575 F.3d 97 (1st Cir. 2009), 08-1983, Interface Partners Intern. Ltd. v. Hananel

Docket Nº:08-1983.
Citation:575 F.3d 97
Opinion Judge:TORRUELLA, Circuit Judge.
Party Name:INTERFACE PARTNERS INTERNATIONAL LTD., Plaintiff, Appellant, v. Moshe HANANEL, Defendant, Appellee.
Attorney:Andrew H. Schapiro, with whom Christopher H. Houpt and Mayer Brown LLP, were on brief for appellant. Lawrence G. Green, with whom Burns & Levinson LLP, was on brief for appellee.
Judge Panel:Before TORRUELLA, SILER,[*] and HOWARD, Circuit Judges.
Case Date:August 05, 2009
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 97

575 F.3d 97 (1st Cir. 2009)



Moshe HANANEL, Defendant, Appellee.

No. 08-1983.

United States Court of Appeals, First Circuit.

August 5, 2009

Heard Jan. 9, 2009.

Page 98

[Copyrighted Material Omitted]

Page 99

Andrew H. Schapiro, with whom Christopher H. Houpt and Mayer Brown LLP, were on brief for appellant.

Lawrence G. Green, with whom Burns & Levinson LLP, was on brief for appellee.

Before TORRUELLA, SILER,[*] and HOWARD, Circuit Judges.

TORRUELLA, Circuit Judge.

Interface Partners International Ltd. (" IPI" ) filed a complaint in the United States District Court for the District of Massachusetts against Moshe Hananel (" Hananel" ), IPI's former employee and manager of its office in Israel. In its complaint, IPI accused Hananel of breaching his contract with IPI.1 In this case, which is similar to a prior case we decided, see Adelson v. Hananel, 510 F.3d 43 (1st Cir.2007), IPI appeals the district court's granting of Hananel's motion to dismiss on forum non conveniens grounds.2 After careful consideration, we affirm.

I. Background

The following facts are relevant to this

Page 100

appeal.3 IPI is a Delaware corporation with its principal place of business in Needham, Massachusetts. IPI also has offices in Nevada and Israel. Hananel is a citizen and resident of Israel. Sheldon Adelson, IPI's sole owner and only shareholder, established IPI for the purpose of making business investments in Israel.

In 1995, Adelson and Hananel, while in Israel, " got to the general terms of the understanding" that Hananel would work as IPI's general manager in Israel. According to Adelson, on December 5, 1995, in IPI's Needham, Massachusetts office, Hananel and IPI executed an oral employment contract confirming that Hananel would become IPI's general manager at a salary of $100,000 per year and would receive a percentage share in net profits arising from investment gains during his time with IPI.4

During Hananel's tenure with IPI, he was based in Israel and responsible for finding investments in Israel. In April 2000, IPI terminated Hananel after about four and one-half years of service. In 2002, IPI sued Hananel in Israel claiming that Hananel had misused IPI funds. This suit was litigated for nearly four years in Israel. In July 2006, IPI requested the Israeli court to dismiss its case without prejudice so that it could re-file in the United States. The Israeli court granted IPI's motion, but ordered IPI to pay Hananel's costs of litigation.5

IPI subsequently filed the instant lawsuit in the Superior Court of Massachusetts and Hananel removed the case to the United States District Court for the District of Massachusetts. In its complaint, IPI alleged that Hananel had breached his employment contract and claimed that Hananel " wrongfully took and or destroyed corporate documents leading to many months of delay before [IPI] could determine the full range of [Hananel's] various wrongful breaches of his employment agreement." Hananel moved to dismiss the action on grounds of forum non conveniens.

The district court granted Hananel's motion.6 It concluded that IPI's decision to move for dismissal of its Israeli action " was motivated by a desire to vex and to oppress Hananel and, accordingly, that IPI is not entitled to the heavy presumption ordinarily accorded to a Plaintiff's choice of forum." The district court then applied the two-part test for forum non conveniens cases first articulated by the Supreme Court in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09, 67 S.Ct. 839, 91 L.Ed. 1055 (1947). It found that the Israeli forum was an " adequate alternative forum" and that " considerations of convenience and judicial

Page 101

efficiency strongly favor litigating the claim in Israel." IPI appeals.

II. Discussion

A. Standard of Review

" The decision to grant or deny a motion to dismiss for forum non conveniens is generally committed to the district court's discretion." Adelson, 510 F.3d at 52 (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981)). " We will find an abuse of discretion if the district court (1) failed to consider a material factor; (2) substantially relied on an improper factor; or (3) assessed the proper factors, but clearly erred in weighing them." Id. (citing Iragorri v. Int'l Elevator, Inc., 203 F.3d 8, 12 (1st Cir.2000)). We are mindful of the fact that we must " neither substitute [our] judgment for that of the district court nor strike the balance of relevant factors anew." Iragorri, 203 F.3d at 12. Errors of law are reviewed de novo. Adelson, 510 F.3d at 52.

B. Applicable Law

" When a defendant moves for dismissal on forum non conveniens grounds, it bears the burden of showing both that an adequate alternative forum exists and that considerations of convenience and judicial efficiency strongly favor litigating the claim in the alternative forum." Iragorri, 203 F.3d at 12. The first condition is usually met " if the defendant demonstrates that the alternative forum addresses the types of claims that the plaintiff has brought and that the defendant is amenable to service of process there." Id. (citing Piper, 454 U.S. at 254 n. 22, 102 S.Ct. 252).

To determine whether the defendant satisfies the second condition, a more involved inquiry is required as " the defendant must show that the compendium of factors relevant to the private and public interests implicated by the case strongly favors dismissal." Id. (citing Gilbert, 330 U.S. at 508-09, 67 S.Ct. 839). Guided by the Supreme Court in Gilbert, we have stated that:

[c]onsiderations relevant to the litigants' private interests 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; [the] possibility of view of premises, if view would be appropriate to the action; ... [and the trial judge's consideration of] all other practical problems that make trial of a case easy, expeditious and inexpensive."

Id. (quoting Gilbert, 330 U.S. at 508, 67 S.Ct. 839).

With respect to the public interest factors, we have stated that the district court should consider " such things as the administrative difficulties of docket congestion; the general goal of ‘ having localized controversies decided at home,’ and concomitantly, ease of access to the proceedings on the part of interested citizens; the trier's relative familiarity with the appropriate rules of decision; and the burdens of jury duty." Id. (quoting Gilbert, 330 U.S. at 508-09, 67 S.Ct. 839).

In addition, while certainly " a plaintiff enjoys some degree of deference for his original choice of forum," Adelson, 510 F.3d at 53 (citing Gilbert, 330 U.S. at 508, 67 S.Ct. 839), we note some tension in our case law regarding whether a district court, before conducting the aforementioned two-part forum non conveniens analysis, should accord a plaintiff's choice of a home forum " heightened deference." Notably, in Adelson, we cited to the Supreme Court's holding that " when the plaintiff has chosen his home forum, he should not be deprived of it absent a ‘ clear showing’ of either ‘ oppressiveness and vexation’ or evidence that the chosen forum is ‘ inappropriate.’ " 510 F.3d at 53 (quoting

Page 102

Koster v.(Am.) Lumbermens Mut. Cas. Co., 330 U.S. 518, 524, 67 S.Ct. 828, 91 L.Ed. 1067 (1947)). Yet, in Iragorri, we remarked that " [t]he Koster Court's use of the term ‘ oppressiveness and vexation’ neither created an independent standard nor raised the bar for dismissal in forum non conveniens cases." 203 F.3d at 15. Instead, the Iragorri court viewed " the ‘ strongly favors' standard as a distillation of the ‘ oppressiveness and vexation’ language." Id.

What is clear amidst this uncertainty, however, is that even if a heightened deference standard were to apply to a plaintiff's choice of a home forum, there is no automatic right to the presumption, and as explained below, the district court should deny the presumption to plaintiffs acting with a vexatious and oppressive motive. As the Supreme Court has instructed, " [a] citizen's forum choice should not be given dispositive weight" and " dismissal should not be automatically barred when a...

To continue reading