Kamel v. Hill-Rom Co., Inc.

• Citation: 108 F.3d 799
• Decision Date: 14 March 1997
• Docket Number: HILL-ROM,No. 96-1610,96-1610
• Parties: Mohammed A. KAMEL, d/b/a Al Muraa Establishment, Plaintiff-Appellant, v.COMPANY, INC. and Elias Ephrem Abou-Chedid, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 799

108 F.3d 799

Mohammed A. KAMEL, d/b/a Al Muraa Establishment, Plaintiff-Appellant, v. HILL-ROM COMPANY, INC. and Elias Ephrem Abou-Chedid Defendants-Appellees.

No. 96-1610.

United States Court of Appeals Seventh Circuit.

Argued Nov. 1, 1996.

Decided March 14, 1997.

Alan S. Brown (argued), Julia B. Gelinas, Locke, Reynolds, Boyd & Weisell, Indianapolis, IN, for Plaintiff-Appellant.

Donald E. Knebel, Lynn C. Tyler (argued), Barnes & Thornburg, Indianapolis, IN, for Hill-Rom Co., Inc.

John J. Morse, Michael A. Wukmer (argued), Ice, Miller, Donadio & Ryan, Indianapolis, IN, for Elias E. Abou-Chedid.

Before CUMMINGS, BAUER, and EASTERBROOK, Circuit Judges.

BAUER, Circuit Judge.

Mohammed A. Kamel initiated an action in Indiana District Court against Hill-Rom Company for breach of contract, breach of fiduciary duty, unjust enrichment, misappropriation of confidential information, actual and constructive fraud, and tortious interference with business relationships. In response, Hill-Rom filed a Motion to Dismiss on the basis of forum non conveniens, which the district court granted. Kamel now appeals that decision.

Kamel is a citizen of the Kingdom of Saudi Arabia doing business as Al Muraa Establishment. Al Muraa is a sole proprietorship which markets and distributes medical equipment in Saudi Arabia. Hill-Rom is an Indiana corporation which manufactures and sells hospital equipment, primarily hospital beds. In 1985, Kamel and Hill-Rom agreed that Al Muraa would promote, market, and sell Hill-Rom products in Saudi Arabia. In turn, Hill-Rom would supply its products exclusively to Al Muraa for distribution and sale in Saudi Arabia, meet the warranty and maintenance obligations required for Hill-Rom products sold in Saudi Arabia, and give Al Muraa support for after-sales service and installation of Hill-Rom products. In 1986, the parties furthered their agreement by entering into a joint venture. That same year, Al Muraa agreed to hire Elias Ephrem Abou-Chedid, Hill-Rom's Middle East Area Manager, to market and sell Hill-Rom's products in Saudi Arabia.

In 1991, Hill-Rom informed Al Muraa that Chedid had accepted work with a competing distributor, Saudi Trading Services International Co., Ltd. ("STS"). According to Kamel's complaint, Hill-Rom and Chedid induced Al Muraa into releasing Chedid from his employment obligations by assuring Al Muraa that Chedid would not be marketing and selling Hill-Rom products for STS. After his release and contrary to Hill-Rom and Chedid's assurances, Chedid's work for STS largely consisted of marketing and selling hospital equipment in general and Hill-Rom's products in particular. In October 1992, Hill-Rom notified Al Muraa that it was appointing STS as an additional distributor for its products in Saudi Arabia. Al Muraa objected to this arrangement because Chedid was working for STS, and Al Muraa believed that Chedid was linked with projects for STS which had originally been developed during Al Muraa and Hill-Rom's joint venture. Kamel also alleges that Hill-Rom diverted sales accounts to STS which had originated from the joint venture.

Finally, Kamel claims that Hill-Rom wrongfully terminated the parties' agreement on April 1, 1993, when Hill-Rom advised Al Muraa that it would no longer supply its products. By this point, Al Muraa had originated and developed roughly $30 million in outstanding quotations for Hill-Rom products and had negotiated numerous ongoing contracts, all on behalf of the joint venture. Hill-Rom knew of and approved these quotations and contracts.

Kamel initiated this action in February 1994 and amended his complaint in March 1995, alleging breach of contract and breach of fiduciary duty among his eight counts against Hill-Rom and Chedid. Seventeen months after Kamel filed his original complaint, Hill-Rom sought dismissal of Kamel's action pursuant to the doctrine of forum non conveniens, contending that Saudi Arabia would be the best arena for this action. Concerned with Hill-Rom's lackadaisical pursuit of its forum non conveniens motion, the district court required Hill-Rom to present "a particularly convincing case to ensure that Hill-Rom is not merely seeking to delay the proceedings or otherwise illegitimately frustrate [Kamel]." Despite the heightened burden it imposed on Hill-Rom, the district court granted Hill-Rom's motion, and we affirm.

Analysis

A. Forum Non Conveniens and Standard of Review.

The principle of forum non conveniens comes down to this: a trial court may dismiss a suit over which it would normally have jurisdiction if it best serves the convenience of the parties and the ends of justice. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507, 67 S.Ct. 839, 842-43, 91 L.Ed. 1055 (1947); Koster v. Lumbermens Mut. Cas. Co., 330 U.S. 518, 527, 67 S.Ct. 828, 833, 91 L.Ed. 1067 (1947). When an alternative forum has jurisdiction to hear a case, and when a trial in the chosen forum would result in vexation and oppression to the defendant which would far outweigh the plaintiff's convenience or when the chosen forum would generate administrative and legal entanglements for the trial court, the court may dismiss the case. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241, 102 S.Ct. 252, 258, 70 L.Ed.2d 419 (1981); see also Macedo v. Boeing Co., 693 F.2d 683, 689 (7th Cir.1982).

A forum non conveniens determination is consigned to the trial court's sound discretion. Piper, 454 U.S. at 254, 102 S.Ct. at 265. Where a district court has contemplated all relevant public and private interest factors and where its balancing of these factors is reasonable, its forum non conveniens determination warrants substantial deference. Id.; Wilson v. Humphreys (Cayman) Ltd., 916 F.2d 1239, 1245 (7th Cir.1990), cert. denied, 499 U.S. 947, 111 S.Ct. 1415, 113 L.Ed.2d 468 (1991). We review this determination only for abuse of discretion. Id.; see also Wilson, 916 F.2d at 1245.

B. Whether an Adequate Alternative Forum Exists.

As a practical matter, it makes little sense to broach the subject of forum non conveniens unless an adequate alternative forum is available to hear the case. Therefore, the first step in any forum non conveniens inquiry is to decide whether such a place exists. Piper, 454 U.S. at 254, 102 S.Ct. at 265. This is a two-part inquiry: availability and adequacy. In re Air Crash Disaster Near New Orleans, La., 821 F.2d 1147, 1165 (5th Cir.1987) (en banc), partially vacated on other grounds, 490 U.S. 1032, 109 S.Ct. 1928, 104 L.Ed.2d 400 (1989). An alternative forum is available if all parties are amenable to process and are within the forum's jurisdiction. Id. An alternative forum is adequate when the parties will not be deprived of all remedies or treated unfairly. Piper, 454 U.S. at 255, 102 S.Ct. at 265-66.

Kamel believes that the district court wrongly found that Saudi Arabia is an available alternative forum. He fears that Hill-Rom will not be amenable to process in Saudi Arabia and that a Saudi judgment will not be enforceable because the district court failed to attach such explicit conditions to its forum non conveniens dismissal. We disagree. As the district court indicated and we note, Hill-Rom has expressly consented to Saudi Arabia's jurisdiction. Hill-Rom also submitted the affidavit of Vernon Cassin, an expert in Saudi law. Cassin's affidavit indicated that Saudi law recognizes consents to jurisdiction, and that even without Hill-Rom's consent, Saudi law would render Hill-Rom amenable to Saudi jurisdiction.

Kamel also stresses that Saudi Arabia's legal remedies are so inadequate that it is not an adequate alternative forum. He maintains that the district court ignored his expert, Dr. Mujahid M. Al-Sawwaf, who stated that, of the claims brought by Kamel, Saudi Arabia only recognizes a breach of contract action. However, the district court, having concluded that Al-Sawwaf had overstated the lack of redress in Saudi courts, was more persuaded by Cassin's opinion. Cassin stated that Saudi Arabia recognizes claims for breach of contract and other claims similar to those which Kamel has alleged. "A court may dismiss on forum non conveniens grounds even though the foreign forum does not provide the same range of remedies as are available in the home forum. However, the alternative forum must provide some potential avenue for redress." Ceramic Corp. of America v. Inka Maritime Corp., 1 F.3d 947, 949 (9th Cir.1993). Kamel does have a potential avenue for redress in Saudi Arabia in his breach of contract action, as even Kamel's own expert agrees. The district court simply had more faith in Hill-Rom's expert than in Kamel's. We find no abuse of discretion in the district court's threshold determination that Saudi Arabia is an adequate alternative forum.

C. Whether the Trial Court Correctly Balanced the Interests Involved.

Provided an adequate alternative forum exists, the district court must then balance the private and public interest factors that emerge in a given case. Gilbert, 330 U.S. at 508, 67 S.Ct. at 843; Koster, 330 U.S. at 524, 67 S.Ct. at 831-32. Ordinarily, the trial court should not supplant the plaintiff's choice of forum. Piper, 454 U.S. at 241, 102 S.Ct. at 258; Wilson, 916 F.2d at 1245. When the plaintiff chooses his home forum, it is reasonable to assume that this choice is convenient. Piper, 454 U.S. at 256, 102 S.Ct. at 266. However, because the primary objective of any forum non conveniens inquiry is to ensure that the trial is convenient, a foreign plaintiff's choice of forum deserves less deference. Id.; Wilson, 916 F.2d at 1246. In this case, the district court was aware that it should pay less deference to Kamel's forum choice because he (and Al Muraa) are Saudi Arabian citizens.

The factors pertaining to the private interests of the litigants include the relative ease of access to sources of proof; availability of compulsory process for the attendance of unwilling witnesses; the cost of...