United States Court of Appeals For the First Circuit
No. 19-1457
SHINYA IMAMURA; IRYO HOJIN NISHIKAI; IRYO HOJIN SHADAN IMAMURA CLINIC; KABUSHIKI KAISHA BELLEVUE TRADING; KABUSHIKI KAISHA MARUHI; KOEKI ZAIDAN HOJIN JINSENKAI; KONNO GEKA CLINIC; AKIRA KONNO; MASAHIRO YAMAGUCHI; JUNKO TAKAHASHI, on behalf of themselves and all others similarly situated,
Plaintiffs, Appellants,
v.
GENERAL ELECTRIC COMPANY,
Defendant, Appellee,
DOES 1-100,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Torruella, Lynch, and Kayatta, Circuit Judges.
Earl M. Forte, with whom Eckert Seamans Cherin & Mellott, LLC, Timothy P. Frawley, Law Offices of Timothy P. Frawley, Faith R. Greenfield, Bonnie L. Dixon and Atsumi & Sakai were on brief, for appellants. David J. Weiner, with whom Sally L. Pei, Michael D. Schissel, Arnold & Porter Kaye Scholer LLP, John B. Koss, and Mintz Levin Cohn Ferris Glovsky & Popeo PC were on brief, for appellee.
April 24, 2020
-2- TORRUELLA, Circuit Judge. In 2011, an earthquake-induced
tsunami struck the Fukushima Daiichi Nuclear Power Plant ("FNPP")
in Japan. The event triggered a series of explosions that caused
a tragic nuclear disaster, which destroyed the property and
livelihoods of the residents of Fukushima Prefecture and the
surrounding area (the "FNPP disaster"). The plaintiffs in this
case are four individuals 1 and six business entities 2 from
Fukushima Prefecture (together "Plaintiffs") who suffered property
damage and/or economic harm as a result of the FNPP disaster.
Plaintiffs filed a class action lawsuit against General Electric
Company ("GE") in the United States District Court for the District
of Massachusetts seeking compensatory and punitive damages based
on the theory that GE bears at least partial responsibility for
the FNPP disaster because it negligently designed the FNPP's
nuclear reactors and safety mechanisms, both of which were
implicated in the explosions. The district court dismissed the
suit under the doctrine of forum non conveniens based on its
determination that an adequate alternative forum was available to
Plaintiffs in Japan and that dismissal was in both the private and
1 Shinya Imamura, Akira Konno, Masahiro Yamaguchi, and Junko Takahashi. 2 Iryo Hojin Nishikai, Iryo Hojin Shadan Imamura Clinic, Kabushiki Kaisha Bellevue Trading, Kabushiki Kaisha Maruhi, Koeki Zaidan Hojin Jinsenkai, and Konno Geka Clinic.
-3- public interest. Plaintiffs dispute the district court's
conclusion as to the availability of an adequate alternative forum
in Japan, where they maintain there is no avenue for recovery
specifically against GE. Because the district court did not abuse
its discretion in finding that the judicial and administrative
compensation schemes that are undisputedly available to Plaintiffs
rendered Japan an adequate alternative forum, we affirm.
I. Background
A. Facts of the Case3
1. The FNPP Disaster
In the late 1960s, the Tokyo Electric Power Company
("TEPCO") commissioned the construction of the FNPP in Fukushima,
which is located along the eastern seaboard of Japan. TEPCO is
the licensed operator of the FNPP. The FNPP contained six boiling
water nuclear reactors, all designed by GE. GE constructed three
of the reactors itself (Units 1, 2, and 6) and provided the designs
and expertise for the remaining reactors (Units 3, 4, and 5), which
were constructed by the Japanese companies Toshiba Corporation and
Hitachi Limited. GE also designed the rest of the facilities at
the FNPP and "participated regularly in the maintenance of the
facility over many years."
3 We note that the facts herein described, while often undisputed by the parties, are allegations, not findings.
-4- On March 11, 2011, a 9.0-magnitude earthquake shook
Japan and triggered a 45-foot tsunami. When the tsunami struck
Japan's eastern shoreline, it flooded the FNPP, disabled its
generators, and destroyed the emergency cooling pumps. The
resulting lack of power caused the FNPP's cooling systems to
malfunction, and as a result, the nuclear reactor cores heated to
their melting point and then disabled the valves used to vent the
FNPP's radioactive material. Unable to vent, hydrogen gas
accumulated in the FNPP's nuclear reactors. Despite TEPCO's and
the Japanese authorities' efforts to prevent a catastrophe, four
days after the tsunami hit the FNPP, the accumulation of hydrogen
gas caused Units 1, 3, and 4 to explode, which released toxic
radioactive matter into the surrounding environment. By the time
of the first explosion, the Japanese government had evacuated
everyone within a twenty-kilometer radius of the power plant.
Fukushima Prefecture suffered unfathomable damage from
the nuclear accident. Many of the residents who were evacuated
"lost their homes, their jobs, their land, and their children's
schools." Much of the area surrounding the FNPP (including some
areas beyond the evacuation zone) remains uninhabitable today due
to radioactive exposure.
The National Diet of Japan (the Japanese legislature)
convened an independent commission, the Fukushima Nuclear Accident
-5- Independent Investigation Commission ("the Commission"), to
investigate the FNPP disaster and to prepare a report about its
findings. After 900 hours of hearings and 1,167 interviews, the
Commission concluded that the accident "was a disaster 'Made in
Japan'" and catalogued "a multitude of errors and willful
negligence . . . by TEPCO, regulators[,] and the [Japanese]
government." The Commission also concluded that TEPCO had
overlooked new scientific information regarding tsunami risks,
failed to implement severe-accident countermeasures consistent
with international standards, and generally had inadequate
emergency procedures and training.
2. Japan's Compensation Scheme
In 1961, Japan enacted the Act on Compensation for
Nuclear Damage ("Compensation Act"), which governs the country's
liability and compensation schemes for nuclear disasters. In the
event of a disaster, the Compensation Act channels all liability
for the resulting damages to the operator of the nuclear power
plant; therefore, in Japan, TEPCO is the only entity liable for
damages arising from the FNPP disaster. Furthermore, because the
Compensation Act imposes strict liability on TEPCO, claimants need
only prove causation and damages to obtain compensation.
Additionally, the Compensation Act fixes a ten-year statute of
limitations (set to expire in 2021) and provides no cap on damages
-6- against the plant operator.
Victims of the FNPP disaster may pursue compensation
through three channels, which are not mutually exclusive: (1) file
a lawsuit against TEPCO in the courts of Japan; (2) submit a direct
claim to TEPCO; and/or (3) mediate a claim against TEPCO through
the Nuclear Damages Dispute Resolution Center ("ADR Center"). As
provided in the Compensation Act, in the wake of the FNPP disaster,
the Japanese government established the Dispute Reconciliation
Committee for Nuclear Damage Compensation (the "Committee") within
the Ministry of Education, Culture, Sports, Science, and
Technology. The founding directive of the Committee is to mediate
compensation disputes arising from the FNPP disaster and to issue
guidelines for assessing claims. The ADR Center is a public
mediation service (subordinate to the Committee) overseen by a
three-member committee comprised of two independent lawyers and a
law professor. It is "tasked with mediating the settlement of
claims for compensation brought against TEPCO by those affected by
the accident at [the FNPP]."
As of March 30, 2018, victims had filed 440 lawsuits
against TEPCO, fifty of which ended with court judgments and 110
of which ended with settlements. Victims may sue in the first
instance or after receiving an unsatisfactory settlement offer
through one of the other two mechanisms. Lawsuits carry a filing
-7- fee of no larger than one percent of a case's value. Although
Japan has no class action mechanism for claims arising from a
nuclear disaster, multiple plaintiffs may join together in a single
lawsuit. In fact, several large groups of evacuees have banded
together (either by choice or court-ordered consolidation) to sue
TEPCO (often adding Japan as a co-defendant) and have successfully
recovered sums totaling up to ¥1 billion.
By the time of the litigation below, over two million
victims had filed damages claims directly with TEPCO. TEPCO
reviews these claims and calculates compensation awards based on
standardized formulas from uniform guidelines, which it devised in
accordance with the Committee's Interim Guidelines. Claimants may
recover for the loss of property, including the temporary loss of
property (in which case compensation is pro-rated for the duration
of the evacuation), as well as additional costs, such as the costs
of radiation testing. Businesses may also recover for reputational
harm and loss of sales.
As of February 1, 2019, claimants had submitted 24,426
claims to the ADR Center for mediation, 23,363 of which had been
fully resolved. Of the resolved cases, 18,890 had reached a
settlement agreement. There is no filing fee for submitting a
claim to the ADR Center, where claimants can proceed pro se or
with an attorney. Settlement procedures at the ADR Center are
-8- generally conducted in accordance with the Committee's Interim
Guidelines, which provide compensation for lost real estate value
and damages associated with the interruption of business
activities (e.g., reduced sales revenues, reputational harm).
Publicly available information about the value of settled claims
is sparse due to confidentiality provisions, but the range of
settlements varies widely.
In total, as of February 15, 2019, TEPCO had paid out
approximately ¥8.721 trillion to individuals and businesses for
damages wrought by the FNPP disaster. To ensure the compensation
of the victims, the Japanese government has provided TEPCO with
critical financial support. The Compensation Act required TEPCO
to enter into both a liability contract with an insurance company
and an indemnity agreement with the Japanese government.
Together, these agreements insured TEPCO up to ¥120 billion.
However, the Compensation Act requires the Japanese government to
provide operators of nuclear power plants as much aid as is
required to compensate for damages in excess of that amount where
necessary to realize the statute's purpose. After the accident,
the Japanese government provided an initial ¥188.9 billion to TEPCO
pursuant to the indemnity agreement. Additionally, after approving
TEPCO's official request for support, Japan enacted the Act on
Nuclear Damage Compensation and Decommissioning Facilitation
-9- Corporation (the "NDF Act"), which established an eponymous
regulatory body to oversee a fund backed by government bonds to
further subsidize the compensation process. By April 2018, TEPCO
had received over ¥8 trillion from the fund, which has a maximum
bond limit of ¥13.5 trillion.
B. Procedural History
On November 17, 2017, Plaintiffs filed a class action
lawsuit in the District of Massachusetts against GE predicated on
several theories of negligence. After GE moved to dismiss the
complaint, Plaintiffs filed an amended complaint on May 21, 2018.
Plaintiffs sued on behalf of two putative classes: (1) a citizen
class that includes homeowners in and around the evacuation zone
who suffered economic injury; and (2) a business class that
includes all businesses, corporate entities, and sole
proprietorships (non-profit and for-profit alike) in and around
the evacuation zone who suffered injury as a result of the FNPP
disaster. Plaintiffs estimate that, together, these putative
classes include as many as 150,000 citizens and hundreds of
businesses.
Plaintiffs brought seven claims against GE, its
subsidiaries, agents, and employees. They alleged negligence
(Count I), strict product liability for manufacturing and design
defects (Counts II and III), and damage to real property (Count
-10- IV) under Massachusetts law. They also alleged negligence (Count
V), failure to warn (Count VI), and diminution of value to real
property and business interests (Count VII) under Japanese law.
Plaintiffs sought both compensatory and punitive damages.
Additionally, as an initial matter, Plaintiffs alleged
that venue was proper in the District of Massachusetts pursuant to
28 U.S.C. § 1391 because GE maintains its corporate headquarters
and principal place of business in Boston, Massachusetts.
Plaintiffs also contended that subject matter jurisdiction was
proper because the Convention on Supplementary Compensation for
Nuclear Damage, opened for signature Sept. 27, 1997, S. Treaty
Doc. No. 107-21 (2002) (the "CSC"), to which both Japan and the
United States are parties, did not apply retroactively to vest
Japanese courts with exclusive jurisdiction over claims arising
from the FNPP disaster.
As to the particulars of their claims, Plaintiffs
averred that GE's negligent design of the FNPP, its nuclear
reactors, and its emergency safety mechanisms "contributed
mightily to the disaster and to Plaintiffs' damages." Plaintiffs
first denounced GE's use of an "utterly defective" design for five
of the FNPP's six boiling water reactors. Relatedly, they alleged
that GE misrepresented the safety of the reactors for economic
gain. Next, Plaintiffs traced the Plant's nuclear meltdown back
-11- to a series of allegedly flawed decisions made by GE in the overall
design of the Plant (and subsequent failure to remediate the flaws)
such as: lowering the "natural protective cliff" at the Plant site
by over sixty feet to save costs; placing the emergency generators
and seawater pumps in the basements of seaside buildings without
flooding protections; neglecting to provide a backup power source
in case the emergency generators failed; and not including enough
space in the reactor buildings to "to accommodate sufficient
emergency equipment." Plaintiffs insisted that these structural
choices were particularly short-sighted given the region's
well-documented, tumultuous history of tsunamis. Finally,
Plaintiffs claimed that GE contributed to the magnitude of the
harm by failing to warn TEPCO or local residents of the operational
risks associated with the threats of earthquakes and tsunamis.
On July 19, 2018, GE moved to dismiss the amended
complaint under Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6) as well as the doctrine of forum non conveniens. As to
Rule 12(b)(1), GE argued that the CSC stripped the district court
of subject matter jurisdiction. As to Rule 12(b)(6), GE contended
that Plaintiffs had failed to state a claim because Japanese law
applied, and the Compensation Act barred Plaintiffs' claims
against GE by channeling all liability to TEPCO. GE also posited
that Plaintiffs' claims were nevertheless barred by the
-12- Massachusetts statutes of limitations and repose. Finally, GE
submitted that the doctrine of forum non conveniens "required
dismissal in favor of a Japanese forum."
On April 8, 2019, the district court allowed GE's motion
to dismiss for forum non conveniens.4 See Imamura v. General Elec.
Co., 371 F. Supp. 3d 1, 3 (D. Mass. 2019). Analyzing the motion
to dismiss under the abiding two-pronged framework, the district
court assessed whether GE had met its burden (as the moving party)
of "showing both that an adequate alternative forum exists [in
Japan] and that considerations of convenience and judicial
efficiency strongly favor litigating the claim [there]." Id. at 7
(quoting Iragorri v. Int'l Elevator, Inc., 203 F.3d 8, 12 (1st
Cir. 2000)). After careful consideration, the district court
concluded that dismissal was appropriate because GE had met its
burden.
4 The district court assumed arguendo that it had jurisdiction to hear the case despite the CSC's exclusive jurisdiction provision. See Imamura v. General Elec. Co., 371 F. Supp. 3d 1, 6-7 (D. Mass. 2019) ("If 'a foreign tribunal is plainly the more suitable arbiter of the merits of the case,' a court may dismiss for forum non conveniens without resolving whether it has subject matter jurisdiction." (quoting Sinochem Int'l Co. v. Malay. Int'l Shipping Corp., 549 U.S. 422, 425 (2007))); see also Cooper v. Tokyo Elec. Power Co., 860 F.3d 1193, 1205 (9th Cir. 2017) (holding that the CSC did not strip district court of jurisdiction over claims arising from the FNPP disaster). Because we agree with the district court's forum non conveniens ruling, we leave the issue of the CSC's exclusive jurisdiction provision for another day.
-13- At the first step, the court held that GE had established
that an adequate alternative forum was available in Japan by
"demonstrating that many plaintiffs have successfully received
satisfactory compensation through lawsuits against TEPCO in
Japanese courts and claims directly with TEPCO and through the ADR
Center." Id. at 9. Retracing the defining features of the
Japanese compensation scheme, the court was persuaded that the
remedies it provided were not "so clearly inadequate or
unsatisfactory" as to constitute "no remedy at all." Id. at 7
(quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254 (1981)).
Because the court found that the existing avenues in Japan for
seeking compensation for damages caused by the FNPP disaster were
adequate, it rejected Appellant's contention that Japan is not an
available forum because it does not provide a means to "secure a
remedy [specifically] from GE." Id. at 8. The district court
also rebuffed Plaintiffs' attempts to cast aspersions on the
adequacy of Japan's existing compensation scheme by finding that:
(1) the lack of a class action mechanism and the imposition of a
minimal filing fee did not render the Japanese judicial system
deficient; (2) the mediation of claims through the ADR Center was
not too complex for class members to navigate or subject to undue
influence by TEPCO; and (3) the guidelines governing the direct
claims and mediation processes did not exclude any members of the
-14- putative class. Id. at 9-11.
Having determined that Japan constituted an adequate
alternative forum, the district court proceeded to the second
prong, at which it weighed the relevant private and public interest
factors.5 First, the district court held that, on balance, the
relevant private interest factors counseled in favor of dismissal
"because of the difficulty of accessing relevant evidence for use
in this Court and the Court's inability to compel production of
important Japanese documents and testimony from Japanese witnesses
and to implead potentially liable third parties." Id. at 11.
Next, the court determined that the public interest factors also
favored dismissal because "Japan's interest in this lawsuit far
outweighs the local interest, the case involves complex choice of
law and foreign law questions, and adjudication of this lawsuit
would significantly burden the Court." Id. at 13.
On May 1, 2019, Plaintiffs filed a timely notice of
appeal, in which they exclusively challenge the dismissal of their
5 As a threshold matter, the district court stated that, because Plaintiffs are citizens and businesses of Japan with no U.S. connections who appear to be motivated at least in part by forum shopping (i.e., to evade the channeling provisions of the Compensation Act), it would entitle "Plaintiffs' choice to file their lawsuit in Massachusetts . . . to some, but not great, deference." Imamura, 371 F. Supp. 3d at 11; cf. Cooper, 860 F.3d at 1211 (entitling U.S. citizens and servicemembers to a greater degree of deference in lawsuit arising from Fukushima disaster filed in the Southern District of California).
-15- amended complaint on forum non conveniens grounds as to the
district court's determination on the first prong.
II. Discussion
We review forum non conveniens determinations for abuse
of discretion. See Interface Partners Int'l Ltd. v. Hananel, 575
F.3d 97, 101 (1st Cir. 2009); see also Piper, 454 U.S. at 257.
"We will find an abuse of discretion if the district court
(1) failed to consider a material factor; (2) substantially relied
on an improper factor; or (3) assessed the proper factors, but
clearly erred in weighing them." Id. (quoting Adelson v. Hananel,
510 F.3d 43, 52 (1st Cir. 2007)). In our review, we take great
care not to "substitute [our] judgment for that of the district
court []or strike the balance of relevant factors anew." Id.
(quoting Iragorri, 203 F.3d at 12). Of course, any error of law
committed by the court within its forum non conveniens
determination will be reviewed de novo. Id. (citing Adelson, 510
F.3d at 52). "[A] material error of law invariably constitutes
an abuse of discretion." Corp. Techs., Inc. v. Harnett, 731 F.3d
6, 10 (1st Cir. 2013).
"When a defendant moves for dismissal on forum non
conveniens grounds, it bears the burden of showing both that an
adequate alternative forum exists and that considerations of
convenience and judicial efficiency strongly favor litigating the
-16- claim in the alternative forum." Iragorri, 203 F.3d at 12 (citing
Mercier v. Sheraton Int'l, Inc., 935 F.2d 419, 423-24 (1st Cir.
1991) (Mercier I)). At the first step, an adequate alternative
forum exists when "(1) all parties can come within that forum's
jurisdiction, and (2) the parties will not be deprived of all
remedies or treated unfairly, even though they may not enjoy the
same benefits as they might receive in an American court."
Mercier I, 935 F.2d at 424 (citation and internal quotation marks
omitted). A defendant generally meets its burden as to the first
requirement (the forum's "availability") if it establishes "that
the alternative forum addresses the types of claims that the
plaintiff has brought and that the defendant is amenable to service
of process there." Iragorri, 203 F.3d at 12 (citing Piper, 454
U.S. at 254 n.22). As for the second requirement (the forum's
"adequacy"), an alternative forum is only inadequate if the remedy
that it provides "is so clearly inadequate or unsatisfactory that
it is no remedy at all." Mercier v. Sheraton Int'l, Inc., 981
F.2d 1345, 1350 (1st Cir. 1992) (Mercier II) (quoting Piper, 454
U.S. at 254). By way of example, courts have indicated that a
forum effectively provides no remedy at all "if it 'does not permit
litigation of the subject matter of the dispute,'" id. (quoting
Piper, 454 U.S. at 254 n.22), or if "the plaintiff demonstrates
significant legal or political obstacles to conducting the
-17- litigation in the alternative forum," id. (citing Menéndez
Rodríguez v. Pan Am Life Ins. Co., 311 F.2d 429 (5th Cir. 1962)).
At the second (and more complicated) step, the district
court performs a balancing test to determine whether the defendant
has demonstrated that "the compendium of factors relevant to the
private and public interests implicated by the case strongly favors
dismissal." Iragorri, 203 F.3d at 12 (citing Gulf Oil Corp. v.
Gilbert, 330 U.S 501, 508-09 (1947)). Relevant private interest
factors include:
the relative ease of access to sources of proof; availability [and cost] of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious[,] and inexpensive.
Gilbert, 330 U.S. at 508. On the other side of the scales,
relevant public interest factors include:
the administrative difficulties flowing from court congestion; the 'local interest in having localized controversies decided at home'; the interest in having the trial of a diversity case in a forum that is at home with the law that must govern the action; the avoidance of unnecessary problems in conflict of laws, or in the application of foreign law; and the unfairness of burdening citizens in an unrelated forum with jury duty.
Piper, 454 U.S. at 241 n.6 (quoting Gilbert, 330 U.S. at 509).
These factors constitute a "helpful starting point,"
Iragorri, 203 F.3d at 12, but because the facts of each case are
-18- unique, "the ultimate inquiry is where trial will best serve the
convenience of the parties and the ends of justice," Koster v.
(Am.) Lumbermens Mut. Cas. Co., 330 U.S. 518, 527 (1947).
Here, Plaintiffs exclusively dispute the availability of
an adequate alternative forum in Japan. They do not challenge the
district court's balancing of factors at the second step of the
analysis. Instead, they merely assert that because Japan is not
an adequate alternative forum, "the district court incorrectly
proceeded [to the second step] to weigh the private and public
interest factors." Accordingly, we find that they have waived any
argument that the district court abused its discretion as to its
balancing of the relevant private and public interest factors.
See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). We
therefore limit our review to the first step of the forum non
conveniens analysis: the availability of an adequate alternative
forum.
A. The Availability of an Adequate Alternative Forum
1.
Plaintiffs' sole argument as to adequacy on appeal is
that because the Compensation Act channels all liability for
damages claims relating to the FNPP disaster to TEPCO, "there is
no forum in Japan, judicial or otherwise" which permits them "to
pursue [their] claims against GE." Plaintiffs contend that the
-19- district court's determination that Japan is an available forum
amounts to a "misapplication" of the doctrine, which "denies [them]
any forum for their claims against GE," strips them of their
"inherent right" to seek recovery from the party of their choosing,
and effectively extends to GE blanket immunity for its role in the
FNPP disaster. Relatedly, Plaintiffs submit that the district
court improperly relied on the "administrative compensation scheme
cases" in ruling that the existence of claims processes directly
with TEPCO and through mediation at the ADR Center also rendered
Japan an available and adequate forum. For the following reasons,
we disagree.
As we have explained, courts "generally deem" the
alternative foreign forum available if the forum is able to
exercise both personal jurisdiction over the defendant as well as
subject matter jurisdiction over the dispute. Iragorri, 203 F.3d
at 12. "Ordinarily," we deem the personal jurisdiction requirement
to be "satisfied when the defendant is 'amenable to process' in
the [alternative forum]." Piper, 454 U.S. at 254 n.22 (quoting
Gilbert, 330 U.S. at 506-07). The alternative forum exercises
subject matter jurisdiction if it "addresses the types of claims
that the plaintiff has brought." Iragorri, 203 F.3d at 12 (citing
Piper, 454 U.S. at 254 n.22). GE maintains that it is amenable
to service of process in Japan, a contention it supports primarily
-20- through its submission of a declaration of a Japanese law expert
to that effect. A defendant's "concession" as to amenability to
service of process in the alternative forum is generally sufficient
to satisfy the first requirement. Gschwind v. Cessna Aircraft
Co., 161 F.3d 602, 606 (10th Cir. 1998) (citing Piper, 454 U.S. at
254 n.22). While GE may technically be amenable to suit in Japan
(as far as we know, Plaintiffs have not tested GE on its word by
attempting service), Plaintiffs decry GE's pledge as no more than
"an empty promise." This is the core of Plaintiffs' argument, and
it highlights what makes this a somewhat atypical forum non
conveniens case. Under other circumstances, GE's concession that
it is amenable to service of process in Japan would likely end the
inquiry, as the Japanese judicial system provides valid causes of
action under tort law that, in theory, would allow Plaintiffs to
recover for the types of injuries and causes of action they alleged
in their amended complaint. However, the Compensation Act and the
FNPP disaster change the dynamics.
Relying on the Supreme Court's decision in Gilbert as
well as First Circuit precedent, such as Mercier I and Iragorri,
Plaintiffs contend that even if GE is amendable to service of
process in Japan (which they dispute on appeal), the Compensation
Act divests Japanese courts of subject matter jurisdiction over
any FNPP disaster-related damages claims against GE by channeling
-21- all liability to TEPCO. Hence, Plaintiffs proclaim that "GE is
immune from suit in Japan" and thus not meaningfully amenable to
process there. See Associação Brasileira de Medicina de Grupo v.
Stryker Corp., 891 F.3d 615, 620 (6th Cir. 2018) ("[A] foreign
forum is not truly 'available' -- and a defendant is not
meaningfully 'amenable to process' there -- if the foreign court
cannot exercise jurisdiction over both parties."). Accordingly,
for the purposes of forum availability, Plaintiffs contend that a
foreign forum cannot fairly be said to address the types of claims
that they have brought in the District of Massachusetts against GE
if said forum does not permit Plaintiffs to bring these types of
claims against their choice of defendant.
2.
Despite Plaintiffs' fear that GE's promise of
amenability to service of process is an empty one, we are
nonetheless "secure in the knowledge" that Plaintiffs' claims will
not "languish in some jurisdictional limbo." Snöfrost AB v.
Håkansson, 353 F. Supp. 3d 99, 106 (D. Mass. 2018). This is
because we agree with the district court that, while Plaintiffs
may not be able to obtain recovery in Japan specifically from GE,
Japan nevertheless adequately addresses the same types of claims
through a carefully designed tripartite compensation scheme. See
Imamura, 371 F. Supp. 3d at 8. As to the judicial component of
-22- that scheme, the district court determined that the fact that
Plaintiffs could sue TEPCO -- who by statute is strictly liable
for all damages proximately caused by the FNPP disaster "until the
ten-year statute of limitations expires in 2021" -- indicated that
Japan provided a sufficiently adequate remedy so as to render it
an available forum. Id. at 9. We see no abuse of discretion in
this determination, especially because many members of the
putative class have already obtained compensation by way of
judgments against TEPCO in Japanese courts, and Plaintiffs offered
no basis for the district court to conclude that such compensation
is so "unsatisfactory that it is no remedy at all," Mercier II,
981 F.2d at 1350 (quoting Piper, 454 U.S. at 254).6
6 Relatedly, Plaintiffs' reference to Martínez v. Dow Chemical Co., 219 F. Supp. 2d 719 (E.D. La. 2002), for the proposition that a proposed alternative forum may not be considered available "if the laws of the country where [it] is located bar the plaintiff from proceeding there," is misplaced. In Martínez, a non-binding district court decision, banana farm workers from Costa Rica, Honduras, and the Philippines sued defendant Dow Chemical Company, the manufacturer of a chemical widely used on banana farms that the workers alleged had rendered them sterile. 219 F. Supp. 2d at 721-22. The district court denied the defendant's motion for dismissal for forum non conveniens primarily on forum availability grounds because Costa Rica and the Philippines had enacted laws divesting their courts of jurisdiction over claims first filed elsewhere, and Honduras had a similar preemptive jurisdictional rule favoring a plaintiff's first choice of forum. Id. at 725-32, 735-40. Martínez is plainly distinguishable because no such preemptive jurisdictional bar exists in Japan. The Compensation Act may preclude Plaintiffs from replicating the exact same lawsuit where GE (instead of TEPCO) is the named defendant, but the district court was presented with ample factual information indicating that the doors of Japanese courts remain open to
-23- Plaintiffs protest that the district court's decision is
at odds with the Supreme Court's statement in Gilbert that forum
non conveniens "presupposes at least two forums in which the
defendant is amenable to process." 330 U.S. at 507. However, we
see no such untenable conflict. First, we do not read Gilbert to
hold that dismissal for forum non conveniens is improper when the
alternative forum offers adequate remedies for the exact same
injuries alleged by the plaintiff in U.S. court but channels
liability for those injuries to a third party who is not the same
defendant in the U.S. case. Rather, as Gilbert makes clear, it
is the "absence of jurisdiction" that raises red flags. 330 U.S.
at 504. So long as Japanese courts continue to allow Plaintiffs
their day in court, where they may obtain full and fair
compensation -- regardless of which entity ultimately foots the
bill -- there is no meaningful absence of jurisdiction. Thus, we
cannot say that the district court abused its discretion.
Conceptually, this is comparable to when a plaintiff secures a
judgment against two tortfeasors under a theory of joint and
Plaintiffs, so that they may bring their damages claims against TEPCO until the statute of limitations expires in 2021. This is also consistent with our holding in Ahmed v. Boeing Co., 720 F.2d 224, 226-27 (1st Cir. 1983), that the district court did not abuse its discretion in finding that Pakistan and Saudi Arabia constituted adequate available forums despite the "possibility" that plaintiffs' acceptance of the defendant's "diah," or blood money payments, might bar their future claims in those forums.
-24- several liability and then fully recovers her damages from one of
the tortfeasors. We do not say the plaintiff is left with an
imperfect remedy simply because she recovers one hundred percent
of her damages from one tortfeasor and none from the other.
Second, even if Plaintiffs are allowed to litigate their
claims against GE in Massachusetts, local choice of law rules
likely dictate that Japanese law would apply. See Cosme v. Whitin
Mach. Works, Inc., 632 N.E.2d 832, 834 (Mass. 1994)
("Traditionally, in matters of tort, the courts of [Massachusetts]
apply the substantive laws of the jurisdiction wherein the tort
occurred."). The district court recognized as much in its
balancing of the public interest factors. See Imamura, 371 F.
Supp. 3d at 14. From this we draw the reasonable inference that
the Compensation Act may inevitably require the dismissal of the
case from Plaintiffs' chosen forum even if allowed to proceed to
the next phase of litigation.7 See Ahmed, 720 F.2d at 226 (finding
defendant's blood money payments to Pakistani plaintiffs were
7 Plaintiffs, for their part, dispute the extraterritorial applicability of the Compensation Act in U.S. courts by way of submissions from Japanese law experts. The district court did not factor this contention into its memorandum and order, although we could hardly conclude that eschewing this argument constituted an abuse of discretion in the context of the court's broader findings as to Japan's strong interest in having these claims adjudicated through its existing compensation scheme, as suggested by the enactment Compensation Act and Japan's eventual ratification of the CSC.
-25- "likely irrelevant to the choice of forums" -- between Pakistan
and Saudi Arabia on the one hand and Massachusetts on the
other -- because there was a "strong reason to believe that a
district court sitting in Massachusetts would have to apply foreign
law," just like the alternative forums, to determine if those
payments precluded further recovery); cf. Cooper v. Tokyo Elec.
Power Co., Inc., 166 F. Supp. 3d 1103, 1131-1136 (S.D. Cal. 2015)
(denying motion to dismiss for forum non conveniens where TEPCO
was the defendant in U.S. plaintiffs' suit to recover for injuries
proximately caused by the FNPP disaster).
3.
Finally, Plaintiffs do not persuade us that the district
court abused its discretion by factoring the availability of an
administrative compensation scheme into its forum non conveniens
determination. To determine that the claims processes (either
directly with TEPCO or through mediation at the ADR Center)
satisfied the availability and adequacy thresholds, the district
court looked to several cases from our sister circuits, which it
dubbed "the administrative compensation cases." Imamura, 371 F.
Supp. 3d at 8-9; see Veljkovic v. Carlson Hotels, Inc., 857 F.3d
754, 756 (7th Cir. 2017) (holding Serbian Restitution Agency an
adequate alternative forum for property disputes despite being a
"nonjudicial mode[] of dispute resolution"); Tang v. Synutra
-26- Int'l, Inc., 656 F.3d 242, 250-51 (4th Cir. 2011) (finding
compensation fund created by manufacturers of contaminated infant
formula rendered China an adequate alternative forum for products
liability dispute because "the forum non conveniens doctrine does
not limit adequate alternative remedies to judicial ones"); Lueck
v. Sundstrand Corp., 236 F.3d 1137, 1144-45 (9th Cir. 2001)
(concluding that New Zealand's Accident Rehabilitation and
Compensation Insurance Corporation, an administrative body created
by statute, was an adequate alternative forum for plaintiffs'
damages claims stemming from a plane crash even in the absence of
an available remedy in New Zealand courts). But see Nat'l Hockey
League Players' Ass'n v. Plymouth Whalers Hockey Club, 166 F. Supp.
2d 1155, 1164 (E.D. Mich. 2001) ("Piper does not appear to consider
an administrative remedy adequate."). Relying on the Ninth
Circuit's reasoning in Lueck in particular, the district court
here held that "[a] remedy available through an administrative
compensation scheme can render a foreign country an adequate
alternative forum," regardless of "whether the plaintiffs could
'maintain [the] exact suit' in the foreign forum." Imamura, 371
F. Supp. 3d at 8 (alteration in original) (quoting Lueck, 236 F.3d
at 1144-45).
We have little difficulty concluding that the district
court did not abuse its discretion in finding that Lueck's analysis
-27- is both "instructive" as applied to the facts of the case at hand
and that it "dovetails with Piper's emphasis on the existence of
any adequate remedy for plaintiff's injury." Id. (emphasis added).
In the way of background, Lueck implicated damages claims by New
Zealand citizens relating to an airplane crash that occurred in
New Zealand. 236 F.3d at 1140-41. The surviving passengers and
crew, as well as the estates of the passengers killed in the
accident, asserted various products liability claims in the United
States against the Canadian manufacturer of the plane and the
American manufacturer of the plane's warning systems. Id. On
appeal from the dismissal of their complaint for forum non
conveniens, the Lueck plaintiffs disputed New Zealand's
availability and adequacy as a forum on the ground that it "offers
no remedy at all for their losses because it has legislated tort
law out of existence." Id. at 1143 (internal quotation marks
omitted). The plaintiffs were referring to New Zealand's Accident
Compensation Act ("ACA"), which much like Japan's Compensation
Act, "provide[d] coverage, on a no-fault basis, for those who
suffer[ed] personal injury arising from accidents." Id. at 1141.
Logistically (and again much like Japan's Compensation Act), the
ACA barred civil claims for compensatory damages and established
the Accident Rehabilitation and Compensation Insurance Corporation
("ACC"), an administrative body tasked with paying out benefits
-28- for the expenses covered by the ACA. Id. Nearly all of the Lueck
plaintiffs had filed claims with the ACC and received compensation;
moreover, they sued the airline in New Zealand court, but their
claims for compensatory damages were "dismissed . . . as
statutorily barred by New Zealand's accident compensation scheme,"
although their claims for exemplary damages (which were not barred
by the ACA) were allowed to proceed. Id. at 1142 (citing McGrory
v. Ansett N.Z. Ltd., 2 N.Z.L.R. 328 (1998)).
In rejecting the Lueck plaintiffs' argument that the
ACA's bar on civil damages claims undermined New Zealand's
availability and adequacy as an alternative forum, the Ninth
Circuit held that, "[a]lthough New Zealand law does not permit
[them] to maintain this exact suit, New Zealand, through its
no-fault accident compensation scheme, has provided and continues
to provide a remedy for [their] losses." Id. at 1144. Absent
any showing that the available administrative remedy was
unacceptably inadequate, the Ninth Circuit concluded that the
alternative forum need not "offer a judicial remedy" because "[t]he
forum non conveniens analysis does not look to the precise source
of the plaintiff's remedy." Id. at 1145 (citing Jeha v. Arabian
Am. Oil Co., 751 F. Supp. 122, 125 (S.D. Tex. 1990) (holding
"quasi-judicial special commission" composed of legal and medical
professionals and charged with handling medical malpractice claims
-29- was an adequate alternative forum), aff'd, 936 F.2d 669 (5th Cir.
1991) (unpublished table decision)).
Similarly, in our case, the district court had a sound
reason to determine that "[al]though it does not provide a judicial
remedy, the ADR Center mediation is similar to the administrative
compensation schemes upheld in cases like Lueck." Imamura, 371
F. Supp. 3d at 9. Here, as in Lueck, regardless of whether
Plaintiffs can maintain their exact suit against GE in Japan, it
is undisputed that they can both file their claims directly with
TEPCO or mediate them through the ADR Center, where, as the
district court noted, "[t]here is no filing fee, and Plaintiffs
can be represented by an attorney." Id. By all accounts, many
of the members of the putative class have already done so. In any
event, Plaintiffs do not challenge the district court's findings
as to the adequacy of the administrative compensation scheme in
Japan, and we do not disturb them.
Instead, harkening back to previous arguments,
Plaintiffs contend that Lueck, Veljkovic, and Tang are
inapplicable because the courts in those cases only considered
existence of available administrative remedies after determining
that the named defendant was meaningfully amenable to service of
process in the alternative forum. However, as we have explained,
we agree with the district court that Japan satisfies the
-30- jurisdictional requirement for forum availability in this case,
and we need not reiterate our reasoning here. Therefore, it was
not improper for the district court to consider the availability
of the administrative compensation scheme in Japan at step one of
the analysis.
In closing, we note that the incorporation of "the
administration compensation scheme cases" does appear to be
consistent with Piper's core teaching that a remedy provided by
the alternative forum will be deemed adequate so long as it is not
"so clearly inadequate or unsatisfactory that it is no remedy at
all." Piper, 454 U.S. at 254. Plaintiffs fault the district
court for not following the contrary view as expressed in Plymouth
Whalers, where the United States District Court for the Eastern
District of Michigan denied a defendant's motion to dismiss for
forum non conveniens in an antitrust suit on the basis that the
alleged availability of an administrative remedy for the plaintiff
in Canada was insufficient to render it an adequate alternative
forum. 166 F. Supp. 2d at 1164. The Plymouth Whalers court
rooted its analysis in a literal interpretation of Piper's
statement that forum non conveniens dismissal is inappropriate if
the alternative forum "does not permit litigation of the subject
matter of the dispute." Plymouth Whalers, 166 F. Supp. 2d at 1164
(quoting Piper, 454 U.S. at 255 n.22).
-31- However, as we have explained, Japan does permit the
litigation of the subject matter of Plaintiffs' dispute, and as such,
the administrative compensation scheme available to Plaintiffs here
exists in addition to, not to the exclusion of, their ability to
pursue a lawsuit against TEPCO. Moreover, Plaintiffs fail to
recognize that the court in Plymouth Whalers distinguished that case
from Lueck on the basis that the Plymouth Whalers plaintiff was
notably unable "to pursue its own claim" through the alleged
administrative process, and that it was "improbab[le] that any
administrative complaint would result in a prosecution." Id. at 1164
n.7. There are no such bars on Plaintiffs' ability to mediate their
claims through the ADR Center or pursue them directly with TEPCO.
Therefore, we hold that Japan satisfies the forum
availability requirement despite the jurisdictional idiosyncrasies
presented by this case. Accordingly, the district court did not
abuse its discretion in determining that an adequate alternative
forum is available to Plaintiffs in Japan. Because Appellants have
waived any claim as to the balancing of the private and public
interest factors, our inquiry ends here.
III. Conclusion
For the foregoing reasons, we affirm the dismissal of the
amended complaint.
Affirmed.
-32-