Wien Air Alaska Inc v. Brandt ( 2001 )

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 01-10450
Summary Calendar
Wien Air Alaska, Inc.,
Plaintiff-Appellant,
VERSUS
Gerald I. Brandt,
Defendant-Appellee.
Appeal from the United States District Court
For the Northern District of Texas
(4:95-CV-591-Y)
September 5, 2001
Before DeMOSS, PARKER, and DENNIS, Circuit Judges
PER CURIAM:*
Wien Air Alaska, Inc. (“Wien”) has appealed the district
court’s dismissal of this case on grounds of forum non conveniens.
We affirm the district court’s ruling.
Wien sued Gerald Brandt in a Texas state court alleging that
Brandt defrauded the company in an overseas business venture. Wien
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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is a Texas corporation engaged in the business of leasing
commercial aircraft on an international basis. Brandt is an
attorney, and a citizen and resident of the Federal Republic of
Germany (“Germany”). After removing this case to the Northern
District of Texas, Brandt filed a motion to dismiss the case on
forum non conveniens grounds. The district court granted Brandt’s
motion and this appeal followed.
We review a district court’s dismissal on forum non conveniens
grounds for “clear abuse of discretion.” Piper Aircraft Co. v.
Reyno, 454 U.S. 235, 257 (1981); see also Alpine View Co. v. Atlas
Copco AB, 205 F.3d 208, 221 (5th Cir. 2000); Dickson Marine, Inc.
v. Panalpina, Inc., 179 F.3d 331, 341 (5th Cir. 1999) (both citing
Piper Aircraft). “[G]enerally, a district court abuses its
discretion when it grants a motion to dismiss without oral or
written reasons or if it fails to address and balance the relevant
principles and factors.” Dickson Marine, 179 F.3d at 341. We
therefore only reverse the lower court’s decision if it made
unreasonable or unsupported conclusions when applying the forum non
conveniens factors discussed in Gulf Oil Corp. v. Gilbert, 330 U.S.
501, 508-09 (1947). See Alpine View, 205 F.3d at 221.
District courts apply a three step inquiry in determining
whether to dismiss a case on forum non conveniens grounds. First,
the court determines whether an available and adequate forum exists
where “the entire case and all of the parties come within the
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jurisdiction of that forum.” Dickson Marine, 179 F.3d at 342.
Second, if an adequate alternative forum exists, the court balances
several “private interest” factors to determine if dismissal is
warranted. See id. If the private interest factors weigh in favor
of dismissal, the court need not make further inquiry. Baris v.
Sulpicio Lines, Inc., 932 F.2d 1540, 1549 (5th Cir. 1991), cert.
denied, 502 U.S. 963 (1991). Finally, if the private interest
factors remain closely balanced, the district court may dismiss the
action based on “public interest” factors that favor the
alternative forum. See In re Air Crash Disaster Near New Orleans,
La., 821 F.2d 1147, 1165 (5th Cir. 1987).
The district court found that Germany was an adequate and
available alternative forum. The only evidence in this case
regarding the adequacy of the German legal system suggests that it
is sophisticated and that it recognizes the relevant causes of
action in this case. The fact that the filing fee in German courts
is one percent of the total recovery sought does not make German
courts inadequate alternative forums. See, e.g., Mercier v.
Sheraton Int’l, Inc., 981 F.2d 1345, 1353 (1st Cir. 1992) (holding
that a fifteen percent cost bond did not make Turkish courts
unavailable); Nai-Chao v. Boeing Co., 555 F. Supp. 9, 16 (N.D. Cal.
1982), aff’d, 708 F.2d 1406 (9th Cir.), cert. denied, 464 U.S. 1017
(1983) (holding that a one percent filing fee was not relevant to
the adequacy of the foreign forum).
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The district court also found that the private interest
factors in this case weighed in favor of Germany. The Supreme
Court has held that the following private interest factors are
relevant to the forum non conveniens inquiry: (1) the relative ease
of access to evidence; (2) the availability of compulsory process
of likely witnesses; (3) practical considerations such as the cost
and speed of trial; and (4) the enforcibility of judgment if one is
obtained. See Gilbert, 330 U.S. at 508-09.
In weighing the private interest factors in this case, the
court considered the following facts. First, the court noted that
although Wien is incorporated in Texas, it is an international
corporation that maintained offices in Germany at the time that its
causes of action accrued. Brandt, on the other hand, is an
individual residing in Germany, who made only one trip to Texas
upon Wien’s insistence. Second, the district court found that the
majority of the key witnesses in this case live in or around
Germany. This finding was based in part on the fact that the
transaction at issue involved the sale of commercial aircraft in
Germany and the possible expansion of Wien’s business in Eastern
Europe. Third, the court noted that the contracts at issue in this
case are written in German, and that German law will probably
govern this case. Fourth, Brandt showed that he owned no assets in
the United States, so that enforcing a judgment in this case would
ultimately require Wien to file suit in Germany. Finally, the
court noted that as a practical matter, Germany has an interest in
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policing the activities of its attorneys, particularly when they
are engaged in activities centered in Germany.
We conclude that the district court did not abuse its
discretion in finding (1) that German courts provide an adequate
alternative forum and (2) in balancing the private interests in
favor of Germany. We therefore AFFIRM the district court’s
dismissal of Wien’s action on forum non conveniens grounds.
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