Lockman Foundation v. Evangelical Alliance Mission

• Citation: 930 F.2d 764
• Decision Date: 18 April 1991
• Docket Number: No. 89-56230,89-56230
• Parties: RICO Bus.Disp.Guide 7734 LOCKMAN FOUNDATION, Plaintiff-Appellant, v. EVANGELICAL ALLIANCE MISSION; Evangelical Alliance Mission of Japan; Kenneth G. McVety, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 764

930 F.2d 764

RICO Bus.Disp.Guide 7734

LOCKMAN FOUNDATION, Plaintiff-Appellant, v. EVANGELICAL ALLIANCE MISSION; Evangelical Alliance Mission

of Japan; Kenneth G. McVety, Defendants-Appellees.

No. 89-56230.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 8, 1991.

Decided April 18, 1991.

Charles S. Treat, Latham & Watkins, Los Angeles, Cal., John F. Flannery, Fitch, Even, Tabin & Flannery, Chicago, Ill., Richard A. Clark, Parker, Milliken, Clark, O'Hara & Samuelian, Los Angeles, Cal., for plaintiff-appellant.

Edmond M. Connor, Dean J. Zipser, Paula Perez-Pena and David A. Delman, Morrison & Foerster, Irvine, Cal., for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before GOODWIN, BOOCHEVER and RYMER, Circuit Judges.

RYMER, Circuit Judge:

This case involves a dispute over the translation of a version of the Bible into several Asian languages, particularly Japanese. The Lockman Foundation ("Lockman") sued The Evangelical Alliance Mission ("TEAM"), TEAM's alleged alter ego in Japan, called TEAM/Domei, and McVety, a TEAM/Domei representative in Japan, in federal district court in California, alleging various copyright and noncopyright counts, including a RICO violation, arising under United States, Japanese and California law. ¹ The district court dismissed the case on the ground of forum non conveniens. Lockman challenges the dismissal of its noncopyright claims and contends the district court erred in not allowing it to amend its complaint to drop the copyright counts. Because the district court did not abuse its discretion in concluding that Japan is the more convenient forum for these claims and because granting leave to amend would have been futile, we affirm.

I

Lockman owned an English translation of the Bible and sought to have its version translated further into several Asian languages. It established a relationship with TEAM to organize and accomplish the translating effort. Lockman and TEAM maintained a relationship for over 30 years, which led to the publishing of a new Japanese version of the Bible ("Shinkaiyaku Seisho") distributed almost exclusively in Japan. The Lockman and TEAM cooperation also led to ongoing projects to produce more translations into several other Asian languages. The relationship eventually soured and Lockman brought this suit, alleging various claims for copyright infringement, unfair competition, and tort, contract and RICO violations. ²

TEAM/Domei brought its own suit in Japan seeking a declaratory judgment that it owns the Japanese copyright to the Shinkaiyaku Seisho. Lockman has appeared in that Japanese action.

II

The district court had jurisdiction over this suit under 28 U.S.C. Sec. 1331 (federal question), Sec. 1332(a) (diversity) & Sec. 1338 (copyright). This court has jurisdiction under 28 U.S.C. Sec. 1291.

We review the district court's dismissal for abuse of discretion. "The forum non conveniens determination is committed to the sound discretion of the trial court. It may be reversed only when there has been a clear abuse of discretion; where the court has considered all relevant public and private interest factors, and where its balancing of these factors is reasonable, its decision deserves substantial deference." Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 266, 70 L.Ed.2d 419, 436 (1981) (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 511-12, 67 S.Ct. 839, 844-45, 91 L.Ed. 1055, 1064 (1947)); Contact Lumber Co. v. P.T. Moges Shipping Co., 918 F.2d 1446, 1448-49 (9th Cir.1990). This standard presents Lockman with an uphill battle.

A party moving to dismiss on grounds of forum non conveniens must show two things: (1) the existence of an adequate alternative forum, and (2) that the balance of private and public interest factors favors dismissal. Contact Lumber, 918 F.2d at 1449. This showing must overcome the "great deference ... due plaintiffs because a showing of convenience by a party who has sued in his home forum will usually outweigh the inconvenience the defendant may have shown." Contact Lumber, 918 F.2d at 1449 (citing Gates Learjet Corp. v. Jensen, 743 F.2d 1325, 1335 (9th Cir.1984), cert. denied, 471 U.S. 1066, 105 S.Ct. 2143, 85 L.Ed.2d 500 (1985)).

Lockman stresses that plaintiffs presumptively may choose their forums. See Gulf Oil, 330 U.S. at 508, 67 S.Ct. at 843, 91 L.Ed. at 1062 ("unless the balance [of private and public interest factors] is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed"). The deference due to plaintiffs, however, is far from absolute. We have recognized that "[t]he presence of American plaintiffs ... is not in and of itself sufficient to bar a district court from dismissing a case on the ground of forum non conveniens." Cheng v. Boeing Co., 708 F.2d 1406, 1411 (9th Cir.), cert. denied, 464 U.S. 1017, 104 S.Ct. 549, 78 L.Ed.2d 723 (1983); Contact Lumber, 918 F.2d at 1449. In practice, "the cases demonstrate that defendants frequently rise to the challenge" of showing an alternative forum is the more convenient one. Contact Lumber, 918 F.2d at 1449. "A citizen's forum choice should not be given dispositive weight.... [I]f the balance of conveniences suggests that trial in the chosen forum would be unnecessarily burdensome for the defendant or the court, dismissal is proper." Piper Aircraft, 454 U.S. at 256 n. 23, 102 S.Ct. at 266 n. 23, 70 L.Ed.2d at 436 n. 23.

A. Adequate Alternative Forum

"At the outset of any forum non conveniens inquiry, the court must determine whether there exists an alternative forum. Ordinarily, this requirement will be satisfied when the defendant is 'amenable to process' in the other jurisdiction." Id. at 254 n. 22, 102 S.Ct. at 265 n. 22, 70 L.Ed.2d at 435 n. 22 (citing Gulf Oil, 330 U.S. at 506-07, 67 S.Ct. at 842, 91 L.Ed. at 1061). Because the record shows that TEAM has agreed to submit to Japanese jurisdiction, and because TEAM/Domei and McVety reside in Japan, the threshold test is satisfied.

The initial requirement may not be satisfied, however, in "rare circumstances ... where the remedy offered by the other forum is clearly unsatisfactory." Id.; see also Cheng, 708 F.2d at 1411 ("[T]he burden of proving an alternative forum is the defendant's and ... the remedy must be clear before the case will be dismissed."). Dismissal is not appropriate "where the alternative forum does not permit litigation of the subject matter of the dispute," such that "the remedy provided by the alternative forum is so clearly inadequate or unsatisfactory that it is no remedy at all." Piper Aircraft, 454 U.S. at 254 & n. 22, 102 S.Ct. at 265 & n. 22, 70 L.Ed.2d at 435 & n. 22. Lockman's allegations as to why Japan would be an inadequate forum fail to show that a Japanese remedy would be "clearly inadequate."

Lockman takes issue with several aspects of Japanese court procedure, none of which suggest that courts in that country are an inadequate forum. First, Lockman claims that there is no pretrial discovery in Japan. TEAM's experts, however, said Japanese discovery procedures, though not identical to those in the United States, would be adequate. The district court considered both sets of opinions and found that those of TEAM's experts were more persuasive. The district court did not abuse its discretion in finding that TEAM's assertion that Japan was an adequate forum was supported by sufficient evidence. See Cheng, 708 F.2d at 1410-11 (no error where district court found one set of experts more persuasive).

Second, Lockman objects to the lack of jury trials in Japan. This fact does not render Japanese courts an inadequate forum. See In re Union Carbide Corp. Gas Plant Disaster, 809 F.2d 195, 199, 202 (2d Cir.), cert. denied, 484 U.S. 871, 108 S.Ct. 199, 98 L.Ed.2d 150 (1987); Danser v. Firestone Tire and Rubber Co., 86 F.R.D. 120, 122 (S.D.N.Y.1980).

Third, Lockman claims that Japanese appellate courts exercise de novo review of facts as well as law. Even assuming such a difference in standards of review would harm Lockman, this difference does not render Japan an inadequate forum. See Piper Aircraft, 454 U.S. at 250, 102 S.Ct. at 263, 70 L.Ed.2d at 432 (unfavorable change in law should not be given substantial weight).

Fourth, Lockman contends that the statute of limitations would bar "many" of its claims. TEAM has satisfied this objection by waiving any statute of limitations defenses to Lockman's claims that would not have been otherwise available to TEAM the day Lockman filed this suit in California.

Lockman also complains of possible changes in substantive law. If forced to pursue its action in Japan, Lockman contends, it would be unable to litigate its RICO and Lanham Act claims and would lose the opportunity to recover treble damages and attorney's fees. TEAM's experts disagree, claiming that Japanese courts will apply the substantive law of the United States to Lockman's counterclaims against TEAM in TEAM's Japanese copyright action. There was evidence on both sides of this question and, again, Lockman fails to show how the district court's crediting TEAM's experts over its own amounted to an abuse of discretion.

Even if the RICO and Lanham Act claims were unavailable in Japan, that would not furnish a sufficient reason to preclude dismissal. The "possibility of an unfavorable change in the law" is not to be given conclusive or substantial weight in a forum non conveniens inquiry. Piper Aircraft, 454 U.S. at 249-51, 102 S.Ct. at 262- 64, 70 L.Ed.2d at 431-33; see also Borden, Inc. v. Meiji Milk Products Co., 919 F.2d 822, 829 (2d Cir.1990) (" 'the prospect of a lesser recovery does not justify refusing to dismiss on the ground of forum non conveniens' ") (quoting Alcoa S.S. Co. v. M/V Nordic Regent, 654 F.2d 147, 159 (2d Cir.) (en banc), cert. denied, 449 U.S. 890, 101 S.Ct. 248, 66 L.Ed.2d 116 (1980)). Other courts of appeals...