Jose v. M/V FIR GROVE, Civ. No. 90-6028-MA.

• Decision Date: 15 October 1991
• Docket Number: Civ. No. 90-6028-MA.
• Parties: Edwin A. JOSE, et al., Plaintiffs, v. M/V FIR GROVE, In Rem, et al., Defendants.
• Court: U.S. District Court — District of Oregon

801 F. Supp. 349

Edwin A. JOSE, et al., Plaintiffs, v. M/V FIR GROVE, In Rem, et al., Defendants.

Civ. No. 90-6028-MA.

United States District Court, D. Oregon.

October 15, 1991.

Richard J. Dodson, Law Offices of Richard J. Dodson, Baton Rouge, La., John Buehler, Bullivant, Houser, Bailey, Pendergrass & Hoffman, Portland, Or., for plaintiffs.

Craig Murphy, John Cowden, Wood Tatum Wonacott & Landis, Portland, Or., for defendants.

OPINION

MARSH, District Judge.

Plaintiffs are fourteen foreign seamen who filed this action seeking to recover back wages and penalties pursuant to 46 U.S.C. § 10313 as well as compensatory and punitive damages for common law claims of blacklisting, outrageous conduct, breach of the duty of good faith and fair dealing, duress, intentional infliction of emotional distress, fraud¹ and a newly asserted claim under the federal racketeering law, 18 U.S.C. § 1961, et seq.² In addition, plaintiff Edwin Jose and his wife, Augustine Jose, seek to recover damages for a maritime personal injury under the Jones Act, 46 U.S.C.App. § 688 and general maritime law of the United States. Pursuant to my order of June 24, 1991, defendants were ordered to file any additional dispositive motions and were directed to address the effect of plaintiffs' most recent amendments on the issue of forum non conveniens. Defendants now move to dismiss all of plaintiffs' pendent claims under the doctrine of forum non conveniens. In addition, defendants seek dismissal of the Joses' personal injury claims pursuant to Fed.R.Civ.P. 12(b)(6) and dismissal of plaintiffs' claims under RICO pursuant to Fed. R.Civ.P. 12(b)(1) and 12(b)(6). For the reasons that follow, defendants' motion to dismiss all pendent claims under the doctrine of forum non conveniens is granted, defendants' motion to dismiss the Joses' personal injury claims for failure to state a claim is denied as moot, and defendants' motion to dismiss plaintiffs' RICO claims for lack of subject matter jurisdiction and for failure to state a claim is granted.

STANDARD

Dismissal for failure to state a claim is proper only when it appears to a certainty that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Gibson v. United States, 781 F.2d 1334, 1337 (9th Cir.1986), cert. denied, 479 U.S. 1054, 107 S.Ct. 928, 93 L.Ed.2d 979 (1987). For the purpose of the motion to dismiss, the complaint is liberally construed in favor of the plaintiff, and its allegations are taken as true. Schowengerdt v. General Dynamics Corp., 823 F.2d 1328, 1332 (9th Cir.1987).

DISCUSSION

The factual background of this case and the pleading history have been set forth in three published opinions and will not be repeated here. See Jose v. M/V FIR GROVE, 765 F.Supp. 1015 (D.Or.1990); Jose v. M/V FIR GROVE, 1991 AMC 857, 1990 WL 302728 (D.Or.1990); and Jose v. M/V FIR GROVE, 765 F.Supp. 1024 (D.Or. 1991). The issue before me now is also not a new one — that of the propriety of this court's retention of jurisdiction over plaintiffs' pendent claims for blacklisting, outrageous conduct, breach of the duty of good faith and fair dealing, duress, intentional infliction of emotional distress and the Joses' personal injury claims.³

On October 11, 1990, I determined that I lacked subject matter jurisdiction over plaintiffs' common law claims because their allegations of harm did not fall within the definition of a "maritime injury." At 1020. However, I found that these claims derived from a nucleus of operative facts common to their statutory wage claims such that plaintiffs would expect to try them in one judicial proceeding. Id., at 1021. Accordingly, I retained jurisdiction over plaintiffs' common law claims under the doctrine of pendent jurisdiction.

Thereafter, on February 8, 1991, I considered defendants' motion to dismiss plaintiffs' pendent claims under the doctrine of forum non conveniens. In conducting this analysis, I utilized the test set forth by the Supreme Court in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-509, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947), and balanced the public and private interest factors present in the case to determine if my exercise of jurisdiction over the pendent claims would be reasonable. At that time, I noted that the Philippines had a significant interest in the outcome of the litigation such that the law of the Philippines should apply to plaintiffs' pendent claims. At 1035-36. However, I felt that the private interest factors of convenience, judicial economy, costs of litigation and deference to the plaintiffs' choice of forum outweighed the interests of the Philippines in trying this case in a local court. Id. Accordingly, I denied defendants' motion to dismiss.

On May 24, 1991, plaintiffs sought an extension of deadlines to complete additional discovery in the Philippines and Japan, leave to file a fifth amended complaint in which they wished to add two additional foreign defendants⁴, and leave to supplement the pretrial order with over 350 pages of documents. Plaintiffs acknowledged that these requests would necessitate the loss of the most recent trial setting of July 16, 1991, but argued that the interests of justice required an indeterminate additional period of time to follow up on newly discovered evidence. Although I granted all of plaintiffs' requests, my concerns about the convenience of trial in this jurisdiction, judicial economy and costs of litigation were raised again. Thus, I directed defendants to address the impact of plaintiffs' expansion of the scope of the litigation on the issue of forum non conveniens.

a. Forum Non Conveniens⁵

District courts have broad discretion to retain or refuse to retain jurisdiction under the forum non conveniens doctrine. Canada Malting Co. v. Paterson Steamships, 285 U.S. 413, 418, 52 S.Ct. 413, 414, 76 L.Ed. 837 (1932); Dalla v. Atlas Maritime Co., 562 F.Supp. 752, 757 (C.D.Cal. 1983), aff'd 771 F.2d 1277 (9th Cir.1985). This discretion is to be exercised "with regard to what is right and equitable under the circumstances and the law and directed by the reason and conscience of the judge as to a just result." Dalla, 562 F.Supp. at 757, citing Langnes v. Green, 282 U.S. 531, 541, 51 S.Ct. 243, 247, 75 L.Ed. 520 (1931). Thus, in considering any dismissal on the basis of forum non conveniens, the court must first determine whether an alternative forum exists. Lockman Foundation v. Evangelical Alliance, 930 F.2d 764, 767 (9th Cir.1991). Defendants bear the burden of producing sufficient evidence to justify this court's refusal to retain jurisdiction. Dalla, 562 F.Supp. at 757, citing Philippine Packing Corp. v. Maritime Co. of Philippines, 519 F.2d 811, 812 (9th Cir. 1975).

In conducting this test, I must balance public and private interest factors identified in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-509, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947). Lockman, 930 F.2d at 767; Villar v. Crowley Maritime, 782 F.2d 1478, 1482 (9th Cir.1986). Relevant private interest factors include: the relative ease of access to sources of proof, availability of witnesses and "all other practical problems that make a trial of a case easy and inexpensive." Gulf Oil, 330 U.S. at 508, 67 S.Ct. at 843. Relevant public interests include the burden on a court and jury with no relation to the litigation; the local interest in having the case decided at home; and the deference to a forum that is at home with the governing law. Id. at 508-509, 67 S.Ct. at 843.

In my first opinion denying defendants' motion to dismiss on forum non conveniens grounds, I placed great reliance upon Judge Lawrence's reasoning in Kearney v. Savannah Foods & Industries, Inc., 350 F.Supp. 85 (S.D.Ga.1972). In Kearney, Judge Lawrence declined to split an action filed by the Irish administratrix of a deceased Irish seaman for wrongful death against an Irish vessel owner, the manufacturer of a catwalk and the Georgia corporation that maintained the catwalk. I concurred with Judge Lawrence's approach based primarily upon my finding that the evidence to be adduced as to plaintiffs' wage claims would also be relevant to and a part of the trial on plaintiffs' blacklisting claims.

However, upon further consideration, I also note that several of the other private interest factors identified in Gulf Oil weigh heavily in favor of a trial in the Philippines. First and foremost, I note defendants' proffer that, if plaintiffs' pendent claims are dismissed, they agree to submit to the jurisdiction of the Philippine courts. Thus, plaintiffs have an adequate alternative forum. Second, all of the plaintiffs reside in the Philippines and may not be able to obtain visas to come to the United States for trial. All defendants reside in Japan and, although they would be inconvenienced by a trial in either forum, the Philippines would be more convenient given their business ties to that country. Third, all sources of proof are located in Japan, Hong Kong and the Philippines. Although both parties filed exhibits in anticipation of the July 16, 1991 trial, the most recent submissions of plaintiffs' counsel convince me that discovery is far from complete and that the submissions currently on file will be significantly augmented.

In addition, the most recent round of motions demonstrates that the public interest factors favoring litigation in the Philippines is even stronger than I had earlier anticipated. In their response to defendants' motion to dismiss the Joses' personal injury claims, plaintiffs concede that the claims of Augustine Jose for loss of consortium and related damages are not recoverable under Philippine law. However, the parties actively dispute whether Edwin Jose's claims are barred by Article 217 of the Philippine Labor Code. In their briefs, neither party has cited a single case to support their interpretation of the Philippine Labor Code provisions, but instead they rely upon expert affidavits and...