Iragorri v. International

• Court: Court of Appeals for the First Circuit
• Decided: January 30, 2000
• Docket: 99-1188
• Status: Published

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 99-1188



                      HAIDEE IRAGORRI, ETC.,



                      Plaintiff, Appellant,



                                v.



                  INTERNATIONAL ELEVATOR, INC.,



                       Defendant, Appellee.


APPEAL FROM THE UNITED STATES DISTRICT COURT



                    FOR THE DISTRICT OF MAINE



           [Hon. D. Brock Hornby, U.S. District Judge]


Before



                    Selya, Boudin and Lynch,

                                

                        Circuit Judges.


Anthony J. Natale, with whom Julie C. Molloy and Pepe & Hazard

LLP were on brief, for appellant.

     Catherine R. Connors, with whom Jared L. Tardy and Pierce

Atwood were on brief, for appellee.


January 28, 2000


SELYA, Circuit Judge.  After Mauricio Iragorri plummeted

down an elevator shaft to his death, his widow sued various

entities, including International Elevator, Inc. (IEI), alleging

culpable negligence.  The United States District Court for the

District of Maine dismissed the claim against IEI on forum non

conveniens grounds.  Discerning no abuse of discretion, we affirm.

I.  BACKGROUND

  A native of Colombia, Iragorri emigrated to the United

States with his wife and two young children in the early 1980s. 

The family settled in Florida, and all four became naturalized

citizens in 1989.  In the fall of 1992, the children, then

teenagers, were participating in an educational exchange program

arranged by their Florida high school, and the appellant was living

with them in Bogota.  Iragorri also was in Colombia.

                        A.  The Accident.

  The following events took place during the early morning

hours of October 3, 1992.  Shortly after 1:00 a.m., Iragorri

entered the Portada del Mar, a partially finished apartment

building in Cali, to visit his mother.  The doorman, Danilo Osorio

Garcia (Osorio), informed him that the elevators were out of order. 

Iragorri took the stairs to the fifth floor.  The record is

tenebrous concerning his condition; Osorio initially told

investigators that Iragorri was inebriated, but later testified

that he seemed fine.

  About ten minutes after Iragorri's arrival, Osorio heard

a loud noise.  Upon investigation, he claims to have found a

screwdriver holding open the elevator doors on the fifth floor.  He

then heard moans emanating from the elevator shaft and discovered

that Iragorri had plunged to the bottom, sustaining fatal injuries.

                         B.  IEI's Role.

  IEI was incorporated in Maine in 1924, as a subsidiary of

Otis Elevator (Otis).  Otis divested itself of its South American

interests in 1988, spinning off IEI in the process.  From that

point forward, IEI operated exclusively in South America (although

it retained its Maine charter).  It still distributes and services

Otis elevators.  Although IEI did not install the elevators that

serve the Portada del Mar complex, it did contract to maintain

them.

  Roughly six hours before Iragorri entered the premises,

Osorio called IEI to report that both of the building's elevators

were out of order.  An IEI employee, Gerardo Ortiz,  responded

promptly and determined that the cable on the left-hand elevator

had snapped and that the elevator itself was in the basement.  He

proceeded to the fifth floor, opened the elevator doors, and worked

on the right-hand elevator.  When he was through, he claims to have

closed the doors.  He then went to the basement to inspect the

downed left-hand elevator.  Once there, he concluded that he would

not be able to complete the repairs that day.  He showed Osorio

what was wrong with both elevators and asked Osorio to turn off the

power pending his return.  When questioned by officials, Ortiz

could not explain how a screwdriver became wedged in the elevator

doors (if, indeed, that was the case).

                       C.  The Litigation.

  Mrs. Iragorri brought a wrongful death action against a

number of defendants in the United States District Court for the

District of Connecticut.  All the defendants moved to dismiss.  The

court retained jurisdiction over the claims against Otis and United

Technologies (Otis's corporate parent), but determined that IEI

was not subject to in personam jurisdiction in Connecticut and

therefore transferred the case against it to Maine.  See 28 U.S.C.

 1404(a).  Apart from the fact that IEI had been incorporated in

Maine (and was, therefore, amenable to service there), neither

party had any significant contacts with that jurisdiction.  When

IEI moved for dismissal in the transferee court, the district judge

referred the motion to a magistrate judge, see Fed. R. Civ. P.

72(b), who recommended granting it on forum non conveniens grounds. 

Mrs. Iragorri objected.  The district court, affording de novo

review, approved the magistrate's report and recommendation.  This

appeal ensued.

II.  STANDARD OF REVIEW

  Apart from errors of law, forum non conveniens

determinations "may be reversed only when there has been a clear

abuse of discretion."  Piper Aircraft Co. v. Reyno, 454 U.S. 235,

257 (1981).  Such an abuse transpires if the nisi prius court (1)

fails to consider a material factor; (2) relies substantially on an

improper factor; or (3) assesses the appropriate factors but

clearly errs in weighing them, with the result that its assessment

falls outside the universe of plausible outcomes.  See Nowak v. Tak

How Invs., Ltd., 94 F.3d 708, 719 (1st Cir. 1996); Mercier v.

Sheraton Int'l, Inc., 935 F.2d 419, 423 (1st Cir. 1991) (Mercier

I).  In administering this test, a reviewing court must assiduously

avoid twin temptations:  it must neither substitute its judgment

for that of the district court nor strike the balance of relevant

factors anew.  See Piper, 454 U.S. at 257.

III.  DISCUSSION

  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

claim in the alternative forum.  See Mercier I, 935 F.2d at 423-24. 

Courts generally deem the first requirement satisfied if the

defendant demonstrates 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.  See Piper, 454

U.S. at 254 n.22.  The second requirement evokes a more

sophisticated balancing:  the defendant must show that the

compendium of factors relevant to the private and public interests

implicated by the case strongly favors dismissal.  See Gulf Oil

Corp. v. Gilbert, 330 U.S. 501, 508-09 (1947); Mercier I, 935 F.2d

at 423-24.

  The Supreme Court has provided substantial guidance on

the nature of the factors to be assayed in the second step of the

analysis.  Considerations relevant to the litigants' private

interests include "the relative ease of access to sources of proof;

availability of compulsory process for attendance of unwilling, and

the cost of obtaining attendance of willing, witnesses; [and the]

possibility of view of premises, if view would be appropriate to

the action."  Gilbert, 330 U.S. at 508.  Evaluating private

interests also requires the trial judge to pay heed to "all other

practical problems that make trial of a case easy, expeditious and

inexpensive."  Id.  We have no doubt that the flip side of this

coin has equal pertinence; the judge must consider those factors

that threaten to make trial more cumbersome, prolong it, or drive

up costs.  Factors relevant to the public interest include such

things as the administrative difficulties of docket congestion; the

general goal of "having localized controversies decided at home,"

and concomitantly, ease of access to the proceedings on the part of

interested citizens; the trier's relative familiarity with the

appropriate rules of decision; and the burdens of jury duty.  Id.

at 508-09.

  In all events, as to both private and public interests,

flexibility is the watchword.  See Piper, 454 U.S. at 249-50.  The

compendia provided by the Court comprise a helpful starting point,

but not every item applies in every case and, in the last analysis,

the list of factors is illustrative rather than all-inclusive. 

"[T]he ultimate inquiry is where trial will best serve the

convenience of the parties and the ends of justice."  Koster v.

(American)Lumbermens Mut. Cas. Co., 330 U.S. 518, 527 (1947).

  With this brief preface, we test the district court's

decision against the two-step framework.

                 A.  Adequate Alternative Forum.

  In considering a forum non conveniens claim, an inquiring

court should begin by determining the existence vel non of an

adequate alternative forum for the prosecution of the action.  The

court below impliedly concluded that Colombia constitutes such a

forum.  The appellant assails this conclusion on two bases.

  As an initial matter, the appellant complains that the

district court failed to afford due consideration to her family's

apprehensions anent their personal safety should they be forced to

litigate in Colombia.  In her view, the attendant dangers, as

evidenced by the State Department's advisory against unnecessary

travel (especially to Cali), make Colombia an inadequate or

unavailable alternative to the United States for the purpose of

litigating her claim.

  The district court explored this argument at some

length.  In the end, it found no particularized evidence that

travel to Colombia would imperil the Iragorris, and, relatedly,

found much evidence that they would be able to negotiate the

country more easily than ordinary American visitors.  These

factors, the court concluded, neutralized the force of the State

Department's warning.  We cannot term this judgment unreasonable.

  There are, of course, cases in which courts have

discussed the possibility that the dangers inherent in traveling to

a proposed forum might make litigation there a practical

impossibility (and, thus, no real alternative).  See, e.g.,

Rasoulzadeh v. Associated Press, 574 F. Supp. 854, 861 (S.D.N.Y.

1983), aff'd, 767 F.2d 908 (2d Cir. 1985).  But see Guidi v. Inter-

Continental Hotels Corp., No. 95 CIV. 9006 LAP, 1999 WL 228360, at

*3-4 (S.D.N.Y. Apr. 20, 1999) (limiting Rasoulzadeh to cases in

which danger implicates the plaintiff's access to the alternate

justice system).  Nevertheless, it is the trial judge who best

appreciates the case's nuances and the parties' circumstances, and

the appellant points to no case in which an appellate tribunal has

found overarching danger despite a trial court finding that the

proposed forum constituted a viable alternative.  The record

reflects no basis to make this case the first.

  In a nimble attempt to sidestep this reality, the

appellant lodges a claim of legal error:  she asseverates that

certain of the items cited by the district court as evidence that

Colombia's dangers were less inhibitory to her and her children  

e.g., their previous Colombian citizenship, their residence in

Colombia in 1991 and 1992, their family ties (the record mentions

close relatives on both sides of the family who live in Colombia),

the children's tenure as exchange students, and their conversance

with the Spanish language   were improperly factored into the

equation.  We do not agree.  A plaintiff's familiarity with the

alternative forum, her comfort level there, and her fluency in the

language used in its courts may be weighed in deciding a forum non

convenience motion.  See Royal Bed & Spring Co. v. Famossul

Industria E Comercio de Moveis Ltda., 906 F.2d 45, 52-53 (1st Cir.

1990); see also Marc O. Wolinsky, Comment, Forum Non Conveniens and

American Plaintiffs in the Federal Courts, 47 U. Chi. L. Rev. 373,

382-83 (1980) (positing that American citizenship is a factor in

favor of plaintiffs' convenience only insofar as it is a proxy for

"geography, language barriers, and unfamiliarity with foreign

systems") (cited with approval in Piper, 454 U.S. at 256 n.24). 

Although these factors more often relate to the second-stage

balancing, we believe that in light of the appellant's contention

that she and her children could not safely travel to Colombia, the

court reasonably deemed them relevant to the suitability of the

proposed alternative forum.  It follows that, on the peculiar facts

of this case, the district court did not commit an abuse of

discretion in assigning diminished weight to the State Department's

advisory.

  The second strand of the appellant's argument derives

from a footnote in which the Piper Court stated that if "the remedy

offered by the other forum is clearly unsatisfactory, the other

forum may not be an adequate alternative."  454 U.S. at 254 n.22. 

Using footnote 22 as a springboard, the appellant asserts that the

lack of an adequate remedy under Colombian law renders a Colombian

forum inconcinnous for purposes of this case.  Refined to bare

essence, this assertion boils down to a claim that the Colombian

Supreme Court occasionally has limited damages for pain and

suffering in wrongful death actions (called "moral damages" there)

to amounts that seem paltry when converted into United States

dollars.

  The lower court's weighing of the proof on this point

withstands scrutiny.  The court found no credible evidence of an

artificial ceiling on provable economic loss applicable to wrongful

death actions brought in Colombia and, relatedly, found no credible

evidence to support the appellant's suggestion that a lid of some

sort applies generally in such cases.  At worst, a plaintiff forced

to litigate a wrongful death action in Colombia rather than in an

American jurisdiction faces a downgrade in remedy, i.e., an

institutional inhospitability to generous awards for non-economic

losses.  This circumstance, in and of itself, does not impugn the

adequacy of the proposed alternative forum.  See, e.g., id. at 255

(holding that the unavailability of a cause of action for strict

liability does not render the alternate forum inadequate); Ahmed v.

Boeing Co., 720 F.2d 224, 226 (1st Cir. 1983) (stating that the

unsatisfactory remedy exception applies only "where transfer to a

foreign forum means application of a substantive law that is both

different and basically unjust").

  We need not tarry.  Here, the district court supportably

found that the Colombian courts entertain wrongful death actions,

that they grant both pecuniary and moral damages in such suits,

that the statute of limitations had not expired in Colombia, and

that IEI was amenable to service of process there.  It also found

the appellant's evidence of unfavorable changes in the law to be

weak, disputed, and ultimately unconvincing.  No more is exigible

to sustain the court's determination that an adequate alternative

forum exists.  Cf. Piper, 454 U.S. at 254 n.22 (predicting that

footnote 22 would come into play only "[i]n rare circumstances"). 

                B.  Private and Public Interests.

  Having verified the district court's implicit conclusion

that an adequate alternative forum exists, we turn to the second

stage of the inquiry.  Before reaching the merits, however, we must

address a threshold matter.

  The second-stage inquiry, as we have said, directs the

trial court to balance an array of factors relevant to both private

and public interests, and to ascertain whether that balance

justifies dismissal.  The usual formulation of the rule of

decision, adopted by the district court, focuses on the defendant's

ability to prove that the result of the balancing "strongly

favor[s]" the alternative forum.  Mercier I, 935 F.2d at 423-24. 

The appellant challenges this formulation and suggests that a trial

court should not dismiss for forum non conveniens "except upon a

clear showing of facts" that makes the plaintiff's preferred forum

inappropriate because they "establish such oppressiveness and

vexation to a defendant as to be out of all proportion to

plaintiff's convenience."  Koster, 330 U.S. at 524 (dictum).

  In our view, the lower court's decision demonstrates an

awareness of the appropriate legal standards for forum non

conveniens analysis.  The Koster Court's use of the term

"oppressiveness and vexation" neither created an independent

standard nor raised the bar for dismissal in forum non conveniens

cases.  See Alcoa S.S. Co. v. M/V Nordic Regent, 654 F.2d 147, 151-

52 (2d Cir. 1980) (en banc); Pain v. United Techs. Corp., 637 F.2d

775, 783 (D.C. Cir. 1980); cf. Lacey v. Cessna Aircraft Co., 862

F.2d 38, 42, 44 (3d Cir. 1988) (quoting Koster and then summarizing

the applicable standard as imposing a burden to show that the

aggregate of relevant factors "weigh[s] heavily on the side of

dismissal").  Lower courts often must tease a standard from a

plethora of phrases that collectively describe a legal principle,

and the court below correctly divined that, at the second stage of

the inquiry, a defendant's right to obtain a dismissal on forum non

conveniens grounds hinges on whether it can show that

considerations of convenience and judicial efficiency strongly

favor the proposed alterative forum.  After all, the "strongly

favors" language has deep roots in Supreme Court precedent, see

Gilbert, 330 U.S. at 508, and the Court's subsequent mentions of

the Koster dictum lend no support to the notion that the dictum

somehow supplanted the "strongly favors" test.  See, e.g., Norwood

v. Kirkpatrick, 349 U.S. 29, 35 (1955).  This court heretofore has

used the "strongly favors" standard as a distillation of the

"oppressiveness and vexation" language, see Mercier I, 935 F.2d at

423-24, and we continue to believe that this is the proper

perspective.

  This brings us to the balancing of the relevant private

and public interests.  We start by acknowledging the thoroughness

of the district court's canvass; it thoughtfully discussed all the

pertinent factors cited by the parties and reacted to each item. 

On a more global note, the court explained why convenience,

efficiency, and fairness all militated in favor of a trial in

Colombia.  It emphasized that the accident had occurred there and

that Ortiz and Osorio   the two principal witnesses on liability  

would play leading roles at trial.  The court remarked the need to

gauge these witnesses' credibility and stressed the salience of

demeanor evidence in that endeavor.  It then observed that neither

witness could be compelled to attend a trial in Maine and that, in

any event, both men were Spanish speakers.  In addition, the court

noted that, should the case proceed in Maine, IEI would be unable

to implead other potentially responsible parties, that it would be

impossible to conduct a view, and that unfamiliar law would supply

the substantive rules of decision.  Considering these and other

factors, the court determined that the balance of private and

public interests strongly favored recourse to a Colombian forum.

  The appellant's attack on this determination occurs on

several fronts.  First, she declares that the court gave lip

service to, but did not enforce, IEI's burden of proof.  In an

effort to document this ipse dixit, she asserts that the court

expressed some ambivalence, stating at one point that "neither

forum alternative in this case is particularly satisfactory," yet

nonetheless granted IEI's motion to dismiss.

  We do not think that this allusion undermines the

district court's ruling.  First, the quoted statement is not

necessarily at odds with the use of the correct standard.  See

infra at 16-18.  Second, since other references in the decision

make it plain that the court fully understood the operative legal

principles, even an infelicitous choice of phrase would not warrant

reversal.  See Lenn v. Portland Sch. Comm, 998 F.2d 1083, 1087-88

(1st Cir. 1993); Clauson v. Smith, 823 F.2d 660, 663 n.3 (1st Cir.

1987); United States v. Kobrosky, 711 F.2d 449, 456 (1st Cir.

1983).  The lower court's rescript makes pellucid its awareness of

the correct burden of proof, and it reached a result that was

entirely consonant with that burden.  In such circumstances, we

decline to presume that the court said one thing and did another. 

  The appellant next asserts that the district court failed

to consider the public interest that attaches to resolving a

wrongful death action brought by United States citizens in a

federal court.  Here, too, her argument borders on the

metaphysical.  The district court mentioned the tenet that a United

States court has a particular interest in an action brought by a

citizen, see Mercier I, 935 F.2d at 429-30, and proceeded to weigh

the appellant's, her children's, and her decedent's citizenship in

the balance.  The court also noted, however, that a plaintiff's

lack of relationship to the forum state may diminish the ultimate

influence of this interest.  This countervailing consideration was

properly added to the mix both as a matter of legal theory, see

Mercier v. Sheraton Int'l, Inc., 981 F.2d 1345, 1355 (1st Cir.

1992) (Mercier II), and as a matter of fact (given Maine's tenuous

relationship to the case).  Thus, the appellant's plaint, stripped

of rhetorical flourishes, is less that the district court

overlooked a factor and more that the court chose to synthesize

several related factors.  We see no abuse of discretion in the

court's handling of this aspect of the case.

  The appellant also maintains that the district court

overemphasized the importance of the testimony to be given by Ortiz

and Osorio, and impermissibly discounted the witnesses that she

planned to call (who, she said, would refuse to appear in Colombia

because of incipient danger there).  Once again, the court

explicitly addressed these concerns.  It recognized that trial in

Colombia likely would dissuade certain witnesses from appearing in

person, but found that the problems of proof would be exacerbated,

not ameliorated, by a trial in Maine (where crucial liability

witnesses whose credibility was under attack most likely would

appear, if at all, by video deposition with the assistance of a

translator).  In the court's view, the language barrier would

prevent an American jury from evaluating their credibility

effectively.  The appellant's suggested witnesses were experts,

concerned primarily with damages, and the court decided that their

testimony would be more amenable to depositions and translation

(if, indeed, local experts could not be retained).

  This is a judgment call, pure and simple, and illustrates

the wisdom of granting the district court a margin of discretion in

the area of forum non conveniens.  The trial judge is in the best

position to know the interstices of any particular case and to

evaluate both the parties' interests and the likely efficacy of the

truth-finding process.  See Gilbert, 330 U.S. at 508.  Given the

standard of review, it is not within our proper purview to disturb

a trial court's reasoned, record-rooted determination that justice

could be done more perfectly in a foreign forum than in an American

jurisdiction because of the relative ease of communicating the most

important (and the most controversial) testimony to the factfinder.

  The case law supports such a result.  For one thing, the

facts as found by the district court closely parallel the situation

in Piper, 454 U.S. at 257-58 (upholding a trial court determination

that in spite of "private interests point[ing] in both directions

. . . fewer evidentiary problems would be posed if the trial were

held in Scotland").  For another thing, we have emphasized in an

analogous context that "the live testimony of [key] witnesses for

the purposes of presenting demeanor evidence [is] essential to a

fair trial."  Howe v. Goldcorp Invs., Ltd., 946 F.2d 944, 952 (1st

Cir. 1991).  Indeed, on one occasion we approved a determination

that because a particular witness's "credibility would be pivotal

to any judicial resolution of the factual issues at the root of the

parties' dispute . . . deposition testimony and letters rogatory,

even if available to the American court, would be less than

satisfactory substitutes for in-person testimony."  Mercier II, 981

F.2d at 1356.  Finally, the Court has suggested that the

availability of expert witnesses may not be as significant as the

availability of fact witnesses.  See Gilbert, 330 U.S. at 509. 

Given these authorities, we are unprepared to hold that the

district court misused its discretion by dismissing the action in

favor of an imperfect, but nonetheless highly preferable, forum.

  As her parting shot, the appellant laments the district

court's finding that her financial position was irrelevant to its

decision.  This jeremiad misconstrues the situation.  In Mercier

II, we affirmed a finding that an alternate forum was adequate in

spite of economic impositions on the plaintiffs, noting that the

plaintiffs were not indigent and that inquiry into their financial

capability to bring suit in the proposed alternate forum did not

reveal any insuperable obstacles.  See 981 F.2d at 1353.  On

appeal, the appellant, unlike in Mercier II, raises the

impecuniousness argument not in terms of the adequacy of the

alternate forum, but, rather, in terms of the balance of

convenience.  We agree with her underlying premise:  at the second

stage of a forum non conveniens analysis, financial hardships may

be relevant.  Moreover, even if such a hardship does not make

foreign litigation impossible, it nonetheless may constitute one of

the "practical problems" that help to determine whether trial of a

case in a given venue will (or will not) be convenient.  Gilbert,

330 U.S. at 508.  That said, this avenue of inquiry proves a dead-

end for Mrs. Iragorri.

  The mere suggestion of greater financial strain is

meaningless unless and until the plaintiff demonstrates the nature

and extent of the supposed limitations upon her ability to

litigate.  Here, the appellant wholly failed to adduce any evidence

of her financial resources (or the lack thereof).  It is hornbook

law that an appellate argument cannot survive the proponent's

failure to supply a sufficient factual predicate for it.  See,

e.g., Casa Marie Hogar Geriatrico, Inc. v. Rivera Santos, 38 F.3d

615, 618 n.2 (1st Cir. 1994); United States v. Slade, 980 F.2d 27,

30 (1st Cir. 1992).  So it is here.

  We need go no further.  The appellant has advanced a

golconda of arguments in an effort to persuade us that the decision

to dismiss the case on forum non conveniens grounds represented an

abuse of discretion.  Even given the presumption in favor of the

plaintiff's choice of forum, see Nowak, 94 F.3d at 270   a

presumption that the district court acknowledged and to which it

paid obeisance   none of these arguments is convincing.  That we,

if writing on a pristine page, might have resolved the decisional

calculus differently is of no moment.  As the Supreme Court has

written, "where the [trial] court has considered all relevant

public and private interest factors, and where its balancing of

these factors is reasonable, its decision deserves substantial

deference."  Piper, 454 U.S. at 257.



Affirmed.