who Mar-
shall believes has knowledge of the misrepresentations made
by Wood, has knowledge of the “true nature” of the Bulgarian
Venture, and who “lives somewhere in Western Canada or the
Western United States”; (3) Christopher Ashby, a Deloitte
employee who is alleged to have witnessed discussions
regarding the Bulgarian cable companies, to have assisted in
16032 BOSTON TELECOMMUNICATIONS v. WOOD
drafting the Deloitte Valuation, to have knowledge of
Deloitte’s role in the contemplated transactions and Wood’s
representations regarding the same, and who is believed to
reside in California; and (4) George Miklas, a California resi-
dent whom Marshall says has knowledge of actions taken by
GCS and Wood during the parties’ course of dealing with
Marshall.
For his part, Wood argues that at least fifteen witnesses
who had either knowledge of the Bulgarian Venture or knowl-
edge of Wood’s character are located in Slovakia or “other
nearby Central European countries.”
The district court held that, because both sides “would be
required to rely on procedures under the Hague Convention to
obtain evidence” from at least some witnesses, and because
“both sides would benefit from live testimony that would
enable a factfinder to evaluate [witnesses’] demeanor,” this
private interest factor did not favor either party. The court
also concluded that, because there was insufficient evidence
regarding lodging and travel costs related to the two forums
and because some witnesses would need to travel to court in
either forum, the factor of the cost of bringing witnesses to
trial was also neutral. The district court acknowledged that it
had difficulty with this analysis, however, given that the par-
ties provided much information that was either hearsay or
insufficient to allow the court to understand fully why the var-
ious witnesses were important to the case.
The district court properly considered both the sources of
proof that the plaintiff intended to use to present his case, and
the proof that the defendant intended to use to defend himself.
See Lockman Found. v. Evangelical Alliance Mission, 930
F.2d 764, 769-70 (9th Cir. 1991). The district court also
appropriately pointed out that, in the context of allegations of
fraud, it is particularly “desirable that the factfinder have the
benefit of demeanor testimony of witnesses.” Id. at 770, quot-
ing Fustok v. Banque Populaire Suisse, 546 F. Supp. 506, 511
BOSTON TELECOMMUNICATIONS v. WOOD 16033
(S.D.N.Y. 1982). Nevertheless, we have cautioned that the
focus for this private interest analysis “should not rest on the
number of witnesses . . . in each locale” but rather the court
“should evaluate the materiality and importance of the antici-
pated . . . witnesses’ testimony and then determine their
accessibility and convenience to the forum.” Lueck, 236 F.3d
at 1146 (internal quotation marks, citations and alteration
omitted).
The record reflects that Marshall explained with specificity
how several of the witnesses who could testify in California
were important to his claims against Wood, and which wit-
nesses were most vital to his case. In contrast, Wood argued,
in conclusory fashion, that the various Slovakia- or Europe-
based witnesses “worked with and under him . . . on the pro-
fessional engagements for [GCS],” “understood the relation-
ship between him and Marshall,” and “could help defend his
professional, reputation for honesty, and character,” without
explaining who these witnesses were or what information
each would have. Wood’s declaration in support of the 2003
motion to dismiss on forum non conveniens grounds speaks
to the witnesses “identified by plaintiffs in their Initial Disclo-
sures . . . and information that plaintiffs allege the witnesses
possess” (emphasis added), but sheds no further light on the
relative importance of various witnesses to his defense. Simi-
larly, Wood’s supplemental disclosures, filed in April 2008,
listed witnesses with a general statement that they were “ex-
pected to have relevant knowledge and information” regard-
ing a long list of topics, but these disclosures failed to specify
which witnesses would testify as to each topic.
[8] This is a case in which witnesses are scattered around
the globe. Whether the case is tried in Slovakia or California,
both parties will likely be forced to depend on deposition tes-
timony in lieu of live testimony for at least some witnesses.
Wood, in asking for the extraordinary measure of dismissal on
forum non conveniens grounds, needed to provide not simply
the numbers of witnesses in each locale, but information suffi-
16034 BOSTON TELECOMMUNICATIONS v. WOOD
cient to assist the court in assessing the “materiality and
importance” of each witness. Lueck, 236 F.3d at 1146; see
also Gates Learjet Corp., 743 F.2d at 1335. A defendant need
not specify in great detail the contents of each witness’s testi-
mony, but “must provide enough information to enable the
District Court to balance the parties’ interests.” Piper Aircraft,
454 U.S. at 258. Here, the district court abused its discretion
in holding that this private interest factor was neutral when
Wood provided very little information that would have
enabled the district court to understand why various witnesses
were material to his defense. Moreover, although Wood
stressed the need to present witnesses who worked on the
Deloitte Valuation, his counsel acknowledged at oral argu-
ment that Marshall’s fraud claims relating to the Deloitte Val-
uation are only one theory of fraud in this case. Marshall
alleges fraud based not only on documents allegedly prepared
by Deloitte, but also on Wood’s alleged oral representations
to Marshall on a wide variety of topics. On balance, the pri-
vate interest factors relating to witnesses weigh against dis-
missal.
[9] Neither party has argued that there would be any prob-
lem enforcing a judgment in either forum, and thus the district
court properly concluded that the sixth public interest factor
was neutral.
[10] Finally, we consider any other “practical problems that
make trial of a case easy, expeditious and inexpensive.”
Wood asserts that “[m]any, but by no means all, of the docu-
ments regarding the [GCS] venture into Bulgarian cable sys-
tems . . . were written in English.” He stated in a declaration
that “many other” relevant documents were not in English,
including “[m]any records issued or maintained by the
Deloitte Slovakia office,” “[d]ocuments regarding the cable
licenses,” and “correspondence with potential lenders,” which
were in Slovak, Bulgarian, or Dutch and would therefore need
to be translated if the case were to proceed in an American
court. However, it is equally true that the numerous docu-
BOSTON TELECOMMUNICATIONS v. WOOD 16035
ments in languages other than Slovak would need to be trans-
lated for a Slovakian court. Similarly, evidence was before the
district court that many potential witnesses were fluent in
English, but some were fluent in Slovak. Thus, the district
court properly concluded that the inconvenience and costs of
translation for live witness testimony would likely affect both
parties in either forum.
The district court ultimately held, however, that this final
private interest factor favored dismissal because Marshall ini-
tially sought “to hold the Deloitte Defendants’ [sic] liable for
fraud on the theory that Wood was acting as their agent” and
Marshall “did not back off this theory at the hearing on this
matter,” even though the Deloitte entities had been dismissed
for lack of personal jurisdiction. The district court accepted
Wood’s argument that this meant it would be “impossible to
resolve all of the issues in this case unless the case were tried
in the Slovak Republic, where those defendants are subject to
jurisdiction.”
[11] It is true that “the inability to implead potential third-
party defendants” can be a factor weighing in favor of dis-
missal in a forum non conveniens analysis. Piper Aircraft,
454 U.S. at 259. As the Supreme Court observed there, if the
defendants
can show that the accident [giving rise to the plain-
tiffs’ claims] was caused not by a design defect, but
rather by the negligence of the pilot, the plane’s
owners, or the charter company, they will be relieved
of all liability. It is true, of course, that if [the defen-
dants] were found liable after a trial in the United
States, they could institute an action for indemnity or
contribution against these parties in Scotland. It
would be far more convenient, however, to resolve
all claims in one trial.
Id.; see also Contact Lumber, 918 F.2d at 1452 (holding that
“the inability to implead other parties directly involved in the
16036 BOSTON TELECOMMUNICATIONS v. WOOD
controversy is a factor which weighs against the retention of
jurisdiction”) (internal quotation marks, citations and alter-
ation omitted). Nevertheless, the fact that Wood may be
unable to implead alleged joint tortfeasors in California is by
no means determinative of the forum non conveniens inquiry;
it is only one consideration weighing in favor of dismissal,
but all of the other private interest factors are either neutral or
weigh against dismissal.
V.
[12] We turn now to the five public interest factors: “(1) the
local interest in the lawsuit, (2) the court’s familiarity with the
governing law, (3) the burden on local courts and juries, (4)
congestion in the court, and (5) the costs of resolving a dis-
pute unrelated to a particular forum.” Tuazon, 433 F.3d at
1181, citing Lueck, 236 F.3d at 1147.
In this case, the district court held that the second, third and
fourth factors were neutral, and Marshall expressly conceded
that the district court did not abuse its discretion in so con-
cluding. Thus, we examine only the remaining two factors,
which the district court held favored dismissal.
The district court held that the connection between the par-
ties’ dispute and California was “attenuated.” Although Mar-
shall alleges that two meetings regarding his investment were
held in California, the court concluded that neither meeting
added any “unique statement or contribution to the overall
scheme” alleged to have caused Marshall’s injuries, because
the representations made at those meetings had already been
made to Marshall in other locations. Moreover, the district
court emphasized that this case “concerns a venture to be car-
ried out entirely in Europe, concerning the acquisition of Bul-
garian cable television licenses, with financing by a Slovakian
bank for a joint venture consisting of Canadian, Israeli and
non-California-based United States companies.” Thus, the
district court held that the first public interest factor, local
BOSTON TELECOMMUNICATIONS v. WOOD 16037
interest in the suit, weighed in favor of dismissal. The district
court also held that, given that the case promised to be expen-
sive to litigate, the final public interest factor, the costs of
resolving a dispute unrelated to a particular forum, also
weighed in favor of dismissal.
[13] We need not hold, as Marshall urges, that “California
is the principal locus” of the case or that California “has more
of an interest than any other jurisdiction” in order to conclude
that California has a meaningful interest in this litigation.
“[W]ith this [public] interest factor, we ask only if there is an
identifiable local interest in the controversy, not whether
another forum also has an interest.” Tuazon, 433 F.3d at 1182.
Although Wood allegedly made misrepresentations both
before and after the two meetings in San Francisco, he also
allegedly made these representations at the San Francisco
meetings. Further, Marshall alleges that it was in San Fran-
cisco that he finally agreed to invest in the ill-fated Bulgarian
Venture. We do not suggest that California’s interest in this
controversy must somehow be unique or not shared with any
other forum. Marshall’s claims are rooted in a course of con-
duct that took place over several years and in multiple loca-
tions around the globe, including California. California has an
“interest in preventing fraud from taking place within its bor-
ders” that is at least as strong as Slovakia’s interest in this
case. The district court abused its discretion in holding that no
“identifiable local interest [exists] in this lawsuit.” Compare
Vivendi SA v. T-Mobile USA Inc., ___ F.3d ___, 2009 WL
3525855 at *4 (9th Cir. Nov. 2, 2009) (holding that the local
interest in the case was “tenuous” where the only asserted
connection to the United States was the use of “U.S. wires”
in various communications between the parties).
VI.
[14] In sum, the district court did not hold Wood to his bur-
den of making “a clear showing of facts which establish such
oppression and vexation of a defendant as to be out of propor-
16038 BOSTON TELECOMMUNICATIONS v. WOOD
tion to plaintiff’s convenience.” Ravelo Monegro, 211 F.3d at
514 (internal quotation marks, citations and alterations omit-
ted). All but one of the private and public interest factors were
either neutral or weighed against dismissal. The doctrine of
forum non conveniens is “an exceptional tool to be employed
sparingly,” id., and the district court abused its discretion in
concluding that this was a proper case for application of that
doctrine.
REVERSED AND REMANDED.