448 F.3d 867 (6th Cir. 2006), 04-2505, Duha v. Agrium, Inc.

Docket Nº:04-2505, 04-2548.
Citation:448 F.3d 867
Party Name:Wayne E. DUHA, Plaintiff-Appellant/Cross-Appellee, v. AGRIUM, INCORPORATED, Agrium U.S., Incorporated, and Agroservicios Pampeanos, S.A., Defendants-Appellees/Cross-Appellants.
Case Date:May 23, 2006
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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448 F.3d 867 (6th Cir. 2006)

Wayne E. DUHA, Plaintiff-Appellant/Cross-Appellee,

v.

AGRIUM, INCORPORATED, Agrium U.S., Incorporated, and Agroservicios Pampeanos, S.A., Defendants-Appellees/Cross-Appellants.

Nos. 04-2505, 04-2548.

United States Court of Appeals, Sixth Circuit.

May 23, 2006

Argued: January 31, 2006

Rehearing En Banc Denied Aug. 31, 2006. [*]

Appeal from the United States District Court for the Eastern District of Michigan at Bay City. No. 03-10027—David M. Lawson, District Judge.

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COUNSEL

ARGUED:

Stuart H. Deming, DEMING PLLC, Kalamazoo, Michigan, for Appellant.

Andrew S. Rosenman, MAYER, BROWN, ROWE & MAW, Chicago, Illinois, for Appellees.

ON BRIEF:

Stuart H. Deming, DEMING PLLC, Kalamazoo, Michigan, for Appellant.

Andrew S. Rosenman, Danuta Bembenista Panich, MAYER, BROWN, ROWE & MAW, Chicago, Illinois, for Appellees.

Before: COLE, GIBBONS, and ROGERS, Circuit Judges.

ROGERS, J., delivered the opinion of the court, in which GIBBONS, J., joined.

COLE, J. (pp. 15-19), delivered a separate dissenting opinion.

OPINION

ROGERS, Circuit Judge.

In this diversity action the district court dismissed the complaint on grounds of forum non conveniens, concluding that a more convenient forum was in Argentina, where the plaintiff worked at the time of his dismissal. The plaintiff, Wayne Duha, sued his former employer, Agrium, Inc., 1 asserting a number of causes of action related to his employment and termination. Duha appeals, and Agrium cross-appeals the district court's order denying Agrium's motion to file an updated declaration stating that some of its potential witnesses are no longer employed by Agrium.

Duha's complaint contains 45 counts, asserting various contract and tort theories.2 The district court dismissed many of Duha's claims without including them in its forum non conveniens analysis, and gave U.S. citizen Duha's choice of forum too little deference, particularly in light of a proper consideration of the private interest factors governing the law of forum non conveniens. We therefore vacate the district court's order dismissing the complaint on forum non conveniens grounds and remand for further proceedings. We decline to supplement the record on appeal because the district court's order denying its

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motion to file the updated declaration was not an abuse of discretion.

I. BACKGROUND

This case arose out of Agrium's termination of Duha's employment in Argentina. In 1998, Duha agreed to move to Argentina for an extended time to help improve Agrium's Argentine operations. Duha negotiated a contract with his employer, the terms of which make up part of this dispute. In reliance on this contract, Duha moved to Argentina. While there, Duha alleges that he discovered that employees of Agrium's Argentine subsidiary were engaging in bribery and other unsavory practices. He says that he informed his superiors of these practices and also reported them to U.S. authorities. Agrium subsequently fired him, giving as a reason that Duha had offered the services of prostitutes as a work incentive to a subordinate. Duha was terminated within two days of his comment about prostitution. Duha's suit seeks recovery pursuant to legal theories related to the alleged wrongfulness of his termination, and based on contractual and other asserted obligations arising in one way or another out of the fact of his termination.

Defendant Agrium is composed of three entities relevant to this lawsuit, incorporated in three different countries: first, the parent company Agrium, Inc. (Agrium) is Canadian; second, Agrium U.S., Inc. (Agrium U.S.) is American; third, Agroservicios Pampeanos, S.A. (ASP) is Argentine. Agrium International (Agrium Int'l) is a strategic business unit of Agrium. Agrium U.S. and ASP are Agrium's wholly-owned subsidiaries.

A. Duha as an Agrium U.S. Employee

In 1993, Agrium U.S. bought Duha's employer, Crop Production Service, Inc. (Crop Production). Duha had worked for Crop Production since April of 1980. At that time, Duha lived in Bay City, Michigan. In 1996, Agrium U.S. transferred Duha to its regular staff, where he served until 1998 as Marketing Services Manager. Duha alleges that as an Agrium U.S. staff member he "was given credit for a number of years of service that would bear on benefits and ultimately my severance." According to Duha, Agrium's president sent Duha a letter promising that he would be awarded "3,000 stock options" for his contributions to Agrium.

B. The Assignment to Argentina and Agrium's Offer Letter

In 1998, while he was still in Michigan, Duha accepted a long-term assignment that would require him to relocate to Argentina for at least 25 months. An email from Ron Wilkinson, the General Manager of Agrium's operations in South America, to Kathy Kopelchuk, a Human Resources Manager, on July 3, 1998, noted: "Wayne Duha has accepted [the offer to work in Argentina]." JA 792. Although Duha moved to Argentina to take this job, he maintained a residence in Bay County, Michigan. Duha took the position in reliance on inducements held out by Agrium. Agrium presented many of these inducements to Duha in a letter offering him the Argentina position, dated July 30,1998. It described Duha's job title as "Manager, ASP." Theletter also said that "[y]our base benefits will continue to be administered to the benefit levels available to you under the Agrium U.S. benefits program." JA 198.

The letter informed Duha that he would "be placed on an Expatriate Program." JA 198. This program included a "foreign service premium," living allowances, and adjustments to these payments for "additional Argentine or American tax liability." JA 198. Duha would also be eligible, if repatriated, for the company's "normal relocation policy." JA 199. In consideration

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for these promises, Agrium expected Duha to "devote your time, energy, and skill to the" company and not to hold any other job during the performance period "without the express written permission of the Vice President, International." JA 199. Wilkinson concluded the letter by noting that Agrium "will utilize common sense and fairness in resolving" any "needs and issues" that arise regarding his employment terms. JA 200.

Duha claims that, at the time he was sought out for the long-term foreign assignment, he was entitled to severance pay amounting to one month of his base pay for each year of service for up to 18 years of service.

C. The use of Duha's Michigan Home to Further Agrium's Business Interests

During his time in Argentina and before then, Duha alleges that Agrium used his home in Michigan "as a means for purchasing equipment and supplies for ASP." JA 133, 2351. "It was my understanding," Duha stated in an affidavit,

that the purpose for having someone in the United States acquire equipment, supplies and provision of services was to save Agrium and ASP the problems and costs associated with letters of credit as well as a 'turnover tax' of six percent in Argentina. U.S. vendors were assured of payment by doing business with me from a U.S. point of purchase as a representative of Agrium.

JA 2351 (citation omitted). Duha estimates that more than $20 million of goods were purchased in connection with this arrangement.

D. Duha's Experience in Argentina

Duha alleges that, while he was in Argentina, he discovered that ASP was engaging in shady record-keeping and business practices, including bribery in violation of the Foreign Corrupt Practices Act, 15 U.S.C. § 78dd et seq. Duha reported relevant violations to U.S. authorities. He also reported such behavior to his superiors, including Robert Rennie, Greg McGlone, and Wilkinson. Agrium commissioned an investigation of these alleged practices by Zachary Greenhill of Greenhill Partners, P.C. This investigation showed that Duha's concerns were well-founded, according to Duha. Duha has also produced an email from Richard Gearheard, Agrium's Senior Vice President for North American Retail, indirectly substantiating Duha's claims:

I think most of the improvement in the ASP are [sic] due to Duha's efforts. He developed a marketing plan and ensured that it was followed. He is making the trips to the retail sites and confirming that the plans are being implemented. As you know, these trips are not fun. He is the person that complained about the accounting and data processing. He was right.

JA 136. Gearheard was based in Denver.

E. Duha's Termination and Attempted Conciliation With Agrium in Argentina

Around February 1, 2000, Rennie, a Vice President for South American operations, sent an email to McGlone, General Manager of ASP, alleging that Duha "had made a commitment on behalf of the company" to "pay for the best hooker in Buenos Aires" as an incentive to Manuel Ron, a Farm Center Manager. JA 138, 2419. On the morning of February 3, 2000, Ronald Delaney, an ASP Human Resources Manager, informed Rennie and McGlone via email that Ron had said that Duha's comment about a hooker was "made within a context of fun," and that it should not be taken seriously. JA 138, 2419. Later that day, according to Duha, McGlone gave Duha written notice of termination for cause,

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based on the hooker comment. Duha insists that he received no warning or any other discipline.

After his termination, Duha discovered that he previously had been named "Director suplente" of ASP without his knowledge, and that ASP continued to hold him out as a "Director suplente" after his termination until February of 2001. Moreover, Duha alleges that his "stock options" were cancelled on April 3, 2000. Duha moved back to Michigan in late June 2000. He received no severance pay (not...

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