Gemini Capital Group, Inc. v. Yap Fishing Corp.

150 F.3d 1088, 98 Daily Journal DAR 7862, 1998 U.S. App. LEXIS 16422, 1998 WL 401153
CourtCourt of Appeals for the Ninth Circuit
DecidedJuly 20, 1998
DocketNo. 96-15261
StatusPublished
Cited by16 cases

This text of 150 F.3d 1088 (Gemini Capital Group, Inc. v. Yap Fishing Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gemini Capital Group, Inc. v. Yap Fishing Corp., 150 F.3d 1088, 98 Daily Journal DAR 7862, 1998 U.S. App. LEXIS 16422, 1998 WL 401153 (9th Cir. 1998).

Opinion

GOODWIN, Circuit Judge:

Plaintiffs brought this action in the district court against former business associates and governmental agencies in a dispute arising out of an international venture in the tuna industry. The court dismissed the action on grounds of forum non conveniens, in favor of the courts of the State of Yap, of the Federated States of Micronesia (FSM). Plaintiffs appeal, contending that the district court erred as a matter of law and abused its discretion in dismissing the action. We affirm.

Plaintiffs, with others interested in the development of a tuna fishery in the Western Pacific, negotiated with various governmental agencies of the State of Yap. In July, 1990, Plaintiffs and Defendants, together with other entities not parties to this litigation, entered into, a written statement of intent to form a fishing venture with Gemini Capital Group to manage the venture’s fleet of fishing vessels from an office to be established in the State of Yap. In September, 1990, pursuant to the statement of intent, the government of Yap, Plaintiff IDP, a California corporation, and nonparties Kingfisher Holdings, Ltd. and Citipae, formed Yap Fishing Corporation (YFC). The agreement contained choice of law and choice of forum clauses subjecting the agreement to the laws of both the Federated States of Micronesia and the State of Yap, with all parties agreeing to submit to the jurisdiction of the courts of the FSM in any controversy or claim not resolved by arbitration pursuant to Paragraph 10.7.

In 1991 and 1992 YFC negotiated with the Overseas Private Investment Corporation (OPIO), an agency of the United States government, for a Nine Million Dollar loan. The governmental and nongovernmental entities forming YFC contemplated the acquisition of [1091]*1091vessels, including the New Era, then owned by IDP and subject to an option to purchase in favor of the government of Yap. The vessels were to be Micronesia-flagged and homeported in Yap. They were to fish in international waters, and put in at various ports, in the Western Pacific, including Guam and American Samoa. Gemini was to manage the fishing vessels under various Vessel Management Agreements (VMAs).

By February, 1995, for reasons that are not in the record on appeal, a series of disagreements between the government of Yap and one or more of the Plaintiffs resulted in the Attorney General of Yap applying to the State Court of Yap for an order of receivership, which was issued by a judge of that court. The order substantially displaced Plaintiffs from any management functions and the receiver proceeded to manage the business of YFC, selling property and paying down debts, pursuant to supplemental court orders. Plaintiffs filed the pending action in the United States District Court for the District of Hawaii shortly after the receivership commenced, and also became defendants in actions commenced in the courts of the FSM and in the United States District Court for the District of Columbia (by OPIC) against some, if not all, of the present Plaintiffs.

The able and experienced district judge to whom this case was assigned has extensive legal and judicial experience in the Pacific Islands and was well aware of the complexities of local and international law that were already involved in the plethora of cases pending before various courts arising out of this ill-fated fishing venture. In dismissing the federal case in Hawaii, as revealed in the comprehensive order entered in this case, the court did not err as a matter of law and clearly acted within its informed judicial discretion.

I. STANDARD OF REVIEW

We review a decision to dismiss on grounds of forum non conveniens for abuse of discretion. See Creative Tech., Ltd. v. Aztech Sys. Pte, Ltd., 61 F.3d 696, 699 (9th Cir.1995). “[Wjhere 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.” Id. (internal quotation omitted).

II. DEFERENCE TO CHOICE OF FORUM

Plaintiffs contend the district court erred in (1) according their choice of Hawaii as a forum less deference than that accorded a Hawaii resident suing in his home forum; (2) refusing to accord their forum choice heightened deference because the alternative forum is foreign; and (3) failing to take account of the parties’ agreement to arbitrate the VMAs in Hawaii. These arguments lack merit.

As the district court noted, none of the Plaintiffs are Hawaii residents. Meanwhile, Defendants Robb and McCoy are Hawaii residents, however McCoy also has a residence in Yap, and both have expressed no objection to Yap and the FSM as the more convenient and less expensive fora. On this basis, the district court correctly acted on Ninth Circuit authority in granting Plaintiffs’ choice of Hawaii as a forum less deference. See Contact Lumber Co. v. P.T. Moges Shipping, 918 F.2d at 1449 (9th Cir.1990) (referring to “a showing of convenience by a party who has sued in his home forum ”) (emphasis added); Pacific Car and Foundry Co. v. Pence, 403 F.2d 949, 954 (9th Cir.1968) (noting that plaintiffs choice of forum “is entitled to only minimal consideration” when “the forum of original selection ... has no particular interest in the parties or subject matter”).

Plaintiffs maintain that their forum choice is entitled to greater deference because the alternative forum is foreign, citing Piper Aircraft v. Reyno, 454 U.S. 235, 255, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981). This case cannot bear the weight of Plaintiffs’ argument, however, since it merely reaffirms the presumption of convenience accorded plaintiffs suing in their home fora — a presumption that, as we have just noted, does not apply here. Nothing in .Piper Aircraft suggests there is a general presumption for or against foreign fora; rather, Plaintiffs must show that, considering the private and public interests involved, the bazance of con-[1092]*1092venienee militates against bringing suit in the Yap courts.

Plaintiffs also assert that the district court wrongly underweighed that part of the agreement selecting Hawaii as the place to arbitrate disputes arising out of the VMAs, and thereby failed to assess accurately Plaintiffs’ connection to Hawaii. However, a court has the power to dismiss an action on forum non conveniens grounds notwithstanding an agreement to arbitrate in the selected forum, “particularly in light of so many countervailing factors which warrant application of the doctrine.” See Iberian Tankers v. Terminales Maracaibo, C.A., 322 F.Supp. 73, 75 (S.D.N.Y.1971). And in this case the Yap State Court had already ordered a stay of arbitration. A variety of reasons may favor arbitration in one city, e.g., a good airport; while, at the same time, choice of law and choice of forum agreements may commend themselves to the parties for reasons that have nothing to do with the kind of disputes that lend themselves to arbitration. Thus, the district court did not err as a matter of law or abuse its discretion in failing to accord weight to the fact that disputes arising under the VMAs would be arbitrated in Hawaii.

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Bluebook (online)
150 F.3d 1088, 98 Daily Journal DAR 7862, 1998 U.S. App. LEXIS 16422, 1998 WL 401153, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gemini-capital-group-inc-v-yap-fishing-corp-ca9-1998.