Zions First Nat. Bank v. Moto Diesel Mexicana, S.A. de C.V.

• Decision Date: 15 December 2010
• Docket Number: No. 09-1704,09-1704
• Citation: 629 F.3d 520
• Parties: ZIONS FIRST NATIONAL BANK, Plaintiff-Appellant, v. MOTO DIESEL MEXICANA, S.A. DE C.V., Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

629 F.3d 520

ZIONS FIRST NATIONAL BANK, Plaintiff-Appellant,

v.MOTO DIESEL MEXICANA, S.A. DE C.V., Defendant-Appellee.

No. 09-1704.

United States Court of Appeals, Sixth Circuit.

Argued: July 27, 2010.

Decided and Filed: Dec. 15, 2010.

ARGUED: Daniel G. Kielczewski, Abbott Nicholson, P.C., Detroit, Michigan, for Appellant. Adolfo Campero, Jr., Campero & Becerra, Laredo, Texas, for Appellee. ON BRIEF: Daniel G. Kielczewski, Abbott Nicholson, P.C., Detroit, Michigan, for Appellant. Adolfo Campero, Jr., Campero & Becerra, Laredo, Texas, for Appellee.

Before: GIBBONS and KETHLEDGE, Circuit Judges; SARGUS, District Judge.^*

OPINION

SARGUS, District Judge.

From December 10, 2007, through December 14, 2007, Moto Diesel Mexicana, S.A. de C.V. ("MDM") issued eight checks totaling $2 million to Casa de Cambio Majapara S.A. de C.V. ("Majapara"). Thechecks were drawn on MDM's account at Comerica Bank in Detroit, Michigan. On December 14 and 18, 2007, Majapara attempted to deposit all the funds from the eight checks into its account at Zions First National Bank in Salt Lake City, Utah ("Zions"). In turn, Majapara withdrew the $2 million from its account at Zions. Thereafter, however, Comerica Bank notified Zions that the checks from MDM had been dishonored because of insufficient funds. Ultimately, Zions suffered a loss of $2 million.

Zions brought suit against MDM alleging (1) holder in due course status; (2) conversion; and (3) quantum valebant. In response to the Complaint, MDM filed three motions to dismiss, under F.R. Civ. P. 12(b)(2), (5) and (6). Several months later, before disposition of the pending motions, MDM filed a motion to dismiss on the grounds of forum non conveniens. On April 1, 2009, the district court granted the motion to dismiss on the grounds of forum non conveniens and denied as moot the other pending motions.

Zions thereafter filed a motion for reconsideration, which the district court denied. A timely appeal followed. On appeal, Zions argues that the district court erred in dismissing its claims on forum non conveniens grounds. For the reasons that follow, we VACATE the decision of the district court and REMAND for further proceedings consistent with this Opinion.

I. STANDARD OF REVIEW

We review for clear abuse of discretion a district court's determination that the doctrine of forum non conveniens requires dismissal of a case. Duha v. Agrium, Inc., 448 F.3d 867, 873 (6th Cir.2006).¹ A dismissal upon the grounds of forum non conveniens is justified when a defendant establishes that an adequate alternative forum is available and that the public and private factors enumerated in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), demonstrate that the chosen forum is unnecessarily burdensome to a defendant or a district court. Id. The relevant public and private factors in a forum non conveniens challenge, as set forth in Gulf Oil, include access to witnesses and evidence, availability of compulsory process, cost of obtaining witnesses, administration difficulties for the trial court, local interest in the litigation, and the law applicable to the controversy. Gulf Oil, 330 U.S. at 508-09, 67 S.Ct. 839. These factors are to be considered for each analytically distinct claim brought by a plaintiff. Duha, 448 F.3d at 879. "[W]here 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, 70 L.Ed.2d 419 (1981).

In determining whether a case should be dismissed on the grounds of forum non conveniens, a district court must apply a strong presumption in favorof a plaintiff's selected forum, particularly if the forum is the home of the plaintiff, because "it is reasonable to assume that this choice is convenient." Id. at 255-56, 102 S.Ct. 252. When the plaintiff's choice of forum, however, is not the home of the plaintiff, the normally applicable assumption that the forum choice is convenient carries significantly less weight. Id. at 255-56, 102 S.Ct. 252. Nevertheless, "[t]his lesser standard of deference should presumptively not apply to a U.S. plaintiff's choice of forum." Duha, 448 F.3d at 874. Instead, "[i]n general, the standard of deference for a U.S. plaintiff's choice of a home forum permits dismissal only when the defendant 'establish[es] such oppressiveness and vexation to a defendant as to be out of all proportion to a plaintiff's convenience, which may be shown to be slight or nonexistent.' " Id. 873-74 (quoting Koster v. Am. Lumbermens Mut. Cas. Co., 330 U.S. 518, 524, 67 S.Ct. 828, 91 L.Ed. 1067 (1947) (alteration in original)).

II. DISCUSSION

In this action, the district court applied the doctrine of forum non conveniens to dismiss all three counts of Zions' complaint based upon a conclusion that the case was not a "local controversy." Zions First Nat'l Bank v. Moto Diesel Mexicana, S.A., No. 08-10528, 2009 WL 910764, at *3 (E.D.Mich. Apr.1, 2009) (internal quotation marks omitted). The district court noted that none of the parties involved in the dispute is located in Michigan, the forum, and that "[t]he only connection to Michigan is that MDM bounced checks drawn on an account here." Id.

In determining that the case should be dismissed on the grounds of forum non conveniens, the district court focused upon two considerations: first, whether an adequate alternative forum exists for adjudicating the dispute; and second, whether public and private interests can be best satisfied by a transfer of the case to an alternative forum. As to the first factor, the district court determined that the courts of Mexico provided an adequate forum. As to the second factor, the district court considered the location of witnesses and evidence. The court found that all of the witnesses for MDM and Majapara resided in Mexico, while Zions' witnesses were in Utah. The court also noted that, although the bank records were located in Michigan, they could be easily transferred to Mexico. The district court, however, did not discuss whether the choice of forum was oppressive or vexatious, nor did the district court conduct a separate analysis of the relevant public and private factors for each distinct set of claims asserted by Zions. We conclude that these omissions require remand.

Our review of this action is guided by Duha, 448 F.3d 867. In Duha, this Court reversed the decision of a district court which had dismissed all claims on the basis of forum non conveniens. The district court, in a manner similar to this case, analyzed two issues regarding an alternative forum. First, the district court found that Argentina, the foreign forum in that case, provided a reasonable and available alternative forum. Id. at 872. Second, the court determined that, while witnesses were scattered among various countries, Argentina provided the most convenient forum. Id.

On appeal, this Court recognized that the decision of the district court was entitled to deference under a clear abuse of discretion review. Id. at 873. Nonetheless, this Court found that the district court erred for three reasons:

First, the district court did not apply the deference required for a forum choice made by a U.S. plaintiff under Koster v. American Lumbermens Mutual Casualty Co., 330 U.S. 518, 524, 67 S.Ct. 828, 91 L.Ed. 1067 (1947). Second, the districtcourt erred in its weighing of the relative ease of access to documents and live testimony. Third, the district court, in balancing the convenience of the alternative forums, disregarded a substantial portion of plaintiff's claims.

Id. All of these reasons are implicated in the case before us. We address each one in turn.

A. Deference to Plaintiff's Forum Selection

The district court failed to accord the appropriate degree of deference to Zions' selection of Michigan as the forum for prosecuting this action. Indeed, the district court's ruling does not mention, and does not appear to have considered, the deference that a plaintiff's choice of forum is normally accorded, or the fact that it was Zions, a U.S. plaintiff, that made the forum selection. In this appeal, MDM contends that the deference normally given to a plaintiff's choice of a forum does not apply when the forum is not the "home" of the plaintiff. See Piper Aircraft, 454 U.S. at 255-56, 102 S.Ct. 252 (noting that a foreign plaintiff's choice of forum does not carry the same assumption that its choice of forum is convenient as does the choice of a plaintiff bringing suit in its home forum). Zions, a Utah corporation, brought this case in Michigan, where it is not a resident. Unlike the Scottish plaintiff in Piper Aircraft, however, Zions is not a foreign plaintiff. It is a corporation with its principal place of business in Salt Lake City, Utah, and therefore a U.S. plaintiff. Thus, the lesser standard of deference to a plaintiff's choice of forum does not apply.

Moreover, Zions has brought this action in the district in which the claims allegedly arose. If the claim by MDM is that Utah is a more convenient forum, then such matter is addressed under 28 U.S.C. § 1404(a). If the claim is that the case is better suited for disposition in Mexico, then the doctrine of forum non conveniens provides the analysis, which includes the strong presumption in favor of the plaintiff's forum selection.

Although we note that a district court need not make an explicit finding that proceeding with the suit in the United States would be oppressive or vexatious to a defendant, Kryvicky v. Scandinavian Airlines Sys., 807 F.2d 514, 517 (6th Cir.1986), the forum non conveniens determination must indicate that the district court considered whether any oppression and vexation to a defendant was "out of all proportion to plaintiff's convenience." Koster, 330 U.S. at 524, 67 S.Ct. 828. Here, the district court's opinion does not indicate that it undertook the...