467 F.3d 1038 (7th Cir. 2006), 06-1117, Intec USA, LLC v. Engle

Docket Nº:06-1117.
Citation:467 F.3d 1038
Party Name:INTEC USA, LLC, Plaintiff-Appellant, v. Jonathan ENGLE, et al., Defendants-Appellees.
Case Date:November 02, 2006
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 1038

467 F.3d 1038 (7th Cir. 2006)

INTEC USA, LLC, Plaintiff-Appellant,


Jonathan ENGLE, et al., Defendants-Appellees.

No. 06-1117.

United States Court of Appeals, Seventh Circuit.

November 2, 2006

Argued Sept. 12, 2006.

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 05 C 6171—Suzanne B. Conlon, Judge.

Page 1039

Norman J. Lerum, Chicago, IL, William J. Wolf (argued), Bugg & Wolf, Durham, NV, for Plaintiff-Appellant.

Addie K.S. Ries, Kirk Alan Parry (argued), Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, Raleigh, NC, for Defendants-Appellees.

Before POSNER, EASTERBROOK, and SYKES, Circuit Judges.

EASTERBROOK, Circuit Judge.

An arbitration between Intec USA and a group of corporations controlled by Raph Engle was settled in 2003. Engle had founded Intec in 1990 and sold a majority interest in 1997. Intec's new investors maintained in the arbitration that Engle's other ventures (IBEX Industries Ltd. and related firms) were violating covenants not to compete that Engle had given in order to induce them to buy out his interest in Intec. The 2003 pact appeared to resolve that dispute. After concluding that Engle and his firms were not paying any more attention to the 2003 agreement than to the 1997 covenants, Intec filed suit in North Carolina, its home state. The 2003 settlement specifies that North Carolina's law will govern but does not include a provision consenting to litigate there. Engle is a citizen of New Zealand, as are three of the seven corporate defendants. Of the remaining corporations, two are citizens of Australia and one each of Brazil and the United Kingdom. They do not do business in North Carolina and denied that its courts have personal jurisdiction over them.

Before the court acted on the defendants' motion in North Carolina, Intec filed a new suit in Chicago, where it served Jonathan Engle (Raph's son) and the family corporations with process during a trade show for the food-processing industry, in which both Intec and the Engle businesses compete. The district court dismissed this suit on the ground of forum non conveniens.

Page 1040

2005 U.S. Dist. Lexis 33365 (N.D. Ill. December 13, 2005). See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981); In re Bridgestone/Firestone, Inc., 420 F.3d 702 (7th Cir. 2005). North Carolina might be a convenient forum (if the problems with personal jurisdiction could be solved), and New Zealand might be a convenient forum, but Chicago had nothing to do with the parties or their dispute, the court concluded. As between Chicago and New Zealand, the district court thought, New Zealand is the more appropriate forum: only two of Intec's potential 18 witnesses, and none of the defendants', lives within the range of compulsory process under Fed.R.Civ.P. 45(b)(2), (c)(3). Many more potential witnesses can be compelled to appear in New Zealand than in Chicago. All of the defendants have consented to be sued in New Zealand, the base of the supposedly forbidden activities. Most if not all of the physical evidence is there. The district judge stressed that, as Intec wants an injunction, it is appropriate for the court that issues an injunction to have the on-the-spot ability to supervise compliance and provide supplemental relief.

Intec's appeal principally rests on the proposition that the plaintiff's choice of forum should be respected in all but extraordinary cases. See Gulf Oil Co. v. Gilbert, 330 U.S. 501, 508-09, 67 S.Ct. 839, 91 L.Ed. 1055 (1947). We doubt that this proposition has controlling force in litigation among firms all of which trade worldwide. See Kamel v. Hill-Rom Co., 108 F.3d 799, 804 (7th Cir. 1997). Intec has an affiliate (Intec Pacific) in Oceania, and the materials-handling business is international; it is not as if a person with no dealings outside the Great Plains were being dragged halfway around the world to litigate. Intec says that, because its claims rest on U.S. law, this nation should do the enforcement to protect domestic firms. Why courts should favor their citizens in court—and why the first litigant to reach a courthouse should receive this benefit (if it is one)—are mysteries. International business transactions depend on evenhanded application of legal rules; home-town favoritism is the enemy of commerce.

As a nation whose policy favors free international trade, the United States must be prepared to trust the judiciary of our partners, unless there are grounds to doubt the...

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