Farhad Azima v. Rak Investment Authority , 926 F.3d 870 ( 2019 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 22, 2019 Decided June 18, 2019
No. 18-7055
FARHAD AZIMA,
APPELLEE
v.
RAK INVESTMENT AUTHORITY,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:16-cv-01948)
Linda C. Goldstein argued the cause for appellant. With
her on the briefs were Michael H. McGinley and D. Brett
Kohlhofer.
Laura G. Ferguson argued the cause for appellee. With her
on the brief were Kirby D. Behre, Charles F.B. McAleer, Jr.,
and Ian A. Herbert.
Before: GRIFFITH and MILLETT, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge GRIFFITH.
2
GRIFFITH, Circuit Judge: Farhad Azima and the Ras Al
Khaimah Investment Authority (RAKIA) were once business
partners. But disagreements arose. As part of a broad
settlement of their grievances with one another, they agreed to
litigate all future, related claims in England. RAKIA argues
that this litigation is covered by that agreement and should be
dismissed so that it can instead proceed in England. We agree
and reverse the district court’s decision to the contrary.
I
Farhad Azima is an international businessman who resides
in Missouri. 1 RAKIA is the investment and wealth fund of one
of the United Arab Emirates, Ras Al Khaimah (RAK). RAK
“is the sole owner of [RAKIA],” J.A. 528, and Sheikh Saud bin
Saqr al Qasimi is the current ruler of RAK. Over the years,
Azima and RAKIA have entered into various business deals,
three of which are relevant here. In 2007, RAKIA and
HeavyLift International Airlines, one of Azima’s companies,
created a joint venture to build and operate a flight training
academy. In 2011, RAKIA paid another of Azima’s companies
to identify a prospective buyer for a hotel that RAKIA owned.
And from mid-2015 to July 2016, Azima helped negotiate the
resolution of a dispute between RAKIA and its former Chief
Executive Officer, Khater Massaad.
With regard to the Massaad negotiation, by the fall of
2015, Azima had met several times with representatives of
RAKIA and RAK to discuss a settlement. Negotiations
appeared to be progressing, but on October 14, 2015, Sheikh
1
Because we resolve this case on forum non conveniens grounds
at the motion to dismiss stage, we accept as true the allegations in the
complaint and draw all reasonable inferences in Azima’s favor. See
Shi v. New Mighty U.S. Tr., 918 F.3d 944, 948 (D.C. Cir. 2019).
3
Saud emailed Massaad to express his “disappointment” over
information his law firm had uncovered about Massaad’s
actions. J.A. 419 ¶ 25. Despite this, the parties continued to
work towards a settlement for several more months.
The Massaad negotiation was still underway in March
2016 when RAKIA agreed to settle Azima’s claim that RAKIA
owed HeavyLift money for investments the company had made
pursuant to their joint venture (the “Settlement Agreement”).
The Agreement is brief. It lists the parties, provides that
RAKIA will pay HeavyLift to resolve all claims it or Azima
has against RAKIA or any other entity owned by RAK, states
that the parties agree to act in good faith towards one another,
and imposes conditions of confidentiality and non-
disparagement. Most important for present purposes are the six
“Whereas” (preamble) clauses, J.A. 603, and the final section,
titled “Governing law and jurisdiction,” J.A. 605. The whereas
clauses summarize the respective roles of RAKIA and
HeavyLift in the joint venture, the basis of HeavyLift’s claim
against RAKIA, and other relevant background considerations.
The section of the Agreement titled “Governing law and
jurisdiction” provides:
This Settlement Agreement and any dispute or claim
arising out of, or in connection with, it or its subject matter
or formation (including, without limitation, any
contractual or non-contractual disputes, claims or
obligations) is governed by and shall be construed in
accordance with English law and the Parties submit to the
exclusive jurisdiction of the courts of England and Wales.
J.A. 605-06. We refer to this provision as the “forum-selection
clause.”
4
Four months after executing the Settlement Agreement,
the parties reached a tentative resolution in the Massaad
negotiation. But when that deal later fell apart, RAKIA and its
attorneys blamed Azima and threatened that he would become
“‘collateral damage’ in the war RAKIA intended to wage
against” Massaad. J.A. 421-22 ¶ 35.
Shortly after RAKIA’s threat, files from Azima’s
computers began to appear online, including documents,
messages, contacts, and photos. Unbeknownst to Azima, on
October 14, 2015—the same day Sheikh Saud expressed
disappointment over Massaad’s actions—Azima’s U.S.-based
business and personal computers were hacked and infected
with software that monitored their use. When Azima realized
that his computers had been compromised, he changed his
passwords, increased his security protocols, and hired experts
to assess the damage. Eventually, he replaced the infected
computers.
The hack triggered two lawsuits. First, RAKIA sued
Azima in England, claiming that some of the documents made
public after the hack show that Azima committed fraud against
RAKIA during the hotel deal and breached the Settlement
Agreement’s warranty of good faith (the “English Action”).
That Action is still ongoing. As part of his defense, Azima has
argued that RAKIA should not be allowed to rely on stolen
documents to support its claims. Separately, Azima filed this
suit alleging that, by hacking his computers, RAKIA violated
the Computer Fraud and Abuse Act, 18 U.S.C. § 1030, and
committed the common-law torts of conversion and unfair
competition.
RAKIA moved to dismiss this suit on two grounds. First,
as an entity of a foreign government, it claimed immunity
under the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C.
5
§§ 1602-11. Next, RAKIA asserted that because the forum-
selection clause in the Settlement Agreement requires Azima
to litigate his claims in England, the court must dismiss the case
for forum non conveniens, a common-law doctrine that requires
dismissal if the plaintiff files suit in “an unsuitable court.”
Forum non conveniens, BLACK’S LAW DICTIONARY (10th ed.
2014). The district court denied RAKIA’s motion on both
grounds, reasoning that the FSIA’s commercial activities
exception stripped RAKIA of its immunity, the forum-
selection clause did not apply, and dismissal for forum non
conveniens was not otherwise warranted. Azima v. RAK Inv.
Auth., 305 F. Supp. 3d 149, 161-76 (D.D.C. 2018). RAKIA
timely appealed.
II
Although our jurisdiction over “final decisions of the
district courts” typically does not include the denial of a motion
to dismiss, United States v. Rose, 28 F.3d 181, 185 (D.C. Cir.
1994) (quoting 28 U.S.C. § 1291), the collateral order doctrine
allows us to review “[t]he denial of a motion to dismiss on the
ground of sovereign immunity,” Kilburn v. Socialist People’s
Libyan Arab Jamahiriya, 376 F.3d 1123, 1126 (D.C. Cir.
2004). And because the denial of RAKIA’s forum non
conveniens motion is pendent to the FSIA claim, we have
jurisdiction to review that order as well. Although we exercise
pendent jurisdiction sparingly, and “only when substantial
considerations of fairness or efficiency demand it,” Gilda
Marx, Inc. v. Wildwood Exercise, Inc., 85 F.3d 675, 679 (D.C.
Cir. 1996) (per curiam), RAKIA’s forum non conveniens
argument satisfies these requirements. Exercising pendent
jurisdiction over a threshold issue in an FSIA case is
appropriate where “pendent review will likely terminate the
entire case, sparing both this court and the district court from
further proceedings and giving the parties a speedy resolution.”
6
Id.; see Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp.,
549 U.S. 422, 433 (2007) (explaining that forum non
conveniens is a “threshold, nonmerits issue”); see also
Jungquist v. Sheikh Sultan Bin Khalifa Al Nahyan, 115 F.3d
1020, 1026-27 (D.C. Cir. 1997) (exercising pendent
jurisdiction to consider a personal jurisdiction issue in an FSIA
case that could dispose of the case); Rendall-Speranza v.
Nassim, 107 F.3d 913, 917 (D.C. Cir. 1997) (same, for statute
of limitations).
III
A
Because “[t]here is a ‘substantial presumption’ in favor of
a plaintiff’s chosen forum,” lawsuits usually proceed where
they are filed. MBI Grp., Inc. v. Credit Foncier Du Cameroun,
616 F.3d 568, 571 (D.C. Cir. 2010) (quoting Agudas Chasidei
Chabad of U.S. v. Russian Fed’n, 528 F.3d 934, 950 (D.C. Cir.
2008)). But if the plaintiff has entered into a contract to litigate
his claims in a specific forum, the defendant may enforce that
agreement by moving to dismiss for forum non conveniens. As
long as the forum-selection clause is applicable, mandatory,
valid, and enforceable, the court must almost always grant the
motion to dismiss. See Atl. Marine Constr. Co. v. U.S. Dist.
Court for W.D. Tex., 571 U.S. 49, 62 n.5, 63-65 (2013). The
reason is simple: when a plaintiff has agreed in advance to
litigate future claims in a specific venue, we will enforce—and
give deference to—that contractual choice.
A clause is applicable if its scope encompasses the dispute,
which we assess using normal principles of contract
interpretation. It is mandatory if it requires that litigation
proceed in a specific forum. By contrast, “a permissive clause
permits litigation to occur in a specified forum but does not bar
7
litigation elsewhere.” BAE Sys. Tech. Sol. & Servs., Inc. v.
Republic of Korea’s Def. Acquisition Program Admin., 884
F.3d 463, 470 (4th Cir. 2018). We presume that a mandatory
forum-selection clause is legally valid and enforceable absent
a “strong showing” that (1) “the clause was invalid for such
reasons as fraud or overreaching”; (2) “enforcement would be
unreasonable and unjust”; (3) “enforcement would contravene
a strong public policy of the forum in which [the plaintiff filed
suit], whether declared by statute or judicial decision”; or (4)
“trial in the contractual forum would be so gravely difficult and
inconvenient that [the plaintiff] will for all practical purposes
be deprived of his day in court.” M/S Bremen v. Zapata Off–
Shore Co., 407 U.S. 1, 15, 18 (1972).
If the forum-selection clause does not meet these criteria,
we use the typical forum non conveniens analysis, and the
defendant must show that the case can and should proceed
elsewhere, meaning another forum is (1) “available and
adequate” to litigate the plaintiff’s claims and, (2) “upon a
weighing of public and private interests, the strongly preferred
location for the litigation.” MBI Grp., 616 F.3d at 571. But if
we are dealing with an applicable, mandatory, valid, and
enforceable forum-selection clause, we need not ask whether
the location it identifies is available, adequate, or best for the
parties’ private interests. They have already told us that it meets
these criteria: By agreeing to litigate there, the parties
consented to be subject to service of process in that forum,
meaning it is available. Wong v. PartyGaming Ltd., 589 F.3d
821, 831 (6th Cir. 2009); see Gulf Oil Corp. v. Gilbert, 330
U.S. 501, 506-07 (1947). And because the clause “represents
the parties’ agreement as to the most proper forum,” we can
assume that they selected one adequate to litigate their claims
and to protect their private interests. See Atl. Marine, 571 U.S.
at 63-64 (quoting Stewart Org., Inc. v. Ricoh Corp., 487 U.S.
8
22, 31 (1988)). 2 If the preselected forum is substantially
deficient—for instance, because it is effectively inaccessible or
unable to afford the plaintiff any relief—then the clause is not
enforceable. See, e.g., Piper Aircraft Co. v. Reyno, 454 U.S.
235, 254 & n.22 (1981) (a forum is inadequate if the remedy
offered is “clearly unsatisfactory”); Weber v. PACT XPP
Techs., AG, 811 F.3d 758, 774 (5th Cir. 2016) (a forum-
selection clause is unenforceable if there is no available cause
of action in the preselected forum that can afford the plaintiff
any relief).
That leaves only one question: can the plaintiff show that
the public interest associated with litigating elsewhere
outweighs all of the private interests that their agreement
presumably took into account? See Atl. Marine, 571 U.S. at 67
(“As the party acting in violation of the forum-selection clause,
[the plaintiff] must bear the burden of showing that public-
interest factors overwhelmingly disfavor a transfer.”). The
public-interest factors include administrative convenience, the
interest in deciding local controversies at home, judicial
economy, familiarity with applicable law, and the desire to
2
Most courts do not discuss whether the location identified in
an applicable, mandatory, valid, and enforceable forum-selection
clause is available or adequate. See, e.g., Kelvion, Inc. v. PetroChina
Canada Ltd., 918 F.3d 1088, 1092-94 (10th Cir. 2019). And although
some courts have left open the possibility that they will consider
whether the preselected forum meets these criteria, none have
explained why that inquiry would be necessary. See Aviation One of
Fla., Inc. v. Airborne Ins. Consultants (PTY), Ltd., 722 F. App’x 870,
885 (11th Cir. 2018) (per curiam); Collins v. Mary Kay, Inc., 874
F.3d 176, 186 (3d Cir. 2017); Stiles v. Bankers Healthcare Grp., Inc.,
637 F. App’x 556, 559 (11th Cir. 2016) (per curiam); Pappas v.
Kerzner Int’l Bahamas Ltd., 585 F. App’x 962, 967 (11th Cir. 2014)
(per curiam); Dahman v. Embassy of Qatar, 364 F. Supp. 3d 1, 8
(D.D.C. 2019).
9
avoid imposing jury duty on a community unconnected to the
litigation. See Sinochem, 549 U.S. at 435-36; Piper Aircraft
Co., 454 U.S. at 241 n.6. Only in the most “unusual” or “rare[]”
case will the strength of these factors warrant “disrupt[ing] the
parties’ settled expectations” as reflected in the forum-
selection clause. Atl. Marine, 571 U.S. at 64, 66.
We review de novo whether the forum-selection clause is
applicable, mandatory, valid, and enforceable, then review for
abuse of discretion the weighing of the public- and private-
interest factors. Kelvion, Inc. v. PetroChina Canada Ltd., 918
F.3d 1088, 1092 (10th Cir. 2019); Weber, 811 F.3d at 768; see
also Bode & Grenier, LLP v. Knight, 808 F.3d 852, 862 (D.C.
Cir. 2015) (contract interpretation); Piper Aircraft Co., 454
U.S. at 257 (forum non conveniens).
B
Azima filed suit in the United States, but RAKIA moved
to dismiss for forum non conveniens because the parties had
executed a forum-selection clause that states, in relevant part,
“This Settlement Agreement and any dispute or claim arising
out of, or in connection with, it or its subject matter or
formation . . . is governed by and shall be construed in
accordance with English law and the Parties submit to the
exclusive jurisdiction of the courts of England and Wales.” J.A.
605-06. The clause is mandatory because it provides for
“exclusive jurisdiction” in England and Wales. See, e.g.,
Phillips v. Audio Active Ltd., 494 F.3d 378, 386 (2d Cir. 2007).
The parties do not dispute the clause’s validity or
enforceability. Compare RAKIA Br. 30 (“The parties have
entered into a mandatory, enforceable forum selection
agreement . . . .”), with Azima Br. 42-48 (arguing the clause is
not “controlling,” but not that it is unenforceable or invalid).
We note, however, that it appears RAKIA might be entitled to
10
sovereign immunity in England, the preselected forum. See
Azima, 305 F. Supp. 3d at 173-74 (explaining that if RAKIA
did not consent to waive immunity in England with respect to
Azima’s claims in this lawsuit, that might leave Azima without
a forum to litigate this dispute). Even if some courts might be
hesitant to enforce a forum-selection clause in that
circumstance, the issue does not pose a problem here. At oral
argument, RAKIA agreed to waive its sovereign immunity if
Azima brings a counterclaim for damages in the English
Action. Tr. of Oral Arg. at 3:23-5:12.
That brings us to whether the clause applies to this dispute,
an issue we resolve using general principles of contract law.
Although the Settlement Agreement is governed by English
law, the parties’ briefs “make little reference to English
contract law.” John Wyeth & Bro. Ltd. v. CIGNA Int’l Corp.,
119 F.3d 1070, 1074 (3d Cir. 1997) (Alito, J.); see RAKIA Br.
56-59 (citing only the record in support of this analysis); Azima
Br. 42-48 (citing the record and opinions from other circuits
applying general contract law); RAKIA Reply Br. 5 (citing one
English contract case for the proposition that we should
construe the forum-selection clause broadly). We therefore
“assume that they do not rely on any distinctive features of
English law,” and will “base our decision on general contract
law principles.” John Wyeth, 119 F.3d at 1074.
The Agreement’s forum-selection clause applies to “any
dispute or claim arising out of, or in connection with, [the
Agreement] or its subject matter or formation.” J.A. 605. Like
the district court, we have little trouble concluding that the
“subject matter” of the Agreement includes only the joint
venture. See Azima, 305 F. Supp. 3d at 175. The “subject
matter” of a contract is “[t]he issue presented for
consideration” or “the thing in dispute.” Subject Matter,
BLACK’S LAW DICTIONARY. The Agreement resolves a dispute
11
between RAKIA and HeavyLift over outstanding payments
related to their joint venture. It provides that RAKIA will pay
HeavyLift in exchange for the release of any unresolved claims
Azima or HeavyLift has against RAKIA or its affiliates, and
five of the six whereas clauses mention HeavyLift or the joint
venture. It is clear to us that the dispute related to the joint
venture formed the crux of this Agreement.
RAKIA argues that the subject matter of the Agreement is
broader. In its view, “At the very least, the ‘subject matter’ of
the Settlement Agreement must include those topics expressly
mentioned in the document,” and because the fifth whereas
clause mentions the Massaad negotiation, that too is part of the
Agreement’s subject matter. RAKIA Reply Br. 5; see J.A. 603
(stating in fifth whereas clause that “Mr. Azima has recently
provided negotiation assistance to RAKIA on an informal basis
which RAKIA recognises and appreciates”). We cannot agree.
The mere mention of an event does not make it the “thing in
dispute.”
But that does not end our inquiry, for the forum-selection
clause also applies to claims arising from the Agreement’s
“formation.” J.A. 605. Although the district court and parties
did not address the scope of this word, where possible, we must
give meaning to every contract term. See RESTATEMENT
(SECOND) OF CONTRACTS §§ 202, 203 (AM. LAW INST. 1981).
“Formation” here refers to the process during which something
develops or is created, i.e., the background considerations
against which the parties entered into this Agreement. See
Formation, WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY 893 (2002) (“the manner in which a thing is
formed”); Formation, 6 OXFORD ENGLISH DICTIONARY 85 (2d
ed. 1989) (“The action or process of forming; a putting or
coming into form; creation, production.”).
12
Read in context, the fifth whereas clause provides one such
background consideration. See 17A AM. JUR. 2D CONTRACTS
§ 373 (2019) (whereas clauses indicate the parties’ purposes
and motives, and help determine intent). Clause four states that
“RAKIA does not agree that there is any legal basis for
[HeavyLift’s] claim.” J.A. 603. Clause five explains that
“Azima has recently provided . . . assistance to RAKIA on an
informal basis” in the Massaad negotiation, “which RAKIA
recognises and appreciates.” Id. Clause six says that the parties
now “wish[] to resolve all outstanding issues” related to the
joint venture. Id. According to this series of clauses, RAKIA
did not think HeavyLift had a claim and so did not want to
settle, but was willing to do so in recognition of Azima’s help
with the Massaad negotiation.
By its plain terms, the Settlement Agreement therefore
requires Azima to litigate in England any “dispute or claim
arising out of, or in connection with,” the Agreement itself, the
outstanding claims from the joint venture, or the Massaad
negotiation’s role in the Agreement’s formation. J.A. 605. As
we explain, this case qualifies as such a dispute.
We begin by defining “in connection with.” This phrase is
equivalent to “in relation to,” which is quite broad. Coregis Ins.
Co. v. Am. Health Found., Inc., 241 F.3d 123, 128-29 (2d Cir.
2001) (Sotomayor, J.). As then-Judge Alito explained, “a
dispute ‘arise[s] . . . in relation to’” an agreement if “the origin
of the dispute is related to that agreement,” meaning it “has
some ‘logical or causal connection’” to the agreement. John
Wyeth, 119 F.3d at 1074 (alterations in original) (quoting
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1916
(1971)); accord Yei A. Sun v. Advanced China Healthcare, Inc.,
901 F.3d 1081, 1086 (9th Cir. 2018); Huffington v. T.C. Grp.,
LLC, 637 F.3d 18, 22 (1st Cir. 2011); Chelsea Family
13
Pharmacy, PLLC v. Medco Health Sols., Inc., 567 F.3d 1191,
1199 (10th Cir. 2009).
Azima recognizes that “in connection with” is often
defined broadly, but he asserts that “a claim ‘relates to’ or is ‘in
connection with’ a contract only when ‘the dispute occurs as a
fairly direct result of the performance of contractual duties.’”
Azima Br. 43 (emphasis added) (quoting Bailey v. ERG
Enters., LP, 705 F.3d 1311, 1317 (11th Cir. 2013)); see Azima
Br. 44 (citing Necchi S.p.A. v. Necchi Sewing Mach. Sales
Corp., 348 F.2d 693, 696-97 (2d Cir. 1965), which held that a
clause that applied to disputes “arising out of or in connection
with [the agreement]” covered disputes that were “directly
relate[d] to certain provisions in the agreement” (footnote
omitted)). Absent this, he argues, “relate to” would have no
limits. Azima Br. 43-44.
That proposed definition is too narrow. The forum-
selection clause applies to claims arising from the Agreement
and from its subject-matter or formation, not just claims
connected to the “contract.” More fundamentally, although we
agree that “in connection with” is quite broad, we fail to see
why that requires us to limit its scope. If the parties had wished
to mark a narrower boundary for this forum-selection clause,
they could have easily done so. They might have restricted the
clause to disputes “arising out of, or in connection with,” the
Settlement Agreement itself, as Azima suggests. They could
have omitted “in connection with,” which sweeps more broadly
than “arising out of.” Coregis Ins. Co., 241 F.3d at 128-29
(collecting cases). Or the parties could have limited the clause
to future “claims,” a term narrower than “disputes.” In re
McGraw-Hill Glob. Educ. Holdings LLC, 909 F.3d 48, 67 (3d
Cir. 2018); see Abbott Labs. v. Takeda Pharm. Co., 476 F.3d
421, 424 (7th Cir. 2007). In the most restrictive tack, they
might have combined all three and stipulated that only claims
14
arising out of the Settlement Agreement itself are subject to the
forum-selection clause. They did not, and we must do our best
to give meaning to every word and phrase they did use.
RESTATEMENT (SECOND) OF CONTRACTS §§ 202, 203.
Azima’s claims “connect[] with” the “formation” of the
Agreement through the Massaad negotiation. Indeed, Azima
conceded as much in his brief, stating “the hacking of Azima’s
computers, the theft of his data, . . . and the extortion of Azima
were done in connection with the regular course of commercial
activity between Azima and RAKIA generally, and the
mediation services Azima was providing for RAKIA’s
mediation with its former CEO specifically.” Azima Br. 44-45
(emphases added) (citing J.A. 429 ¶ 64). Those services are one
reason the parties entered into the Settlement Agreement. The
allegations in his complaint back up this assertion. It states that
Azima’s computers were hacked the “same day” that Sheikh
Saud expressed disappointment over Massaad’s actions, J.A.
419 ¶ 25, and suggests that RAKIA hacked his computers
because it “blamed [him] for the lack of a settlement between
RAKIA and” Massaad and wanted to make Azima “‘collateral
damage’ in the war RAKIA intended to wage against”
Massaad, J.A. 421-22 ¶¶ 34-35. If Azima had not been involved
in the Massaad negotiation, the parties may not have executed
the Settlement Agreement, RAKIA could not have “blamed
[him] for the lack of a settlement” with Massaad, and RAKIA
would not have needed to make Azima “collateral damage.”
These allegations adequately link the negotiation (and thus the
Agreement) to Azima’s hacking, conversion, and unfair
competition claims: the Massaad negotiation prompted the
hack, which violated Azima’s privacy, deleted his data, forced
15
him to replace his computers, and interfered with his business
interests. 3
Azima resists this conclusion, see Azima Br. 43-47, but the
three cases he points to are easily distinguishable for “whether
or not a [forum-selection] clause applies depends on what
the specific clause at issue says. Drawing analogy to other
cases is useful only to the extent those other cases address
contract language that is the same or substantially similar to
that at issue.” John Wyeth, 119 F.3d at 1075. The clause at issue
in the first case, Necchi, required the parties to arbitrate “[a]ll
matters, disputes or disagreements arising out of or in
connection with” the agreement itself, but not its subject matter
or formation. 348 F.2d at 695. The other two—Doe v. Princess
Cruise Lines, Ltd., 657 F.3d 1204 (11th Cir. 2011), and Jones
v. Halliburton Co., 583 F.3d 228 (5th Cir. 2009)—held that
clauses requiring arbitration of all claims “related to” one’s
employment did not apply to claims stemming from alleged
rapes by company employees that occurred in employer-
provided housing (a non-work space) while the victim was off-
duty, following an after-hours social gathering. Both Doe and
Jones reasoned that “relate to” must have some limits, and
quoted the Supreme Court’s caution that “really, universally,
relations stop nowhere.” Doe, 657 F.3d at 1218-19 (quoting
N.Y. State Conf. of Blue Cross & Blue Shield Plans v. Travelers
Ins. Co., 514 U.S. 645, 655 (1995)); Jones, 583 F.3d at 238-39.
Of course “relate to” is not unlimited, but our conclusion here
is hardly akin to saying that a rape-related claim is within the
scope of one’s employment simply because the rape occurred
on employer-owned property. It is not a stretch to conclude that
3
Because Azima’s claims “connect with” the Massaad
negotiation, we need not address whether his claims “connect with”
the joint venture or any other aspect of the Settlement Agreement,
including whether the gravamen of Azima’s unfair competition claim
is a violation of the Agreement’s non-disparagement clause.
16
“any dispute arising in connection with the agreement’s
formation” includes claims that the plaintiff himself admitted
were connected to an event explicitly mentioned as leading to
the agreement’s formation.
In sum, the forum-selection clause is mandatory and
applies to Azima’s claims, and the parties do not dispute that
the clause is valid and enforceable. This case must therefore
proceed in England, unless Azima has carried the heavy burden
required to show that, based on the public-interest factors
alone, this case should instead proceed here. Atl. Marine, 571
U.S. at 64.
The district court’s approach was flawed in several
respects. Most fundamentally, the court erroneously placed the
burden on RAKIA to show that dismissal was warranted.
Azima, 305 F. Supp. 3d at 175-76; see Atl. Marine, 571 U.S. at
63 (“[A]s the party defying the forum-selection clause, the
plaintiff bears the burden of establishing that transfer to the
forum for which the parties bargained is unwarranted.”). The
district court also concluded that, “to the extent that RAKIA
has failed to establish that” England is an adequate, available
forum, the forum-selection clause is “irrelevant.” Azima, 305
F. Supp. 3d at 175. But the presence of a qualifying forum-
selection clause means that we need not determine whether
England meets these criteria. See supra III.A. Furthermore, the
court found that, “even if [it] was to proceed to” consider the
public and private interests, “RAKIA has not demonstrated that
the balance of [these] factors has ‘a strong tilt towards a
particular forum.’” Azima, 305 F. Supp. 3d at 175-76 (quoting
EIG Energy Fund XIV, L.P. v. Petróleo Brasileiro S.A., 246 F.
Supp. 3d 52, 74 (D.D.C. 2017)). Again, Azima bore that
burden, and the district court was required to “deem the
private-interest factors to weigh entirely in favor of the
preselected forum.” Atl. Marine, 571 U.S. at 64.
17
Despite these errors, we see no need to remand for the
district court to redo its analysis. As we have explained, it is
clear that Azima bore the burden to show that, based on the
public-interest factors, transfer to England was unwarranted.
Id. at 63-64. But the few public-interest factors that he raised
before the district court cannot defeat the forum-selection
clause. Azima argued that because he is a U.S. citizen bringing
a claim about activities that occurred here in violation of a U.S.
statute, his case belongs in a U.S. court. The public does have
an interest in keeping U.S.-based disputes that turn on U.S. law
in our courts. See Piper Aircraft Co., 454 U.S. at 241 n.6. But
familiarity with the applicable law is also part of the public
interest inquiry, see id., and the Settlement Agreement provides
that English Law will govern all disputes subject to the forum-
selection clause. Moreover, judicial economy and
administrative convenience point towards resolving the
parties’ U.S. and U.K. claims in the same forum. See id.; see
also Sinochem, 549 U.S. at 435-36.
Simply put, this is not the “rare[],” “unusual,” or
“[un]common” case in which the public-interest factors defeat
a forum-selection clause. Atl. Marine, 571 U.S. at 64. Few are,
and they are factually distinct and do not bind our court. 4
4
See, e.g., Anthony Allega Cement Contractor, Inc. v. Johnson
Controls Fed. Sys./Versar, LLC, No. 18-cv-875, 2019 WL 1792201,
at *11 (D. Del. Apr. 24, 2019) (denying a motion to transfer to the
forum designated in a valid forum-selection clause because the
clause bound only some parties, and transferring only some claims
would result in duplicative and inefficient litigation); Seaman v.
Private Placement Capital Notes II, LLC, No. 16-cv-00578, 2017
WL 1166336, at *6-7 (S.D. Cal. March 29, 2017) (same, because the
case stemmed from an SEC enforcement action initiated in
California, the largest number of defrauded investors were located in
California, and transferring the case would undermine the decisions
18
Where a case or legal issue is so clear that a contrary ruling
would constitute an abuse of discretion, there is no need to
remand to the district court. Summers v. Howard Univ., 374
F.3d 1188, 1194-95 (D.C. Cir. 2004); Al-Fayed v. CIA, 254
F.3d 300, 309 n.10 (D.C. Cir. 2001). Accordingly, we exercise
our pendent jurisdiction and reverse the denial of RAKIA’s
motion to dismiss on forum non conveniens grounds. See
Jungquist, 115 F.3d at 1032-33 (reversing denial of motion to
dismiss on pendent review because district court lacked
personal jurisdiction over the defendant); Rendall-Speranza,
107 F.3d at 920-21 (same, on statute of limitations grounds).
Because we reverse on forum non conveniens grounds, we do
not reach the question of whether dismissal was warranted
under the FSIA. See Sinochem, 549 U.S. at 425, 432.
IV
The decision of the district court denying RAKIA’s
motion to dismiss is reversed.
So ordered.
the court had made in the enforcement action); Cmty. Voice Line,
L.L.C. v. Great Lakes Commc’n Corp., No. 12-cv-4048, 2014 WL
3102124, at *4-5 (N.D. Iowa July 7, 2014) (same, for a motion to
dismiss because the controversy was local to Iowa, it would be unfair
to burden another jury with this case, and judicial economy favored
keeping all claims and counterclaims together in Iowa).