In re: Orland Ltd. Vandevco Limited

• Court: United States Bankruptcy Appellate Panel for the Ninth Circuit
• Decided: March 25, 2022
• Docket: WW-21-1176-BSG WW-21-1200-BSG
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION MAR 25 2022 SUSAN M. SPRAUL, CLERK U.S. BKCY. APP. PANEL UNITED STATES BANKRUPTCY APPELLATE PANEL OF THE NINTH CIRCUIT

OF THE NINTH CIRCUIT

In re: BAP No. WW-21-1176-BSG ORLAND LTD.; VANDEVCO LIMITED, WW-21-1200-BSG Debtors. (Related Appeals)

CERNER MIDDLE EAST LIMITED, Bk. No. 20-42710-MJH Appellant, v. Adv. Nos. 20-04077-MJH BELBADI ENTERPRISES, LLC; ORLAND 20-04001-MJH LTD.; VANDEVCO LIMITED, Appellees. MEMORANDUM∗

Appeal from the United States Bankruptcy Court for the Western District of Washington Mary Jo Heston, Bankruptcy Judge, Presiding

Before: BRAND, SPRAKER, and GAN, Bankruptcy Judges.

INTRODUCTION

Plaintiff and creditor Cerner Middle East Limited ("Cerner") appeals

orders dismissing related adversary proceedings on forum non conveniens

grounds. The bankruptcy court ruled that the United Arab Emirates ("UAE")

∗ This disposition is not appropriate for publication. Although it may be cited for whatever persuasive value it may have, see Fed. R. App. P. 32.1, it has no precedential value, see 9th Cir. BAP Rule 8024-1. 1 was an adequate alternative forum and that the balance of private and public

interest factors weighed in favor of dismissal. Seeing no abuse of discretion by

the bankruptcy court, we AFFIRM.1

FACTS

A. Prepetition events

Cerner is a Cayman Island company with its principal place of business in

Kansas City, Missouri. Cerner is a subsidiary of Cerner Corporation, a medical

services technology company, and operates in the Middle East and Africa. The

defendants are entities owned or controlled by Mr. Almed Saeed Al Badi Al

Dhaheri. Mr. Dhaheri is a citizen and domiciliary of the UAE and is the sole

member of defendant Belbadi Enterprises, LLC ("Belbadi LLC"), a UAE limited

liability company with its principal place of business in Abu Dhabi, UAE.

Belbadi LLC is the sole member of Belbadi Engineering, LLC, a UAE limited

liability company. Willamette Enterprises, Ltd. ("Willamette") is an exempted

Cayman Island company co-owned by Belbadi Engineering, LLC (99%) and Mr.

Ziad A. Elhindi (1%). Willamette is the holding company for debtor-defendant

Vandevco Limited ("Vandevco") and debtor-defendant Orland Ltd. ("Orland").

1 On February 25, 2022, after oral argument, Cerner filed what it contends is a Notice of Supplemental Authorities under Rule 8014(f). The materials submitted by Cerner are not an appropriate use of the rule. Cerner's notice offers no new authorities, but rather seeks to supplement the record with new evidence of a recently-filed examiner's report, various declarations, and deposition transcripts. Rule 8014(f), which is virtually identical to Fed. R. App. P. 28(j), "permits a party to bring new authorities to the attention of the court; it is not designed to bring new evidence through the back door." Manley v. Rowley, 847 F.3d 705, 710 n.2 (9th Cir. 2017) (quoting Trans-Sterling, Inc. v. Bible, 804 F.2d 525, 528 (9th Cir. 1986) (emphasis in original)). Accordingly, we decline to consider Cerner's February 25 filing. For the same reason, we also decline to consider the response from Vandevco Limited and 2 Vandevco is a Washington corporation which owns, through other entities, the

Vancouver Center, a mixed residential commercial development in Vancouver,

Washington. Orland is an Oregon corporation and was formed for the purpose

of real estate ownership and development. Orland owns some acreage and

rental homes in Tigard, Oregon.

In 2008, the UAE Ministry of Health awarded iCapital S/E ("iCapital")—a

sole proprietorship owned by Mr. Dhaheri—a contract to develop medical

information software for use by hospitals in the UAE. Cerner entered into a $94

million contract with iCapital wherein Cerner would provide hardware,

software, and related services for the UAE project.

After iCapital defaulted on its payment obligations under the contract,

Cerner commenced its first arbitration proceeding against iCapital and Mr.

Dhaheri in Paris, France. Before an answer was filed, Cerner and iCapital

executed a settlement agreement. In connection with the settlement, Belbadi

LLC, a stranger to the parties' contract, executed two agreements to guarantee

the obligations of iCapital (the "Guarantees"). The Guarantees were drafted in

both English and Arabic by Cerner's attorneys in the UAE. Two provisions from

the Guarantees are relevant here:

Section 1(g)(ii): The Guarantor (Belbadi LLC) authorizes the Beneficiary (Cerner) without notice of demand and without affecting Guarantor's liability hereunder, from time to time to: take and hold security for the payment of this Guarantee or the Guaranteed Obligations, and exchange, enforce, waive or release any such security or any part thereof, and apply such security and

Orland Ltd. filed on March 21, 2022. 3 direct the order or manner of sale thereof as the Beneficiary in its sole and absolute discretion may determine. ...

Section 7(b): Governing Law; Jurisdiction. (i) This Guarantee shall be governed by, and construed and enforced in accordance with, the laws of the Emirate of Abu Dhabi and the federal laws of the United Arab Emirates, without giving effect to the conflict of law rules thereof. (ii) Each party hereby expressly consents to the jurisdiction of a competent court in the Emirate of Abu Dhabi for the adjudication of any dispute relating to, or arising under, this Guarantee.2

When iCapital defaulted on the settlement agreement, Cerner filed a

second arbitration proceeding against iCapital and Mr. Dhaheri in Paris, France.

Cerner was awarded approximately $62 million (U.S. dollars) jointly and

severally against iCapital and Mr. Dhaheri. Cerner has received nothing under

the arbitration award or the Guarantees.

In 2016, Cerner filed two complaints in the United States to enforce the

Guarantees: one against Vandevco and Belbadi LLC in the Washington state

court (the "Washington Litigation"); the other against Orland and Belbadi LLC

in the Oregon state court (the "Oregon Litigation"). The complaints were similar

with respect to the underlying facts and allegations and both sought entry of a

judgment against Belbadi LLC for the amounts owing under the Guarantees

and attachment of the Vandevco and Orland shares as security for payment. In

The Arabic version of the Guarantees provided for "exclusive" jurisdiction in the 2

UAE, while the English version provided only for a consent to UAE jurisdiction. In any case, 4 short, Cerner alleged that Belbadi LLC breached the Guarantees and that

Vandevco and Orland, as the alter egos of Belbadi LLC, were equally liable for

the debt. Through a prejudgment writ of attachment, Cerner sought to enforce

its right to "take and hold" Belbadi LLC's beneficial ownership interest in the

Vandevco and Orland shares, which are owned by Willamette and held in the

Cayman Islands.

Four years elapsed between the filing of the state court complaints and

Vandevco and Orland's chapter 113 filings and the removal of the Washington

Litigation and the Oregon Litigation to the bankruptcy court. During that time,

Cerner, Belbadi LLC, Vandevco, and Orland litigated matters in the two state

courts, the district courts for the District of Oregon and the Western District of

Washington, the Ninth Circuit Court of Appeals, and the Oregon Court of

Appeals. Despite the vast amount of litigation, things never progressed past the

jurisdictional stage in either case.

The crux of the parties' unresolved dispute in both cases was whether the

state court had personal jurisdiction over Belbadi LLC. In the Washington

Litigation, Cerner argued that the state court had personal jurisdiction over

Belbadi LLC on the theory of quasi in rem jurisdiction due to its investments in

the Vancouver Center, and because Vandevco was Belbadi LLC's alter ego. The

Washington state court ordered an evidentiary hearing for Cerner to establish

the quasi in rem jurisdiction and alter ego issues. Cerner began but was unable to

at minimum, Cerner consented to the UAE courts to resolve any dispute over the Guarantees. 3 Unless specified otherwise, all chapter and section references are to the Bankruptcy

Code, 11 U.S.C. §§ 101-1532, and all "Rule" references are to the Federal Rules of Bankruptcy 5 conclude that hearing due to Vandevco's bankruptcy filing. In the Oregon

Litigation, the Oregon Court of Appeals held that the trial court had personal

jurisdiction over Belbadi LLC to the extent that it and Orland were alter egos.

However, nothing progressed at the trial court on remand due to Orland's

chapter 11 filing three weeks later.

There has also been litigation in the UAE. Cerner prevailed against

Belbadi LLC in at least one civil action where Belbadi LLC challenged the

Guarantees on various grounds, including claims that the statute of limitations

had expired and that they were not enforceable under UAE law. The UAE trial

court dismissed the suit on the merits and ordered Belbadi LLC to pay Cerner's

attorney's fees and costs. The UAE appellate court affirmed that decision.

B. The bankruptcy filings, removals of the state court litigation, and motions to dismiss for forum non conveniens.

On December 6, 2020, Vandevco and Orland each filed a chapter 11

bankruptcy case in the Western District of Washington. The cases were later

ordered jointly administered. Cerner filed an $87,875,514.65 unsecured proof of

claim in each case. The supporting documents to Cerner's claims alleged that

Vandevco and Orland were directly liable to Cerner because they were the alter

egos of Belbadi LLC. Vandevco and Orland objected to the claims.

After Vandevco, Orland, and Belbadi LLC (collectively, "Defendants")

removed both the Washington Litigation and the Oregon Litigation to the

bankruptcy court (together, the "Adversary Proceedings"), Cerner moved for

remand. The bankruptcy court denied remand, finding that it would be more

Procedure. 6 efficient for Cerner's claims to be litigated in the bankruptcy court, which had

jurisdiction to administer Cerner's claims and exclusive control over the

debtors' assets. Cerner did not appeal the remand orders.

Defendants then moved to dismiss the Adversary Proceedings on forum

non conveniens grounds.4 They argued that Cerner's claims against Belbadi

LLC for breach of the Guarantees were wholly separate contractual claims from

its alter ego claims against Vandevco and Orland. Defendants argued that

dismissing the Adversary Proceedings would have no impact on Cerner's

ability to advance its claims against Vandevco or Orland, and would not

prejudice Cerner's rights to pursue Belbadi LLC in the UAE. If Cerner was

successful in its "outside reverse veil piercing" claim and established an alter

ego relationship between Belbadi LLC and Vandevco or Orland, argued

Defendants, Cerner's claim would be treated under the debtors' proposed plan

of reorganization.

Defendants argued that a UAE court could fairly adjudicate the contract

dispute between Cerner and Belbadi LLC and was the better forum because:

(1) the Guarantees were drafted, executed, and performed in the UAE and were

subject to UAE law; (2) the dispute related solely to events that occurred in the

UAE; (3) the parties consented to UAE jurisdiction in the event of a dispute; and

(4) the pertinent documents, parties, and witnesses—including the attorneys

who drafted and negotiated the Guarantees — were located in the UAE.

4 The dismissal motions were filed at different times and decided by the bankruptcy court one month apart. However, since the motions were decided on identical grounds, we discuss them as though they were filed and decided together. 7 Defendants noted that many of the witnesses could not be compelled to appear

in the United States, and even if they could, Arabic translators would be

necessary for testimony and for interpreting documents written in Arabic. In

addition, noted Defendants, any UAE judgment would be enforceable there

(and elsewhere if Cerner followed legal and procedural requirements), and

Belbadi LLC had assets in the UAE which Cerner could look to after it

established liability under the Guarantees.

Cerner opposed the motions to dismiss, arguing that Defendants had

failed to establish that the UAE was an adequate alternative forum, or that the

private and public interest factors weighed in favor of the UAE. Cerner argued

that the UAE was not an available forum because a UAE court could not hear

the entire case and not all of the parties were subject to UAE jurisdiction. Cerner

argued that UAE courts lacked jurisdiction over the Vandevco and Orland

estates and had no authority to enter an order attaching Belbadi LLC's assets in

Washington or Oregon. Because its action sought attachment to "take and hold

security" in Belbadi LLC's beneficial ownership interest in the Vandevco and

Orland shares, argued Cerner, suit in the UAE would deprive it of the benefit of

its bargain and result in an inadequate forum. Cerner maintained that the

parties understood that certain Belbadi LLC assets, including the Vancouver

Center, were put up as security for payment under the Guarantees.

In addition, argued Cerner, the private and public interest factors did not

weigh in favor of dismissal. Aside from Mr. Dhaheri, argued Cerner, many of

the relevant witnesses were in the United States, including the two witnesses

who negotiated the Guarantees—Mr. Greg White, Cerner's former Vice 8 President and General Manager, and Mr. Elhindi. Further, argued Cerner, no

witness testimony required translation because all of the witnesses spoke

English fluently, and essential documents for the Vancouver Center were

located in Washington. Cerner argued that the states of Washington and

Oregon had an interest in a case involving a foreign company's attempt to

evade a creditor headquartered in the U.S. through the use of sham, alter ego

Washington and Oregon corporations. More importantly, argued Cerner, part

of the dispute involved the Vancouver Center, which was one of the largest real

estate development projects in Vancouver's history. Lastly, argued Cerner,

Defendants had not shown that the bankruptcy court would have difficulty in

applying UAE law, which Cerner maintained was similar to Washington law, to

the Guarantees.

In reply, Defendants disputed Cerner's argument that the UAE was not an

available forum. According to Defendants, Belbadi LLC did not own nor has it

ever owned real property in Oregon or Washington, including the Vancouver

Center, and it was never the parties' understanding that the Vancouver Center,

or any other specific asset, was part of the security put up for payment of the

Guarantees. In justifying its position that Washington was the better forum,

argued Defendants, Cerner was conflating its collection action against

Vandevco and Orland with its liability suit against Belbadi LLC. Rather than

establishing liability against the party to its contract and then collecting

judgment, argued Defendants, Cerner was skipping steps and jumping straight

to pursuing Vandevco and Orland—Belbadi LLC's thrice-removed subsidiaries.

But this theory was flawed. Belbadi LLC was the only necessary party to 9 adjudicating liability under the Guarantees; neither Vandevco nor Orland was a

party to them, and neither had ever done business with Cerner or had anything

to do with the underlying contracts. Their only possible connection was as a

source of payment. Any direct claim Cerner had against Vandevco or Orland,

argued Defendants, was already the subject of the claim proceedings. And any

post-judgment collection efforts by Cerner, if it prevailed against Belbadi LLC

in the UAE, could be carried out in the United States using standard

domestication procedure.

The bankruptcy court issued a Memorandum Decision and Orders

granting the motions to dismiss the Adversary Proceedings on forum non

conveniens grounds. Cerner Middle East Ltd. v. Belbadi Enters., LLC (In re

Vandevco Ltd.), 632 B.R. 790 (Bankr. W.D. Wash. 2021). Dismissal was

conditioned on Belbadi LLC agreeing to submit to UAE jurisdiction and to

waive any statute of limitations or jurisdictional defenses. These timely appeals

followed.

JURISDICTION

The bankruptcy court had jurisdiction under 28 U.S.C. §§ 1334 and

157(c)(2). We have jurisdiction under 28 U.S.C. § 158.

ISSUE

Did the bankruptcy court abuse its discretion in dismissing the

Adversary Proceedings on forum non conveniens grounds?

STANDARD OF REVIEW

Our review of the bankruptcy court's dismissal of the Adversary

Proceedings on forum non conveniens grounds is highly deferential and we 10 will reverse only if there has been a clear abuse of discretion. Vivendi SA v. T-

Mobile USA Inc., 586 F.3d 689, 693-94 (9th Cir. 2009); see also Carijano v. Occidental

Petroleum Corp., 643 F.3d 1216, 1224 (9th Cir. 2011) (citing Piper Aircraft Co. v.

Reyno, 454 U.S. 235, 257 (1981)). In the context of forum non conveniens, the

bankruptcy court abuses its discretion if it relies on an erroneous view of the

law, relies on a clearly erroneous assessment of the evidence, or strikes an

unreasonable balance of relevant factors. Carijano, 643 F.3d at 1224.

DISCUSSION

A. The bankruptcy court did not abuse its discretion in dismissing the Adversary Proceedings on forum non conveniens grounds.

"A federal court has discretion to dismiss a case on the ground of forum

non conveniens when an alternative forum has jurisdiction to hear the case, and

trial in the chosen forum would establish oppressiveness and vexation to a

defendant out of all proportion to plaintiff's convenience, or the chosen forum is

inappropriate because of considerations affecting the court's own

administrative and legal problems." Sinochem Int'l Co. v. Malaysia Int'l Shipping

Corp., 549 U.S. 422, 429 (2007) (cleaned up); see also Lueck v. Sundstrand Corp., 236

F.3d 1137, 1142 (9th Cir. 2001) (a federal court may decline to exercise

jurisdiction in a case where litigation in a foreign forum would be more

convenient for the parties). Dismissal for forum non conveniens is generally

only appropriate when the more convenient forum is in a foreign country. Am.

Dredging Co. v. Miller, 510 U.S. 443, 449 n.2 (1994).

However, forum non conveniens is "an exceptional tool to be employed

sparingly, and not a doctrine that compels plaintiffs to choose the optimal 11 forum for their claim." Carijano, 643 F.3d at 1224 (cleaned up). In dismissing an

action on forum non conveniens grounds, the court must consider (1) whether

an adequate alternative forum exists, and (2) whether the balance of private and

public interest factors favors dismissal. Id.

"A defendant invoking forum non conveniens ordinarily bears a heavy

burden in opposing the plaintiff's chosen forum." Sinochem, 549 U.S. at 430.

However, "the presumption in the plaintiff's favor 'applies with less force'"

when the plaintiff is foreign, "for the assumption that the chosen forum is

appropriate is in such cases 'less reasonable.'" Id. (quoting Piper Aircraft Co., 454

U.S. at 255-56).

1. Adequate alternative forum

The first requirement for a dismissal on forum non conveniens grounds is

that an adequate alternative forum is available to the plaintiff. Lueck, 236 F.3d at

1143. Availability of an alternative forum "ordinarily exists when defendants

are amenable to service of process in the foreign forum and when the entire case

and all parties can come within the jurisdiction of that forum." Gutierrez v.

Advanced Med. Optics, Inc., 640 F.3d 1025, 1029 (9th Cir. 2011) (citing Dole Food

Co. v. Watts, 303 F.3d 1104, 1118 (9th Cir. 2002) (internal quotation marks

omitted)). An alternative forum is adequate "when it provides the plaintiff with

a sufficient remedy for his wrong." Dole Food Co., 303 F.3d at 1118. "[T]ypically, a

forum will be inadequate only where the remedy provided is so clearly

inadequate or unsatisfactory, that it is no remedy at all." Tuazon v. R.J. Reynolds

Tobacco Co., 433 F.3d 1163, 1178 (9th Cir. 2006) (citations and quotation marks

omitted). 12 First, the bankruptcy court determined that the alternative forum of the

UAE was available. It began by observing that the bankruptcy filings had

changed the landscape of the parties' dispute. Cerner's core claim asserted in

the complaints was for breach of contract to establish Belbadi LLC's liability on

the Guarantees. Vandevco and Orland were not necessary parties to that

dispute. Their only possible connection to Cerner was as a source of payment if

Cerner established that Belbadi LLC breached the Guarantees and if Cerner

established that Vandevco and Orland, as alter egos of Belbadi LLC, were liable

for Belbadi LLC's debts. Although Vandevco and Orland were not subject to

UAE jurisdiction, they were subject to the exclusive jurisdiction of the

bankruptcy court, and any direct relief Cerner was seeking against either

debtor's estate in the adversary proceedings could be awarded by the

bankruptcy court in the claim proceedings, and without the need for entry of a

judgment on the Guarantees. Therefore, although the bankruptcy court said it

was not technically "severing" Cerner's claims against Vandevco and Orland, it

observed that the parallel proceedings available to Cerner in the bankruptcy

court had the same effect. Thus, under the unique facts of the case, the court

concluded that the UAE was an available forum with jurisdiction over the

necessary parties—i.e., Cerner and Belbadi LLC—and the breach of contract

dispute.

The bankruptcy court also determined that the alternative forum of the

UAE was adequate. It found that nothing in the record supported a finding that

the UAE would completely deprive Cerner of any remedy or result in unfair

treatment. It rejected as a red herring Cerner's argument that the UAE was not 13 an available or adequate forum because UAE courts will not order attachment

of property outside the UAE. The court noted that most jurisdictions, including

the United States, will not issue attachment orders outside of their territorial

jurisdiction. In any case, noted the court, such remedies would be available if

Cerner obtains a judgment in the UAE and domesticates it within the United

States. In addition, the bankruptcy claims process provided Cerner with a

remedy if liability on the Guarantees was established.

Cerner argues that the bankruptcy court erred in determining that the

UAE was an available or adequate forum because (1) UAE courts are unable to

order specific performance to take security over Belbadi LLC's assets in the

United States, which is Cerner's third claim for relief and which it contends the

bankruptcy court ignored, and (2) not all of the claims and defendants could

come within its jurisdiction. As for Cerner's first argument, we reject it for the

same reasons as did the bankruptcy court. A UAE court's inability to order

specific performance to take security over Belbadi LLC's assets in the United

States, which may not exist anyway, does not render that forum inadequate. See

Lueck, 236 F.3d at 1143 (the foreign forum need only provide the plaintiff with

"some remedy" for the wrong at issue for the alternative forum to be adequate).

Cerner inexplicably continues to disregard that it is free to obtain a judgment

against Belbadi LLC in the UAE and exercise collection procedures there against

whatever assets are within the court's jurisdiction, or to domesticate any such

judgment in the United States and proceed accordingly. Further, Cerner's

purported "claim" of specific performance is not a standalone claim for relief; it

is an equitable remedy used to compensate a contractual party when a damages 14 award may be inadequate. See e.g., Pauma Band of Luiseno Mission Indians of

Pauma & Yuima Rsrv. v. Cal., 813 F.3d 1155, 1167 (9th Cir. 2015) ("Specific

performance is a remedy associated with breach of contract.") (citing the

Restatement (Second) of Contracts § 357; 81A C.J.S. Specific Performance § 4

(2015) ("[A] cause for specific performance ordinarily cannot lie until there has

been a breach of the contract.")).

We also reject Cerner's second argument. Forum non conveniens is a

flexible rather than an all-or-nothing doctrine. See Piper Aircraft Co., 454 U.S. at

249-50. "Depending upon the facts of the particular case, a district court may

dismiss part of a lawsuit [on the basis of forum non conveniens] while deciding

the merits of other issues." Scottish Air Int'l, Inc. v. British Caledonian Grp., PLC,

81 F.3d 1224, 1234-35 (2d Cir. 1996) (allowing the district court to retain a

contempt claim and dismiss other claims on forum non conveniens grounds);

see Su v. M/V S. Aster, 978 F.2d 462, 472 (9th Cir. 1992) (dismissal of some claims

on the merits and the remainder on forum non conveniens grounds); see also

Allarcom Pay Television, Ltd. v. Home Box Office, Inc., 210 F.3d 381 (9th Cir. 2000)

(table) (citing Scottish Air and Su and holding that the district court's decision to

dismiss part of the suit on forum non conveniens grounds and to dismiss

remaining claims on the merits was not an abuse of discretion).

Vandevco and Orland are not necessary parties to the breach of contract

dispute. Because Cerner may obtain the same relief requested in the complaints

against Vandevco and Orland through the claims process, dismissal of the

Adversary Proceedings effectively dismissed only defendant Belbadi LLC and

the breach of contract claim. The bankruptcy court had the authority to dismiss 15 defendant Belbadi LLC and the breach of contract claim, yet retain the alter ego

claims against defendants Vandevco and Orland. See Scottish Air Int'l, Inc., 81

F.3d at 1234-35; Su, 978 F.2d at 472.

Cerner cites Gutierrez and Dole Food Co. to argue that a foreign forum is

available only when the entire case and all parties can come within its

jurisdiction, and because that was not the case here, the bankruptcy court erred

in finding that the UAE forum was available. We do not view these cases as so

limiting. Gutierrez, citing Dole Food Co., held that availability of an alternative

forum "ordinarily" exists when defendants are amenable to service of process in

the foreign forum and the entire case and all parties can come within the

forum's jurisdiction. 640 F.3d at 1029 (citing Dole Food Co., 303 F.3d at 1118). We

believe the Circuit panel's use of the word "ordinarily" left intact a court's

discretion, in the proper circumstances, to retain some claims yet dismiss others

on forum non conveniens grounds. This is consistent with the flexibility the U.S.

Supreme Court has held the doctrine requires. See Van Cauwenberghe v. Biard,

486 U.S. 517, 529 (1988) ("As we previously have recognized, the district court is

accorded substantial flexibility in evaluating a forum non conveniens motion.");

Piper Aircraft Co., 454 U.S. at 249 (underscoring that the Court has "repeatedly

emphasized the need to retain flexibility").

Gutierrez and Dole Food Co. are also distinguishable. In neither case did the

Circuit panel reverse the district court for dismissing part of a lawsuit rather

than the entire case. See Gutierrez, 640 F.3d at 1029-31 (vacating district court's

proper dismissal on forum non conveniens grounds because later developments

showed that the foreign forum was not available because the Mexican court 16 declined to accept jurisdiction); Dole Food Co., 303 F.3d at 1118 (reversing

dismissal because, among other things, only one of two defendants consented to

jurisdiction in the alternative forum).

Thus, Defendants had to prove only that the UAE was an adequate

alternate forum for Belbadi LLC. They did so. Belbadi LLC is amenable to

service of process in the UAE, and the UAE has jurisdiction over Belbadi LLC

(and Cerner) and the breach of contract claim. Indeed, Cerner and Belbadi LLC

have already been litigating aspects of this dispute there. Accordingly, the

bankruptcy court did not abuse its discretion in determining that the UAE was

an adequate alternative forum.

2. The balance of private and public interest factors

Even when an adequate alternative forum exists, the court will not disturb

the plaintiff's choice of forum unless the "private interest" and the "public

interest" factors strongly favor dismissal. Tuazon, 433 F.3d at 1180 (citing Lueck,

236 F.3d at 1146). While the "private interest factors" affect the convenience of

the litigants, the "public interest factors" affect the convenience of the forum.

Piper Aircraft Co., 454 U.S. at 241. We turn now to our review of the bankruptcy

court's balancing of these factors.

a. Private interest factors

Factors relating to the private interests of the litigants include: "(1) the

residence of the parties and the witnesses; (2) the forum's convenience to the

litigants; (3) access to physical evidence and other sources of proof; (4) whether

unwilling witnesses can be compelled to testify; (5) the cost of bringing

witnesses to trial; (6) the enforceability of the judgment; and (7) all other 17 practical problems that make trial of a case easy, expeditious and inexpensive."

Boston Telecomms. Grp. v. Wood, 588 F.3d 1201, 1206-07 (9th Cir. 2009) (quoting

Lueck, 236 F.3d at 1145). The court "should look to any or all of the above factors

which are relevant to the case before it, giving appropriate weight to each. It

should consider them together in arriving at a balanced conclusion." Lueck, 236

F.3d at 1145-46 (citations omitted).

In carefully considering all seven factors, the bankruptcy court found that

each weighed in favor of the UAE forum. Cerner argues that the bankruptcy

court misapplied these factors and should have found that all of them favored

resolving the Adversary Proceedings in Washington and Oregon. Cerner

appears to be contending that even the bankruptcy court is not the proper

forum. However, Cerner did not appeal the orders denying remand. In any

event, we conclude that the bankruptcy court did not misapply any of the

private interest factors.

As for the first factor—residence of the parties and witnesses—the

bankruptcy court found that this factor weighed heavily in favor of the UAE

forum: (1) Cerner is a Cayman Island company, Belbadi LLC is a UAE

company, and both companies operate primarily or exclusively in the Middle

East; (2) the law firms used by both parties to negotiate and draft the

Guarantees are located in the Middle East, and the witnesses with personal

knowledge of negotiating and drafting the Guarantees are in the UAE, where

the negotiations occurred; and (3) Mr. Dhaheri, a key witness, is in the UAE.

While Cerner argued that many of the relevant witnesses besides Mr. Dhaheri

were in the United States, the bankruptcy court found that Cerner had not 18 shown that such witnesses, with the exception of Mr. White and Mr. Elhindi,

had any personal knowledge about the dispute between Cerner and Belbadi

LLC under the Guarantees (which neither Vandevco nor Orland was a party to)

or the underlying settlement agreement. The testimony of these purported

witnesses was, if anything, relevant to Cerner's collection action against

Vandevco and Orland.

Cerner argues that the bankruptcy court abused its discretion by

minimizing the relevance of Vandevco and Orland to the Adversary

Proceedings and the testimony of the witnesses to the claims in the complaint—

namely, that Cerner be allowed to "take and hold" Belbadi LLC's assets as

security under the Guarantees, including its beneficial ownership interest in the

Vandevco and Orland shares. We disagree. As we stated above, Vandevco and

Orland are not necessary parties to any action to determine Belbadi LLC's

liability to Cerner under the Guarantees. Further, the Vancouver Center, which

is what Cerner really wants, is not an asset of Belbadi LLC but rather of the

Vandevco estate. The only way the assets of Vandevco or Orland will become

subject to Cerner's claims is if Cerner can show that the two entities are Belbadi

LLC's alter egos. Cerner will have the opportunity to elicit testimony from the

alter ego witnesses in the claim proceedings. Of course, a successful alter ego

ruling is meaningless if Cerner fails to obtain a judgment against Belbadi LLC

for breach of the Guarantees.

Next, since the majority of the material witnesses to the Guarantees and

underlying contracts were in the UAE, the bankruptcy court found that the

UAE was the more convenient forum to litigate the dispute between Cerner and 19 Belbadi LLC. Cerner argues that the bankruptcy court abused its discretion in

deciding this second factor because it was based on its erroneous analysis of the

first factor. However, because the court's analysis of the first factor was not

erroneous, neither was its decision as to the second factor.

As with the material witnesses to the Guarantees and underlying

contracts, the bankruptcy court found that the documents pertinent to these

matters were located primarily in the UAE. Thus, it found that the third factor—

access to evidence—weighed in favor of the UAE forum. Cerner continues to

argue that many of the relevant documents are located in the United States.

However, as the bankruptcy court correctly found, the documents which Cerner

references are not relevant to Cerner and Belbadi LLC's breach of contract

dispute. Rather, they are relevant only to the alter ego issue and can be used by

Cerner in the claim proceedings.

Respecting the fourth factor—whether unwilling witnesses can be

compelled to testify—the bankruptcy court noted that Cerner has spent years

trying to establish personal jurisdiction over Belbadi LLC and Mr. Dhaheri, a

key witness, in domestic federal and state courts with little success. However,

the UAE has jurisdiction over the contractual dispute and the parties, and most

of the relevant fact witnesses are in the UAE. The court opined that it was

"extremely unlikely" to compel Mr. Dhaheri and the other witnesses to appear

or testify as was evidenced by Cerner's prior failed attempts to depose Mr.

Dhaheri or compel his appearance in the United States. On the other hand, a

UAE court could compel the appearance of these witnesses.

20 We reject Cerner's argument that the bankruptcy court's reliance on the

location of the witnesses as the UAE was an abuse of discretion because Mr.

White and Mr. Elhindi live in the United States. While these two witnesses may

be material to the contractual dispute involving iCapital, Cerner, and Belbadi

LLC, they are only two of many material witnesses potentially testifying in the

matter; most of the material witnesses live in the UAE. Cerner also argues that

the bankruptcy court was wrong to speculate that a UAE court could compel

the appearance of Mr. White and Mr. Elhindi. The bankruptcy court made no

such speculation. It observed only that a UAE court could compel the

appearance of witnesses who live in and are citizens of the UAE. Moreover,

Cerner's argument, even if true, makes little sense as to Mr. White; he is a

witness for Cerner and his appearance would not need to be compelled.

As for the fifth factor—the cost of bringing witnesses to trial—the

bankruptcy court found that, even if it could compel foreign citizens to appear

before it, the cost to bring them to Washington to testify would be prohibitive.

There was also the ongoing pandemic to consider and its impact on global

travel. Cerner argues that the cost of bringing witnesses to trial weighs heavily

in favor of the bankruptcy court because nearly all of the relevant witnesses

would be traveling within the United States. This assumes, however, that the

witnesses Cerner speaks of are relevant to the contractual dispute between

Cerner and Belbadi LLC. We have already concluded that they are not. Those

that are, with the exception of Mr. White and Mr. Elhindi, reside in the UAE.

Cerner did not address in its opposition to dismissal the sixth factor—

enforceability of the judgment. In any case, the bankruptcy court noted that if 21 Cerner obtains a judgment in the UAE, procedures exist in the United States,

including through the bankruptcy case, for seeking enforcement. Cerner argues

that the bankruptcy court failed to consider that a UAE court cannot order

specific performance or grant security under the Guarantees on assets located in

Washington or Oregon. Actually, the bankruptcy court did consider this fact

and rejected it. Further, Cerner's argument assumes that Belbadi LLC has any

assets in those states and that such assets were put up as security for payment

under the Guarantees, which is disputed. In any event, Cerner will have

enforcement options here, if necessary, assuming it gets a judgment in the UAE.

Finally, respecting the seventh factor—other practical problems that make

trial of a case easy, expeditious and inexpensive—the bankruptcy court found

that the cost for interpretive services and services needed to translate

documents from Arabic to English provided additional complications. There

was also the potential for mistakes, as the differences between the English and

Arabic versions of the Guarantees illustrated. The court found that these

additional complications, while not dispositive, weighed in favor of the UAE

forum.

Cerner argues that no practical problems such as potential issues with

interpreters and translators existed. Cerner contends that all of the witnesses

speak English fluently, as evidenced by their depositions and prior trial

testimony, and that no other documents other than the Guarantees were in

Arabic. Thus, argues Cerner, the bankruptcy court abused its discretion by

improperly invoking "additional complications" as evidence weighing in favor

of the UAE. Even if Cerner's assertions, which were not established in the 22 record, were correct, this one factor is not dispositive and would not support a

conclusion that the bankruptcy court abused its discretion in its weighing of the

Because the bankruptcy court's findings are supported by the record, we

conclude that it did not abuse its discretion when it determined that the private

interest factors favored dismissal.

b. Public interest factors

The public factors related to the interests of the forums include: "(1) the

local interest in the lawsuit; (2) the court's familiarity with the governing law;

(3) the burden on local courts and juries; (4) congestion in the court; and (5) the

costs of resolving a dispute unrelated to a particular forum." Boston Telecomms.

Grp., 588 F.3d at 1211 (quoting Tuazon, 433 F.3d at 1181).

In carefully considering these five factors, the bankruptcy court found

that three weighed in favor of litigation in the UAE and that two were neutral.

Like the private interest factors, Cerner argues that the bankruptcy court

misapplied these factors to determine that they too supported dismissal on

forum non conveniens grounds. While Cerner argues that all five factors

weighed in favor of resolving the Adversary Proceedings here rather than the

UAE, it does not directly challenge the court's findings on factors (3) and (4),

which the court found were neutral. We conclude that the bankruptcy court did

not misapply any of the public interest factors.

The first factor—local interest in the lawsuit—focuses on whether the

forum in which the lawsuit was filed has its own identifiable interest in the

litigation that can justify proceedings as opposed to how well-equipped a 23 jurisdiction is to handle a case. See Carijano, 643 F.3d at 1232. The bankruptcy

court found that, while it clearly had an interest in the assets of Vandevco and

Orland, it had no identifiable interest in the primary dispute between Cerner

and Belbadi LLC—two foreign corporations that negotiated and entered into

commercial contracts in the UAE under UAE law. Conversely, the court found

that the UAE had a strong interest in this litigation: (1) the contract was

negotiated and entered into in the UAE and is governed by UAE law;

(2) Belbadi LLC is a UAE company, and Cerner is a foreign corporation which

conducts business primarily, if not exclusively, in the Middle East and Africa;

(3) the majority of the material witnesses and evidence at the center of the

controversy are in the UAE; and (4) Cerner and Belbadi LLC consented to

jurisdiction in the UAE. Consequently, the court found that this factor weighed

in favor of litigation in the UAE.

Cerner argues that the bankruptcy court abused its discretion by focusing

solely on the connections between the Guarantees and the UAE and ignoring

the local interest of Washington and Oregon in a party's use of sham alter ego

entities to evade legitimate creditor claims. Cerner contends that its ability to

take and hold security anywhere Belbadi LLC's assets could be found in the

United States, including the Vancouver Center in Washington, was a crucial

part of the Guarantees which the bankruptcy court ignored.

First, as the bankruptcy court correctly observed, the Guarantees do not

identify any specific security, nor was a security agreement ever executed for

any of Belbadi LLC's alleged assets in Washington or Oregon, including those in

the Vandevco and Orland estates. Second, the bankruptcy court did not ignore 24 this issue as Cerner contends. Rather, it considered it and noted that the issue of

Cerner's direct access to the bankruptcy estates as a source of recovery would be

addressed and adjudicated in the claim proceedings, and if Cerner prevailed, it

would be provided relief through a confirmed plan. In the court's opinion,

however, this did not create an interest for the states of Washington or Oregon

in the breach of contract claim between Cerner and Belbadi. We agree. The

actions forming Cerner's complaints took place between foreign parties outside

of the United States and involve foreign law. We see no abuse of discretion by

the court as to this factor.

The bankruptcy court found that the second factor—the court's familiarity

with the governing law—also weighed in favor of litigation in UAE. The

Guarantees are governed by UAE law. The court acknowledged its

unfamiliarity with UAE law, and noted that reading, understanding, and

applying UAE law—which is written in Arabic—would require translators and

research platforms the court currently did not utilize. The court was also

concerned that its lack of familiarity with UAE law and the UAE's legal system

might impact its ability to effectively and efficiently adjudicate the contract

Cerner argues that the bankruptcy court abused its discretion as to this

second factor because familiarity with UAE law was a minor issue. Cerner

argues that its claim for breach of the Guarantees is straightforward, and

therefore the bankruptcy court's need for familiarity with UAE law to resolve it

would be minimal. Cerner argues, the court's notion that this case would

25 present difficult issues of UAE law requiring extensive translation or research

was specious.

That the bankruptcy court viewed UAE courts as better positioned to

adjudicate matters arising under UAE law does not constitute an abuse of

discretion. While the need to apply foreign law does not warrant dismissal in

itself, it is a factor favoring dismissal. Piper Aircraft, 454 U.S. at 260 & n.29.

Cerner has never fully explained its reluctance to litigate what it contends is a

"simple" breach of contract action in the UAE. In any event, Cerner's position is

undermined by the fact that it has prevailed in litigation there against Belbadi

LLC over some aspects of the Guarantees. Thus, not only are UAE courts

already familiar with the applicable law, at least two of them are familiar with

the parties and the facts of this case.

Finally, as to the fifth factor—the costs of resolving a dispute unrelated to

the forum—the bankruptcy court rejected Cerner's argument that this factor

was inapplicable because it pertains only to the costs associated with "unrelated

disputes," and it was Cerner's contention that the suit on the Guarantees was

not an "unrelated" dispute. The bankruptcy court had already determined that

the suit against Belbadi LLC was unrelated to the administration of Vandevco

and Orland's estate assets. Thus, it found that the costs to litigate this unrelated

matter in the bankruptcy court would be tremendous with respect to witnesses,

evidence, and court resources. Accordingly, the court found that this factor

weighed in favor of dismissal.

Cerner disputes the bankruptcy court's finding that its suit against

Belbadi LLC was unrelated to the administration of the debtors' assets within 26 the estates, when those assets are directly connected to Cerner's claims and are

the assets Cerner seeks to "take and hold" under the Guarantees. Again,

determining Belbadi LLC's liability under the Guarantees has nothing to do

with Cerner's claims against the estates of Vandevco and Orland, which will be

allowed if Cerner is successful in the alter ego matter being litigated in the claim

proceedings.

Because the bankruptcy court's findings are supported by the record, we

conclude that it did not abuse its discretion when it determined that the public

3. Final analysis on the private and public interest factors

In summary, the bankruptcy court properly considered the relevant

private and public interest factors, its findings are supported by the record, and

its balancing of these factors to conclude that they weighed in favor of dismissal

was not unreasonable.

CONCLUSION

Because the UAE provides an adequate alternative forum and based on

the balance of private and public interest factors, we conclude that the

bankruptcy court did not abuse its discretion in dismissing the Adversary

Proceedings on forum non conveniens grounds. We AFFIRM.