Provincial Gov't of Marinduque v. Placer Dome, Inc.

• Decision Date: 11 June 2015
• Docket Number: No. 57956.,57956.
• Citation: 131 Nev. Adv. Op. 35,350 P.3d 392
• Parties: PROVINCIAL GOVERNMENT OF MARINDUQUE, Appellant, v. PLACER DOME, INC.; and Barrick Gold Corporation, Respondents.
• Court: Nevada Supreme Court

350 P.3d 392

131 Nev. Adv. Op. 35

PROVINCIAL GOVERNMENT OF MARINDUQUE, Appellant

v.PLACER DOME, INC.; and Barrick Gold Corporation, Respondents.

No. 57956.

Supreme Court of Nevada.

June 11, 2015.

Snell & Wilmer L.L.P. and Patrick G. Byrne, Las Vegas; Snell & Wilmer L.L.P. and Neil Peck and Jessica E. Yates, Denver, Colorado; Diamond McCarthy, L.L.P., and James D. McCarthy, Walter J. Scott, David Ammons, and Reda Hicks, Dallas, Texas, for Appellant.

Morris Law Group and Steve L. Morris and Rex D. Garner, Las Vegas; Arnold & Porter LLP and Edward Han, Washington, D.C.; Arent Fox LLP and Martin F. Cunniff, Washington, D.C., for Respondents.

Before The Court En Banc.¹

OPINION

By the Court, PARRAGUIRRE, J.:

In this appeal, we are asked to determine whether the district court abused its discretion by dismissing a complaint for forum non conveniens when the events giving rise to the complaint occurred in the Republic of the Philippines and the alternative fora are in Canada. Because this matter has no bona fide connection to this state, we conclude that the district court properly exercised its discretion by granting the motion to dismiss for forum non conveniens. We further conclude that the district court imposed appropriate conditions to ensure the adequacy of the alternative fora without requiring appellant to proceed in any particular forum. Accordingly, we affirm.

FACTS AND PROCEDURAL HISTORY

Appellant, the Provincial Government of Marinduque (the Province), is a political subdivision of the Republic of the Philippines. Respondent Placer Dome, Inc. (PDI), was incorporated under the laws of British Columbia, Canada. Beginning in the 1950s, a predecessor of PDI formed Marcopper Mining Corporation to undertake mining activities in the Province. This predecessor, and later PDI, held a substantial minority of the shares of Marcopper. According to the Province, PDI and its predecessor controlled all aspects of Marcopper's operations. During the course of Marcopper's operations, several incidents occurred that caused significant environmental degradation and health hazards to the people living in the Province, who are known as Marinduqueños.

These incidents and the harms resulting therefrom were investigated by several organizations, including United States Geological Survey (U.S.G.S.) teams. U.S.G.S. documents regarding the disasters are located in Colorado and Virginia, and U.S.G.S. team members reside throughout the United States. Several participants in medical missions to the Province also reside across the United States. Many witnesses whose testimony would be material to the Province's claims live in the Philippines. Many individuals named in the Province's operative complaint as being involved with Mar copper

or PDI live in Canada, but some live in the United States. Few, if any, material witnesses reside in Nevada.

At the time the Province filed its complaint in the district court, PDI subsidiaries owned mining operations in Nevada. Shortly thereafter, PDI and another business entity amalgamated under the laws of Ontario, Canada, to form respondent Barrick Gold Corporation. Barrick's subsidiaries have continued substantial mining operations in Nevada. Barrick and PDI contend that only their subsidiaries conduct business in Nevada and personal jurisdiction is therefore lacking. The Province responds that the corporate veils may be pierced to establish personal jurisdiction in Nevada over both Barrick and PDI.

Barrick and PDI moved to dismiss for forum non conveniens, arguing that either British Columbia, where PDI was incorporated, or Ontario, where Barrick was formed, would provide a better forum for this litigation. The Province opposed this motion and alternatively asked the district court to condition dismissal on Barrick's and PDI's consent to jurisdiction in the Philippines. Because the Province is a foreign plaintiff, the district court gave the Province's choice of a Nevada forum “little deference.” The district court found that the Philippines would be the best forum for this litigation and stated that the Province could file a complaint there, but the court refused to condition dismissal on Barrick's and PDI's consent to jurisdiction in the Philippines. The district court further found that either British Columbia or Ontario provided an adequate alternative forum. After analyzing several public and private interest factors, the district court found that dismissal for forum non conveniens was warranted. The district court conditioned dismissal on Barrick's and PDI's (1) waiver of personal jurisdiction, statute of limitations, and forum non conveniens arguments in British Columbia and Ontario; and (2) stipulation that both monetary and injunctive relief would be available in British Columbia and Ontario. Because Barrick and PDI agreed to these conditions, the district court dismissed the action without prejudice. The Province now appeals.

DISCUSSION

We review a district court's order dismissing an action for forum non conveniens for an abuse of discretion. Payne v. Eighth Judicial Dist. Court, 97 Nev. 228, 229, 626 P.2d 1278, 1279 (1981), overruled on other grounds by Pan v. Eighth Judicial Dist. Court, 120 Nev. 222, 228, 88 P.3d 840, 844 (2004).

When deciding a motion to dismiss for forum non conveniens, a court must first determine the level of deference owed to the plaintiff's forum choice. Pollux Holding Ltd. v. Chase Manhattan Bank, 329 F.3d 64, 70 (2d Cir.2003). Next, a district court must determine “whether an adequate alternative forum exists.” Lueck v. Sundstrand Corp., 236 F.3d 1137, 1142 (9th Cir.2001) (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254 n. 22, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981) ). If an adequate alternative forum does exist, the court must then weigh public and private interest factors to determine whether dismissal is warranted. Id. Dismissal for forum non conveniens is appropriate “only in exceptional circumstances when the factors weigh strongly in favor of another forum.” Eaton v. Second Judicial Dist. Court, 96 Nev. 773, 774–75, 616 P.2d 400, 401 (1980), overruled on other grounds by Pan, 120 Nev. at 228, 88 P.3d at 844.

The Province's choice of a Nevada forum was entitled to less deference

Generally, a plaintiff's choice of forum is entitled to great deference, but a foreign plaintiff's choice of a United States forum is entitled to less deference. Pollux Holding, 329 F.3d at 71. While the law recognizes the validity of a foreign plaintiff's selection of a United States forum in order to obtain jurisdiction over a defendant, a foreign plaintiff's choice will be entitled to substantial deference only where the case has bona fide connections to and convenience favors the chosen forum. Id. at 74.

First, the Province contends that the district court should not have reduced the level of deference owed to its forum choice because it selected a Nevada forum to obtain personal jurisdiction over PDI. Even with this legitimate reason for choosing a foreign forum, the Province's choice is only entitled to additional deference to the extent that this case has bona fide connections to this state and convenience favors litigating this case in Nevada. See id. Because the Province only argues that personal jurisdiction is proper in Nevada through piercing Barrick's and PDI's corporate veils, the link between the Province's forum choice and its stated reason for that choice—establishing personal jurisdiction—is tenuous. See id. Moreover, Barrick's and PDI's subsidiaries' business activities are the only connection that this litigation appears to have with this state. This is not the type of bona fide connection that justifies giving a foreign plaintiffs forum choice substantial deference. See id. Accordingly, we conclude that the district court properly gave reduced deference to the Province's forum choice. See Piper Aircraft, 454 U.S. at 255–56, 102 S.Ct. 252 ; Pollux Holding, 329 F.3d at 74.

Second, the Province argues that the district court applied the wrong level of deference by stating that the Province's forum choice was entitled to “little deference.” The district court also quoted Piper Aircraft, 454 U.S. at 256, 102 S.Ct. 252, however, to state that “a foreign plaintiffs choice [of forum] deserves less deference.” Because the district court referred to the appropriate “less deference” standard, we conclude that using the word “little,” although unusual in this context, does not indicate an abuse of discretion. See Payne, 97 Nev. at 229, 626 P.2d at 1279. We therefore conclude that the district court properly gave less deference to the Province's choice of a Nevada forum.² Piper Aircraft, 454 U.S. at 255–56, 102 S.Ct. 252.

The district court did not abuse its discretion by finding that the public and private interest factors favored dismissal for forum non conveniens

The Province does not argue on appeal that British Columbia and Ontario are inadequate alternative fora. Therefore, we now turn to the district court's analysis of the public and private interest factors. See Lueck, 236 F.3d at 1142.

The district court did not abuse its discretion in its analysis of the public interest factors

The Province argues that the district court abused its discretion by finding that the public interest factors favored dismissal for forum non conveniens. We disagree.

Relevant public interest factors include the local interest in the case, the district court's familiarity with applicable law, the burdens on local courts and jurors, court congestion, and the costs of resolving a dispute unrelated to the plaintiffs chosen forum. Lueck, 236 F.3d at 1147 (citing Piper Aircraft, 454 U.S. at 259–61, 102 S.Ct. 252 ).

As to the local interest in this case, the district court concluded that either Canadian forum had more interest in this matter than Nevada. The Province contends that some Marinduqueños living in Nevada may be interested in this litigation, but that does not mean that Nevada, or even Clark...