Robert Shi v. New Mighty U.S. Trust , 918 F.3d 944 ( 2019 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 11, 2018 Decided March 15, 2019
No. 18-7066
ROBERT SHI, AS EXECUTORS OF THE WILL OF YUEH-LAN
WANG, ET AL.,
APPELLANTS
v.
NEW MIGHTY U.S. TRUST, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:10-cv-01743)
Daniel S. Weinberger argued the cause and filed the briefs
for appellants.
John L. Gardiner argued the cause for appellees. With
him on the brief were Andrew Muscato and David B. Leland.
Before: ROGERS, GRIFFITH and PILLARD, Circuit Judges.
Opinion for the court filed by Circuit Judge ROGERS.
ROGERS, Circuit Judge: This is the second time this case
has come before the court. The first time the court held that the
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district court had jurisdiction and reversed the dismissal of the
complaint for lack of diversity. Wang ex rel. Wong v. New
Mighty U.S. Trust, 843 F.3d 487 (D.C. Cir. 2016). The
underlying factual circumstances are summarized there. See
id. at 488–89. Suffice it to say, in 2010, Yueh-Lan Wang, the
widow of Taiwanese plastics magnate and billionaire Yung-
Ching (“Y.C.”) Wang, sued three D.C.-based entities
(hereinafter “the Trusts”) created before her husband’s death,
alleging that the transfer of a large portion of her husband’s
assets to the Trusts unlawfully denied her the full marital estate
to which she was entitled. Suing initially through Dr. Wong to
whom she had granted her power of attorney and upon her
death in 2012 through the executors of her estate, the widow
raised claims under District of Columbia and Taiwanese law.
After seven years of litigation on whether diversity jurisdiction
exists, as well as litigation in Taiwan to appoint executors for
her estate, the Trusts moved to dismiss the complaint on forum
non conveniens grounds. The district court granted the motion,
subject to conditions that the Trusts consent to process and
jurisdiction in Taiwan and also waive statute of limitations
defenses, their necessary or indispensable parties argument,
and challenges to the power of attorney used to file suit. Hsu
v. New Mighty U.S. Trust, 288 F. Supp. 3d 272 (D.D.C. 2018);
Hsu v. New Mighty U.S. Trust, 308 F. Supp. 3d 178 (D.D.C.
2018).
The Executors of the widow’s estate appeal. They do not
contest that Taiwan is an adequate alternative forum to the
extent its judicial system could, with the Trusts’ consent, assert
jurisdiction over them and afford some type of remedy for the
widow’s claims, see Hsu, 288 F. Supp. 3d at 282–86. Instead,
the Executors contend the district court’s balancing misapplied
the private and public factors and consequently failed to hold
the Trusts to their heavy burden when it dismissed the
3
complaint. For the following reasons, we conclude we must
reverse and remand the case to the district court.
I.
The Supreme Court has instructed both that a court may
decline to exercise jurisdiction pursuant to the doctrine of
forum non conveniens only “in exceptional circumstances,”
Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 504 (1947), and that
“[a] defendant invoking forum non conveniens ordinarily bears
a heavy burden in opposing the plaintiff’s chosen forum,”
Sinochem Int’l Co. v. Malay. Int’l Shipping Corp., 549 U.S.
422, 430 (2007). In determining whether to dismiss a case on
forum non conveniens grounds, the district court “must decide
(1) whether an adequate alternative forum for the dispute is
available and, if so, (2) whether a balancing of private and
public interest factors strongly favors dismissal.” Agudas
Chasidei Chabad of U.S. v. Russian Federation, 528 F.3d 934,
950 (D.C. Cir. 2008). The court must balance the relevant
private and public interest factors in light of the degree of
deference the plaintiff’s choice of forum deserves. El-Fadl v.
Cent. Bank of Jordan, 75 F.3d 668, 676–77 (D.C. Cir. 1996),
abrogated on other grounds by Samantar v. Yousuf, 560 U.S.
305 (2010). “[U]nless the balance is strongly in favor of the
defendant, the plaintiff’s choice of forum should rarely be
disturbed.” Gilbert, 330 U.S. at 508.
This court’s review of the dismissal of a complaint on
forum non conveniens grounds is for “clear abuse of discretion”
because that “determination is committed to the sound
discretion of the trial court.” Piper Aircraft Co. v. Reyno, 454
U.S. 235, 257 (1981). Such abuse occurs where the trial court
“fails to consider a material factor or clearly errs in evaluating
the factors before it, or does not hold the defendants to their
burden of persuasion.” Simon v. Republic of Hungary, 911
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F.3d 1172, 1182 (D.C. Cir. 2018) (quoting El-Fadl, 75 F.3d at
677). This court accepts as true all factual allegations in the
complaint and draws all reasonable inferences in favor of the
nonmoving party. Ctr. for Law & Educ. v. Dep’t of Educ., 396
F.3d 1152, 1156 (D.C. Cir. 2005).
A.
The Executors contend as a threshold matter that the
district court erred in granting the Trusts’ motion to dismiss on
forum non conveniens grounds because this ground was not
raised until seven years after the litigation began. The
Executors point to decisions in a number of circuits that have
concluded the defendant must file a motion to dismiss for
forum non conveniens “within a reasonable time after the facts
or circumstances which serve as the basis for the motion have
developed and become known or reasonably knowable to the
defendant.” In re Air Crash Disaster Near New Orleans, La.
on July 9, 1982, 821 F.2d 1147, 1165 (5th Cir. 1987), vacated
on other grounds sub nom. Pan Am. World Airways, Inc. v.
Lopez, 490 U.S. 1032 (1989); accord Rustal Trading US, Inc.
v. Makki, 17 F. App’x 331, 338 (6th Cir. 2001); see also
SerVaas Inc. v. Republic of Iraq, 540 F. App’x 38, 41–42 (2d
Cir. 2013); Zelinski v. Columbia 300, Inc., 335 F.3d 633, 643
(7th Cir. 2003); Lony v. E.I. Du Pont de Nemours & Co., 935
F.2d 604, 614 (3d Cir. 1991); Cable News Network L.P. v.
CNNews.com, 177 F. Supp. 2d 506, 528 (E.D. Va. 2001), aff’d
in part and vacated in part on other grounds, 56 F. App’x 599
(4th Cir. 2003). These courts have recognized that the longer
litigation continues in a U.S. court and the parties incur
expenses before the defendant moves to dismiss on forum non
conveniens grounds, the less the defendant can legitimately
claim that litigation in a U.S. forum is so inconvenient as to be
oppressive or harassing. See, e.g., Air Crash, 821 F.2d at 1165.
In other words, as regards the costs to the parties and the courts
that must be considered when balancing the private and public
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interests, “a defendant’s dilatoriness promotes and allows the
very incurrence of costs and inconvenience the doctrine is
meant to relieve,” id., which weighs against dismissal. See id.
at 1165 & n.30; Zelinski, 335 F.3d at 643.
Here, the facts and circumstances that underlie the forum
non conveniens ground remained virtually unchanged since the
complaint was filed in 2010, yet the Trusts did not move to
dismiss the complaint on this ground until 2017, after this court
reversed the dismissal for lack of diversity and remanded the
case. In a memorandum of law filed in 2012, the Trusts stated
in a footnote they “reserve[d] their right” to move to dismiss
the complaint on forum non conveniens grounds, indicating
they recognized certain facts and circumstances existed at the
time that could justify such a motion. Some of the delay is
attributable to litigation on the appointment of executors for the
widow’s estate in Taiwan, and some is attributable to this court
holding her appeal in abeyance pending the Supreme Court’s
decision in Americold Realty Trust v. ConAgra Foods, Inc.,
136 S. Ct. 1012 (2016). Still, the same law firm and lawyer
representing the Trusts in the D.C. litigation also represented
defendants (one of whom manages the Trusts based in D.C.) in
a similar suit filed by the widow on the same day in the federal
court in New Jersey, see Shu v. Wang, No. 10-5302, 2016 WL
6080199, at *4–5 (D.N.J. Oct. 17, 2016), and filed a forum non
conveniens motion in 2011, just 9 months after the complaint
was filed, id. at *5. Meanwhile, instead of moving to dismiss
for forum non conveniens, the D.C.-based Trusts incurred
substantial expenses pursuing other litigation strategies,
including a motion to dismiss for lack of diversity jurisdiction,
a petition for a writ of certiorari to the Supreme Court, and
oppositions to the Executors’ motions to substitute for the
widow in this court and the district court. All the while, the
Trusts also challenged the validity of the widow’s power of
attorney under Taiwan law and sought dismissal for failure to
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state a claim on the same Taiwanese law issues that they now
claim are too foreign and difficult for a U.S. court to handle.
The Trusts proceeded, moreover, to obtain declarations from
Taiwanese law professors interpreting Taiwanese law issues.
Although this litigation is still in its early stages despite its
advanced age, it is not at the beginning of litigation efforts by
any standard, and the parties and the judiciary have incurred
substantial costs. Even if the Trusts did not waive their forum
non conveniens argument by not raising it earlier, an issue we
need not decide for the reasons we explain, their willingness to
undergo litigation for seven years in the U.S. federal courts
before raising it weighs against dismissal of the widow’s
complaint.
B.
The Executors are on firm ground in contending that the
district court erred by failing to give appropriate weight to the
widow’s choice to sue in the District of Columbia rather than
in Taiwan. Although a U.S. plaintiff’s choice of forum is
ordinarily entitled to significant deference because the court
may “assume that this choice is convenient,” that assumption
“applies with less force” to foreign plaintiffs. Piper, 454 U.S.
at 255–56; see also Sinochem, 549 U.S. at 430. But the
conclusion that “a foreign plaintiff’s choice deserves less
deference,” Piper, 454 U.S. at 256, is a matter of degree.
Deference may be appropriate, see, e.g., Lony, 935 F.2d at 609;
Carijano v. Occidental Petroleum Corp., 643 F.3d 1216, 1227
(9th Cir. 2011), and certain considerations may make litigation
in a U.S. court the most convenient choice even for foreign
plaintiffs, Hefferan v. Ethicon Endo-Surgery Inc., 828 F.3d
488, 494 (6th Cir. 2016); Norex Petroleum Ltd. v. Access
Indus., Inc., 416 F.3d 146, 154–55 (2d Cir. 2005); Lony v. E.I.
Du Pont de Nemours & Co., 886 F.2d 628, 634 (3d Cir. 1989);
cf. Iragorri v. United Techs. Corp., 274 F.3d 65, 72 (2d Cir.
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2001). Even if the plaintiff resides outside of the forum, these
courts have understood the Supreme Court’s reasoning to
“instruct[] that [they] give greater deference to a plaintiff’s
forum choice to the extent that it was motivated by legitimate
reasons, including the plaintiff’s convenience and the
ability . . . to obtain jurisdiction over the defendant, and
diminishing deference to a plaintiff’s forum choice to the
extent that it was motivated by tactical advantage.” Iragorri,
274 F.3d at 73; see also Pollux Holding Ltd. v. Chase
Manhattan Bank, 329 F.3d 64, 71 (2d Cir. 2003). To the extent
the Executors contend for the first time, however, that they
were entitled the same deference due U.S. plaintiffs under the
Treaty of Friendship, Commerce and Navigation between the
United States and Taiwan, this argument is forfeited. United
States v. Layeni, 90 F.3d 514, 522 (D.C. Cir. 1996).
The widow had no choice but to sue the D.C.-based
entities here because they did not appear to be subject to
jurisdiction anywhere other than in the United States. See
Associação Brasileira de Medicina de Grupo v. Stryker Corp.,
891 F.3d 615, 619 (6th Cir. 2018); Tech. Dev. Co. v.
Onischenko, 174 F. App’x 117, 122 (3d Cir. 2006); Norex, 416
F.3d at 155–56. The doctrine of forum non conveniens is
premised on the assumption that there are “at least two forums
in which the defendant is amenable to process,” and “furnishes
criteria for choice between them.” Gilbert, 330 U.S. at 506–
07. The district court recognized that the Trusts “effectively
concede that they are not amenable to process in Taiwan,”
Wang ex rel. Wong v. New Mighty U.S. Trust, 322 F.R.D. 11,
25 (D.D.C. 2017), and a Taiwanese forum became available
only when the Trusts acceded to it as a condition of dismissal
here. Although a district court may dismiss a complaint on
forum non conveniens grounds even where the plaintiff had no
alternative forum available until the defendants later consented
to appear in their preferred forum, Schertenleib v. Traum, 589
8
F.2d 1156, 1164 (2d Cir. 1978), the lack of an original
alternative forum constitutes a “legitimate reason” for a foreign
plaintiff’s choice of a U.S. forum. Stryker, 891 F.3d at 619;
Norex, 416 F.3d at 155–56. Furthermore, the Trusts were sued
in their home jurisdiction, which weighs heavily against
dismissal. Schertenleib, 589 F.2d at 1164; see also Galustian
v. Peter, 591 F.3d 724, 732 (4th Cir. 2010); Reid-Walen v.
Hansen, 933 F.2d 1390, 1395 (8th Cir. 1991). The district
court clearly failed to adequately address these circumstances
in determining the amount of deference to accord the widow’s
choice of forum.
C.
The Executors further persuasively contend the district
court clearly erred in finding that the private interest factors
even “slightly” favor dismissal. The considerations governing
the private interest analysis include “the relative ease of access
to sources of proof; availability of compulsory process for
attendance of unwilling, and the cost of obtaining attendance
of willing, witnesses; possibility of view of premises, if view
would be appropriate to the action; and all other practical
problems that make trial of a case easy, expeditious and
inexpensive[, such as] enforc[ea]bility of a judgment if one is
obtained [and] relative advantages and obstacles to fair trial.”
Gilbert, 330 U.S. at 508. A plaintiff “may not, by choice of an
inconvenient forum, ‘vex,’ ‘harass,’ or ‘oppress’ the defendant
by inflicting upon him expense or trouble not necessary to his
own right to pursue his remedy.” Id. Dismissal in favor of suit
elsewhere “will ordinarily be appropriate where trial in the
plaintiff’s chosen forum imposes a heavy burden on the
defendant or the court, and where the plaintiff is unable to offer
any specific reasons of convenience supporting his choice,”
such as where a plaintiff chooses a particular forum “solely in
order to harass the defendant or take advantage of favorable
law.” Piper, 454 U.S. at 249 & n.15.
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The district court concluded that the language barrier was
a “substantial obstacle” to access to relevant evidence in the
District of Columbia. Hsu, 288 F. Supp. 3d at 288. To the
extent translation is considered a significant obstacle in this day
and age, that obstacle will exist regardless of where this case is
tried. See Simon, 911 F.3d at 1186; de Csepel v. Republic of
Hungary, 714 F.3d 591, 605 (D.C. Cir. 2013). The district
court focused on the need to interpret a Tax Settlement
Agreement cited in the Trusts’ motions to dismiss for failure to
state a claim, regarding whether the other two women who bore
Y.C. children were also his wives. See Hsu, 288 F. Supp. 3d at
288. But in evaluating the convenience to each party, “the
court should focus on the precise issues that are likely to be
actually tried, taking into consideration the convenience of the
parties and the availability of witnesses and the evidence
needed for the trial of these issues.” Iragorri, 274 F.3d at 74.
The widow’s claims focus on whether Y.C. owned the assets
that were transferred to the Trusts and whether Y.C. formed the
Trusts to reduce the widow’s share of the Marital Estate. The
documents related to these claims are likely to be in English
because the relevant transactions were between entities formed
in English-speaking countries, and the witnesses who could
provide information about these transactions, such as the
lawyers and tax advisors who created the Trusts and officers of
the U.S. subsidiaries whose stock holdings were transferred,
speak English. Whether another “wife” has claims to any
assets that may be added to the Marital Estate as a result of the
widow’s lawsuit may be an issue in this litigation down the
line, but the widow’s claims do not center chiefly on
Taiwanese-language documents. By placing “undue
emphasis” on an issue that is “of secondary importance,” the
district court distorted the forum non conveniens analysis. R.
Maganlal & Co. v. M.G. Chemical Co., 942 F.2d 164, 165, 168
(2d Cir. 1991).
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The district court also concluded that the issue of the
availability of witnesses and evidence “hangs in equipoise.”
Hsu, 288 F. Supp. 3d at 290. Logistical hurdles to obtaining
evidence and voluntary testimony in the United States present
less of a problem than they used to in light of technological
advances and the ease of international travel. See Simon, 911
F.3d at 1186; Maggie Gardner, Retiring Forum Non
Conveniens, 92 N.Y.U. L. Rev. 390, 409 (2017). The record
indicates the widow may face more difficulty compelling
witness testimony in Taiwan than the Trusts will in the United
States. The Trusts do not suggest they will be unlikely to
persuade their proposed witnesses located abroad — the “Trust
Managers” and other of Y.C.’s companies’ employees — to
appear voluntarily in a U.S. court, weighing against dismissal.
See Lehman v. Humphrey Cayman, Ltd., 713 F.2d 339, 342–43
(8th Cir. 1983). In contrast, some of the widow’s proposed
witnesses are less likely to testify voluntarily. U.S. witnesses
are subject to subpoena by U.S. courts, and those courts can
reach foreign non-party witnesses through the Hague Evidence
Convention 1 and letters rogatory. See Société Nationale
Industrielle Aérospatiale v. U.S. Dist. Ct. for S. Dist. of Iowa,
482 U.S. 522, 540–41 (1987); Fed. R. Civ. P. 28(b). Taiwanese
courts do not appear to have such reliable mechanisms of
compulsory process. See generally Manu Int’l, S.A. v. Avon
Prods., Inc., 641 F.2d 62, 67 (2d Cir. 1981); Expert Decl. of
Prof. Tsung-Fu Chen, ¶ 75 (Nov. 16, 2017); Reply Expert Decl.
of Prof. Tsung-Fu Chen, ¶¶ 150–52 (May 31, 2017).
1
See Convention of 18 March 1970 on the Taking of Evidence
Abroad in Civil or Commercial Matters, List of Contracting Parties,
https://www.hcch.net/en/instruments/conventions/status-table/
?cid=82 (last visited Feb. 19, 2019).
11
The district court failed to address the enforceability of
judgments in its private interest analysis at all, despite
acknowledging that it must balance this issue. Hsu, 288 F.
Supp. 3d at 285–86. The enforcement of judgments presents a
hurdle to trial in Taiwan given that the funds at issue are not
located in Taiwan. If the widow obtains a judgment against the
Trusts in Taiwan, then another lawsuit would have to be filed
in the United States to enforce the Taiwanese judgment. See
Nemariam v. Federal Democratic Republic of Ethiopia, 315
F.3d 390, 395 (D.C. Cir. 2003).
Despite the Supreme Court’s instruction that the defendant
must make a strong showing that a foreign forum is more
convenient, Piper, 454 U.S. at 249, the district court recognized
significant hurdles to access to evidence and availability of
witnesses in Taiwan but concluded that in the aggregate this
factor “weighs slightly in favor of dismissal.” Hsu, 288 F.
Supp. 3d at 289. This conclusion does not follow from the
district court’s analysis that the parties will confront serious
hurdles in either forum. The district court clearly failed to hold
the Trusts to their “heavy burden” to show that a foreign forum
is significantly more convenient than a U.S. forum, Sinochem,
549 U.S. at 430, that is their home jurisdiction.
D.
The Executors’ challenges to the district court’s weighing
of the public interest factors, see Hsu, 288 F. Supp. 3d at 293,
are also persuasive. The considerations governing the public
interest analysis include the “[a]dministrative difficulties”
when “litigation is piled up in congested centers,” the “burden”
of jury duty on “a community which has no relation to the
litigation,” the “local interest in having localized controversies
decided at home,” and the “appropriateness” of trying a
diversity case “in a forum that is at home with the state law that
must govern the case, rather than having a court in some other
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forum untangle problems in conflict of laws, and in law foreign
to itself.” Gilbert, 330 U.S. at 508–09.
The district court viewed the District of Columbia’s
interest in the widow’s claims as “weak,” concluding the
“strong Taiwanese interests” “tip[] sharply in favor of
dismissal.” Hsu, 288 F. Supp. 3d at 291. The District of
Columbia’s interest in this litigation is not weak, though. Y.C.
Wang and his associates are alleged to have reached into the
District of Columbia to establish the Trusts, transferring assets
to the Trusts and thereby availing themselves of the benefits of
District of Columbia law on trusts. As in DiRienzo v. Philip
Services Corp., 294 F.3d 21, 32 (2d Cir. 2002), the widow’s
lawsuit exists only because Y.C. Wang and his associates
utilized U.S. legal structures to devise their alleged tax and
estate avoidance scheme, Second Am. Compl. ¶¶ 46–58. See
Expert Decl. of Prof. Tsung-Fu Chen, ¶ 76 (Nov. 16, 2017).
The Trusts can hardly complain now that they are burdened by
being sued in their home jurisdiction when Y.C. Wang
specifically bestowed upon the District of Columbia an interest
in this case by establishing the Trusts here. A “defendant’s
home forum always has a strong interest in providing a forum
for redress of injuries caused by its citizens.” Reid-Walen, 933
F.2d at 1400. Although Taiwan and its citizens may have an
interest in the division of the estate of one of their wealthiest
citizens, Y.C. allegedly transferred significant assets into the
United States in order to hide them and avoid legal
responsibilities, Second Am. Compl. ¶¶ 37–45. In this
circumstance, Taiwan’s interest does not clearly outweigh the
District of Columbia’s interest in this dispute. See DiRienzo,
294 F.3d at 31–32.
The district court concluded that a jury composed of
residents of the District of Columbia should not be burdened
with this case. Hsu, 288 F. Supp. 3d at 293. There are
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obviously significant contacts with the District of Columbia
given the Trusts’ operations here. “Any economic burden to
the forum is justified because the defendant has undertaken
both the benefits and burdens of citizenship and of the forum’s
laws.” Reid-Walen, 933 F.2d at 1400. This impact on a jury
of D.C. residents would not justify dismissing a case against
D.C.-based entities on forum non conveniens grounds. See id.
The district court further concluded this litigation would
require it to apply Taiwanese family and inheritance law, which
“weighs strongly in favor of dismissal.” Hsu, 288 F. Supp. 3d
at 292. But the need to apply foreign law alone is “not
sufficient to warrant dismissal when a balancing of all relevant
factors shows that the plaintiff’s chosen forum is appropriate.”
Piper, 454 U.S. at 260 n.29. The widow alleges claims under
District of Columbia and Taiwanese law, and U.S. courts
regularly apply foreign law when conflict of laws principles
demand it. See Manu Int’l, 641 F.2d at 67–68; Mobil Tankers
Co. v. Mene Grande Oil Co., 363 F.2d 611, 615 (3d Cir. 1966).
The ultimate importance of interpreting Taiwanese law
regarding division of the Marital Estate among multiple
putative “wives” is unclear because the widow’s lawsuit
centers on the size of the estate to be divided, not how it is to
be divided. As discussed, the district court therefore placed
undue emphasis on whether Pao Chu Lee was legally a wife of
Y.C. Wang, a question that is at most only of secondary
importance to the widow’s case.
The district court clearly erred in overemphasizing the
public interest factors, particularly the need to answer difficult
questions of Taiwanese law that may have no or minimal
bearing on the widow’s suit. And in view of Y.C. Wang’s
decision to establish the Trusts in the District of Columbia and
take advantage of both the benefits and burdens under District
of Columbia law, even a complex trial in the widow’s chosen
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forum and the Trusts’ home jurisdiction does not impose
unjustified burdens or administrative difficulties on the district
court.
Accordingly, we must reverse and remand the case to the
district court for further proceedings. The district court’s
errors, considered together, constitute a clear abuse of
discretion. The district court failed to give appropriate weight
to the widow’s legitimate choice of forum and erred in
concluding that the private interest factors weighed slightly in
favor of dismissal and in overemphasizing the public interest
factors in deciding to dismiss this case on forum non
conveniens grounds. The doctrine of forum non conveniens is
to be applied only in rare cases, and only where the defendant
meets a heavy burden of showing that suit in the United States
is so inconvenient as to be harassing, vexing, or oppressive. No
such showing has been made here.