Dorati v. Dorati

• Decision Date: 07 July 1975
• Docket Number: No. 8324.,8324.
• Citation: 342 A.2d 18
• Parties: Klara DORATI, Appellant, v. Antal DORATI, Appellee.
• Court: D.C. Court of Appeals

Page 18

342 A.2d 18

Klara DORATI, Appellant, v. Antal DORATI, Appellee.

No. 8324.

District of Columbia Court of Appeals.

Argued November 21, 1974.

Decided July 7, 1975.

Rehearing and Rehearing en Banc Denied September 9, 1975.

N. David Povich, Washington, D. C., with whom Terry M. Rose, Washington, D. C., was on the brief, for appellant.

Sidney S. Sachs, Washington, D. C., with whom Hal Witt, Washington, D. C., was on the brief, for appellee.

Before REILLY, Chief Judge, and KERN and YEAGLEY, Associate Judges.

KERN, Associate Judge:

Appellant, a citizen of the United States and a resident of Rome, Italy, brought suit in the Superior Court against appellee, her former husband, who is also a citizen of the United States but is now a resident of Switzerland,¹ to enforce a support agreement executed between the parties in Los Angeles, California in 1969.² Upon motion of appellee the trial court dismissed the action on the ground of forum non conveniens.³ From that action the instant appeal was taken.

The facts relevant to a determination of the issue of forum non conveniens were, with one major exception, fully analyzed by the trial court in its carefully considered opinion.⁴ Appellee argued below, as he does in this court, that requiring him to defend this claim in the District of Columbia will place an unfair burden on him. He is neither a resident nor a domiciliary of the District; his sole contact with this jurisdiction derives from his position as Musical Director of the National Symphony Orchestra.⁵ He is actually present in the District only for the minimum amount of time required by his contract with the National Symphony, usually fifteen weeks per year, and his time while he is present is fully occupied with rehearsals and performances, leaving him insufficient time properly to prepare for and engage in this litigation. Appellee states that his other professional responsibilities require him to leave the District immediately after the completion of his duties with the Symphony, and make it impossible for him to spend additional time here. Moreover, he asserts that the bulk of his assets are located in Switzerland.⁶ For these reasons, and because he claims that the District of Columbia has no contacts with, and no interest in, the subject matter of this litigation, appellee contends that the place of his domicile, Switzerland, is a more appropriate forum, and he stands ready to accept service of process there.

This court has stated many times that it is the function of the trial court to balance the factors relevant to a claim of forum non conveniens, and that its decision will be disturbed only for a clear abuse of discretion. See Frost v. Peoples Drug Store, Inc., D.C.App., 327 A.2d 810, 813 (1974); Walsh v. Crescent Hill Co., D.C. Mun.App., 134 A.2d 653 (1957). It remains for this court, nonetheless, to review the criteria considered by the trial court in its ruling on the motion to dismiss. Frost v. Peoples Drug Store, Inc., supra at 813. In our view the trial court here erred in failing to give consideration to the fact that its action deprived an American citizen of a hearing by an American court. Further, in light of the unusual facts of this case we conclude the trial court abused its discretion in granting the motion to dismiss, and we accordingly reverse.

The trial court correctly stated the general proposition that a defendant claiming the benefit of the doctrine of forum non conveniens bears the burden of establishing that the balance of equitable considerations is strongly in his favor, unless he does so, the plaintiff's choice of forum will not be disturbed. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055 (1947); Walsh v. Crescent Hill Co., supra at 654. The factors to be considered in assessing a forum non conveniens claim are those "practical problems that make trial of a case easy, expeditious and inexpensive" or can make it the opposite; among them are the relative ease of access to proof, availability of compulsory process and the cost of obtaining the attendance of witnesses, the enforceability of a judgment if one is obtained, evidence of an attempt by the plaintiff to vex or harass the defendant by his choice of forum, and other obstacles to a fair trial. Gulf Oil Corp. v. Gilbert, supra, 330 U.S. at 508, 67 S.Ct. 839. Relevant also are interests of judicial administration, including removal from the forum court's crowded docket of cases which bear no relationship to the locality, and avoiding unnecessary interpretation of the law of another jurisdiction. Id. at 509, 67 S.Ct. 839.

The trial court viewed the instant case as a "matrimonial dispute" between nonresidents, and decided it in light of those cases in this jurisdiction which have narrowed the range of factors to be considered in such cases in assessing a motion to dismiss on the ground of forum non conveniens. In Curley v. Curley, 74 App.D.C. 163, 120 F.2d 730, cert. denied, 314 U.S. 614, 62 S.Ct. 114, 86 L.Ed. 494 (1941), the rule was established that jurisdiction of maintenance suits between nonresidents domiciled elsewhere should not be exercised by District of Columbia courts unless unusual circumstances justify trial here. Accord, Wilburn v. Wilburn, D.C.App., 192 A.2d 797, 800 (1963); Clark v. Clark, D.C. Mun.App., 144 A.2d 919 (1958); Melvin v. Melvin, 76 U.S.App.D.C. 86, 129 F.2d 39 (1942). The trial court focused its attention on the question of whether sufficient "unusual circumstances" were presented by appellant in this case to justify taking jurisdiction of her complaint. It concluded that there were not, since it is conceded that no minor children or jointly owned property are located in the District, and the court found neither the elusive behavior nor the difficulty in effecting service elsewhere which have been held to justify the assumption of jurisdiction in prior cases. See Wilburn v. Wilburn, supra; Hopson v. Hopson, 95 U.S.App.D.C. 285, 221 F.2d 839 (1955) (en banc); Melvin v. Melvin, supra.

Appellant asserted in his supplemental brief and at argument that the instant action is one based solely upon contract, and the trial court erred in treating it as a matrimonial dispute.⁷ We think it unnecessary to reach this contention, since we are satisfied that even under the standards established in Curley, Wilburn and Melvin such special circumstances were present here as to require the trial court to retain jurisdiction over the complaint.

In the instant case Switzerland is the only alternative forum which it has been suggested is available. We must therefore consider those cases in the federal courts which have ruled that a United States court will rarely dismiss a case on the ground of forum non conveniens when the only alternative forum is a foreign one. The standard was first established by the Fifth Circuit in Burt v. Isthmus Development Co., 218 F.2d 353 (5th Cir.), cert. denied, 349 U.S. 922, 75 S.Ct. 661, 99 L.Ed. 1254 (1955), that

courts should require positive evidence of unusually extreme circumstances and should be thoroughly convinced that material injustice is manifest before exercising any . . . discretion to deny a citizen access to the courts of this country. (Emphasis added.)

Id. at 357. Accord, Olympic Corp. v. Société Generale, 462 F.2d 376, 378 (2d Cir. 1972); Vanity Fair Mills v. T. Eaton Co., 234 F.2d 633, 646 (2d Cir.), cert. denied, 352 U.S. 871, 77 S.Ct. 96, 1 L.Ed.2d 76 (1956). The rule applies even when the claim sued upon arose in a foreign country, and the law of that county would govern.⁸ Hoffman v. Goberman, 420 F.2d 423, 10 A.L.R. Fed. 342 (3d Cir. 1970); Burt v. Isthmus Development Co., supra; Horovitz v. Renault, Inc., 162 F.Supp. 344 (S.D.N.Y.1958).

An essential premise of any application of the doctrine of forum non conveniens is the availability of an alternative forum. Gulf Oil Corp. v. Gilbert, supra, 330 U.S. at 507, 67 S.Ct. 839; Wilburn v. Wilburn, supra at 799. The United States Court of Appeals for this circuit has, however, indicated that a foreign jurisdiction cannot necessarily be considered an alternative forum, at least where a question of American law is involved. In North Branch Products, Inc. v. Fisher, 109 U.S. App.D.C. 182, 284 F.2d 611 (1960), cert. denied, 365 U.S. 827, 81 S.Ct. 713, 5 L.Ed. 2d 705 (1961), a Michigan corporation sued a Canadian defendant for a declaratory judgment that certain United States patents were owned by the plaintiff. Reversing a sua sponte dismissal of the complaint, the court stated as follows:

[Canada] is a foreign jurisdiction and cannot be considered a more suitable or convenient forum in which to require the rights of the parties to be determined. There is no certainty a Canadian court would be compelled to assume jurisdiction of an action filed there by a non-Canadian citizen. We do not decide the question, but its existence adds weight to the argument against the dismissal here. "[U]nless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed." Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055. It will not do to send appellant off to Alberta to litigate there, however pleasant the sojourn in Canada might be.

Id., 109 U.S.App.D.C. at 184, 284 F.2d at 613. (Footnote omitted.)

Although we recognize that part of the underpinning of these federal cases is the theory that the very purpose of the federal courts is to provide a forum for United States citizens, see Burt v. Isthmus Development Co., supra at 357, a theory which would not apply with the same force to state courts, we feel that the priority to be accorded to the plaintiff's interest in having a United States court pass on his claim is similar in both instances.⁹ In the instant case, we are persuaded that no court could find that the inconvenience demonstrated on this record by appellee outweighs appellant's interest in having her...